author: TRASK, Circuit Judge: KOELSCH, Circuit Judge

text:
    Beatrice and Douglas DASHIELL, Plaintiffs-Appellants, v. KEAUHOU-KONA COMPANY et al., Defendants-Appellees.
    No. 72-1645.
    United States Court ol Appeals, Ninth Circuit.
    Nov. 9, 1973.
    Koelsch, Circuit Judge, dissented and filed opinion.
    Helen B. Ryan (argued), Honolulu, Hawaii, for plaintiffs-appellants.
    Alexander Marrack (argued), Honolulu, Hawaii, for defendants-appellees.

      Before KOELSCH, WRIGHT and TRASK, Circuit Judges.
   TRASK, Circuit Judge:

This is an appeal from a judgment of the district court, pursuant to a special verdict by a six-member jury, that the contributory negligence of Mrs. Dashiell barred both herself and her husband from recovering for injuries received when the golf cart which Mrs. Dashiell was driving and in which Mr. Dashiell was riding, collided with a truck following a ride down an incline during which Mrs. Dashiell lost control of the cart.

On October 25, 1968, appellants Mr. and Mrs. Dashiell, residents of California, rented a golf cart from the Keauhou Golf Course on the Island of Hawaii. Only Mr. Dashiell played golf, and from the second hole on, Mrs. Dashiell drove the cart. Following the first nine holes of golf and lunch, appellants attempted to go to the tenth tee to join their friends with whom they had played the first nine holes and complete the round. However, appellants made a wrong turn. Upon realizing their mistake, they headed back toward the tenth tee along a maintenance road. As the golf cart went down an incline, Mrs. Dashiell lost control, failed to make the tenth tee turn-off, sped into a parking area and collided with a truck which was backing out of the area.

The golf cart involved was a three-wheel cart that operated by means of a T-shaped pedal in the middle of the floorboard. The cart accelerates by pressing forward on the pedal; when the foot is lifted off the pedal, the cart coasts to a stop. If braking is desired, the back portion of the pedal can be pressed down.

For trial, on the issue of liability only, the defendants were designated as the golf course defendants (consisting of the Keauhou-Kona Company, a partnership composed of Troy Post and Kamehameha Development Corporation, a Hawaiian corporation; and James Parish, the resident manager) and the golf cart defendants (consisting of the distributor, Henry Mizumoto, dba Oahu Battery Sales & Service; and the manufacturer, Viking Golf Cart Company, an Indiana corporation). The owner and the operator of the truck involved in the collision were dismissed from the suit, and no appeal has been taken from that dismissal.

The theories of liability pleaded against the golf course defendants centered around negligent construction of and directions on the cart paths; negligence in supplying a cart that was dangerous to use on steep inclines and in failing to warn of that danger; and negligence in failing to warn of the defects alleged in the braking system and steering mechanism of the cart. Against the golf cart defendants appellants alleged negligence in the instructions on operating the cart and an unsafe braking system.

The jury found in the form of a special verdict that (1) the golf course defendants were negligent, and their negligence was a proximate cause of the acci.dent; (2) the golf cart defendants were not negligent; (3) Mr. Dashiell was not contributorily negligent; (4) Mrs. Dashiell was contributorily negligent, and her negligence was a proximate cause of the accident; (5) the golf cart was not unreasonably dangerous for use on the Keauhou course at the time it was delivered; (6) nor was it unreasonably dangerous for use on the day of rental to appellants; and (7) the golf cart had a defect in the steering mechanism, which risk appellants assumed by continued use of the cart; however, the assumption of this risk was not the proximate cause of the accident.

The trial court found as a matter of law that because the Dashiells were engaged in a joint enterprise, the negligence of Mrs. Dashiell that contributed to the accident so as to bar her recovery must be imputed to her husband so as to bar his recovery.

Appellants raise several issues on this appeal which can be conveniently grouped as follows: the imputation of contributory negligence; trial by six jurors; the use by the jury in their deliberations of exhibits which had not been admitted into evidence; limited rebuttal of an expert in accident reconstruction; alleged errors in the instructions; and alleged prejudicial comment by the trial court.

The appellants argue that the facts of this case do not support a finding of a joint enterprise or venture, and that even if they did, this theory of tort law is so discredited that the Hawaiian courts would not today apply the rule of imputed contributory negligence. Appellants urge that no court in Hawaii has, in any reported decision, applied the theory of joint enterprise to impute contributory negligence; however, the discussion of the theory in at least two cases shows that all of the elements required to prove a joint enterprise in a contract case must be shown to prove a joint enterprise in a negligence ease. Further, appellants argue that if the joint enterprise issue was properly raised in this case, the issue should have been submitted to the jury.

Appellees contend that Mrs. Dashiell was acting as agent for her husband while driving the golf cart, and that the Supreme Court of Hawaii in Wong v. McCandless, 31 Haw. 750, 761-762 (1931), has at least by way of dictum adopted the imputed contributory negligence theory.

We find that on the facts of this case, at no time did the relationship of joint enterprise or joint venture exist between Mr. and Mrs. Dashiell within the meaning of imputed negligence. This is not a typical ease of a business venture of a character similar to a partnership where two or more parties undertake, for some pecuniary purpose, a contractual obligation resulting in the liability of each for the negligence of the other. Because the evidence was insufficient to allow the issue of joint enterprise to go to the jury where a husband and wife were merely enjoying a round of golf, the trial court should have ruled as a matter of law that any contributory negligence of Mrs. Dashiell could not be imputed to her husband. Cf. Burgen v. Smith, 337 F.Supp. 197 (D.Kan.1970), affirmed 454 F.2d 1175 (10th Cir. 1972); McClure v. Price, 300 F.2d 538, 546 (4th Cir. 1962).

The concept of imputed contributory negligence developed on the basis of a fictitious agency applied to defeat the recovery of an injured plaintiff by imputing the negligence of another to him, even though the plaintiff would not have been liable for that negligence had he been sued as a defendant. It had its beginnings in England where it was followed for a relatively short period of time before being overruled. *It has been severely criticized by both courts and commentators in this country. Prosser notes that

“[ejxcept for vestigial remnants which are at most moribund historical survivals, ‘imputed contributory negligence’ in its own right has now disappeared.” W. Prosser, Law of Torts § 74 at 488 (4th ed. 1971).

In Babington v. Bogdanovic, 7 Ill.App.3d 593, 288 N.E.2d 40, 43 (1972), the court states,

“ [historically, the doctrine of imputed negligence has been repudiated by most courts in this country, except in limited classes of cases, one being the ‘joint enterprise’ situation.”

The Supreme Court of Hawaii, in Wong v. McCandless, 31 Haw. 750 (1931), and in Dias v. Kamalani, 39 Haw. 474 (1952), has apparently recognized that the theory exists whereby negligence may be imputed in a joint enterprise situation in connection with the operation of an automobile. However, both eases limited the circumstances under which contributory negligence may be imputed to one engaged in a joint enterprise, and no ease has been called to our attention in which a Hawaiian court has ever applied this legal fiction to any set of facts before it.

Several reasons persuade us to reject the imputation of Mrs. DashielPs negligence to Mr. Dashiell. The Restatement of Torts (Second) § 491 at 548, comment c, states the law to be:

“The elements which are essential to a joint enterprise are commonly stated to be four: (1) an agreement, express or implied, among the members of the group; (2) a common purpose to be carried out by the group; (3) a community of pecuniary interest in that purpose, among the members; and (4) an equal right to a voice in the direction of the enterprise, which gives an equal right to control. ...”

In Dias v. Kamalani, supra, 39 Haw. at 477-479, the Supreme Court of Hawaii stated that among other considerations, a joint enterprise is “voluntarily assumed and arising wholly ex contractu,” and that the factor of joint control “is more readily inferable where the trip is for a business venture than where it is for a pleasure venture.” There is no suggestion in the present case that appellants’ activities were anything more than social, nor can there by any reasonable inference by reason of the marital relationship alone that appellants undertook any contractual obligation which should cause each to be chargeable for the negligence of the other. “. . . [T]he great weight of modern authority finds no basis for imputing the negligence of one spouse to another merely because of the marital relationship itself.” Harper & James, The Law of Torts ¶ 23.4 at 1271 (1956). See also W. Prosser, The Law of Torts, 490 (4th ed. 1971); Wright v. Standard Oil Company, Inc., 470 F.2d 1280, 1290 (5th Cir. 1972); Siam v. Cannon, 176 N.W.2d 794, 797 (Iowa 1970); Clemens v. O’Brien, 85 N.J.Super. 404, 204 A.2d 895 (1964).

The only exception is found in the law of some community property states to prevent the negligent spouse from profiting from his own wrongdoing, as a result of his community ownership of a part of the recovery by the non-negligent spouse. Tinker v. Hobbs, 80 Ariz. 166, 294 P.2d 659 (1956); Clark v. Foster, 87 Idaho 134, 391 P.2d 853, 860 (1964).

Although this exception is inapplicable in Hawaii, which has abolished community property, the record indicates that the appellant, Douglas Dashiell, was domiciled in California, a community property state. The relevancy of the community property exception is therefore dependent upon whether Hawaiian law or California law is to be applied to this issue. In resolving the question the court must look to the choice-of-law rules of the forum state. Klaxon Co. v. Stentor Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Because we are unable to find any Hawaiian decisions on point we consider the conflict of laws rules generally applied by the courts in this country. Cf. Gates v. P. F. Collier, Inc., 378 F.2d 888, 892 (9th Cir. 1967).

Recognizing that there is some disagreement among authorities, we hold that Hawaii has the more significant relationship to the issue of imputed negligence presented here. This finding is in accordance with the Restatement (Second) on Conflict of Laws, and the apparent weight of authority. Restatement (Second) on Conflict of Laws § 166, comment 6 at 501 (1969); see Wright v. Standard Oil Company, Inc., 470 F.2d 1280, 1284-1286 (5th Cir. 1972); see generally W. deFuniak & M. Vaughn, Principles of Community Property § 92 at 229-231 (2d ed. 1971).

Since Hawaiian law treats the claims of the appellants as separate property, it is unnecessary to further consider the community property exception to the doctrine of imputed negligence. Graham v. Franco, 488 S.W.2d 390, 397 (Tex.1972).

Additionally, applying the concept of imputed contributory negligence to the facts of this case would needlessly frustrate some basic policies of tort law. Mr. Dashiell was found by the jury to be blameless, and since negligence law is based on personal fault, it would be both illogical and inequitable to deny him recovery unless he were under a duty to control the actions of Mrs. Dashiell as she drove the golf cart. The record reflects no basis on which to find any duty of control. The original purpose of defining the joint enterprise relationship was vicarious liability, in order to increase the number of those liable to provide a financially responsible person to injured third parties. See Pierson v. Edstrom, 286 Minn. 164, 174 N.W.2d 712, 715 (1970). That purpose is absent when related to the Dashiells; in fact, application of the imputed contributory negligence rule would have the opposite effect of freeing from liability another party who is at fault even though the person denied recovery is blameless.

Finally, the attempted justification for imputing negligence on the basis of some supposed right of control over the actions of the driver when considered in relation to the practical consequences of having the members of a joint enterprise try to exercise this control is rather weak. It would appear to be more correct to analyze this factor from the standpoint of whether the plaintiff-passenger had a duty to control. Unless this duty were proven, one would not be barred from recovery by the negligence of the other person unless the relation between them was such that the plaintiff would be vicariously liable as a defendant to another who was injured. See Clemens v. O’Brien, 85 N.J.Super. 404, 204 A.2d 895, 900 (1964) ; J. Wein-traub, The Joint Enterprise Doctrine in Automobile Law, 16 Cornell L.Q. 320 (1931).

We reject the bar against Mr. Dash-iell’s recovery based upon imputation of Mrs. Dashiell’s negligence merely by reason of their common recreational interest or any supposed shared right of control of the golf cart.

Appellants contend that the constitution of Hawaii prevents the federal district courts from promulgating a procedure permitting six-member juries. They rely on an opinion of the Attorney General of Hawaii written in 1968 which construed the Hawaiian constitution to require a jury of twelve in civil cases. Appellants attempt to distinguish Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893, 26 L.Ed.2d 446 (1970), as applicable only to criminal cases, and Colgrove v. Battin, 413 U.S. 149, 93 S.Ct. 2448, 37 L.Ed.2d 522 (1973) (No. 71-1442), affirming, as not controlling in a federal diversity case where state substantive law is to be applied. We find no merit in appellants’ argument that a twelve-member jury is required in the United States District Court in a diversity case. In addition to the above Supreme Court authorities, two other circuits have specifically rejected this argument. Wilson v. Nooter Corp., 475 F.2d 497, 502-504 (1st Cir. 1973), cert, denied 414 U.S. 865, 94 S.Ct. 116, 38 L.Ed. 2d 85; Cooley v. Strickland Transportation Co., 459 F.2d 779 (5th Cir. 1972); see also Herron v. Southern Pacific Co., 283 U.S. 91, 51 S.Ct. 383, 75 L.Ed. 857 (1931).

Appellants allege error because of the trial court’s- decision to allow exhibits not introduced in evidence to be examined by the jury during its deliberations. The exhibits in question were a series of charts and calculations which were prepared by an accident reconstruction expert. There was both direct and cross-examination of this expert relative to the results reflected in these exhibits, and the exhibits were marked for identification and displayed to the jury. Appellants’ counsel obtained admission into evidence of the notes and calculations upon which the exhibits were based, but the exhibits themselves were not offered.

The relevant Hawaiian decision, Lyon v. Bush, 49 Haw. 116, 412 P.2d 662 (1966), held that a verdict predicated on documents not received in evidence should be set aside unless it can be shown that the jury could not have been influenced thereby. The court there did not reverse for permitting the jury to view calculations of an attorney because on the record as a whole no prejudice was shown. We find no prejudicial error in allowing the jury to view these exhibits, primarily because it does not appear on the record that any new or additional matter was introduced at that time, and the jury had already seen them and had them explained.

Appellants claim they were denied an opportunity to rebut appellees’ expert’s testimony about the braking characteristics of Viking golf carts. Appellees’ expert testified as to his general experience with Viking carts, and related that the stopping ability depends on the adjustment of the brakes. Appellants desired to have a non-expert user of the carts testify that in his opinion different carts had different braking characteristics. This opinion testimony was properly excluded by the trial judge.

Appellants contend there were several errors in the instructions as given. With respect to the errors, if any, relative to strict liability, the jury finding of no unreasonable danger in this case vitiated what error there may have been. The assumption of risk instruction had a foundation in the facts, particularly in the evidence that the Dashiells were aware of some sort of steering problem. It further appears that the trial judge did instruct that strict liability and negligence were two separate theories of liability. Any deviation from settled instructions or comment by the trial court on the evidence was not prejudicial and did not amount to directing a verdict, especially when viewed in light of the cautionary instruction given that the jury is the ultimate fact finder and that the jury need pay no attention to the comments of the trial judge.

We reverse on the issue of imputed negligence and find that the negligence of Mrs. Dashiell may not be imputed to her husband either on the basis of the marital relationship or upon the theory of a joint enterprise. The posture of the case in view of our decision is that the jury has found that the golf course defendants were negligent and their negligence was a proximate cause of the accident; and that Mr. Dashiell was not contributorily negligent. Judgment should therefore be entered in favor of Mr. Dashiell and against the golf course defendants on the issue of liability and further proceedings taken to determine damages. It is so ordered.

The judgment as the golf cart defendants is affirmed.

KOELSCH, Circuit Judge

(dissenting).

The district court determined that, under Hawaiian law, the doctrine of imputed negligence would apply in a joint venture having as its sole object the mutual pleasure of the venturers. This court disagrees on the ground that the doctrine is limited to joint ventures for pecuniary profit.

True, there is a line of authority reflected in some cases and texts cited by the majority which supports the view of the law adopted by this court, but that view is by no means universally held, nor is the underlying rationale irrefutable. To the contrary, many jurisdictions make no such distinction. They recognize the rule applied by the district court in this case; and the logic they employ is highly persuasive. Thus the fundamental concern of the courts which espouse the doctrine is not with the nature of the undertaking, but with the question whether the particular person who is prosecuting a claim, or against whom a claim is prosecuted, had a voice in the undertaking. In short, they look to see whether he shared a right to control the undertaking. Given “the essential element of joint control” [Dias v. Kamalani, 39 Haw. 474, 478 (1952)] these courts uniformly recognize that the doctrine of imputed negligence applies without regard to the nature of the venture. Dias v. Kamalani (supra); Wong v. McCandless, 31 Haw. 750 (1931); Fawcett v. Irby, 92 Idaho 48, 436 P.2d 714 (1968); Bagley v. Commercial Union Ins. Co., 216 So.2d 102 (La.App.1968); Hamilton v. Slover, 440 S.W.2d 947 (Mo.1969); Lollar v. Dewitt, 255 S.C. 452, 179 S.E.2d 607 (1971); McCormick v. Stowe Lumber Co., 356 S.W.2d 450 (Tex.Civ.App. 1962); Wentworth v. Town of Waterbury, 90 Vt. 60, 96 A. 334 (1916). Their reasoning is based upon a fundamental principle of agency, applicable to the members of such ventures and reflected in the maxim “qui facit per alium facit per se.”

This court, until now, has consistently taken the position that, in diversity cases such as this, “The district court’s considered view as to the law of the state in which it sits is entitled to great weight, and will be accepted on review unless shown to be clearly wrong.” Bigjoe v. Pioneer American Ins. Co., 446 F.2d 28, 29, 30 (9th Cir. 1971); Turnbull v. Bonkowski, 419 F.2d 104, 106 (9th Cir. 1969); Owens v. White, 380 F.2d 310, 313, 315 (9th Cir. 1967); Insurance Co. of North America v. Thompson, 381 F.2d 677, 681, 25 A.L.R.3d 1378, 1385 (9th Cir. 1967); Minnesota Mutual Life Ins. Co. v. Lawson, 377 F. 2d 525 (9th Cir. 1967); Bellon v. Heinzig, 347 F.2d 4 (9th Cir. 1965); see Propper v. Clark, 337 U.S. 472, 486, 69 S.Ct. 1333, 93 L.Ed. 1480 (1949). Being firmly convinced that the validity of the local district court’s ruling on this question of state law is, at the very least, fairly arguable, I defer to its determination and decline to join the majority in reversing the judgment for the golf course defendants.

The judgment should be affirmed in all respects.

      . Thorogood v. Bryan, 8 C.B. 115, 137 Eng. Rep. 452 (1849), overruled, The Bernina, 13 App.Cas. 1 (1888). See Clerk & Lindsell, Torts, 995 (13th ed. 1969) ; Salmond, Torts 1704-05 (15th ed.), where it is discussed under the name of “the doctrine of identification”. See also, Harper & James, The Law of Torts, H 23.2, at 1267 (1956).

      . Miller v. Union Pacific R. R. Co., 290 U.S. 227, 231-232, 54 S.Ct. 172, 78 L.Ed. 285 (1933) ; 3 Cooley, Torts, ¶ 492, at 440-45 (4th ed. 1932) ; Harper & James, The Law of Torts, supra, ¶ 23.2, at 1267-70; W. Prosser, The Law of Torts, § 74 (4th ed. 1971) ; Restatement (Second) of Torts, K 485 at 542 (1965).

      . Other recent eases reaching similar conclusions are: Babington v. Bogdanovic, 7 Ill. App.3d 593, 288 N.E.2d 40, 43 (1972) ; Stam v. Cannon, 176 N.W.2d 794 (Iowa 1970) ; Williams v. State Farm Insurance Co., 273 So.2d 680 (La.App.1973) ; Pierson v. Edstrom, 286 Minn. 164, 174 N.W.2d 712 (1970) ; Clemens v. O’Brien, 85 N.J.Super. 404, 204 A.2d 895 (1964) ; Stover v. Patrick, 459 S.W.2d 393, 398 (Mo.1970) ; Blondín v. Carr, 121 Vt. 157, 151 A,2d 121, 123 (1959) ; see W. Prosser, Law of Torts § 72 at 481 (4th ed. 1971).

      . Article I, § 10 of the constitution of Hawaii provides:
      “In suits at common law where the value of controversy shall exceed one hundred dollars, the right of trial by jury shall be preserved. The legislature may provide for a verdict by not less than three-fourths of the members of the jury.”

      . Of course the nature of the enterprise is important where the issue of control is factual, for as the Supreme Court of Hawaii pointed out in Dias v. Kamalani, supra at 478 of 39 Haw. “ . . . joint control in such cases is more readily inferable where the trip is for a business venture than wliere it is for a pleasure venture, since in the latter situation it is more difficult to raise a relationship higher than one of host and guest.” However, no such factual issue is presented here; the evidence showed plaintiffs’ right of control as a matter of law.


source: Caselaw Access Project

author: TURRENTINE, District Judge: HUFSTEDLER, Circuit Judge

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jerome G. COOK, Defendant-Appellant.
    No. 73-1324.
    United States Court of Appeals, Ninth Circuit.
    Oct. 1, 1973.

      Hufstedler, Circuit Judge, dissented and filed opinion.
    Martha Goldin (argued), Alan Saltz-man of Saltzman & Goldin, Hollywood, Cal., for defendant-appellant.
    William R. Hawes, Asst. U. S. Atty. (argued), William D. Keller, U. S. Atty., Eric A. Nobles, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.
    Before CHAMBERS and HUFSTEDLER, Circuit Judges, and TURRENTINE, District Judge.

       Honorable Howard B. Turrentine, United States District Judge, Southern District of California, sitting by designation.

   TURRENTINE, District Judge:

Cook was arraigned and pleaded not guilty along with his co-defendant, one Segal, on August 21, 1972. Representing Cook was his retained counsel, Mr. Schwartz. A trial date of October 10 was set.

On October 10, attorney Schwartz requested a continuance in order that Cook might obtain different counsel, citing “irreconcilable differences” which had arisen between attorney and client regarding primarily trial tactics and strategy. The court, citing the nearly two months which had passed since the arraignment, denied coúnsel’s request for a continuance. The court did, however, agree to permit Cook to have another counsel substituted for Mr. Schwartz with the understanding that such counsel be prepared to proceed with the trial as scheduled. This, however, was not feasible, according to Mr. Schwartz. Thus, there was no substitution of counsel effected on that date and the court maintained its refusal 'to allow a continuance to effect a substitution.

Thereafter, on the same day, co-defendant Segal, following negotiations with the prosecution, withdrew his plea of not guilty and pleaded guilty. Cook, facing the prospect of Segal’s testifying against him, then did the same. The only promise apparently made to Cook in return for his guilty plea is that the court would reduce his bail pending sentencing. Following a meticulous and thorough personal inquiry of Cook pursuant to Rule 11, F.R.Crim.P., the court accepted his plea to the one count with which he was charged. November 13 was set as the date of sentencing.

On November 13, a Mr. Russell appeared along with Mr. Schwartz on behalf of Cook, and the two requested that Mr. Schwartz be relieved as counsel and Mr. Russell be substituted. The court, being apprised by Cook that this was his desire, consented to the substitution. Mr. Russell then moved for a two week continuance in order to prepare affidavits in support of a motion to withdraw the plea of guilty. The court, understanding that Cook had previously consulted with Mr. Russell about the case, refused both the motion for a continu-anee of two weeks and the motion for withdrawal of the guilty plea.

Appellant cites as grounds for error 1) the trial court’s refusal to grant a continuance on the date of the scheduled trial for purposes of enabling defendant to substitute counsel, and 2) the trial court’s refusal on the date of sentencing to permit appellant to withdraw his plea of guilty.

With regard to the first contention, this Circuit, reiterating a well-settled rule, held in United States v. Villella, 459 F.2d 1028 (9th Cir. 1972), that the decision as to whether to grant a continuance was within the court’s discretion. There was no abuse of the court’s discretion here. The trial judge aptly noted: “It certainly comes with ill grace that the defendant will come to the court on the day of trial and indicate that he has met with some conflict of interest with his lawyer.” Shortly thereafter, the trial judge added this appropriate comment: “I take a dim view of a defendant who comes in after nearly sixty days from the time of his arraignment and then for the first time after I suppose witnesses are here in this ease and ready to go indicates that he wants to change lawyers.” We agree and find that the trial court, in denying the motion for a continuance, did not abuse its discretion.

Concerning appellant’s claim that it was error for the trial court to refuse him, prior to imposition of sentence, permission to withdraw his plea of guilty, the law is equally well-settled. Withdrawal of a guilty plea is committed to the sound discretion of the trial court. United States v. Fragoso-Gastellum, 456 F.2d 1287 (9th Cir. 1972).

It follows that abuse of the trial court’s discretion is the standard on review of the denial of a motion to withdraw a plea of guilty. United States v. Youpee, 419 F.2d 1340 (9th Cir. 1969); United States v. Akins, 420 F.2d 960 (9th Cir. 1969). To the same effect see United States v. Erlenborn, 483 F.2d 165 (9th Cir. 1973).

This, and'other Circuits have always made a paramount object of their focus on this question the thoroughness of the Rule 11, F.R.Crim.P., personal inquiry made of the defendant by the trial judge during the taking of the guilty plea. See United States v. Fragoso-Gastellum, supra; Vasquez v. United States, 279 F.2d 34 (9th Cir. 1960); United States v. Youpee, supra; and Everett v. United States, 119 U.S.App.D.C. 60, 336 F.2d 979 (1964). In the instant case the Rule 11 inquiry was most complete and penetrating.

Additionally, appellant’s substituted counsel, Mr. Russell, admitted during argument on the motion to withdraw the guilty plea, that he had been consulted by appellant “several weeks prior to the time that he entered his plea.” We are baffled by appellant’s failure to retain Mr. Russell in substitution for Mr. Schwartz at an earlier stage. Certainly Mr. Russell’s statement that he did not generally practice in the federal courts is no excuse for his formal arrival on the scene as late as the date of sentencing, expecting to successfully move for a withdrawal of the guilty plea.

Appellant’s reliance on Kadwell v. United States, 315 F.2d 667 (9th Cir. 1963) is misplaced. Though the distinction which that and other cases make between the standards for permitting withdrawal of a guilty plea after sentencing and the looser guidelines prevailing before sentence is imposed is valid as a general principle, that case on its facts underscores why the overriding guideline for the trial judge respecting such motion, whether made before or after sentencing, is his own discretion. There “appointed counsel, apparently selected from those available in the courtroom at the time of arraignment, presumably had no prior knowledge of appellant, of the charge against him, or of the legal and factual issues involved. The period of consultation and opportunity for deliberation were brief at best. Appellant was not informed by the court of either the nature of the accusation or the consequences of his plea.” 315 F.2d at 671. Appointment i of counsel and tender of the guilty plea took place during a single morning court session. The total time span from arraignment through entry of plea to sentencing was only three days in Kadwell.

In the case at bench eighty-four days, transpired in completing the same process, including the lapse of thirty-three days between the plea of guilty and the subsequent endeavor to withdraw it on the day of sentencing. Thus, the highly questionable haste and other aggravating factors present in Kadwell were in no way existent here and subvert the utility of that case as regards our facts.

This Circuit recognized in Erlenbom, supra, that defendants have been known to toy with courts by belated attempts to change their minds about having pleaded guilty. An excellent articulation of one other Circuit’s view of the federal district court’s general plight as specifically related to its dilemma when confronting a motion to withdraw a guilty plea was made in Everett v. United States, supra, by then Circuit Judge Burger:

“We are not disposed to encourage accused persons to ‘play games’ with the courts at the expense of already overburdened calendars and the rights of other accused persons awaiting trial, whose cases may lose both their position on the calendar and the Court’s timé and facilities which are thus diverted for no useful purpose.” 336 F.2d at 984.

Affirmed.

HUFSTEDLER, Circuit Judge

(dissenting) :

On August 21, 1972, Cook, represented by retained counsel entered a plea of not guilty to one count of a three-count indictment. (The other two counts pertained solely to Cook’s codefendant.) On October 10, 1972, Cook’s counsel, Arthur Schwartz, alleging that “irreconcilable differences in the method and manner in which this case should be defended” existed between him and his client, requested a continuance of the case to enable Cook to obtain new counsel. The district court denied the motion on the ground that the request was not timely. On the same day, following a hearing on a motion to dismiss the indictment and to suppress evidence, Cook withdrew the plea of not guilty and entered a plea of guilty. The case was continued to November 13,1972, for sentencing.

On November 13, 1972, Schwartz renewed his motion that he be relieved as counsel in the case. The court again denied the motion but allowed Wesley Russell to join Schwartz as counsel of record. Russell thereupon moved that the case be continued for two weeks to enable defendant Cook to submit affidavits in support of a motion to withdraw his former guilty plea. The motion to withdraw asserted that Cook had a valid defense to the charge — that at the time of the alleged offense he was working at the direction of Treasury Department narcotics officers — and that he had been unable to present this defense earlier because of the conflict and antagonism between Cook and Schwartz. The district court denied both the motion to continue and the motion to. withdraw the guilty plea. At the same hearing the court entered a judgment of conviction and sentenced Cook.

The majority correctly observes that the decision to permit withdrawal of a guilty plea is committed to the discretion of the trial judge. But the existence of this authority does not render the decision below nonreviewable, nor does it leave the district court free to disregard those general principles governing presentence withdrawal of guilty pleas which have been established. In Kadwell v. United States (9th Cir. 1963) 315 F.2d 667, 670, we held that Rule 32(d) of the Federal Rules of Criminal Procedure, concerning motions to withdraw pleas, “imposes no limitation upon the withdrawal of a guilty plea before sentence is imposed, and such leave ‘should be freely allowed.’ ” (Citation omitted; emphasis in original.) In Kercheval v. United States (1927) 274 U.S. 220, 224, 47 S.Ct. 582, 583, 71 L.Ed. 1009, the Supreme Court noted that “[t]he court in exercise of its discretion will permit one accused to substitute a plea of not guilty and have a trial if for any reason the granting of the privilege seems fair and just.” (Citations omitted.) While Kercheval involved a motion to withdraw after sentencing, it is apparent that if Cook satisfies the more stringent requirement for postsentencing motions, he should be permitted to withdraw his plea before sentencing.

To be sure, Cook presented an argument in support of the motion to withdraw his guilty plea which differs from that which justified our reversal of the district court order denying Kadwell’s motion. But Kadwell’s importance, as the majority recognizes, is its clear statement of the doctrine requiring that, absent substantial prejudice to court or prosecution, withdrawal be allowed whenever a defendant presents a plausible reason for doing so. The reason that this liberal standard has been adopted, of course, is that very serious consequences flow to a defendant from a plea, and, at that juncture, usually no prejudice to the Government adheres. This Circuit, in a number of recent eases, has reaffirmed its commitment to this basic principle. (See, e. g., United States v. Webster (9th Cir. 1972) 468 F.2d 769, 771 (“It has long been clear that leave to withdraw a guilty plea should be freely granted prior to sentencing where there is a fair and just reason for doing so . . . .”). See also United States v. Vasquez-Velasco (9th Cir. 1973) 471 F.2d 294; United States v. Youpee (9th Cir. 1969) 419 F. 2d 1340, 1343.)

Applying this principle to the case at bench, I cannot agree with the majority’s conclusion that the district court did not abuse its discretion. The alleged conflict between Cook and attorney Schwartz and the effect of that conflict on the ability of Cook to develop a defense based on his relationship with officials of the Treasury Department indicate that Cook presented a plausible reason for withdrawal of the guilty plea. (Compare Everett v. United States (1964) 119 U.S.App.D.C. 60, 336 F.2d 979, 982 (withdrawal motion based on “no reason other than wanting a trial on a charge of which [defendant] admitted his guilt”).) While it is true that Cook presented no affidavits or witnesses to support his claim at the hearing on the motion to withdraw, this failure was explained at the time of the motion as a result of the conflict with Schwartz. (The explanation, in fact, was coupled with the motion for a continuance to permit Cook’s new attorney to gather the necessary supporting documents.) Despite the absence of affidavits, the plausibility of Cook’s November 13 claim is supported by the earlier (October 10, 1972) attempt to replace Schwartz on the ground of “irreconcilable differences” between attorney and client. It is significant that the first motion to relieve Schwartz was made prior to the entry of the guilty plea. Only after the district judge refused to grant a continuance to enable Cook to obtain and to confer with new counsel did Cook enter his guilty plea. In addition, it appears from the transcript of the hearing to withdraw that the district court had a copy of a so-called “confidential report” (not made a part of the record on appeal) that indicated that Cook had been in some contact with narcotics officials prior to his arrest in August 1972. Although the district judge stated that the report was an insufficient basis for setting aside the guilty plea, we have clearly held that it is improper for the district court to attempt to evaluate the merits of defendant’s claim in passing on a presentence motion to withdraw a plea. (United States v. Webster, supra, 468 F.2d at 771; Kadwell v. United States, supra, 315 F.2d at 670 n. 12; see Gearhart v. United States, supra, 272 F.2d at 502.)

The Government, on the other hand, suffered no substantial prejudice due to reliance on defendant’s guilty plea. (Compare United States v. Vasquez-Ve-lasco, supra, and United States v. Del Valle-Rojas (9th Cir. 1972) 463 F.2d 228, 229 (Government lost principal witnesses between time defendant entered plea and time he moved to withdraw it).) While the district judge was understandably annoyed with the change in counsel and the delay in presentation of the motion to withdraw, Kadwell makes clear that the district judge may deny a motion to withdraw supported by a plausible reason only upon a showing of prejudice caused by the defendant’s vacillation, not upon a mere counting of days. Granting Cook's motion to withdraw his guilty plea 84 days after arraignment would not have resulted in undue waste of judicial resources, nor would it have undermined respect for the courts. Our concern for orderly process and our disdain for dilatory tactics must not obscure defendant’s paramount interest in receiving a full and fair hearing.

I would reverse.

      . The Kadwell court continued;
      “On the other hand, withdrawal of a guilty plea after sentence is conditioned by Rule 32(d) upon a showing of ‘manifest injustice.’ This distinction rests upon practical considerations important to the proper administration of justice. Before sentencing, the incohvenience to court and prosecution resulting from a change of plea is ordinarily slight as compiared with the public interest in protecting the right of the accused to trial by jury.” Id. (Footnote omitted.)

        Kadwell relied on Poole v. United States (1957) 102 U.S.App.D.C. 71, 250 F.2d 396, which held that leave to withdraw a guilty plea prior to sentencing should be freely allowed “ ‘as a matter of course.’ ” 250 F.2d at 400 (emphasis in original). Similar views are expressed, inter alia, in Gearhart v. United States (1959) 106 U.S.App.D.C. 270, 272 F.2d 499, 502; ABA Project on Standards for Criminal Justice, Standards Relating to Pleas of Guilty § 2.1(b) (1968) (approved draft).

      . See Dukes v. Warden (1972) 406 U.S. 250, 257-258, 92 S.Ct. 1551, 1555, 32 L.Ed.2d 45 (Stewart, J., concurring) :
      “If a defendant moves to withdraw a guilty plea before judgment and if he states a reason for doing so, I think that he need not shoulder a further burden of proving the ‘merit’ of his reason at that time. Before judgment, the courts should show solicitude for a defendant who wishes to undo a waiver of all constitutional rights that surround the right to trial— perhaps the most devastating waiver possible under our Constitution. Any requirement that a defendant prove the ‘merit’ of his reason for undoing this waiver would confuse the obvious difference between the withdrawal of a guilty plea before the government has relied on the plea to its disadvantage, and a later challenge to such a plea, on appeal or collaterally, when the judgment is final and the government clearly has relied on the plea.”


author: JONES, Circuit Judge: GODBOLD, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Herman FRANCIS, Defendant-Appellant.
    No. 72-2439.
    United States Court of Appeals, Fifth Circuit.
    Nov. 23, 1973.
    Certiorari Denied April 1, 1974.
    See 94 S.Ct. 1615.

      Godbold, Circuit Judge, specially concurred and filed opinion.
    James R. Gillespie, San Antonio, Tex. (Court-appointed), for defendant-appellant.
    William S. Sessions, U. S. Atty., Joel D. Conant, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.
    Before JONES, GOLDBOLD and INGRAHAM, Circuit Judges.

      . And carried forward into 39 U.S.C.A. § 4057 (1962).

   JONES, Circuit Judge:

Herman Francis appeals from his conviction of importing heroin into the United States in violation of 21 U.S.C.A. § 952(a).

Francis, who was in the military service, left his unit in Viet Nam on February 1, 1972 and arrived at Ton Son Nhut Air Base in Saigon, Viet Nam, to return to the United States. Appellant left Viet Nam from that air base on February 5, 1972.

On or before February 4, 1972 four air mail envelopes having approximate dimensions of 6% by 3% inches were placed in the United States Army Mail Depository at Da Nang Air Force Base in Viet Nam addressed either to the appellant or to the appellant and his wife at an address in San Antonio, Texas. Each envelope had the word “Free” typed in the upper right hand corner.

On February 4, 1972, Army Captain George Dell, the postal officer for appellant’s unit in Viet Nam, forwarded the four envelopes to the Bureau of Customs in San Francisco with an accompanying letter stating that the four envelopes were suspicious mail possibly containing contraband matter.

Each envelope felt “spongy” to the touch and masking tape wrappings around a package inside each envelope were visible through the envelopes.

The four envelopes and Captain Dell’s letter were received on February 10, 1972 by Mrs. Leonora Barnes, a United States Customs Mail Entry Aide at the Oakland, California Customs Facility. Mrs. Barnes opened the envelopes and found a powdery white substance inside of each. No written or printed matter of any kind was in any of the envelopes. After obtaining the result of a test showing that each of the envelopes contained a contraband opiate derivative, Mrs. Barnes returned the contents to the individual envelopes.

On February 18, 1972 the four envelopes and their contents were forwarded to Postal Inspector Xavier Harrison in San Antonio, Texas, who received them on February 22, 1972. On February 24, 1972 Inspector Harrison delivered the envelopes to Special Agent Willis Dean Walker of the United States Customs Service in San Antonio. Harrison and Walker then took the letters to a United States Customs laboratory.

The laboratory analysis disclosed that the substance contained in the envelopes was heroin, and, after this determination was made, a portion of the heroin, mixed with lactose, was returned to each of the four envelopes. Agent Walker made and filed with the United States Magistrate a sworn complaint stating that the envelopes containing heroin were mailed from Viet Nam to Francis or to Francis and his wife at a time when Francis was in Viet Nam. A warrant for the arrest of Francis was issued.

A postage due notice was sent to the address on the envelopes. The appellant appeared and paid the postage due on the envelopes and picked them up at a post office substation in San Antonio. The appellant took the envelopes to his car and placed them on the front seat beside him. He was then arrested by Agent Walker who again took possession of the four envelopes and their contents.

The indictment charged that “Francis knowingly and intentionally imported and caused to be imported approximately eight and one-half (8%) grams of heroin, (a Schedule I narcotic drug), into the United States from South Vietnam, in violation of Title 21, United States Code, Section 952(a).” The statute provides:

“It shall be unlawful to import into the customs territory of the United States from any place outside thereof (but within the United States), or to import into the United States from any place outside thereof, any controlled substance in schedule I [including heroin]. ... of subchap-ter I of this chapter, except . . . ” 21 U.S.C.A. § 952(a).

Francis filed a timely motion to suppress the four envelopes and their contents. The motion was overruled. At the trial the envelopes and their contents were offered in evidence and, over Francis’ objection, were received in evidence along with testimony as to the nature of the matter enclosed in the envelopes. The primary basis for the appellant’s contention is the claim that the mailed material was First Class mail and as such was free from search in the absence of a warrant. By statute it is provided that “[o]nly an employee opening dead mail by authority of the Postmaster General, or a person holding a search warrant authorized by law may open any letter or parcel of the first class which is in the custody of the [Postal]. Department.” 39 U.S.C.A. § 4057. It is further provided that “[f]irst class mail consists of mailable (1) postal cards, (2) post cards, (3) matter wholly or partially in writing or typewriting, except as provided in sections 4365, 4453, and 4555 of this title, and (4) matter closed against postal inspection.” 39 U.S.C.A. § 4251(a).

The four envelopes sent from Viet Nam were obviously not postal cards or post cards; they were not in fact nor in appearance matter wholly or partially in writing or typewriting; they were not within the provisions of Sections 4365, 4353 or 4355. The four envelopes were not matter closed against postal inspection as appears from the following pertinent Postal Regulation:

“All mail originating outside the customs territory of the United States is subject to customs examination, except (a) mail addressed to Ambassadors and Ministers (Chiefs of Diplomatic Missions)- of foreign countries, (b) letter mail known or believed to contain only correspondence or documents addressed to diplomatic missions or the officers thereof, or international organizations designated by the President as public international organizations pursuant to the International Organizations Immunities Act, and other mail addressed to such international organizations pursuant to instructions issued by the Department of the Treasury, and (c) mail known or believed to contain only official documents addressed to officials of the U. S. Government.” 39 C.F.R. § 61.1.

No gloss upon the provisions hereinbe-fore quoted is required to show that the mailed matter of this case is not entitled to any First Class mail exemption from search and seizure.

It is urged most persuasively by the Government that the right to search matter coming into from without the United States exists even though the search is of First Class mail. The statute provides:

“Any of the officers or persons authorized to board or search vessels may stop, search, and examine, as well without as within their respective districts, any vehicle, beast, or person, on which or whom he or they shall suspect there is merchandise which is subject to duty, or shall have been introduced into the United States in any manner contrary to law, whether by the person in possession or charge, or by, in, or upon such vehicle or beast, or otherwise, and to search any trunk or envelope, wherever found, in which he may have a reasonable cause to suspect there is merchandise which was imported contrary to law; and if any such officer or other person so authorized shall find any merchandise on or about any such vehicle, beast, or person, or in any such trunk or envelope, which he shall have reasonable cause to believe is subject to duty, or to have been unlawfully introduced into the United States, whether by the person in possession or charge, or by, in, or upon such vehicle, beast, or otherwise, he shall seize and secure the same for trial.” 19 U.S.C.A. § 482.

The Government contends that the statutory provision that a customs officer may search any envelope, wherever found, where he has reasonable cause to suspect that there is merchandise which has been imported contrary to law, is applicable here. The temptation to make a determination of this question will be resisted and the decision will rest on the conclusion that the mailing was not of First Class matter.

Francis claims error was committed by the court in the introduction of the paper wrapping of the heroin and of the testimony identifying the fingerprints on such papers as those of the appellant. The objections to this evidence, as raised in this Court, go to the weight and not to the admissibility of the evidence. The question was one for the jury and was submitted to it. There was no error in the admission of the challenged evidence.

The appellant • urges that the complaint on which the arrest warrant was issued was insufficient and therefore, appellant says, his. arrest and the seizure of the envelopes as an incident of the arrest were invalid. It seems probable that the complaint is such that it can withstand the attack made upon it but we need not so decide to hold valid the arrest and the seizure incident to the arrest. The arresting officer knew that the envelopes contained heroin, that they were claimed by and taken into the possession of Francis and were in his possession. Under such circumstances the arrest would have been valid without a warrant and the question of the sufficiency of the complaint becomes immaterial. United States v. Wilson, 5th Cir. 1971, 451 F.2d 209, cert, denied sub nom. Fairman v. United States, 405 U.S. 1032, 92 S.Ct. 1298, 31 L.Ed.2d 490.

. [5, 6] Francis would have this Court reverse the judgment of conviction on the ground of insufficiency of the evidence. He made a motion for a directed verdict of acquittal at the close of the Government’s case in chief, which was followed by defense evidence and Government rebuttal, but made no like motion at the close of all of the evidence. No plain error is shown and no miscarriage of justice would result from an af-firmance. The evidence was adequate. The contention is without merit. United States v. Owens, 5th Cir. 1971, 453 F.2d 355.

Before imposing a sentence of five years imprisonment and a three year special parole term, the judge had before him a presentence report of a probation officer. The report contained the results of a polygraph test made in the absence- of and without notice to Government counsel, and without a showing of the identity or qualifications of the person making the test. The judge announced that no consideration would be given to the polygraph test. This is assigned as error. It may be that there are situations where failure to consider a polygraph test would be error but this is not one of them.

The decision of this Court in the recently decided case of United States v. Phillips, 5th Cir. 1973, 478 F.2d 743, is not in point on any of the issues in this cause.

Since no error is shown, the judgment of the district court is

Affirmed.

GODBOLD, Circuit Judge

(specially concurring):

I concur in the result but for reasons slightly different from those of Judge Jones’ opinion for the majority. He concludes that the four envelopes were not first class matter and thus not entitled to the protection extended by the fourth amendment to first class mailings. “[T]he'privacy of a sealed item bearing the proper amount of postage for a first class item is protected from warrantless opening, not because it is given the appellation ‘first class’ but because the Constitution commands that result.” United States v. Phillips, 478 F.2d 743 (CA5, 1973). I am unable to find either statute or regulation establishing a classification for mail sent postage free to the United States from a point outside the United States by a member of the armed services. Thus it seems to me necessary to look beyond the matter of appellations and examine the nature and characteristics of the particular items to determine whether with respect to them the sender enjoyed a sufficient expectation of privacy that the fourth amendment would protect against their being opened without a search warrant. I think these items did not enjoy such a zone of privacy. The right of a person to send mail free of postage from Viet Nam to the United States is limited to “personal letter mail, including post cards, in the usual and generally accepted form, and sound-recorded communications having the character of personal correspondence.” 39 CFR 131.52. The mail must bear in the upper right corner (in the usual place for a stamp) in the handwriting of the sender,- the word “Free.” Id. These four items did not appear to be “personal letter mail ... in the usual and generally accepted form.” They were bulky and spongy and masking tape could be seen within around a bulky enclosure. The word “Free” had been typed in rather than written in the hand of the sender. The items were forwarded to California from a postal officer in Viet Nam who noted their suspicious character and the possibility that they might contain contraband. Because of drug traffic from Southeast Asia the • California, facility was receiving daily a number of items flagged as suspicious and with the suggestion they be examined for contraband and, in fact, contraband was being discovered by such examinations.

Under the circumstances of this case the postal facility could examine the four envelopes without a warrant.

      . As the District Judge noted in hearing on a motion to suppress, the handwriting requirement is reasonably related to identifying the person availing himself of the postage-free privilege, should that be necessary. 39 CFR 131.52 also requires that the sender’s name, service number, grade and complete military address appear in the upper left corner of the envelope, but this need not be in the handwriting of the sender.


author: McWILLIAMS, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Antonio Sanchez MARTINEZ, Defendant-Appellant.
    No. 73-1506.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Oct. 15, 1973.
    Decided Nov. 15, 1973.
    Rehearing Denied Dec. 18,1973.

      Harris L Hartz, Asst. U. S. Atty. (Victor R. Ortega, U. S. Atty., on the brief), for plaintiff-appellee.
    Jack L. Love, Federal Public Defender, for defendant-appellant.
    Before LEWIS, JONES and McWILLIAMS, Circuit Judges.

       Honorable Warren L. Jones, Senior Circuit Judge, United States Court of Appeals for the Fifth Circuit, sitting by designation.

   McWILLIAMS, Circuit Judge.

Melvin Sedillo, his wife, Bertha, and Antonio Sanchez Martinez, the present appellant, were jointly charged in a two count indictment with the unlawful possession and distribution of heroin. Specifically, in the first count the three were charged with the unlawful possession of heroin with an intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. In the second count, the three were jointly charged with the unlawful distribution of heroin, again in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

Prior to trial, Melvin Sedillo pleaded guilty to both counts in the indictment and thereafter he testified as a defense witness in the trial of the remaining defendants, namely, Bertha Sedillo and Antonio Sanchez Martinez. Upon trial to a jury, Bertha Sedillo was found not guilty of counts one and two, but was adjudged guilty of the lesser included offense of possession of heroin. She does not appeal. Martinez was found guilty on both counts of the indictment, and he is the sole appellant in the present proceeding.

The principal point urged on appeal relates to the order of the trial court denying the request of Martinez that the identity of the Government’s informer be disclosed. Under the circumstances of this case, we conclude that such denial was error. To demonstrate that such is the case, the Government’s evidence will first be briefly summarized.

The Government called three witnesses, with only one of the three offering testimony which directly tied Martinez into the transaction which formed the basis for the entire prosecution. Michael Salazar, an undercover narcotics agent for the New Mexico State Police, assigned to the Drug Abuse Law Enforcement program in Albuquerque, New Mexico, testified that he, accompanied by an informant, proceeded to the home of Melvin Sedillo, in Albuquerque, where the informant introduced him to Melvin Se-dillo. According to Salazar, he and the informant were taken to the kitchen in the Sedillo home, where Salazar in turn was introduced by Melvin Sedillo to the latter’s wife, Bertha, and to Martinez. It was in the kitchen of the Sedillo home, according to Salazar, that he purchased heroin from Melvin Sedillo, the sale taking place in the presence of the informant, Bertha Sedillo, and Martinez. It was Salazar’s testimony as to what transpired in the kitchen which tended to implicate Martinez in the transaction and upon which the Government necessarily relies in its efforts to show that Martinez aided and abetted Melvin Sedillo in his sale of heroin to Salazar.

The other two Government witnesses were members of the Albuquerque, New Mexico, city police force, each of whom testified that in a separate automobile they followed Salazar and the informant to the Sedillo home, saw the two of them enter the Sedillo home, and leave therefrom about one-half hour later. Neither of these witnesses could testify as to what transpired in the Sedillo household, although one of these witnesses did testify that he had seen Martinez leave the Sedillo home and return thereto a short time later. There was a stipulation that the substance sold Salazar by Melvin Sedillo was heroin, and the foregoing constituted the Government’s case. Incidentally, none of the defendants was arrested at the scene of the alleged crime, and the arrests occurred sometime later.

By way of defense evidence, Melvin Sedillo testified that it was he and he alone who sold the heroin to Salazar, and that his wife and Martinez had nothing to do with the sale. Specifically, he testified that his wife was not in the kitchen when the sale was consummated, but was in the living room. As concerns Martinez, Melvin Sedillo testified that Martinez was at his home on the day of the sale, but that at the time of the sale Martinez had left the Sedillo home to purchase some beer. Martinez testified in his-own behalf and, though conceding that he was quite possibly in the Sedillo household on the day in question, denied involvement in anywise in the sale of heroin to Agent Salazar.

Before trial, and again during trial, counsel for Martinez requested the trial court to direct Government counsel to disclose the identity of its informant. This request the trial court denied on both occasions, with the comment that after “balancing the protection of the public and the needs of the defendant,” the former outweighed the latter. As indicated, we believe this was error and that the trial court’s ruling under the circumstances of this case constituted an abuse of his discretion.

Before examining the authorities, we would first emphasize the significant facts that in our view control the resolution of this controversy. First, the informer was present at the very time and place where the crime, according to Salazar, occurred. The informer was thus an eyewitness and an earwitness to what transpired. This takes on additional importance in view of the fact that the agent Salazar’s testimony was in direct conflict with that of Martinez and Melvin Sedillo, and the jury’s verdict necessarily hinged on whether the jurors believed Agent Salazar or Sedillo and Martinez.

Secondly, the informer was in a sense a “participant” in the transaction in that it was he who introduced the agent Salazar to Melvin Sedillo, and then, after introducing the two, stood by and watched the criminal transaction unfold before his yery eyes and ears. Let us now examine the authorities which bear upon the necessity for the Government’s disclosure of the identity of an informer under such circumstances.

Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), is virtually on all fours with the instant case and in our view is dispositive of the present controversy. In that case, the Supreme Court held that there is no fixed rule with respect to the disclosure by the Government of the identity of its informer and that the “problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense, [and that] [wjhether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case.” In Roviaro, as here, the informer helped set up the commission of the crime and was present at its occurrence. Also, in Rovi-aro, as here, there was nothing in the record to indicate that the defendant himself knew the informer, or that the informer as of trial time was deceased or otherwise unavailable. ' Under such circumstances, the Supreme Court held that it was prejudicial error on the part of the trial court in permitting the Government “to withhold the identity of its undercover employee in the face of repeated demands by the accused for his disclosure.”

Our own Tenth Circuit decisions subsequent to Roviaro indicate that under certain circumstances the Government must disclose the identity of its informer. For example, in Garcia v. United States, 373 F.2d 806 (10th Cir. 1967), appears the following:

“It seems to be settled that the government may be required to disclose the identity of an informer if his testimony might be relevant to the defense and it is made to appear on balance that justice would be best served by the disclosure. When the question of disclosure arose in the trial of this case, the court excused the jury and conducted sufficient inquiry to make sure that the undisclosed person had not introduced the officer to Garcia, was not present when these offenses were committed and had nothing whatsoever to do with them. On the authority of Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, Judge Bratton ruled that even if the undisclosed person be an informer, there was no reasonable likelihood that his testimony would be relevant or helpful to the defense. * * * ”

The clear import of Garcia is that when, as here, the informer introduced the undercover agent to the accused’s co-defendant and was present when the sale was consummated, then the testimony of the informer is relevant and the “balancing” test in such circumstances dictates a disclosure of the identity of the Government’s informer. See, also, such cases as United States v. Herrera, 455 F.2d 157 (5th Cir. 1972), and United States v. Abarca-Espinoza, 440 F.2d 1354 (9th Cir. 1971).

In denying the request for disclosure of the identity of the Government’s informer, the trial court relied on United States v. Kelley, 449 F.2d 329 (9th Cir. 1971). It is quite true that in Kelley it was held not to be error to deny the defendant’s request for disclosure. However, it was there noted that the testimony of the undisclosed informer would in all probability have been irrelevant, since the “informant neither witnessed the crime nor transacted business with the defendant.” In the instant case, however, unlike Kelley, the informer did witness the. crime and participated, to some degree, in the transaction on which the prosecution is based and accordingly his testimony would in all probability have been highly relevant.

Though our resolution of the foregoing matter necessitates remand for further proceedings, we shall nonetheless comment here on the other matters urged by Martinez in this court as error. Prior to trial, Martinez sought a civil commitment as a drug addict with the criminal charge to be then held in abeyance as provided for in 28 U.S.C. § 2901 et seq. The trial court denied this request and this ruling is assigned as error. In thus ruling, the trial court initially indicated some doubt as to whether Martinez was “eligible” to seek such commitment under the provisions of that statute, he being charged with the “distribution” of heroin and the statute declaring that One charged with “selling” heroin is “ineligible.” However, the trial court quite clearly indicated that even assuming Martinez to be eligible, the trial court, in exercising the discretion reposed in it by the statute, chose to reject Martinez’ request for civil commitment, as opposed to criminal prosecution. Such determination is by the statute itself not reviewable by us. 28 U.S.C. § 2906. See, United States v. Aldrete, 414 F.2d 238 (5th Cir. 1969). The trial court in the instant case did exercise its discretion, and hence Watson v. United States, 141 U.S.App.D.C. 335, 439 F.2d 442 (1970), and United States v. Williams, 407 F.2d 940 (4th Cir. 1969), are inapposite. There is no error in this regard.

At trial, Martinez testified that though he was a drug addict, he did not distribute or sell drugs nor had he aided or abetted in any distribution or sale of heroin to Agent Salazar. To corroborate his testimony concerning his addiction to drugs, Martinez sought to offer evidence concerning his military record and his service connected disability leading up to his drug addiction. The trial court on objection refused to allow such evidence to be presented to the jury. That Martinez was an addict was in nowise disputed. In so ruling, the trial court in our view did not commit reversible error. The materiality and relevance of proffered evidence resides in the sound discretion of the trial court, and an appellant court is bound to uphold the decision of the trial court absent a clear abuse of discretion. United States v. Twilligear, 460 F.2d 79 (10th Cir. 1972).

Finally, complaint is made about the prosecuting attorney’s closing argument wherein, according to counsel, the Government’s attorney, in effect, purported to “put his personal stamp of approval on the investigation and in effect vouched for the veracity of the agent.” Such is improper, according to counsel, citing Wharton’s Criminal Law and Procedure, Vol. 5, pp. 243-245, § 2084, and such cases as United States v. Haley, 452 F.2d 398 (8th Cir. 1971), cert, denied, 405 U.S. 977, 92 S.Ct. 1205, 31 L.Ed.2d 253, and United States v. Smith, 441 F.2d 539 (9th Cir. 1971). Our examination of the statements made by the prosecuting attorney in his closing argument leads us to conclude that no reversible error was committed. The statements complained of are not as strong as counsel suggests. However, we caution prosecuting attorneys that in their closing argument they should not, in an effort to bolster the credibility of a Government witness, place their own integrity, directly or indirectly, on the scales. Such is improper, and in the proper case may well result in a reversal which could have been easily avoided.

Though the trial court erred in refusing to require the Government to identify its informer, it does not necessarily follow that Martinez is entitled to a new trial. Under the provisions of 28 U.S.C. § 2106 we choose to vacate the judgment and sentence and remand the case to the trial court for further proceedings consonant. with the views herein expressed. Accordingly, the judgment and sentence is hereby vacated and the cause is remanded with directions that the trial court require the Government to identify its informer. Should the Government determine that it is more important to preserve the anonymity of its informant than to prosecute Martinez, then such anonymity may be preserved, and the case against Martinez should be dismissed. If, however, the Government identifies its informant, then such informant should be the subject of further proceedings before the trial court wherein the informer’s knowledge of the facts and circumstances surrounding the alleged crime shall be fully developed by court and counsel. If it be determined that the informer’s testimony would be favorable to Martinez, then the trial court shall grant Martinez a new trial. Otherwise, the trial court shall forthwith reinstate the judgment and sentence heretofore entered.

ON PETITION FOR REHEARING

The Government in its petition for rehearing asks that the hearing on remand before the trial court wherein inquiry is to be made to determine whether the informant’s version of what transpired in the home of Melvin Sedillo is favorable to Martinez, be, in the first instance, an in camera proceeding. We agree, and it is so ordered. With our original opinion being thus modified, the petition for rehearing is denied.


author: ROSENN, Circuit Judge.

text:
    UNITED STATES of America v. Carl A. BENSON, Appellant, et al.
    No. 73-1376.
    United States Court of Appeals, Third Circuit.
    Argued Sept. 11, 1973.
    Decided Nov. 26, 1973.
    As Amended Dec. 7, 1973.

      Edward B. Servov, McKeesport, Pa., John P. Flaherty, Jr., Pittsburgh, Pa., for appellants.
    Kathleen Kelly Curtin, Asst. U. S. Atty., Pittsburgh, Pa., Richard L. Thornburgh, U. S. Atty., Charles F. Scarlata, Asst. U. S. Atty., for appellee.
    Before McLAUGHLIN, VAN DUSEN and ROSENN, Circuit Judges.
   OPINION OF THE COURT

ROSENN, Circuit Judge.

This appeal involves a conviction for a violation of the criminal anti-fraud provisions of the federal Securities Act of 1933 growing out of intrastate offerings and sales of securities. Appellant, Carl Benson, appeals from a conviction and sentence of the district court for the Western District of Pennsylvania for a violation of Section 17(a) of the 1933 Securities Act, 15 U.S.C. § 77q(a). United States v. Benson, Opinion of March 13, 1973 (Crim. No. 68-202, W.D. Pa.).

Benson was president and principal stockholder of C. A. Benson & Co., Inc., a Pennsylvania corporation registered with the U.S. Securities and Exchange Commission (SEC) as a broker-dealer in securities. He and six salesmen of his company were indicted and tried to a jury on 33 counts for violation of Section 17(a) of the 1933 Act by wilfully perpetrating a scheme to defraud in the offer and sale of securities by use of the mails. They were also charged and tried for 23 counts of mail fraud and one count of conspiracy. After a trial of approximately eight weeks, the salesmen were acquitted on all counts; Benson was acquitted on all counts except one count of fraud in the sale of securities. After sentencing, this appeal followed.

The charges against Benson stem from the efforts of Benson & Co., Inc., as underwriter and broker-dealer for the Home Makers Savings Corporation (HMS). HMS was incorporated in Pennsylvania in 1961 to sell and distribute household appliances. By 1962, however, the corporation became concerned solely with the merchandising of natural vitamin products. In mid-year it undertook the marketing of “Mr. Enzyme,” purported to be a food supplement to aid the human digestive process. Beginning in January 1963 the marketing of “Mr. Enzyme” became the sole business of HMS. Norwich Pharmaceutical Company became the sole distributor of the product; Strong-Cobb-Arner, Inc., its sole supplier.

Benson & Co., Inc., served as underwriter for two intrastate offerings of HMS stock. The first offering was made in January 1962 and consisted of 35,000 shares at $3.00 per share; the second was made in September 1962 and consisted of 20,000 shares at $5.00 per share. As a result, Benson & Co., Inc., raised $205,000 on behalf of HMS.- Of that sum, $157,440.94 was received by HMS; the remainder was paid to Benson & Co., Inc.

Since 1962, Benson had maintainéd close ties to the-HMS corporation. In that year he was elected to the board of directors. Commencing June 20, 1962, he additionally served as the company’s vice-president and president and later was retained as a paid financial consultant.

From its inception, HMS never operated at a profit. In its effort to develop a market for “Mr. Enzyme,” HMS spent in excess of $75,000 for advertising during the first quarter of 1963. During the same period, its net sales were $73,760.68. As of April 30, 1963, total liabilities of the company exceeded total assets, a condition which became aggravated with the passage of time. As of May 31, 1963, the corporation had an accumulated operating deficit in excess of $200,000.

In mid-1963 the difficulties of HMS were exacerbated by proceedings, instituted by both the federal government and the state of Pennsylvania, to check what was alleged to be misbranding and false and misleading advertising of the “Mr. Enzyme” product. On May 18, 1963, the state of Pennsylvania embargoed approximately 38 cases of “Mr. Enzyme.” On May 27, 1963, the United States District Court for the Western District of Pennsylvania, pursuant to the federal Food and Drug Acts, ordered the seizure of 78 cases of the product. Seven days later the U.S. Marshal, accompanied by officials of the Food and Drug Administration, executed the seizure.

Immediately following the seizure, the manufacturer of “Mr. Enzyme” informed HMS that it would not make any further shipments of its product and that it was discontinuing all production. All advertising of the product ceased. On June 17 Norwich notified HMS that it would not continue further distribution. Norwich was replaced by the B. W. Mansfield Corporation, a small distributor with outlets only in California.

The financial condition of HMS continued to deteriorate. It was able neither to meet its liabilities nor to secure further bank loans. Its net sales for the last seven months of 1963 amounted to slightly in excess of $6,000. By the end of the same year, its accumulated deficit amounted to $227,531.80. Its net sales for the year 1964 amounted to approximately $8,000. In May 1964 HMS vacated its offices and the landlord seized its furniture and fixtures to secure back payment of rent. By June 1964 the company had no full time employees.

Benson was indicted on October 7, 1968. Count 1 of the indictment, upon which he was convicted, charged that he:

unlawfully, wilfully and knowingly, in the offer and sale of securities, to wit, common stock of Home Makers Savings Corporation (hereinafter referred to as Home Makers), by the use of means and instruments of transportation and communication in interstate commerce and by use of the mails, . . . did (a) employ a device, scheme and artifice to defraud; (b) obtain money and property by means of untrue statements of material facts and omissions to state material facts necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; and (c) engage in transactions, practices and a course of business which would and did operate as a fraud and deceit upon purchasers of said securities ....

The Government produced evidence which, if believed, showed that on various occasions in 1963 and early 1964 Benson qalled John Gillen, the alleged victim in Count 1, about the activities and prospects of HMS, and suggested that Gillen purchase HMS stock; that Gillen, although aware that the company was not making money at the time he purchased the HMS stock, was not advised that it had a deficit or that it could not meet its bills as they came due. Gillen’s purchases were made on November 12, 1963, December 6, 1963, and February 25, 1964. There was also evidence, if believed, that Gillen was not informed of the FDA action against “Mr. Enzyme” and that not until after his last purchase did he learn that the product was under state and federal investigation; that it was not until late 1964 or early 1965, when he approached Benson to sell the stock, that Gillen first learned of the governmental embargoes of “Mr. Enzyme” and that “there was no market” in the stock. Gillen’s testimony indicated that he made no independent investigation of the stock but relied upon Benson in making the purchases.

On this appeal, Benson alleges a number of trial errors, including:

1. Prejudicial remarks of the prosecutor in his summation to the jury;

2. Cross-examination of Benson as to determinations of administrative agencies not resulting in criminal conviction ;

3. The introduction of expert testimony as to custom and usage in the securities industry; and

4. Violation of his rights to a speedy trial and to due process of law.

Benson also complains that the evidence was insufficient to sustain the verdict and that the verdict was inconsistent and conjectural. After a careful review of the record and briefs, we affirm.

I. THE PROSECUTION SUMMATION

In his peroration to the jury, the prosecutor stated:

There is a quotation, I believe, of Oliver Wendell Holmes, that says the Government wins every case in which justice is done, and that is what I am standing here asking you for, to do justice, but I know, that to do justice, you must return a guilty verdict. [Emphasis supplied.]

Relying on our decision in United States v. Schartner, 426 F.2d 470 (3d Cir. 1970), Benson argues that this statement was reversible error because the remark was not based upon the evidence in the case but “rather directed the jury to rely on the prosecutor’s personal knowledge in these affairs.” He also contends that the tenor of the prosecutor’s remarks implied that the jury would be derelict in the performance of its duty if it did not return a verdict of guilty.

Under the test laid down by this court in Schartner, the question is whether the remark can be fairly construed to refer to the prosecutor’s personal belief based on the evidence or to his opinion formed from facts not in evidence. The statement we held to be reversible error in Schartner referred, when fairly construed, to the Government attorney’s general prosecutorial experience and his “sincerity,” neither of which was part of the evidence in that case. In this case, the prosecutor’s remark was made at the conclusion of his summation after a detailed review of the evidence. Omitted, though fairly implied under these circumstances, were the words “on the evidence.” So construed, the prosecutor’s remarks referred not to his opinion from facts not in evidence but to his personal belief of evidence in the record.

As we only recently indicated, United States v. LeFevre, 483 F.2d 477 (3d Cir. 1973), even if based on the evidence, statements by counsel of their personal conviction of the merits of their client’s cause should always be avoided. We have expressed our disapproval of such remarks by adopting Standard 5.8 (b) of the American Bar Association Standards Relating to the Prosecution Function. We reiterate the position expressed in the ABA Standard and in LeFevre.

We have indicated, however, that if based on the evidence, prosecutorial comments on the guilt of the accused are not reversible error per se. United States v. LeFevre, supra. We recognize that:

Trials are rarely, if ever, perfect and improprieties of argument by counsel to the jury do not call for a new trial unless they are so gross as probably to prejudice the defendant and the prejudice has not been neutralized by the trial judge before submission of the case to the jury.

United States v. Leftwich, 461 F.2d 586, 590 (3d Cir.), cert, denied, 409 U.S. 915, 93 S.Ct. 247, 34 L.Ed.2d 178 (1972).

In the instant case, the trial judge took corrective action and charged the jury on a number of occasions that they were only to consider the evidence in the case. He instructed them that:

In the exercise of your judgment, you must confine yourselves exclusively to your recollection of the testimony of the witnesses, plus your evaluation of the exhibits or the documentary evidence ....
Statements and arguments of counsel are not evidence in the ease unless made as an admission or stipulation of fact .... [Emphasis supplied.]

At a later point in his charge when the functions of counsel were discussed, he reiterated that:

The arguments of a lawyer are not evidence. The function of the lawyer is to aid in the administration of a ease by way of prosecution and defense and to clarify the issues of an action.
If any counsel has argued to you on the facts in such a manner as may be contrary to, or different from, what you recollect the evidence to be, it will be your own recollection of the evidence that you will abide by, because, as I have told you, it is you and you only who are the judges of the facts in this case. [Emphasis supplied.]

Under these circumstances we do not believe that the single brief phrase of the prosecutor was “so gross” as to constitute prejudicial error.

II. THE CROSS-EXAMINATION

Benson contends that it was reversible error to permit the Government to cross-examine him as to his involvement in proceedings before the National Association of Securities Dealers (NASD) and the Securities Exchange Commission (SEC). He was asked, inter alia, whether he had been found to have violated NASD rules by issuing misleading advei'tisements in relation to the HMS product and by selling stock at prices unreasonably related to the market. He was also questioned as to whether his SEC license and NASD membership were revoked. He argues that since the NASD and SEC proceedings, civil in nature, did not result in a conviction for crime, the cross-examination was impermissible.

It is well settled that when a defendant takes the stand on his own behalf he is subject to full cross-examination. United States v. Lowe, 234 F.2d 919, 922 (3d Cir. 1956). This includes the right of the prosecution to cross-examine the defendant as to matters affecting his credibility as a witness. Particular acts of misconduct, when they result in a judgment of conviction, are clearly within the scope of this cross-examination. IIIA Wigmore,. Evidence § 980 (Chadbourn Ed.1970); United States v. White, 446 F.2d 1280 (3d Cir. 1971). Benson is correct in maintaining that the determinations and findings of administrative agencies do not constitute “convictions” within the meaning of the above-stated rule. As Wigmore points out in discussing the propriety of using prior convictions for purposes of impeaching credibility:

It should be understood by all courts that the only relevant circumstance is actual conduct, i. e., the fact, not the mere charge of having misbehaved.

IIIA Wigmore, Evidence § 980a at 835-36 (Chadbourn Ed.1970). Judgment of conviction in a criminal proceeding insures that the fact of prior misconduct has been established by proof beyond a reasonable doubt. Administrative proceedings are civil in nature, the burden of proof is less rigorous and therefore the factual findings are less reliable. See, e. g., Section 7(c) of the Administrative Procedure Act, 5 U.S.C. § 556(d). The rule allowing cross-examination as to prior convictions for impeachment purposes should not be extended to include the findings of administrative agencies.

Notwithstanding that the cross-examination concerning the administrative proceedings was improper for impeachment as to prior convictions, the Government argues that the questioning was nevertheless permissible for three independent reasons. First, the Government maintains that the cross-examination was proper because Benson, in his direct testimony, put his character in issue. Second, the Government asserts that its cross-examination was permissible to show that the misconduct charged in the instant trial was not inadvertent, accidental, unintentional or without guilty knowledge. Third, the Government argues that Benson’s testimony on direct examination “opened the door” to the prosecution’s questioning on cross-examination. We need not discuss whether the cross-examination was proper on the first two grounds asserted by the Government for we find that the questioning was proper in light of Benson’s testimony on direct examination.

In response to questions from his counsel, Benson testified concerning a complaint filed against him by the NASD and loss of his license and NASD membership. He testified that the attorney in the SEC hearings was a Mr. Milstein, an investigating officer for the SEC. Examination of the record reveals that Benson plainly implied the source of his problems was harassment by Mil-stein. Cross-examination of Benson to establish the existence of numerous other SEC proceedings to which Milstein was not a party was designed to rebut this inference. Under such circumstances, the cross-examination was proper as it was addressed to matters developed by Benson on direct. United States v. Lowe, supra.

III. TESTIMONY RELATING TO CUSTOM AND USAGE

Benson maintains that the trial judge erred in allowing the prosecution to introduce over his timely objection expert testimony as to practices in the securities industry. He asserts that the testimony was prejudicial because it was introduced prematurely, before proof of corpus delictum, and because it was introduced to establish a criminal standard of disclosure in the sale of securities.

A review of the record reveals that early in the presentation of its case, the prosecution called Norbert H. Sickle as an expert witness to provide background information for the operation of the over-the-counter securities market. In his offer of proof, the prosecutor stated:

I don’t intend to ask him what is his opinion of Home Makers Savings stock. I will not ask any questions along that line, nor will I ask him whether, or not Benson and Company was a good company and whether they violated any laws.

Mr. Sickle’s testimony was brief and general. Although at one point he adverted to the obligation of disclosure by a broker soliciting an order, the record negates the assertion that the evidence this witness presented was anything more than background information for the jury’s understanding .of the intricacies of the over-the-counter securities market.

In contrast, the cross-examination of Mr. Sickle was very broad, intensive and much beyond the scope of the direct examination. It involved an inquiry into the activities of wholly unrelated eorpo-rations, apparently in an effort to anticipate a defense. In addition, the witness was interrogated about the NASD, its purpose, and its relationship to the SEC.

Sickle’s cross-examination was followed by the testimony of several expert witnesses called by the defense. Their testimony largely concerned custom and usage in the industry regarding disclosure obligations to prospective stock purchasers. One witness testified extensively, including statements that the duty of a salesman making his initial sale to a customer was “to inform the customer of all the relevant facts at the command of the salesman” and to make a “full and complete disclosure.”

In discussing with counsel the substance of the expert testimony produced by the government and defense, the trial judge first stated:

The Court: He [Sickle] only testified to background. Somebody on the defendant’s side brought out custom and usage. Then the government brought out custom and usage.
Mr. Geary [Counsel for. appellant]: I disagree, your Honor. I thought that was in the offer of proof.
The Court: No, that was not. The background was the thing that we specifically permitted Mr. Sickle *to testify to, and then you fellows widened it out in cross-examination.

We believe that the trial judge did not commit any error in permitting Mr. Sickle to provide background information to the jury on the securities operation.

Benson offers no support for his assertion that the prosecution introduced custom and usage testimony to establish a criminal standard. A distillation of his argument reveals that his objection is actually directed to the testimony pertaining to the industry standard of disclosure to potential stock customers. Benson has not directed our attention to, and we have not been able to find, any statement in the record that the testimony of Mr. Sickle provided the criminal standard by which Benson’s conduct was to be measured by the jury.

The defense, on the other hand, anticipating that it would call experts, expanded Mr. Sickle’s testimony through cross-examination. Benson’s expert witnesses also testified to the industry practice of disclosure and fixed what may be characterized as' a standard of disclosure higher than that testified to by the Government’s witness. Even if it were erroneous, we fail to perceive how Benson was harmed by the testimony of Mr. Sickle, particularly in light of the sweeping testimony of his own experts, and in light of the trial judge’s instructions to the jury on the essential elements required to establish guilt under the statute.

In this connection, the appellant also argues that the court erred in denying his request to the jury that “proof of the ‘corpus delicti’ cannot be established by showing deviation from custom and usage.” In view of the comprehensive charge on the elements necessary for the government to establish the commission of the crime, we find no error in refusing to make this charge as requested.

We have reviewed the additional evi-dentiary errors asserted by the appellant and the alleged prejudicial role of- the trial judge and we find them without merit.

IV. SPEEDY TRIAL

Benson also argues that a 34 month delay between December 1965, the time Benson asserts that the Government concluded that Benson & Company and Benson “violated and wilfully aided and abetted violations of Section 17 (a) of the Securities Act of 1933” and October 1968, the date of his indictment, violated his sixth amendment right to a speedy trial and his fifth amendment right to due process of law.

The lengthy delay, Benson contends, caused his memory and that of his witnesses to suffer. Additionally, he complains that following the civil proceedings instituted against him by the SEC he and his family suffered many hardships including disruption of employment, public obloquy, and excessive financial pressures. He contends that the time which elapsed between the administrative determinations and the initiation of criminal proceedings was inordinate and amounted to bad faith, or at least negligence, on the part of the federal government.

We had occasion in United State v. Dukow, 453 F.2d 1328 (3d Cir.), cert, denied, 406 U.S. 945, 92 S.Ct. 2042, 32 L.Ed.2d 331 (1972), to consider a similar contention. The defendants there urged that a 55 month delay between the initiation of public administrative proceedings and the date of the indictment and a 22 month delay from the referral of the case by the SEC to the Justice Department to the date of indictment violated their right to a speedy trial. In Dukow, we reviewed United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), relied upon by Benson in the present case. We concluded that the decision in Marion dispelled the validity of any argument that the sixth amendment speedy trial provision has any application until the putative defendant becomes an “accused.” Here, Benson became an “accused” no earlier than October 7, 1968, the date of his indictment. As Benson does not complain of unconstitutional delay between the time of his indictment and date of his trial, which began on January 19, 1970, Dukow controls and rebuts Benson’s sixth amendment claim.

Turning to Benson’s fifth amendment claim, we held in Dukow that under Marion the due process clause of the fifth amendment would require dismissal of the indictment if the defendant at trial could show that the pre-indictment delay caused substantial prejudice to his rights to a fair trial. The primary ground asserted by Benson for substantial prejudice in his right to a fair trial is failing memories of the defense. Loss of memory is nearly always a consequence of delay. We believe it is a sufficient answer in this case that Benson had available substantial information from the discovery procedures and from the material submitted to him in compliance with the Jencks Act. He also had the benefit of the transcript of the proceedings before the SEC and extensive documentary material and exhibits. Under these circumstances, we do not find that Benson’s rights to due process of law have been violated.

We take note that the Government conducted its field investigation of the sales of HMS stock in January 1965. SEC hearings were held in September 1965 and a final hearing on January 16, 1967. The SEC made its criminal reference report to the Department of Justice in April 1968 and the Grand Jury returned its indictment on October 7, 1968. While a considerable period of time elapsed between the time the SEC conducted its first hearing and the criminal reference by the SEC to the Department of Justice, this appears to have been necessary because of the complexities of the case and the effort of the Government to protect the parties charged in the civil proceedings from improvident criminal proceedings.

Y. SUFFICIENCY OF THE EVIDENCE

Benson also contends that the verdict is not supported by substantial evidence and it is contrary to the weight of the evidence. On appeal, the evidence and the inferences to be drawn must be taken in the light most favorable to the government. United States v. Goberman, 458 F.2d 226 (3d Cir. 1972).

In denying Benson’s motion for new trial, the district court reviewed the evidence in this case at length. In finding that the guilty verdict was amply supported by substantial evidence, the court stated:

[T]he defendant has, for the most part, ignored the large amount of testimony which was presented during the thirty-five days trial. But a reexamination of the Gillen testimony, alone, indicates that he testified that he had not been fully informed by the defendant Benson concerning the shares of stock which the defendant had sold him; that he was not informed that “Mr. Enzyme” was the only product being produced by Home Makers; that he was never made aware of any deficit of the company . that he did not know about the condemnation by the Government until after he had made the purchases ; that he was urged by the defendant to buy more of that stock; that although he assumed Benson was an officer of the company, the defendant never made a full disclosure of his connection with the company . that he relied on Benson who called him repeatedly urging him to buy more stock . . . and that he received all confirmations of his stock transactions through the mail.

We have reviewed the record of trial and we cannot say that the verdict is unsupported by substantial evidence or that it is contrary to the weight of the evidence. Nor do we find merit in any of the other contentions advanced by appellant.

The judgment of the district court will be affirmed.

      . The remark was as follows :
      I have a duty to protect the innocent and to see that the guilty do not escape. I say to you with all the sincerity I can muster if you do not convict the defendant, the guilty will escape. [Emphasis supplied.]

      . Standard 5.8(b) provides:
      It is unprofessional conduct for the prosecutor to express his personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.

      . Mr. Sickle testified on direct, inter alia, to tlie following:
      Q. Would you make a distinction between an unsolicited and a solicited order?
      A. Yes. There is a great burden on the broker when he is soliciting an order. There is a burden to give that customer as much information as he possibly can and know as much about that company as he possibly can.
      When a customer, however, calls the broker unsolicited and places an order that
      the broker didn’t solicit to buy a certain security, our moral obligation is very, very substantially reduced. We may know little or nothing of that company, but we are in a way a public service and we can’t refuse the order, with certain exceptions, because the customer may know a lot more about that company than we do, and undoubtedly does, and he has his reasons for buying that stock and we would certainly not want to refuse to handle the order and perhaps cause him to lose a profit in so doing.

      . The witness testified, inter alia:
      Q. In selling a speculative stock, what is the most important thing that a salesman must disclose to the customer?
      A. I think complete disclosure that it is a speculation and all pertinent information on it.

      . The trial judge did not advert in his charge to a criminal standard of disclosure established by custom and usage in the industry but charged the jury that:
      Section 77 (q) thus presents three-fold prohibitions when coupled with the use of ' the United States mails or interstate transportation or communications:
      1. The intentional employment of a scheme, device or artifice to defraud in the offer to sell or the sale of a security; or,
      2. The intentional making or causing to be made of any misrepresentation of material facts in the offer to sell or the sale of a security ; or,
      3. Any intentional omission of a material fact in connection with offer to sell or sale of a security.
      Proof beyond a reasonable doubt that a defendant violated any one of these prohibitions, when coupled with proof that either interstate transportation or communication or the United States mails were availed, is sufficient to establish a. violation of this section of the Security Act.

      . The indictment in this ease was returned within the applicable period of the statute of limitations. 18 U.S.C. § 3282.