author: CHOY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Larry CARLOS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Charles Steven BAKER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Larry CARLOS and Charles Steven Baker, Defendants-Appellants.
    Nos. 72-2652, 72-2653 and 72-3071.
    United States Court of Appeals, Ninth Circuit.
    May 7, 1973.
    Rehearing Denied June 8, 1973.

      J. Benedict Zderic (argued), Tacoma, Wash., for appellant Carlos.
    Ronald J. Meltzer (argued), Seattle, Wash., for appellant Baker.
    Michael R. Alfieri (argued), Moschet-to & Alfieri, Seattle, Wash., J. Benedict Zderic, Tacoma, Wash., for appellants Baker and Carlos.
    Irwin Schwartz, Asst. U. S. Atty. (argued), Stan Pitkin, U. S. Atty., Seattle, Wash., for plaintiff-appellee.
    Before HUFSTEDLER and CHOY, Circuit Judges, and HARRIS, District Judge.

       The Honorable George B. Harris, Senior United States District Judge for the Northern District of California, sitting by designation.

   CHOY, Circuit Judge:

This is an appeal from criminal convictions, after a jury trial, for distributing narcotics. Baker and Carlos both contend that they were denied a fair trial because of prejudicial comments made by the district court. We affirm.

The charges against Baker and Carlos stemmed from two separate undercover investigations by federal agents. Two agents testified at trial that they purchased heroin and cocaine from Carlos on two occasions. They also testified that, during one of these sales, heroin was delivered to Carlos by Baker. In addition, the evidence showed that a search of Baker’s apartment uncovered narcotics and other paraphernalia, and when Baker was arrested he was caught in the process of manicuring heroin.

The only controverted issue at trial related to the identification of Baker in regard to the delivery of heroin to Carlos, Baker’s defense being mistaken identity and alibi. Baker claimed that at the time of the transaction he was vacationing in Hawaii under an assumed name. Baker produced three alibi witnesses who supported his claim, but the witnesses tended to contradict each other and they did not agree on the date he was supposed to have returned from Hawaii. Moreover, the two government agents were positive that Baker had participated in the sale during the time he claimed to be in Hawaii. This apparent contradiction led the trial court to admonish the jury in the instructions that there had been perjury in the testimony presented. The propriety of this comment is the only issue raised on appeal.

The entire passage relating to witness credibility was as follows:

You, members of the jury, are the sole judges of the credibility of the witnesses and of what weight is to be given to the testimony of each. In determining what credit is to be given any witness you may take into account his ability and opportunity to observe, his memory, his manner and appearance while testifying, any interest, bias or prejudice he may have, the reasonableness of his testimony considered in the light of all the evidence, and any other factors that bear on believability and weight.
Members of the jury, I would be remiss in my duty if I did not inform you that I believe there has been substantial perjury in this case. In my long tenure as a judge of this court seldom have I encountered what I believe to be perjury from so many witnesses. For this reason and in the interest of justice I suggest that you consider and weigh the testimony most carefully. In this connection I desire to emphasize, however, as I indicated earlier, that you are the sole judges of the facts. In ascertaining the facts you are the sole judges of the credibility of the witnesses and of what weight is to be given the testimony of each. As the sole and exclusive arbiters of the facts you are at liberty to believe or disbelieve a witness irrespective of any remark the court has made or which you think the court has made during the trial, and irrespective of any opinion you may have as to whether the court believes or disbelieves the witnesses. (emphasis added.)

Baker and Carlos object to the portion of the charge italicized above. Although the court did not indicate which witnesses had given the perjured testimony, the appellants claim that it was clear in context that its alibi witnesses were being criticized.

“In charging the jury, the trial judge is not limited to instructions of an abstract sort. It is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence, by drawing their attention to the parts of it which he thinks important; and he may express his opinion upon the facts, provided he makes it clear to the jury that all matters of fact are submitted to their determination.” Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 699, 77 L.Ed. 1321 (1932). This assistance to the jury may include a general appraisal of the credibility of witnesses, or the singling out of a specific witness. Smith v. United States, 305 F.2d 197, 203-205 (9th Cir. 1962); United States v. Jones, 148 U.S.App.D.C. 201, 459 F.2d 1225, 1227 (1972).

But this privilege of the judge to comment on the credibility of witnesses has its inherent limitations. “His discretion is not arbitrary and uncontrolled, but judicial, to be exercised in conformity with the standards governing the judicial office.” Quercia,, supra 289 U.S. at 470, 53 S.Ct. at 699. The trial judge must carefully explain to the jury that it is their duty to determine the facts and he must not leave the jury with the impression that they are bound by his comments.

Normally, if the appropriate cautionary instructions are given it is made clear to the jury that they are the final arbiters of the credibility of witnesses ■and there will be no reversible error. Fletcher v. United States, 313 F.2d 137, 139 (9th Cir.), cert. denied, 374 U.S. 812, 83 S.Ct. 1704, 10 L.Ed.2d 1035 (1963); United States v. Blair, 456 F.2d 514, 519 (3rd Cir. 1972).

However, there are some situations where the comments by the court are so prejudicial that they cannot be cured by the appropriate instructions. For example, in Quercia, supra the trial judge told the jury that he noticed that the defendant wiped his hands while he was testifying. The court stated that this was almost always an indication of lying and therefore he believed his testimony was a lie. The Supreme Court considered this comment improper and the error was not cured by the statement of the trial judge that his opinion of the evidence was not binding on the jury. The rationale behind this decision was that the comments were of a sort most likely to remain firmly lodged in the memory of the jury. Thus, comments which leave the jury with the impression that they are not free to perform their traditional fact-finding function are improper even if curative instructions are given.

In the present case, the proper cautionary instructions were given. The court repeatedly informed the jury that they were not bound by any of his comments and that they were the sole judges of credibility. As we stated earlier, the presence of these instructions normally precludes a finding of prejudicial error. United States v. Gaines, 450 F.2d 186, 191 (3rd Cir. 1971), cert. denied, 405 U.S. 927, 92 S.Ct. 978, 30 L.Ed.2d 801 (1972).

However, appellants contend that we are presented with a situation, like Quercia, where the comments were so prejudicial that they could not be cured. We disagree. An -examination of the disputed comment, viewed in the light of the complete charge, compels us to conclude that although the comments were unnecessary and inadvisable, they do not fall under the condemnation of Quercia. Further, unlike United States v. Persico, 349 F.2d 6 (2nd Cir. 1965) and United States v. Dichiarinte, 385 F.2d 333 (7th Cir. 1967), cert. denied, 390 U.S. 945, 88 S.Ct. 1029, 19 L.Ed.2d 1133 (1968) on which appellants rely heavily, the comments here did not preclude dispassionate consideration of the evidence by the jury. Nor did the court preclude the jury from fairly evaluating appellants’ defense. The court’s comment did not expressly single out any particular witness or group of witnesses. It was inevitable that the jury would conclude that the agents or the alibi witnesses were not telling the truth since they directly contradicted each other. We doubt that the judge’s remark had any prejudicial tendency, but even if it did “the warnings here were given carefully and often and were sufficient to overcome the prejudicial tendency . . .” United States v. Carrion, 463 F.2d 704, 709 (9th Cir. 1972).

Affirmed.

      . Three months after judgment, Carlos and Baker moved for a new trial based on newly discovered evidence. This motion was denied and a separate appeal was filed. Appellants now concede that there is no merit to that appeal. We, therefore, affirm the judgment in No. 72-8071 without further comment.

      . United States v. Dopf, 434 F.2d 205 (5th Cir. 1970), and United States v. Dunmore, 446 F.2d 1214 (8th Cir. 1971), cert. denied, 404 U.S. 1041, 92 S.Ct. 726, 30 L.Ed.2d 734 (1972) are other examples of situations where the trial court’s comments have been held to be improper despite the presence of cautionary instructions.. In each of those cases, the comments effectively deprived the jury of its exclusive right to determine credibility because the comments came close to directing a verdict against the defendant, or there was a constant emphatic repetition that there was ample evidence to convict. In the instant case we are not presented with such egregiously prejudicial situations.


source: Caselaw Access Project

author: PICKETT, Circuit Judge.

license: Public Domain

text:
    Shelby STEELE, Plaintiff-Appellee, v. TITLE REALTY COMPANY and Frank Sawatzki, Defendants-Appellants.
    No. 72-1175.
    United States Court of Appeals, Tenth Circuit.
    May 16, 1973.

      William J. Lockhart, Salt Lake City, Utah (Ronald N. Boyce, Salt Lake City, Utah, with him on the brief), for plaintiff-appellee.
    Richard L. Bird, Jr., of Richards, Bird & Kump, Salt Lake City, Utah, for def endants-appellants.
    Before LEWIS, Chief Judge, and PICKETT and McWILLIAMS, Circuit Judges.
   PICKETT, Circuit Judge.

Appellant Sawatzki, a real estate broker doing business in Salt Lake City, Utah, as Title Realty Company, appeals from a judgment awarding appellee Steele a total of $4,450 compensatory and punitive damages, together with attorney fees for violation of the Fair Housing Act, 42 U.S.C. §§ 3604 and 3612 (1970). In addition, the court required Sawatzki to offer the property in question to Steele at a fixed rental and permanently enjoined him from refusing to rent or sell real property on account of a person’s race, and ordered him, for a period of one year, to place in every advertisement or notice offering properties for rent or sale a statement that such property was available to all persons without regard to race. The issues of substance presented here relate to the sufficiency of the evidence to sustain the findings that Sawatzki violated the Fair Housing Act and to sustain the awards for compensatory and punitive damages and attorney fees.

Early in 1971 Steele, a black man who lived in St. Louis, Missouri, accepted a teaching position at the University of Utah. In anticipation of his move to Salt Lake City, Steele authorized Lester Standiford of that city to negotiate for suitable housing for Steele and his family upon arrival. Standiford learned that an apartment occupied by Richard Baum would be vacated at about the time Steele would arrive in Salt Lake City. Baum referred Standiford to his landlord, Sawatzki, and also advised Sawatzki that Steele was interested in the property and that Standiford would contact him. Sawatzki learned from Baum that Steele was a Negro. When Standiford advised Sawatzki that Steele desired to rent the property he was told that a rental agreement would not be made with a prospective tenant’s agent but only with a tenant in person, even though Standiford tendered one month’s rent and offered to supply Sawatzki with recommendations from Steele’s personal friends and from his present landlord and employer. In his conversations with Baum and Standiford, Sawatzki explained to them the economic difficulties encountered with other renters if any of the property were rented to a Negro. As a result of Sawatzki’s refusal to! enter into a rental agreement before Steele’s arrival this action was brought. An injunction was obtained preventing Sawatzki from leasing the property until Steele either accepted or rejected a lease within a specified time. Steele arrived in Salt Lake City during the early part of July 1971 and after one inspection declined to rent the property. In a trial on the merits Steele sought monetary and punitive damages together with attorney fees under 42 U.S.C. § 3612(c) (1970). Throughout his testimony Sawatzki maintained that he advised Baum and Standiford that he had no personal prejudice toward black people but reiterated the problems arising with other renters if he permitted any of them to move into the area. The policy of not renting to an agent was not mentioned until after Sawatzki knew that Steele was a Negro. The trial court found:

Mr. Sawatzki’s claim of a “policy” of not renting until he has “seen” the tenant is not credible under the circumstances of this case and in light of the clearly discriminatory motives reflected in the testimony of all of the witnesses herein, including that of Mr. Sawatzki. Further, from Mr. Sa-watzki’s own testimony as set forth hereafter, it is clear that this policy was mingled with, and at least in part based upon, racial motives.

The finding is not clearly erroneous.

Accepting the existence of a policy of not renting to a prospective tenant’s agent, if racial discrimination was a part of the determination not to rent, the statute was violated. Haythe v. Decker Realty Co., 468 F.2d 336 (7th Cir. 1972); Smith v. Sol D. Adler Realty Co., 436 F.2d 344 (7th Cir. 1970); Hall v. Freitas, 343 F.Supp. 1099 (N.D.Cal.1972); Williamson v. Hampton Management Co., 339 F.Supp. 1146 (N.D.Ill. 1972).

It is urged that the award of $1,000 compensatory damages was excessive. The $1,000 was composed of $13.-25 in telephone expense, $125 in moving and storage expense, and $861.75 for emotional distress and humiliation. The telephone expense was stipulated. Steele claims that the $125 moving expense to store his belongings in Chicago with his parents was necessary because he did not know he would have a place to live when he got to Salt Lake City. The trial court found that the expense was “necessitated by the unavailability of the property in Salt Lake City at the time he [Steele] vacated his apartment in St. Louis.” Steele testified that he arrived in Salt Lake City around July 1, 1971. According to Sawatzki’s testimony, the property would not have been available to Steele until after he arrived in Salt Lake City and inspected the property. Sawatzki had previously refused to accept a one month advance rental. Under these circumstances the cost of storage was an element of damage.

Damages in cases of this kind are not limited to out-of-pocket losses but may include an award for emotional distress and humiliation. Smith v. Sol D. Adler Realty Co., 436 F.2d 344 (7th Cir. 1970); Donovan v. Reinbold, 433 F.2d 738 (9th Cir. 1970); Rhoads v. Horvat, 270 F.Supp. 307 (D.Colo.1967); Massachusetts Commission Against Discrimination v. Franzaroli, 357 Mass. 112, 256 N.E.2d 311 (1970); cf. Allen v. Gifford, 462 F.2d 615 (4th Cir. 1972), cert. denied 409 U.S. 876, 93 S.Ct. 128, 34 L.Ed.2d 130 (1972). See also Duda, Damages for Mental Suffering in Discrimination Cases, 15 Clev.Mar.L.Rev. 1 (1966); Annot., 40 A.L.R.3d 1290 (1971).

Even though the discrimination here was perpetrated in a courteous manner and was not vindictive or abusive, the right to recover for the humiliation and emotional distress suffered exists nevertheless. Temperate conduct may, however, be considered as a mitigating circumstance in determining damages. Browning v. Slenderella Systems of Seattle, 54 Wash.2d 440, 341 P.2d 859 (1959). Sawatzki’s contention that since he dealt only with Steele’s agent he cannot be held liable for emotional distress is without merit. His discriminatory acts were directed against Steele. Steele suffered the consequences and can recover. Sawatzki’s conduct, however, whil’e discriminatory, could not be classed as wanton, reckless or malicious, or with intent to injure Steele whom he did not know. Steele was not a stranger to this situation. He testified that in the past on a number of occasions “in college towns across the country” he and his family had been denied housing facilities. It is understandable that he “was very tired of it” and “upset” over such' treatment and was determined to do something about it. Although it is difficult to measure what amount is sufficient “to ease one’s feelings” for injuries of this nature, the $1,000 award is not unreasonable.

Section 3612(c) of the Fair Housing Act of 1968 provides that for a voliation the court in appropriate cases may grant injunctive relief, “actual damages and not more than $1,000 punitive damages, together with court costs and reasonable attorney fees in the case of a prevailing plaintiff: Provided, That the said plaintiff in the opinion of the court is not financially able to assume said attorney’s fees.” The statutory provisions relating to punitive damages do not create a new right and are designed to limit the amount of recovery to $1,000 where punitive damages are found to be appropriate under the general rules regarding the award thereof. We are convinced that Congress did not intend punitive damages to be allowed for every violation of the statute.

Sawatzki did not own the property in question, but was the sole managing agent for the owner. His duty to his principal was to manage the property for the best interest of that principal. The record is replete with evidence that Sawatzki had no personal bias or prejudice toward Steele or anyone else of the black race, and regretted that all white people did not feel the same way. His reluctance to rent to black people, while not a legal excuse, was the result of objections by other renters of his principal’s property. There was no evidence that the refusal to rent to Steele was motivated by ill will, malice, or a desire to injure him. The evidence was to the contrary. As indicated by the court in its findings, racial discrimination was only one of the reasons for the refusal to rent. On the record as a whole we conclude that the allowance of punitive damages is not appropriate. See Newman v. Nelson, 350 F.2d 602 (10th Cir. 1965); Annot., 14 A.L.R.Fed. 608 ¶ 9 (1973).

The court allowed a total of $2,450 attorney fees for the preparation and presentation of the case in the trial court. The statute permits the recovery of attorney fees when the plaintiff is “not financially able” to assume such fees. The test is not limited to present ability of the plaintiff to pay but whether he is financially able to assume them. The evidence of Steele’s ability to assume his attorney fees is scanty, but it is sufficient to support the court’s finding that such fees should be allowed. The allowance of attorney’s fees to the successful civil rights plaintiff who is unable to assume them is not to penalize the defendants in such actions, but one of the purposes is “to encourage individuals injured by racial discrimination to seek judicial relief. . . . ” Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). After a review of the entire record, however, we are convinced that the allowance of $2,450 for services in the trial court is excessive. This is a simple statutory action requiring a minimum of time. The evidence to a large extent was undisputed and was presented at the trial of the case on its merits in about two hours. The allowance of attorney fees is generally within the sound discretion of the trial court. The amount of the allowance is to be determined by the facts in each case. Featherstone v. Barash, 382 F.2d 641 (10th Cir. 1967); Simler v. Conner, 352 F.2d 138 (10th Cir. 1963); United States v. Anglin & Stevenson, 145 F.2d 622 (10th Cir. 1944), cert. denied, 324 U.S. 844, 65 S.Ct. 678, 89 L.Ed. 1405 (1945). In an appropriate case an appellate court may,' in the interest of justice, exercise its independent judgment in the determination of reasonable attorney fees. Meeks v. State Farm Mutual Insurance Co., 460 F.2d 776 (5th Cir. 1972); B-M-G Investment Co. v. Continental/Moss Gordin, Inc., 437 F.2d 892 (5th Cir.), cert. denied, 402 U.S. 989, 91 S.Ct. 1668, 29 L.Ed.2d 154 (1971). The attorney fees to be allowed are $1,500 for services in the trial court and $500 on appeal.

The court permanently enjoined Sawatzki from refusing to rent or sell available property because of a person’s race, and further required that any advertisement made within one year include a notice that such properties were available to all persons without regard to race. The record is devoid of any evidence of the extent of Sawatzki’s operations or that he advertised in any particular manner, or that he had ever before refused to rent to a person because of his race. He complied with the court’s order by offering the property to Steele. This is not a class action and the injunctive relief is unnecessary and inappropriate.

It is urged that the court erred in permitting the reception in evidence through the cross examination of Sawatzki of testimony given in a prior injunction proceeding by an absent witness. The cross examination complained of referred to the former testimony of Sawatzki concerning a conversation he had with the absent witness about Sawatzki’s attitude toward renting to black people. It was proper cross examination. The court’s findings are replete with reproduction of testimony, some of which was produced at the preliminary hearings but not at the trial on the merits. If there was any error in including reference to this testimony, it was inconsequential and did not result in prejudice. We find no merit in the contention that the conduct of the trial judge displayed such bias and prejudice as to deny fair trial.

The injunction is dissolved and the judgment modified to disallow punitive damages, and to allow total attorney fees in the sum of $2,000 including services on appeal. As modified, the judgment is affirmed.


author: IRVING R. KAUFMAN, Circuit Judge:

text:
    UNITED STATES of America, Appellant, v. Joseph A. PIERRO, Appellee.
    No. 917, Docket 73-1494.
    United States Court of Appeals, Second Circuit.
    Argued April 27, 1973.
    Decided May 9, 1973.
    L. Kevin Sheridan, Stephen M. Behar, Asst. U. S. Attys., Brooklyn, New York (Robert' A. Morse, U. S. Atty., for the E.D.N.Y., on the brief), for appellant.
    Jerome Lewis, New York City, for ap-pellee.
    Before BREITENSTEIN, KAUFMAN and MANSFIELD, Circuit Judges.

       United States Court of Appeals, Tenth Circuit, sitting by designation.

   IRVING R. KAUFMAN, Circuit Judge:

We are called upon to interpret a portion of Rule 4 of the Second Circuit Rules Regarding Prompt Disposition of Criminal Cases (Rules), now superseded by the Circuit’s Plan for Prompt Disposition of Criminal Cases under Rule 50 (b), F.R.Crim.P., which took effect on April 1, 1973. Rule 4 states:

In all [criminal] cases the government must be ready for trial within six months from the date of arrest, service of summons, detention, or the filing of a complaint or of a formal charge upon which the defendant is to be tried (other than a sealed indictment), whichever is earliest. If the government is not ready for trial within such time, then, upon application of the defendant or upon motion of the district court, after opportunity for argument, the charge shall be dismissed.

Judge Costantino, in the district court, held that on the facts of this case the Government had failed to comply with the mandate of Rule 4. Accordingly, upon application of the defendant, Joseph Pierro, he dismissed the indictment. For the reasons given below, we reverse.

The facts relevant to this appeal are quite simple. On December 29, 1971, Pierro was arrested by Special Agents of the Federal Bureau of Investigation and charged with possession of goods stolen from interstate commerce. Pierro was released on bond and waived a preliminary hearing. Subsequently, on May 9, 1972 he was formally indicted for knowing possession of 171 cases of cigarettes stolen from a trailer moving in interstate commerce, in violation of 18 U.S.C. § 659. Pierro was arraigned on May 23, 1972, before Judge Costantino, and pleaded not guilty. According to Stephen M. Behar, the Assistant United States Attorney in charge of the prosecution, a notice of readiness for trial was prepared by the Assistant and his secretary on the same date, May 23, 1972. Mr. Behar also advised the district judge that one copy remained in the Government’s case file, a second copy was filed with the Administrative office of the United States Attorney for the Eastern District of New York and the original, (which subsequently was found in Judge Costantino’s chambers), bore an affidavit stating that a copy of the notice had been mailed to Pierro’s counsel, Jerome Lewis, Esq.

Although the Government’s records indicate that a notice of readiness had been filed on May 23, 1972 — approximately five months subsequent to Pier-ro’s arrest and, thus, within the six-month period provided by Rule 4 — the prosecution remained in limbo for some ten months. The parties did not appear in court again until March 16, 1973, when Judge Costantino, on his own initiative and after being informed that the matter had been pending in excess of six months, placed the case on the calendar. On that day, it was learned • during discussion in open court that neither Pierro nor his counsel had received a copy of the Government’s notice of readiness, and that apparently no such notice had been filed with the Clerk’s office for the United States District Court for the Eastern District. Accordingly, Pierro’s counsel moved for dismissal of the indictment for failure of the Government to file a notice of readiness.

On March 23, 1973, when the parties reappeared before Judge Costantino, the judge advised Mr. Lewis and Mr. Behar that a search of chambers had been conducted and the original notice of readiness, dated May 23, 1972, and an attached affidavit of mailing dated the same day, had been found in his files. The docket sheet of the Court, however, did not indicate that a notice of readiness had been filed in the Clerk’s office and Mr. Lewis asserted under oath that he had not received a copy of the notice of readiness.

In its findings of fact, the court concluded that neither Pierro nor his counsel had been informed of the Government’s readiness for trial. Moreover, although Judge Costantino noted that the original notice of readiness, dated May 23, 1972, had been found in his files (with no determination as to how it got there), he decided that the notice had never been filed with the court clerk. The court also observed that it had not seen a copy of the monthly reports filed by the United States Attorney with the Chief Judge listing cases pending in excess of six months from the date of arrest. Since the delay between date of arrest and “receipt by the defendant of notice that the government was ready for trial was approximately 15 months,” and since the delay was not excused by any “exceptional circumstances,” see Rule 5(h), Judge Costantino dismissed the indictment under Rule 4. ******This appeal followed.

The Government advances a two-pronged argument. It is first suggested that nothing in Rule 4, or in any other provision of the Rules Regarding Prompt Disposition of Criminal Cases, explicitly requires the United States Attorney to indicate its readiness for trial. All that Rule 4 compels, we are told, is that “[i]n all cases the government must be ready for trial within six months. . ” (emphasis supplied). Although the Government’s assertion as to the literal language of Rule 4 is true enough, we reject the invitation to adopt its wooden construction of the Rules. It would be inconsistent with the intent of the Circuit Council which drafted the Rules, and with sound public policy, to free the Government from the responsibility of communicating its readiness for trial to the court. The purpose of the Rules, as announced in the Statement of the Circuit Council to Accompany Second Circuit Rules Regarding Prompt Disposition of Criminal Cases, is to protect “the interest of the public and the rights of defendants . . . , through a firm control of criminal prosecutions by the district courts. . . . ” (emphasis supplied).

As the Government notes in its brief, under the Individual Assignment and Calendar Rules of the Eastern District, it is the responsibility of the district court to manage the court’s calendar. If the judge is to exercise effective control of his cases, he must be informed of the Government’s readiness to proceed. The fact that the Government knows it is ready for trial will be of little significance to the court if it is not given that information. Rule 4 intimates as much in providing that “upon application of the defendant or upon motion of the district court, the charge shall be dismissed,” if the Government is not ready for trial (emphasis supplied). A judge will best be able to exercise his authority under the Rule if the Government bears the burden of informing the judge of its state of readiness in the pending cases. If neither defendant nor the court were so informed, it is likely that a motion to dismiss under Rule 4 would be made in each criminal case as soon as the six-month period had passed. And, in each case the court would be required to hold an evidentiary hearing to determine, retroactively, whether the Government was ready for trial within six months. We may state with confidence that a desire for such a wasteful procedure could not possibly have motivated the drafters of the Prompt Disposition Rules when a simpler and more efficient device was readily available. The United States Attorney’s Office for the Eastern District has sensibly adopted the practice of issuing a written notice of readiness in virtually all cases and we have been assured that this practice will be continued in the future. We conclude that under Rule 4 the Government must communicate its readiness for trial to the court in some fashion within the six-month period, as extended pursuant to Rule 5. The better practice, in those districts with heavy calendars, is to file a written notice with the clerk of the court for the judge’s attention, and to serve a copy on the defendant.

The Government also argues that its conduct in this case is consistent with a requirement that it communicate its readiness within the six-month period. We agree. The Second Circuit Rules Regarding Prompt Disposition of Criminal Cases were not intended to straightjacket the administration of criminal justice in the federal courts, nor were they designed to place obstacles in the path of legitimate law enforcement efforts and thus thwart the compelling public interest in criminal prosecutions. It was never intended that technicalities would carry the day. Some flexibility may be required in individual cases, particularly when the Government demonstrates that its normal practice comports with the letter and spirit of the Rules, that it proceeded in good faith in the case under consideration and that the defendant has suffered no prejudice as a result of his failure to be informed of the Government’s readiness for trial. Pierro’s counsel candidly conceded that his client was not prejudiced and we see no purpose to be served by dismissing this indictment.

The critical factor here is the discovery of the Government’s notice of readiness in Judge Costantino’s files. Although clearly the better practice is for the Government to file its notice with the court clerk, the purpose of the notice of readiness, as we have already intimated, is to inform the court that the case is ready for trial. That purpose was served in this case. Although Judge Costantino does not indicate when the notice of readiness was delivered to his chambers, we conclude that the only reasonable inference to be drawn from the concededly extraordinary circumstances here involved is that the notice was received on or about May 23, 1972, the date which appears on the original notice of readiness and on the affidavit of service. Thus the Government had every reason to believe that it had discharged its obligation — -under Rule 4 — albeit not in the best manner — to communicate its readiness to the court.

Although we conclude that the Government’s failure to inform the defendant of its readiness for trial does not justify dismissal of the charges against him, nothing we say today remotely implies that the Government should alter its policy of providing such notice to defendants in all cases. Nor do we wish to suggest our approval of the procedure followed here. We have shown in the past that where the overriding interest in prompt disposition of criminal cases is threatened, the Court will not hesitate to impose the sanction of dismissal with prejudice, see Hilbert v. Dooling, 476 F.2d 355 (2d Cir. March 12, 1973). We are of the view, however, that the Rules do not warrant such a result under the circumstances presented here. Accordingly, the order of the district court is vacated and the case is remanded with instructions that the indictment be reinstated.

      . Rule 4 of the Circuit’s Rule 50(b) Plan provides that even when the court does not find a basis for tolling any portion of the six-month period (under Rule 5) the indictment may be finally dismissed only if the court does not find “that the government’s neglect is excusable.” Upon such a finding “the dismissal shall not be effective if the government is ready to proceed to trial within ten days.” Under the old Rules, Judge Costantino was not required to determine whether the facts presented an instance of “excusable neglect,” but the new Rules would compel such an inquiry.

      . The filing of a notice of readiness by the Government within the six-month period does not, in all cases, foreclose defendants from asserting that the Government was not, in fact, ready within six months, see e. g., United States v. Pollack, 474 F.2d 828 (2d Cir. February 27, 1973). But the fact that defendants may, where appropriate, attempt to show that the Government’s notice of readiness was “meaningless”, United States v. Pollack, supra, slip opinion, at 2045, does not suggest that the court should be required to determine whether, in fact, the Government was ready in every case.

      . The commendable practice of filing a written notice of readiness is followed as well by the United States Attorneys’ Offices for the Southern and Western Districts of New York. The Government’s practice in the Northern District of New York, and in the Districts of Connecticut and Vermont, where the caseload is relatively less burdensome, is, for the most part, to give oral notice of readiness to the court and to the defendant at the time of arraignment. In any event, all United States Attorneys’ Offices in the Circuit indicate that their policy is to communicate readiness to the court in some fashion, within the six-month period. Nothing less is permitted by the Rules.

      . Since a defendant’s interests are guarded by counsel we believe that on those rare occasions when the Government fails to inform a defendant of its readiness counsel would, upon expiration of the six-month period and in the interest of his client, inquire whether indeed the Government has filed a notice of readiness with the court, if only to prepare the ground for a motion to dismiss under Rule 4. The court, concerned as it is with all cases, cannot be expected to make similar inquiries in particular cases in which the Government has failed to communicate its readiness. Thus, although we have indicated that the better practice for the Government is to inform both the court and the defendant of its readiness, an inference of non-readiness arises only if the Government fails to inform the court of its readiness within six months.


author: GOLDBERG, Circuit Judge: RONEY, Circuit Judge,

text:
    Raymond R. STONE, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Director, etc., Respondent-Appellant. Eugene P. HUFFMAN, Petitioner-Appellee, v. James F. TOMPKINS, Respondent-Appellant.
    No. 72-3738
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 19, 1973.

      Robert L. Shevin, Atty. Gen., William E. Whitlock, III, Andrew W. Lindsey, Asst. Attys. Gen., William E. Whitlock, III, Tallahassee, Fla., for respondents-appellants.
    Lynn E. Wagner, Director, Prisoner Assistance Project, Legal Aid & Defender Clinic, University of Fla., College of Law, Gainesville, Fla., for petitioners-appellees.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

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

   GOLDBERG, Circuit Judge:

This is an appeal by the State of Florida from the granting of federal habeas relief to two men who had been convicted of violating Florida’s “felony sodomy statute,” Fla.Stat.Ann. § 800.01. Subsequent to the trials at which petitioners were convicted, the Supreme Court of Florida held Section 800.01 to be “void on its face as unconstitutional for vagueness and uncertainty in its language.” The Florida Supreme Court went on in that case, however, to say that its decision was “not retroactive, but prospective only,” and the State now insists that that determination is binding upon the federal courts. We cannot agree. It is always the duty of a federal court to grant habeas relief whenever it independently determines that a person is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.A. § 2254. We hold that relief under the Great Writ was properly granted when the United States District Court independently and correctly found that the statute under which petitioners were convicted and imprisoned was void.

I. HISTORY OF THE INSTANT CASES

Petitioner Stone was tried and convicted in 1970 on two counts of violating Section 800.01, Fla.Stat.Ann., and was sentenced to serve consecutive five-year terms of imprisonment. His conviction was affirmed on direct appeal, Stone v. State, 245 So.2d 91 (Fla.Dist.Ct.App. 1970), and the state court’s denial of his subsequent motion for post-conviction relief was also affirmed. Stone v. State, 264 So.2d 81 (Fla.Dist.Ct.App.1972), cert. denied, 267 So.2d 329 (Fla.Sup.Ct. 1972). Petitioner Huffman was tried and convicted in 1968 on one count of violating Section 800.01 and was sentenced to serve from six months to ten years imprisonment. Huffman did not appeal from his conviction, but it is not argued that he has failed to exhaust any available state remedies.

The statute under which petitioners were convicted reads as follows:

“800.01 Crime against nature; punishment
“Whoever commits the abominable and detestable crime against nature, either with mankind or with beast, shall be punished by imprisonment in the state prison not exceeding twenty years.”

Fla.Stat.Ann. § 800.01. As recently as 1966, the Florida Supreme Court was continuing to adhere to its long line of cases upholding the constitutionality of this statute in the face of repeated challenges urging that it was impermissibly vague and failed to afford persons in Florida notice of precisely what acts constituted violations of the statute. See, e. g., Delaney v. State, 190 So.2d 578 (Fla.Sup.Ct.1966); Lason v. State, 152 Fla. 440, 12 So.2d 305 (Fla.Sup.Ct. 1943). Thus, at the time petitioners were convicted, the State of Florida considered its statute to be free of constitutional infirmity.

After the dates on which petitioners were convicted and before petitioners filed these consolidated actions, the Florida Supreme Court rendered its decision in Franklin v. State, 257 So.2d 21 (Fla.Sup.Ct.1971), declaring the statute void for vagueness. The Florida Supreme Court explicitly limited its decision to prospective application, and as a result, the State has subsequently denied one of the instant petitioners any relief under Franklin.

Petitioners thereafter filed the instant habeas actions in the United States District Court. Although the wording of their pro se petitions was somewhat imprecise, petitioners were clearly seeking relief on allegations that their confinement was in contravention of the United States Constitution. *****The United States District Judge agreed that the statute was too vague in its wording to withstand constitutional scrutiny:

“On the merits, it is clear that § 800.-01, which makes it a felony to commit ‘the abominable and detestable crime against nature,’ suffers from the constitutional defect of vagueness in violation of due process. Severson v. Duff, 322 F.Supp. 4 (M.D.Fla.1970); Franklin v. State, supra.’’

Habeas relief was accordingly granted by the court below, and the question now before us is whether that action was proper.

II. “SODOMY STATUTES” UNDER THE CONSTITUTION

Statutes prohibiting consensual sodomy have increasingly come under constitutional attack in recent years. The challenges that have been brought fall into a wide variety of imaginative theories that can be categorized in two general groups. The first grouping is premised on the theory that the state is without power to regulate consensual sodomy and other sexual activities between or among consenting adults. Specific arguments that have been advanced include allegations that such statutes unconstitutionally (1) invade a penumbral right to privacy, (2) establish a religion by promoting nonsecular religious morals, (3) impose cruel and unusual punishment by penalizing a condition (homosexuality), (4) impinge First Amendment expressional freedoms, and (5) violate due process standards by criminalizing conduct absent either a “rational basis” or a “compelling state interest.”

The second general category of attacks against sodomy statutes consists of arguments that admit that the state may permissibly regulate some instances of consensual sodomy but argue that the particular statute involved is constitutionally defective. Perhaps the most common example of this argument is the theory that marital privacy is protected by the Constitution and that therefore any statute that could be or is used to prosecute married persons is unconstitutionally overbroad. Another example is the attack based on the vagueness with which the acts sought to be proscribed are often defined. The term “sodomy” originated in the Bible and appears in the common law, but the various states have, perhaps for euphemistic reasons, selected terms even more arcane than “sodomy,” such as “buggery” or “the crime against nature.” Thus, when the common citizen is faced with prosecution under a statute employing such indefinite phraseology, he may argue that due process is violated inasmuch as the statute is so vague and lacking in ascertainable standards of guilty conduct as to be incapable of giving a person of ordinary intelligence fair notice that his contemplated conduct is forbidden. See Palmer v. City of Euclid, 1971, 402 U.S. 544, 91 S.Ct. 1563, 29 L.Ed.2d 98; United States v. Harriss, 1954, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989; Lanzetta v. New Jersey, 1939, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888.

The application of these arguments and theories to specific factual situations is often difficult and confusing, involving considerable overlapping and duplication. We think it clear beyond peradventure, however, that the instant appeal presents only an attack on the vagueness found by the District Court to be present in Section 800.01.

III. THE FEDERAL DISTRICT COURT’S DETERMINATION THAT SECTION 800.01 IS UNCONSTITUTIONALLY VAGUE

Almost fifty years have passed since the Supreme Court of the United States penned the classic statement regarding the level of linguistical vagueness that a criminal statute must exceed if it is to satisfy due process standards:

“[That the words of a criminal statute] must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.”

Connally v. General Construction Co., 1926, 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328. In subsequent years, the Supreme Court has many times had occasion to restate the rule, as when it said:

“It is the statute, not the accusation under it, that prescribes the rule to govern conduct and warns against transgression. No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.”

Lanzetta v. New Jersey, supra, 306 U.S. at 453, 59 S.Ct. at 619, 83 L.Ed. at 890 (citations omitted). See also Palmer v. City of Euclid, supra; United States v. Harriss, supra.

The standard by which the Constitution requires criminal statutes to be judged is clear. Here, the United States District Judge considered the language of section 800.01 and found it to be fatally vague. In making this determination, Judge McRae’s independent federal finding that the statute fails to advise those who may be convicted under it of precisely what behavior is proscribed was neither new or unsupported. In fact, the Supreme Court of Florida had previously found that this precise statute’s terminology is impermissibly indefinite. In a thoughtful and well-reasoned opinion, the Florida high court stated as follows:

* “We have over a long period of time upheld the statute despite earlier constitutional challenges. We are persuaded that these holdings and this statute require our reconsideration. One reason which makes this apparent is the transition of language over the span of the past 100 years of this law’s existence. The change and upheaval of modern times are of drastic proportions. People’s understandings of subjects, expressions and experiences are different than they were even a decade ago. The fact of these changes in the land must be taken into account and appraised. Their effect and the reasonable reaction and understanding of people today relate to statutory language.
“The blindfold upon our Lady of Justice is symbolic of impartiality, as being blind to all outside influences which would divert from the material facts and law applicable to the case in which justice is being sought upon its merits. Her blindfold in no wise suggests that justice should be blind to the facts of life and of the times in which it functions; for the law, to be vibrant, must be a living thing, responsive to the society which it serves, and to which that society looks as the last true depository of truth and jus-ticej
“A further reason dictating our reexamination here is the expansion of constitutional rulings on the invasion of private rights by state intrusion which must be taken into account in the consideration of this statute’s continuing validity. The language in this statute could entrap unsuspecting citizens and subject them to.20-year sentences for which the statute provides. Such a sentence is equal to that for manslaughter and would no doubt be a shocking revelation to persons who do not have an understanding of the meaning of the statute.”

Franklin v. State, 257 So.2d 21, 23 (Fla.Sup.Ct.1971) (citations omitted).

As did the District Court, we agree with the Florida Supreme Court that the words “abominable and detestable crime against nature” are” fatally vague. Convictions obtained under this statute, rendered void by its vagueness, are repugnant to the Constitution and cannot stand. We hold that the United States District Court properly reached an independent conclusion that the language of this particular statute is fatally vague and that imprisonment pursuant to a conviction under Section 800.-01 contravenes the Constitution’s guarantee of due process.

IV. INDEPENDENCE OF THE FEDERAL HABEAS POWER

Although this appeal is disposed of and affirmed by what we have thusfar stated, the vigor with which the briefs filed on behalf of the State of Florida argue certain other issues said to be present in this appeal justifies a few additional words. We have carefully considered the three remaining arguments that the State weaves throughout its briefs, and we conclude that each is without legal merit. The essential difficulty with these issues is that each misconceives the precise nature of the trial court’s holding.

First, the State argues that it is improper for a federal court to “apply” that part of the Franklin decision that holds Section 800.01 unconstitutional while “ignoring” that portion of the Florida opinion that states the holding is prospective only. We do not find that this is what the federal habeas court actually did; rather, we view the action below as being an independent federal determination that Section 800.01 is void for vagueness. The federal judge was guided and buoyed in his resolution of this question by the sagacious words of the Florida Supreme Court, but the decision was nonetheless a federal judge’s independent determination of a question under the federal Constitution.

Second, the State presents the unusual argument that because the Florida Supreme Court has already “voided” the statute, “there was nothing for the District Court to hold unconstitutional . an unconstitutional statute in a criminal area is to be considered no statute at all.” This argument misconceives the nature of a petition for a writ of habeas corpus. Petitioners were not asking for a “second” declaratory judgment that Section 800.01 was fatally vague — they sought release from confinement in prison, a confinement that rested solely on violations of what the State says is “no statute at all.” The District Court did not order relief because petitioners were held under a statute that was voided by the Florida courts; rather, the court below ordered petitioners released because they were being held in physical custody pursuant to convictions of violating a statute that the federal court found to be repugnant to the Fourteenth Amendment.

Third, the State argues that the federal courts are “bound” by state court decisions regarding the retroactivity of state court holdings. We find that none of the cases cited by the State on this issue are relevant to the case before us. The cases sought to be relied upon involve either questions of non-constitutional dimension or instances where the relief sought is retrial under the new decisional pronouncement. Here, however, petitioners assert a constitutional right to be totally free from prosecution under a void criminal statute. The usual considerations present in retroactivity cases, such as the degree the state will be burdened by a requirement that it re-conduct a host of trials, are simply not present. Under our decision the State of Florida is not prevented from re-enacting a “sodomy statute” that meets the Constitution’s demand for terminological specificity — but Section 800.01 being void, the State may not retry petitioners. Indeed, the instant ease is little more than a situation where persons are currently confined pursuant to convictions obtained under a statute that has been determined by the federal court to have been void at the time petitioners performed the acts said to have violated it. Cast in those terms, there can be little question that relief was surely appropriate.

Finally, underlying the State’s position in this appeal is the implicit argument that although the federal court could grant habeas relief upon finding that the statute offends the Constitution if the Florida courts had found no constitutional infirmity in the statute, the federal court is somehow divested of its habeas power by the State court’s decision that the statute is unconstitutional. To support this implication, the State makes repeated reference to the Franklin case being nothing but a “matter of procedure.” Such an argument cannot prevail:

“[T]he doctrine under which state procedural defaults are held to constitute an adequate and independent state law ground barring direct Supreme Court review is not to be extended to limit the power granted the federal courts under the federal ha-beas statute.”

Fay v. Noia, 1963, 372 U.S. 391, 399, 83 S.Ct. 822, 827, 9 L.Ed.2d 837, 845.

Fay v. Noia reached the Supreme Court in a different posture than that in which the instant appeal comes before us, but Fay v. Noia speaks so thoroughly to the independence of the federal habeas power that we are much guided by it. The Supreme Court has removed from the jurisprudence any notion that a state court’s determination of federal constitutional rights must be given binding weight. Florida thus cannot argue that its determination regarding retroactivity of the Franklin holding ousts federal habeas jurisdiction. “The jurisdictional prerequisite is . detention simpliciter.” Fay v. Noia, swpra, 372 U.S. at 430, 83 S.Ct. at 844, 9 L.Ed.2d at 864.

The Great Writ is one of the most precious creations of our Anglo-American heritage. As guardians of the rights that the Constitution secures to every person, regardless of his station in life, we must be ever vigilant that the availability of the Writ is never diminished. The propriety of its use in the' instant case is indisputable:

“[Behind the seemingly extravagant expressions regarding the Great Writ] may be discerned the unceasing contest between personal liberty and government oppression. It is no accident that habeas corpus has time and again played a central role in national crises, wherein the claims of order and of liberty clash most acutely, not only in England in the seventeenth • century, but also in America from our very beginnings, and today. Although in form the Great Writ is simply a mode of procedure, its history is inextricably intertwined with the growth of fundamental rights of personal liberty. For its function has been to provide a prompt and efficacious remedy for whatever society deems to be intolerable restraints. Its root principle is that in a civilized society, government must always be accountable to the judiciary for a man’s imprisonment: if the imprisonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to his immediate release. Thus there is nothing novel in the fact that today habeas corpus in the federal courts provides a mode for the redress of denials of due process of law. Vindication of due process is precisely its historic office.”

Fay v. Noia, 372 U.S. at 401-402, 83 S.Ct. at 829, 9 L.Ed.2d at 846-847.

With all due deference to the sovereignty of states, the power is not given unto any state to suspend, limit, or condition with prospectivity a constitutional right such as that before us. As was said long ago, it is a federal Constitution we are expounding. See McCulloch v. Maryland, 1819, 17 U.S. [4 Wheat.] 316, 407, 4 L.Ed. 579, 602. Florida cannot veto, nullify, or suspend a right that the Constitution grants to all persons, and the revered Writ is ever at the ready to answer the distress calls of its wards.

Affirmed.

RONEY, Circuit Judge,

(specially concurring) :

I concur in the disposition of this case on our Summary Calendar only because the Supreme Court of Florida has held that the statute under which the defendants were convicted is constitutionally void on Us face.

The statute, § 800.01, is void on its face as unconstitutional for vagueness and uncertainty in its language, violating constitutional due process to the defendants.

Franklin v. State, 257 So.2d 21, 24 (Fla.1971).

The State has not argued in its brief that the statute can withstand the due process requirements of the United States Constitution. Nor, as pointed out by Judge Goldberg, has the State cited any authority which could support a denial of habeas corpus relief by the District Court to defendants who have been convicted under a statute which has been determined to be too vague and uncertain on its face to charge any crime.

      . Franklin v. State, 257 So.2d 21, 24 (Fla. Sup.Ct.1971).

      . M.

      . Apparently acting in the light of Florida’s refusal to apply Franklin v. State, supra note 1, the case finding § 800.01 void, retroactively, see Stone v. State, 264 So.2d 81 (Fla.Dist.Ct.App.1972), the United States District Court specifically found that both Huffman and Stone have exhausted all available state remedies.

      . See note 3 supra.

      . Petitioner Stone alleged, inter alia:

      “Florida Statutes, chapter 800.01 et seq., applied or on its face is unconstitutional because of being too overly vague, indefinite, indistinct, etc., as to not apprise one of the nature and cause of accusation as well as ‘fails to give a person of ordinary intelligence [notice] that his contemplated conduct is forbidden by the statute,’ United States v. Harriss, 347 U.S. 612, 617 [, 74 S.Ct. 808, 98 L.Ed. 989] (1942) (sic, 1954]; Lanzetta v. New Jersey, 306 U.S. 451, 453 [, 59 S.Ct. 618, 83 L.Ed. 888] (1939), constituting a violation of due process under Fourteenth Amendment. Florida Supreme Court voided the statute but refused to hold it retroactive. See Franklin v. State . But in Ex parte Siebold, 100 U.S. 371, 376-377 [25 L.Ed. 717,] U. S. Supreme Court held: ‘An unconstitutional law is void, and is as no law. An offense created by it is not a crime.’ There is no legal cause for petitioner’s imprisonment under this void law.”
      Petitioner Huffman alleged, inter alia:

      “Florida Statute, chapter 800.01, is unconstitutional for vagueness and over-breadth inasmuch as it fails to inform the average person of common intelligence as to what is prohibited so that one need not speculate as to the statutory meaning. See Franklin v. State, 257 So.2d 21 (Fla.1971).”

      . See generally, Note, 49 Texas L.Rev. 400 (1971).

      . E. g., Buchanan v. Batchelor, N.D.Tex. 1970, 308 F.Supp. 729, vacated sub nom. Wade v. Buchanan, 401 U.S. 989, 91 S.Ct. 1221, 28 L.Ed.2d 526, noted in 49 Texas L.Rev. 400 (1971) ; Cotner v. Henry, 7 Cir. 1968, 394 F.2d 873 (dictum), cert. denied, 393 U.S. 847, 89 S.Ct. 132, 21 L.Ed.2d 118; Towler v. Peyton, W.D.Va.1969, 303 F.Supp. 581 (right to privacy issue not reached because conviction was for forceful sodomy) .

      . Note, 49 Texas L.Rev. 400, 405 (1971).

      . Perkins v. North Carolina, W.D.N.C. 1964, 234 F.Supp. 333, 336-337 (dictum).

      . Raphael v. Hogan, S.D.N.Y.1969, 305 F.Supp. 749 (on-stage acts of sodomy during a performance of the play “Che!”).

      . This argument was advanced in Buchanan v. Batchelor, supra note 7, and Dawson v. Vance, S.D.Tex.1971, 329 F.Supp. 1320.

      . See, e. g., Comment, The Bedroom Should Not Be Within the Province of the Law, 4 Cal.W.L.Rev. 115 (1968).

      . The specific holding of the lower court in Buchanan v. Batchelor, supra note 7, was that the Texas statute prohibiting sodomy is unconstitutionally overbroad in proscribing private, consensual acts of married couples. The prosecutions in both Cotner v. Henry, supra note 7, and Towler v. Peyton, supra note 7, involved marital sodomy.

      . E. g., Genesis 13:13; id. 18:20. See also Leviticus 18:22 (“Thou shalt not lie with mankind, as with womankind: it is abomination.”).

      . E. g., Regina v. Jacobs, R. & R. C. C. 331 (1817). Por a concise history of early British law regarding sodomy see Comment, supra note 12, at 115-16.

      . The terms employed by the various states are compiled at Comment, supra note 12, at 116.

      . The State does not dispute that more precise and understandable words are available. See, e. g., Note, supra note 8, at 400 n. 10. See also Vernon’s Tex. Penal Code Ann. art. 524 (1952).

      . E. g., Franklin v. State, 257 So.2d 21 (Fla.Sup.Ct.1971).

      . Linkletter v. Walker, 1965, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601; Great Northern Ry. v. Sunburst Oil & Refining Co., 1932, 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360; Smith v. Maryland, 4 Cir. 1966, 362 F.2d 763; Redd v. Decker, 5 Cir. 1971, 447 F.2d 1346; Smith v. Brough, D.Md.1965, 248 F.Supp. 435.

      . Great Northern Ry. v. Sunburst Oil & Refining Co., supra note 19 (a state’s non-constitutional decisions may constitutionally be denied retroactive application) ; Redd v. Decker, supra note 19 (non-constitutional evidentiary decisions may be denied retroactive application).

      . Linkletter v. Walker, supra note 19 (one species of the exclusionary rule may be denied retroactive application) ; Smith v. Maryland, supra note 19 (requirement that non-believers not be excluded from jury service may be denied retroactive application) ; Smith v. Brough, supra note 19 (Smith v. Maryland in District Court).

      . See generally Vacarro v. United States, 5 Cir. 1972, 461 F.2d 626 (1972), where Chief Judge Brown wrote a scholarly and probing opinion analyzing the state of the law regarding retroactivity. Surveying the entire body of the relevant law, particularly as developed in the Supreme Court, Chief Judge Brown concluded :
      “We distill from this whole body of cases the Court’s value judgment that people are not to be punished for the same offense twice, are not to be punished at all for actions which are constitutionally immune from punishment, and are not to be punished by procedures which present ‘a serious risk that the issue of guilt or innocence may not have been reliably determined,’ or which produce a ‘clear danger of convicting the innocent.’ Practices, procedures or statutes which present the probability or risk of such consequences must be eradicated and the surest way is to prescribe retroactivity.”
      461 F.2d at 633 (emphasis added, footnotes omitted).

      . Fay v. Noia, supra, at §§ II, III.


author: RONEY, Circuit Judge:

text:
    Dr. Clayton H. SMITH and Doris Jean Smith, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
    No. 72-3519
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 2, 1973.

      Dougal C. Pope, Houston, Tex., for plaintiff s-appellants.
    Michael D. Cropper, U. S. Dept, of Justice, Tex. Div., Dallas, Tex., Scott P. Crampton, Asst. Atty. Gen., Meyer Roth-wacks, Atty., Tax Div., U. S. Dept, of Justice, Washington, D. C., Donald E. Walter, U. S. Atty., Shreveport, La., for defendant-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

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

   RONEY, Circuit Judge:

In this taxpayer refund suit, plaintiffs’ complaint was dismissed by the District Court because it was not filed within the statutory period of limitations governing' such suits. On appeal, taxpayers contend that the notices of disallowance were insufficient to start the running of the period of limitations. We disagree and affirm.

Taxpayers, husband and wife, timely filed joint federal income tax returns for the years 1948 through 1954 and for 1956. On November 23, 1965, following an audit of those returns, the Commissioner of Internal Revenue and taxpayers agreed, on a Treasury Form 870-AD, to an assessment and collection of deficiencies and penalties totaling $30,825.52. The taxpayers also agreed not to claim a refund for the years in question. This settlement was agreed to by the Commissioner on November 23, 1965, and the agreed amounts were paid.

Almost two years later, on November 13, 1967, taxpayers filed with the District Director of Internal Revenue timely claims for refunds totaling $30,825.52, plus interest. On March 18, 1968, notices of disallowance of the refund claims were sent to taxpayers by certified mail and were received by them. On April 10, 1970, two years and twenty-three days after the mailing of the notices, taxpayers filed their complaint in the District Court seeking a refund of the deficiencies and penalties collected by the Commissioner. The District Court dismissed the complaint for lack of jurisdiction, finding that taxpayers had failed to file suit within two years from the date of the mailing of the notice of disallowance, as required by the Internal Revenue Code. 26 U.S.C.A. § 6532(a)(1). From that ruling and dismissal, taxpayers appeal.

Under Section 6532(a) (1),
No suit or proceeding . . . for the recovery of any internal revenue tax, penalty, or other sum shall be begun . . . after the expiration of 2 years from the date of mailing by certified mail or registered mail by the Secretary or his delegate to the taxpayer of a notice of the disallowance of the part of the claim to which the suit or proceeding relates.

Taxpayers concede that they received the notices of disallowance, but they argue that these notices were ineffective and incapable of beginning the running of the two-year period of limitations because

(1) the notices themselves were vague and indefinite,

(2) copies of the notices were not sent to taxpayers’ “recognized representative” in accordance with a power of attorney filed with the Internal Revenue Service, and

(3) the Commissioner failed to send a “30-day letter” to taxpayers prior to issuing the notices of disallowance. We see no merit in any of these contentions. Taxpayers received the statutory notices of disallowance, failed to file their complaint within the prescribed two-year period, and are now barred from asserting those claims.

(D

As to the sufficiency of the notices themselves, the purpose of a notice of disallowance is to provide the taxpayer with official notification of the Commissioner’s adverse action. So long as the taxpayer receives adequate notice of the Commissioner’s disallowance, no particular form of notice is necessary to start the running of the period of limitations. A. G. Reeves Steel Const. Co. v. Weiss, 119 F.2d 472 (6th Cir.), cert. denied, 314 U.S. 677, 62 S.Ct. 181, 86 L.Ed. 541 (1941). In the case before us, taxpayers received adequate notice. A separate notice of disallowance was sent to taxpayers for each of the taxable years in question. Each notice clearly stated the tax year involved, the type of tax, the exact amount of the refund sought, and the disallowance. Taxpayers contend that the notices did not state the tax year involved with sufficient specificity, arguing that “Period Ending: 1948” should have stated “Period Ending: December 31, 1948.” We cannot agree. Taxpayers reported their annual income as calculated on a calendar year basis, so no ambiguity whatsoever inhered in these notices.

(2)

As to taxpayers’ contention that the notices were ineffective because copies were not sent to their “recognized representative” in accordance with a power of attorney filed with the Internal Revenue Service, we find that this Court’s opinion in Gallion v. United States, 389 F.2d 522 (1968), is dispositive of the question. In Gallion, the taxpayer filed with the Internal Revenue Service a power of attorney requesting that all correspondence be sent to him in care of his attorney. Contrary to taxpayer’s instructions, the Internal Revenue Service sent the notice of disallowance directly to him and not to his attorney. Affirming the District Court’s dismissal of the taxpayer’s refund suit filed more than two years after receipt of the disallowance notice, Judge Coleman wrote that there was no “valid room for this Court, in effect, to amend the specific command of the statute by judicially adding the words ‘or other person designated by him’ immediately following ‘taxpayer’ in the next to last line of the statute.” 389 F.2d at 524. Taxpayers here received the disallowance notices, so they had the benefit of exactly what Section 6532(a) (1) provides.

Taxpayers argue that Section 601.-506(a) of the Internal Revenue Service’s Statement of Procedural Rules, 26 C.F. R. § 601.506(a), entitled them, as a matter of right, to have copies of all correspondence sent to their “recognized representative.” They cite that portion of Section 601.506(a) that states: “Any notice or other written communication (or a copy thereof) required or permitted to be given to a taxpayer in any matter before the Revenue Service shall be given to the taxpayer’s recognized representative.” When read in its entirety, however, Section 601.506(a) plainly rejects taxpayers’ contention by further providing that “In no event will failure to give notice or other written communication to a taxpayer’s representative affect its validity which is to be determined solely under the provisions of the Internal Revenue Code.”

(3)

Finally, taxpayers argue that the Commissioner’s failure to send a “30-day letter” to them prevents the running of the two-year period of limitations. We hold otherwise. First, according to Section 601.105(d) (iv) of the Internal Revenue Service’s Statement of Procedural Rules, 26 C.F.R. § 601.-105(d) (iv), a “30-day letter” is sent out only in unagreed cases, to encourage settlements. Here, however, taxpayers had made a binding agreement on Form 870-AD, Gaynes v. United States, 454 F.2d 1142 (5th Cir. 1972), and, as an agreed case, a “30-day letter” was not required. Second, the provisions of the Statement of Procedural Rules are merely directory, and not mandatory. Rosenberg v. Commissioner, 450 F.2d 529 (10th Cir. 1971); Cleveland Trust Co. v. United States, 421 F.2d 475 (6th Cir.), cert. denied, 400 U.S. 819 (1970); Luhring v. Glotzbach, 304 F.2d 560 (4th Cir. 1962).

Since the complaint in this case was filed two years and twenty-three days after the mailing of the notice of disal-lowance, the District Court correctly dismissed the suit for failure to comply with Section 6532(a) (1).

Affirmed.


author: FRED M. TAYLOR, District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. JIT SUN LOO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. AH CHENG LOO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. AH SOOI WONG, Defendant-Appellant.
    Nos. 72-3077 to 72-3079.
    United States Court of Appeals, Ninth Circuit.
    April 27, 1973.

      Dennis W. Potts (argued), Honolulu, Hawaii, for defendant-appellant, Jit Sun Loo.
    Joseph A. Kinoshita (argued), Honolulu, Hawaii, for defendant-appellant, Ah Cheng Loo.
    Jason F. Oliver (argued), Honolulu, Hawaii, for defendant-appellant, Ah Sooi Wong.
    Thomas P. Young, Asst. U. S. Atty. (argued), Robert K. Fukuda, U. S. Atty., Honolulu, Hawaii, for plaintiff-appellee.
    Before BROWNING and GOODWIN, Circuit Judges, and TAYLOR, District Judge.

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

   FRED M. TAYLOR, District Judge:

The appellants, Jit Sun Loo, Ah Cheng Loo and Ah Sooi Wong, and five other persons, were charged in an indictment with conspiracy to import approximately 17.5 pounds of heroin into the United States in violation of Title 21, United States Code, Sections 952 (a) and 963.

Three of the co-defendants, Chee Kong Lee, Heng Hang Loo and Hwa Eng Teh (hereinafter referred to as the Honolulu defendants) were tried together and convicted of the illegal importation of heroin into the United States in violation of Title 21, U.S.C. § 952(a). These defendants were not tried on the conspiracy charge. Co-defendants Kan Tsoi Tai and Kay Lim Young were tried together which resulted in a mistrial and the government dismissed the indictment as to them.

The appellants were tried separately and each convicted on the conspiracy charge. The appellants filed separate appeals which were consolidated for argument and disposition. In considering these appeals we shall do so in two Parts. The appeals of appellants Jit Sun Loo and Ah Sooi Wong will be designated as Part One and the appeal of Ah Cheng Loo as Part Two.

Part 1

The Honolulu defendants, Chee Kong Lee, Heng Hang Loo and Hwa Eng Teh, of Malaysian descent and citizenship, were arrested on January 26, 1972, by United States Customs agents at the Honolulu International Airport for the importation of 17.5 pounds of heroin. Their airline tickets disclosed their destination to be San Francisco via Philippine Air Lines, Flight 100. Customs agents learned from the Honolulu defendants that they were to be met in San Francisco by a person or persons whose identity or identities were unknown to them.

This information was immediately reported by the agents in Honolulu to customs officials in San Francisco who placed the area where Flight 100 was scheduled to arrive under surveillance on the evening of January 26, 1972. During the unloading of passengers from Flight 100, customs agents observed two male persons of Asiatic extraction, later identified as appellants Jit Sun Loo and Ah Sooi Wong, at the arrival gate. They did not meet anyone departing from the plane. The customs officials observed that all passengers, some of whom were of Oriental extraction, were met by other persons. The appellants were then observed going down to the baggage claim area for Flight 100 and waiting until all baggage from that flight had been claimed. Appellants then left the airport and proceeded to the Hilton Airport Inn located a short distance from the airport. Upon checking at the registration desk, the customs agents learned that the appellants had arrived at the Hilton Inn on the 24th of January, 1972 and planned to depart on January 26, 1972, the day on which, according to the information forwarded from customs officials in Honolulu, the Honolulu defendants were to arrive at San Francisco. The customs agents also learned from the hotel registration card the names of the appellants and that their place of residence was Malaysia.

A special surveillance was conducted by agents of the San Francisco Customs Office of the appellants at this time and they were under constant surveillance by customs agents on the evening of January 26, 1972, and during the day and early evening hours of January 27th. They were observed eating breakfast at the hotel and proceeding to the San Francisco International Airport in the morning and again in the early evening of January 27th, watching the incoming flights at the overseas area. They did not meet anyone departing from any flight at the airport while under surveillance.

While the above mentioned surveillance was being conducted in San Francisco, the three Honolulu defendants were placed on Philippine Airlines Flight 100 at Honolulu, accompanied by customs agents, and they arrived at the San Francisco International Airport on the evening of January 27th. On debarking from the plane the Honolulu defendants went to the baggage area for Flight 100 and seated themselves on a couch in the area.

During the time when the Honolulu defendants arrived at the airport, the appellants were observed watching everyone who debarked from Flight 100 and after all passengers deplaned, they proceeded to the baggage area where they were observed standing by the National Car Rental counter, approximately 60 feet from where the Honolulu defendants were seated. Appellants remained in the area of the National Car Rental counter until all passengers from Flight 100 had picked up their luggage and departed. During this time, appellant Ah Sooi Wong was observed walking to within three to five feet of where the Honolulu defendants were seated and then turning around and returning to the area of the car rental counter. By the time appellants left the baggage area, the only people remaining were the Honolulu defendants, the customs agents and themselves. The appellants then left the airport and returned to their room at the Hilton Inn where they were arrested by customs agents without an arrest warrant. During the entire sequence of events at the baggage area, no words, gestures or other forms of communication were observed by the customs agents between appellants and the Honolulu defendants.

Immediately following the arrest of the appellants, they were handcuffed and seated on a bed. On entering the room the agents commenced a search thereof and no weapons, contraband or illegal substances of any nature were found. A briefcase, located at the foot of the bed on which appellants were seated, was searched and plane tickets, passports and identification cards were seized and later introduced over the objections of appellants at trial.

These appellants have presented several issues for consideration of this court, each of which they contend require the reversal of their convictions. We believe the most crucial questions presented are whether the warrantless arrest of the appellants in their room at the Hilton Inn was lawful under the circumstances hereinabove related, and whether the search and seizure conducted by the agents, incident to said arrest, was unreasonable and unlawful.

' Title 26 U.S.C. § 7607, as amended, provides that officers of the customs may make arrests without a warrant for violation of any law of the United States relating to narcotic drugs where the violation is committed in the presence of the person making the arrest or where such person has reasonable grounds to believe that the person to be arrested has committed or is committing such violation. In Draper v. United States, 358 U.S. 307, 310, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), the Supreme Court stated that “reasonable grounds” as used in the aforesaid statute, and “probable cause” as used in the Fourth Amendment, are substantial equivalents of the same meaning. In United States v. McDowell, 475 F.2d 1037 (9th Cir. 1973), this court reiterated the standard necessary to authorize a valid arrest without a warrant:

“Whether a warrantless arrest, made by a state or federal officer, is constitutionally valid depends upon whether, at the moment of arrest, the officers had probable cause to make it. Arresting officers have probable cause if, at the moment of arrest, ‘the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the . . . (arrested person) . . . had committed or was committing an offense.’ [citation omitted] In applying that test, the facts as they appeared to the arresting officer must be fudged against an objective standard, the subjective good faith of the officer is not dispositive.’’ [emphasis added]

See also Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925) ; U. S. v. Tramontana, 460 F.2d 464, 467 (2nd Cir. 1972), and United States v. Rivera, 321 F.2d 704, 708 (2nd Cir. 1963).

United States v. Rivera, supra, at 707 states:

“The test of probable cause is designed to strike a reasonable and proper balance between the protection of the rights of the individual citizen against ‘unreasonable interferences with privacy and from unfounded charges of crime,’ on the one hand, and the countervailing reasonable necessities of law enforcement for the protection of the community at large on the other, [citation omitted] The test is plainly a practical compromise and the probabilities with which it deals must be viewed in the light of ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ [citation omitted] ‘The quantum of information which constitutes probable cause * * * must be measured by the facts of the particular case.’ ”

Applying the above stated standards to the facts of this case, this court cannot find that the customs officers had “reasonable grounds” or “probable cause” to make the arrest of appellants Jit Sun Loo and Ah Sooi Wong in their room at the Hilton Inn on the evening of January 27, 1972. The circumstances of this case could raise a suspicion in the minds of the customs agents that appellants had or were about to have some connection with the Honolulu defendants, but it is axiomatic that mere suspicion will not justify an arrest without a warrant. It is doubtful that the information which the agents had, in regard to these appellants, would have been sufficient to justify the issuance of a warrant for their arrest. The only information the agents had was that the Honolulu defendants were going to be met in San Francisco. They did not have a description of the person or persons, they did not know the name or names, and they did not know why such person or persons might be meeting the Honolulu defendants. Because of the activities of these appellants, the most that the agents had was a suspicion that they were in some way connected with the importation of heroin.

In conclusion, this court is of the opinion that the following language from Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 413, 9 L.Ed.2d 441 (1963) appropriately sums up our position:

“It is basic that an arrest with or without a warrant must stand upon firmer ground than mere suspicion. . The history of the use, and not infrequent abuse, of the power to arrest cautions that a relaxation of the fundamental requirements of probable cause could ‘leave law-abiding citizens at the mercy of the officers’ whim or caprice.’ ”

It follows that since the agents did not have “reasonable grounds” or “probable grounds” to make the warrantless arrest of these appellants, the search for and seizure of evidence incident to said arrest was unreasonable and unlawful. The admission at trial of the evidence thus obtained was erroneous.

Since we are constrained to conclude that the evidence, obtained as a result of the unlawful arrest and the search and seizure incident thereto was inadmissible, the conviction of each of appellants must be reversed and it is unnecessary for us to consider the remaining issues presented on their appeals.

Part II

Appellant Ah Cheng Loo has raised several issues on his appeal, the most critical being whether he was entitled to a judgment of acquittal on the charge of conspiracy at the close of the government’s case. The basic facts on which he was convicted are as follows:

Customs agents first focused on Ah Cheng Loo through a telephone call placed from the room of appellants Jit Sun Loo and Ah Sooi Wong at the Hilton Inn to Room 1018 of the Prince George Hotel in New York, which room was registered to Ah Cheng Loo. At this time Ah Cheng Loo was placed under surveillance by customs agents.

Following his arrest in San Francisco, Jit Sun Loo agreed to permit customs agents to monitor two telephone calls which he placed to Room 1018, Prince George Hotel. The actual monitoring was accomplished by attaching a tape recorder to the telephone used by Jit Sun Loo. A government interpreter also listened in on the conversation and later translated the tape into English since parts of the conversations were conducted in the Malaysian language

At the time each of the telephone calls was placed to Room 1018 at the Prince George Hotel, customs agents, located in a room across from 1018, knew Ah Cheng Loo was the only occupant in that room and they were able to hear the telephone ring and a man’s voice answer.

Ah Cheng Loo was next observed leaving Room 1018 at approximately 1:30 PM on January 28, 1972 and taking a subway to 77th Street and Lexington Avenue where he had a cup of coffee. He then proceeded by taxi to the Queens, New York area where he entered an apartment house, stayed approximately 10 minutes and then traveled by train to Grand Central Station where contact with him was lost by customs agents at approximately 3:00 PM. Ah Cheng Loo was next seen at approximately 5:00 PM on the same day at the John F. Kennedy International Airport where he was observed meeting Hwa Eng Teh (one of the Honolulu defendants) and appellant Ah Sooi Wong, both of whom had just arrived on a flight from San Francisco accompanied by customs agents. The record reveals that the three Malaysians shook hands and spoke briefly, although none of the conversation was overheard. Ah Cheng Loo then left the airport in what is described as a “hurried fashion” and was arrested while attempting to get into a taxi.

In considering this evidence, this court is bound by the well established rule that once a verdict of guilty has been rendered by a jury, an appellate court must view the evidence in the light most favorable to the government. See United States v. Eskridge, 456 F.2d 1202, 1205 (9th Cir. 1972). We are also compelled on review to apply the following standard articulated by the Supreme Court in American Tobacco Co. v. United States, 328 U.S. 781, 787 N. 4, 66 S.Ct. 1125, 1128, 90 L.Ed. 1575 (1946):

“The verdict in a criminal case is sustained only when there is ‘relevant evidence from which the jury could properly find or infer, beyond a reasonable doubt,’ that the accused is guilty.” [emphasis added]

See also United States v. Nelson, 419 F.2d 1237, 1242 (9th Cir. 1969).

The burden which the government has in a conspiracy case is well stated in United States v. De Cavalcante, 440 F.2d 1264, 1272 (3rd Cir. 1971):

“Under the teaching of Glasser v. United States . . . the prosecution must establish by substantial evidence, restricted to proof aliunde, the fact that a conspiracy existed. ‘Once the existence of a conspiracy is clearly estdblished, slight evidence may be sufficient to connect a defendant jvitb it.’ ’.’ [emphasis added]

The essential elements necessary to establish a conspiracy are: (1) an agreement by two or more persons to combine for an illegal purpose, and (2) an overt act by one member in furtherance of the agreement. United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940). Further, there must be present at least the same degree of criminal intent necessary for the substantive offense itself, i. e. importation of heroin into the United States. See Jefferson v. United States, 340 F.2d 193 (9th Cir. 1965).

In assessing the evidence presented in this case, we find the record void of “substantial evidence” that Ah Cheng Loo conspired with anyone to import heroin into the United States. At trial, evidence was introduced showing the importation of approximately 17.5 pounds of heroin by the Honolulu defendants and the activities of the San Francisco appellants, as described in Part I of this opinion. The two telephone calls from Jit Sun Loo to Ah Cheng Loo and the meeting at the Kennedy Airport only indicate at most a. suspicion that Ah Cheng Loo was implicated in the enterprise, which is essentially devoid of any substantial foundation in fact to establish the elements necessary to show the existence of a conspiracy. The record does not reveal any other competent evidence upon which the government may rely to establish that Ah Cheng Loo was a party to the alleged conspiracy.

In United States v. Borelli, 336 F.2d 376, 384 (2nd Cir. 1964), Judge Friendly has stated the applicable principle as follows:

“Although it is usual and often necessary in conspiracy cases for the agreement to be proved by inference from acts, the gist of the offense remains the agreement, and it is therefore essential to determine what kind of agreement or understanding existed as to each defendant.”

The gravamen of a conspiracy charge being the agreement, this court cannot find that the evidence which the government had in this case is the kind of circumstantial evidence which can supply the requisite foundation for a conspiracy conviction. See United States v. Gardner & Le Boulanger, 475 F.2d 1273 (9th Cir. 1973).

Accordingly, the conviction of Ah Cheng Loo is reversed. Having reversed on this issue, it is not necessary to decide the remaining issues presented on the appeal.

The judgment of conviction in each of the above entitled cases is reversed.

      . Transcription of Tape of Telephone Conversation
      Placed from the Hilton Inn San Francisco International Airport, January 27, 1972,
      Interpreted by Joseph Ng
      “Operator: This is the operator.
      Chen: [customs agent] Yeah. This is Room 322. The name is Handy. May I have Area Code 212. The number is 532-7800.
      Operator: And you’re Mr. Handy ?
      Chen: Right.
      Operator: H-a-n-d-y?
      Chen: Umm hmm.
      Operator: OK. Thank you.
      Operator: Prince George.
      J. Loo: [Jit Sun Loo] Hello?

        Operator: Yes?
      J. Loo: Is this the Prince George?
      Operator: That’s right.
      J. Loo: Please give me Room 1018 please.
      Operator: 1018?
      J. Loo: Yes.
      Operator: Thank you.
      A. Loo: [Ah Cheng Loo] (response inaudible)
      J. Loo: Hello?
      A. Loo: Is Tin there?
      J. Loo: He has gone.
      A. Loo: Tomorrow what time do they come?
      J. Loo: They have bought the ticket.
      A. Loo: Don’t make it too clear.
      J. Loo: I will phone you again tomorrow. Tomorrow I will tell you what time the plane will leave here and also the flight number.
      A. Loo : Don’t make it too clear.
      J. Loo: Nothing else to say. That’s all.”
      Transcription of Tape of Telephone Conversation Placed from the Hilton Inn, San Francisco International Airport, January 28, 1972,
      Interpreted by Joseph Ng
      “J. Loo: Hello?
      Cameron: This is Mr. Cameron at the front desk. Is Mr. Handy there?
      J. Loo: Hold on a minute.
      Handy: Yes, Mr. Cameron.
      Operator: Your name and room number?
      Handy: OK. Just a second . (part of conversation inaudible). Are you going to do the registration under his name? (part of conversation inaudible) Well, if he calls back. OK, you do it. Hang on a second.
      Operator: OK.
      J. Loo: Hello?
      Operator: Hello. Yes, I need the registered last name and the room number.
      J. Loo: You mean my room number? Uh, Mr. Loo, L double O, Room 323.
      Operator: How do you spell your last name?
      J. Loo: L. double O.
      Operator: Thank you.
      J. Loo: This is the right number, isn’t it?
      Operator: Good afternoon.
      J. Loo: Prince George?
      Operator: Yes.
      J. Loo: Please give me Room 1018 please.
      Operator: Thank you. Excuse me, that’s 1018?
      J. Loo: 1018.
      Operator: 1018. Thank you.
      A. Loo: Hello?
      J. Loo: Cheng? They all have gone there. They left after 9.
      A. Loo: What is the number?
      J. Loo: 800. They will arrive there after 5.
      A. Loo: When everything’s all right, I will phone you again tonight.
      J. Loo: OK.
      A. Loo: Goodbye.”