source: Caselaw Access Project

author: DUNIWAY, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Larry Dean SHORT, Defendant-Appellant.
    No. 73-2748.
    United States Court of Appeals, Ninth Circuit.
    March 18, 1974.

      Steven M. Kipperman (argued) Kip-perman, Shawn & Keker, San Francisco, Cal., for defendant-appellant.
    Brian B. Denton, Asst. U. S. Atty. (argued), James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for plaintiff-appellee.
    Before KOELSCH and DUNIWAY, Circuit Judges, and GRAY, District Judge.

       The Honorable William P. Gray, United States District Judge for the Central District of California, sitting by designation.

   OPINION

DUNIWAY, Circuit Judge:

Short was convicted under both counts of an indictment and sentenced to three years on each count. The sentences are concurrent. Count One charged bank robbery, under 18 U.S.C. § 2113(a); Count Two charged that, in committing the offense, Short assaulted or put in jeopardy the life of a teller by the use of a dangerous weapon, a handgun, 18 U.S.C. § 2113(d).

Under our decision in United States v. Faleafine, 9 Cir., 1974, in banc, 492 F.2d 18 (1974), the two counts charged but one offense, the Count One offense, aggravated by the conduct charged in Count Two. See the cases cited in Faleafine, supra, and United States v. Stroud, 9 Cir., 1973, 474 F.2d 737, 739. The sentence under Count One is void, and must be vacated.

Short makes but one claim of error that has merit.

Viewed in the light most favorable to the government the facts are as follows: A federally insured bank in San Francisco was robbed by one John Seymour who used a gun during the robbery. Short drove Seymour to the vicinity of the bank and parked his car a block from the bank. During the robbery the hood of Short’s car was up and he was apparently repairing it. While he was waiting for Seymour, Short met one Gloria Qualls, who became the key government witness, and offered her a ride. After the robbery Seymour returned to the car, whereupon Short closed the hood and drove off with Seymour and Qualls in the car.

Short dropped Seymour off at Seymour’s residence and shortly thereafter Short and Qualls returned to the residence. After a short stay at the house during which Short and Seymour conferred privately with a third person, all four persons in the house went to a bar. Later, Short and Qualls left the bar and drove to a parking lot where they waited until the time that Short was to meet with Seymour again. At the parking lot Short complained to Qualls that he knew that he had not gotten his fair share of the money that was taken. There was no direct evidence that Short knew that Seymour had a gun or that Seymour intended to use it.

Although Short was charged as a principal, the evidence showed that he was an aider and abettor, and the case was tried and the jury was instructed on that theory.

After a period of deliberation the jury returned to the courtroom and asked the judge if “the defendant ha[d] to know Seymour had a gun to be guilty on the second indictment.” The judge responded in pertinent part:

“Now, in light of the instructions and the government’s case and status of the evidence here that Short’s participation, if any, was as an aider and abettor, I would further instruct you that it is not necessary that Mr. Short had to have known the exact or precise details by which Mr. Seymour was going to accomplish the bank robbery or what methods he was going to use. What is necessary is that Mr. Short knew that a bank robbery was going to be attempted or accomplished by Mr. Seymour and then that Mr. Short did some affirmative act to attempt to help, attempt to carry that conduct out with the intent that the bank robbery should be successfully accomplished and so, therefore, whatever occurred in the bank, whether or not he knew that Mr. Seymour was armed or what he was armed with or not, is not necessary, not a necessary element to the crime, if in fact Seymour did use, commit the bank robbery by the use of a weapon which would put it in the classification of being an armed bank robbery and so it is essential that you bear in mind that Seymour had to have done these acts.” (emphasis added)

This instruction is erroneous because it fails to require the jury to find an essential element of the crime of armed bank robbery as a prerequisite to conviction. It is the aider and abettor’s state of mind, rather than the state of mind of the principal, that determines the former’s liability. R. Perkins, Perkins on Criminal Law 662 (2 ed. 1969); 1 R. Anderson, Wharton’s Criminal Law and Procedure 247 (1957). It is true that the prosecution is not required to prove that the aider and abettor was aware of all of the details of the planned offense, Weedin v. United States, 9 Cir., 1967, 380 F.2d 657, 660. It is also true that the aider and abettor may be liable for the natural and probable consequences of the crime that he aided and abetted.

However, here Congress has specifically provided for an increased penalty for aggravated forms of bank robbery. An essential element of armed bank robbery as charged here is that the principal was armed and used the weapon to jeopardize the life of the teller. It is this conduct that Short must be shown to have aided and abetted. “[An] aider and abettor is made punishable as a principal . . . and the proof must encompass the same elements as would be required to convict any other principal.” Hernandez v. United States, 9 Cir., 1962, 300 F.2d 114, 123. Thus the jury must be told that it must find that Short knew that Seymour was armed and intended to use the weapon, and intended to aid him in that respect. Cf. United States v. Greer, 7 Cir., 1972, 467 F.2d 1064, 1068-1069. The trial judge’s instructions specifically dispensed with this element. The government’s assertion that this error is harmless is untenable. The conviction must be reversed.

Short raises five other claims of error, none of which is sustainable.

First, Short argues that the trial judge improperly refused to admit evidence of a prior consistent statement after the government had impeached his testimony. There are two short answers. The letter in question was not a prior consistent statement; it was written after the statement with which Short was impeached was made. The letter was not Short’s statement; it was written by Short’s attorney.

Second, Short argues that the indictment should have been dismissed because the testimony before the grand jury was predominately hearsay and the government did not bring the key witness, Qualls, before the grand jury. He argues that in relying on hearsay, the government undermined the spirit and effectiveness of the Jencks Act, 18 U.S.C. § 3500, by denying the defense the opportunity to impeach the key government witness with a Jencks Act statement. The failure of the government to produce key witnesses before the grand jury and its reliance upon hearsay in grand jury proceedings does substantially hinder the advancement of some of the goals of the Jencks Act, Knudsen, Pretrial Disclosure of Federal Grand Jury Testimony, 60 F.R.D. 237, 252 (1973); United States v. Arcuri, E.D.N.Y., 1968, 282 F.Supp. 347, affirmed, 2 Cir., 405 F.2d 691; cert. denied, 395 U.S. 913, 89 S.Ct. 1760, 23 L. Ed.2d 227. However, the Supreme Court has held and this circuit has consistently reaffirmed that hearsay evidence is admissible before the grand jury. Costello v. United States, 1956, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397; United States v. Trenary, 9 Cir., 1973, 473 F.2d 680.

It has been held that, where the prosecutor has deceived the grand jury into believing that it is receiving first hand information rather than hearsay, or where there is a high probability that with direct testimony the grand jury would not have indicted the defendant, a reversal is required. United States v. Estepa, 2 Cir., 1972, 471 F.2d 1132, 1137. We do not face this question here. Short does not argue that such abuses appear on this record.

Third, Short argues that because Qualls, the key government witness, was not brought before the grand jury and thus no Jencks Act statement was required of her, she should not have been permitted to testify at the trial. There is no basis in law for this claim.

Fourth, Short claims that the trial judge erred in not granting his motion for a mistrial on the basis of juror misconduct. We do not consider the question ; it is not likely to arise again.

Fifth, Short argues that the trial judge should have compelled an election by the prosecution between the two counts of the indictment. Taken together, the two counts charge but one offense. But whether the offense and the aggravating conduct are pleaded in two counts or one, it is still proper, indeed necessary, to require a jury to make a separate finding as to each. No “election” is necessary or even appropriate.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.


author: RIVES, Circuit Judge:

text:
    The WICKES CORPORATION, Plaintiff-Appellant, v. INDUSTRIAL FINANCIAL CORPORATION et al., Defendants-Appellees.
    No. 73-1918.
    United States Court of Appeals, Fifth Circuit.
    May 10, 1974.

      William E. Sadowski, Miami, Fla., for plaintiff-appellant.
    Ralph H. Bearden, Jr., Joseph A. Ruszkowski, Miami, Fla., for defendants-appellees.
    Before RIVES, WISDOM and MORGAN, Circuit Judges.
   RIVES, Circuit Judge:

This is an interlocutory appeal from two orders of the district court. The first order denied appellant’s motion to stay arbitration proceedings. The second order granted without bond appellees’ motion for preliminary injunction against the sale of certain property. We reverse the first order, and this moots the appeal of the second order.

I.

In June 1970, Wickes Corporation and Nuessle Plan, Inc., now known as Industrial Financial Corporation (IFC), entered into a contract relating to a mobile home park. The contract contained an arbitration clause. After major disputes developed between the parties, IFC filed a demand for arbitration with the American Arbitration Association. Wickes protested that the Association did not have jurisdiction and that any decision would not be enforceable, but the Association proceeded forward. On December 29, 1972, Wickes filed a complaint against IFC in the federal district court, alleging diversity of citizenship between the parties. On February 1, 1973, Wickes filed a motion to stay the arbitration proceedings. The district court denied Wickes’ motion on February 22, 1973, and Wickes appealed. On April 7, 1973, the district court halted arbitration pending appeal to this Court.

The controversy centers around Paragraph 10 of the contract between Wickes and IFC:

“10. Any controversy or claim arising under, out of, in connection with or relation to this agreement, or the breach thereof, shall be settled by arbitration in accordance with the Rules of the American Arbitration Association then outstanding. Any award rendered in such arbitration shall be final and binding on each and all of the parties, and judgment maybe entered in any Court having jurisdiction. The provisions of Chapter 682, Florida Statutes, shall not apply to this arbitration or the award thereunder.” (Emphasis added.)

Chapter 682 of the Florida Statutes, F.S.A., is the Florida Arbitration Code. Section 682.02 of this Code provides:

“Two or more parties may agree in writing to submit to arbitration any controversy existing between them at the time of the agreement, or they may include in a written contract a provision for the settlement by arbitration of any controversy thereafter arising between them relating to such contract or the failure or refusal to perform the whole or any part thereof. Such agreement or provision shall be valid, enforceable and irrevocable without regard to the justiciable character of the controversy; provided that this law shall not apply to any such agreement or provision to arbitrate in which it is stipulated that this law shall not apply or to any arbitration or award thereunder.” (Emphasis added.)

19C F.S.A. Pocket Part.

We have no difficulty in discerning the plain meaning of the final provision in this section: If the parties to a contract expressly agree that Chapter 682 shall not apply, then the Florida Arbitration Code shall not apply to any provision in the contract for the arbitration of controversies. The final sentence of Paragraph 10 of the contract between Wickes and IFC states that Chapter 682 shall not apply. Thus Wickes and IFC clearly stipulated that the Florida Arbitration Code would not apply. Since that stipulation is in accord with the proviso contained in Section 682.02, we hold that the Florida Arbitration Code is inapplicable in this case.

Since the Florida Arbitration Code is inapplicable, Paragraph 10 of the contract must be interpreted in the light of common law principles. Wickes and IFC agree that under the common law of Florida, an agreement to arbitrate future controversies has always been deemed contrary to public policy and unenforceable because it tends to oust the courts of jurisdiction. See Flaherty v. Metal Products Corp., Fla.1955, 83 So.2d 9, and cases cited therein.

Applying Florida law, we interpret Paragraph 10 to mean that the parties intended voluntarily to use arbitration to settle any controversies, but that, notwithstanding the stated intention, either party can refuse to arbitrate. When IFC requested arbitration, Wickes protested in a manner which made clear its disinclination to arbitrate. Wickes’ efforts to have the federal district court stay the arbitration proceedings also manifest its determination not to engage in . arbitration. We think a Florida court would not force Wickes to arbitrate. We therefore conclude that the district court should have stayed the arbitration proceedings.

II.

On March 16, 1973, IFC filed motions for a temporary restraining order and a preliminary injunction seeking to prevent Wickes from selling or conveying its interest in and to the mobile home park which was the subject matter of the contract between the parties. At the hearing on these motions, Wickes asked that IFC be required to post bond if the motions were granted. The district court granted IFC’s motion for a preliminary injunction, and denied Wickes’ motion to require IFC to post a bond.

Numbered paragraph 2 of the court’s order filed April 7, 1973, provides that,

“The Plaintiff, its agents and employees, be and the same are hereby enjoined from selling or conveying the interest of The Wickes Corporation in and to the property described as Lauder Lake Mobile Home Park, located in Broward County, Florida, to any person or entity, pending the hearing and favorable determination of Plaintiff’s appeal to the United States Court of Appeals for the Fifth Circuit from this Court’s Order denying Plaintiff’s Motion to Stay Arbitration Proceedings, or until hearing and determination by the arbitrator or further order of this Court.”

We have in this opinion rendered a favorable determination of Wickes’ appeal from the district court’s order denying Wickes’ motion to stay the arbitration proceedings. Therefore, by its own terms, the preliminary injunction is dissolved, and the appeal of this order is now moot.

The order denying Wickes’ motion to stay arbitration proceedings is reversed and the case is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

      . Another panel of this Court has determined that the appellant in this case was entitled to appeal from the order denying the motion to stay the arbitration proceedings. Wickes Corp. v. Industrial Finance Corp., 5 Cir. 1973 [No. 73-1918, May 16, 1973],

      . This order is properly appealable under 28 U.S.C. § 1292(a)(1).

      . Wickes in its brief cites a relevant passage from Frederick A. Whitney, The Law of Modern Commercial Practices (1959), § 440, at 627:
      “Courts classify arbitrations as common law and statutory. In all the states except three, Washington, Oklahoma and South Dakota, arbitrations may be conducted either at common law or under the statutes. If the parties have clearly manifested their intention to arbitrate — but have failed to comply with statutory arbitration regulations, their arbitration may be considered as a common law arbitration. This means then that either party can revoke his agreement to arbitrate even after the arbitration proceedings have begun and even up to the time the award is about to be made.”

      . A recent Florida case suggests another ground upon which a Florida court might have refused to require arbitration. In Klosters Rederi v. Arison Shipping Co., Fla.1973, 280 So.2d 678, the court indicated that where third parties are involved or where the action is founded upon fraud and breach of fiduciary duties, a court of equity may properly proceed with an adjudication of all rights, notwithstanding the existence of a valid binding arbitration clause. In the present case, Wickes’ complaint alleged fraud, breach of contract, and conversion.

      . During the hearing on IFC’s motions, the court observed, with reference to the question of a bond, that “The way land is appreciating in this county [Broward] I don’t see how there could be any possibility for that [financial injury].” That land values in general are on the upswing in Broward County may be proved to be no adequate assurance that a particular parcel of developed or partially developed real estate will retain its value over time. Wickes stoutly maintains that the court abused its discretion in not requiring IFO to post bond. We do not reach this issue because, as discussed infra, it has become moot in the present posture of the case. It is possible that a like issue may be presented to the district court in the proceedings on remand.


author: KILEY, Senior Circuit Judge.

text:
    Willard HOLTON, d/b/a Holton Cartage, Plaintiff-Appellant, v. Jerry L. BOMAN et al., DefendantsAppellees.
    No. 72-1248.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 27, 1973.
    Decided March 28, 1974.

      Frank J. Galvin, Jr., Hammond, Ind., for plaintiff-appellant.
    Grant Van Horne, Auburn, Ind., Carl J. Suedhoff, Jr., Fort Wayne, Ind., for defendant-appellee.
    Before KILEY, Senior Circuit Judge, CUMMINGS, Circuit Judge, and CAMPBELL, Senior District Judge.

       Senior District Judge William J. Campbell of the Northern District of Illinois, Eastern Division, sitting by designation.

   KILEY, Senior Circuit Judge.

Plaintiff Willard Holton, an Illinois resident, brought a tort action seeking damages against H. Charles Winans and other defendants arising from the conversion of his property. The district court granted Winans’ motion for summary judgment on the ground that as county prosecutor he was immune from civil liability. Holton then moved for leave to file an amended complaint against Winans, based upon various civil rights statutes. The court denied the motion and Holton has appealed. We reverse and remand.

On May 25, 1969 plaintiff’s tractor-trailer was removed from his premises. About a month later the tractor turned up in Auburn, Indiana in the possession of Jerry L. Boman, Bob Albright and Boman-AIbright, Inc. Holton learned of this and went to Auburn several times, trying unsuccessfully to regain possession.

Holton thereafter brought his suit against Boman, Albright and Boman-Al-bright, Inc. During the course of discovery he decided to join the county prosecutor, Winans, as a party defendant. An amended complaint was then filed alleging that Winans participated in a conspiracy to deprive Holton of his tractor-trailer. In a subsequently amended complaint Holton additionally alleged that Winans: tortiously failed to perform his official duties by failing to assist him in regaining possession of his tractor-trailer; and interfered with a contract between Holton and a third party.

After further discovery Holton concluded that he had a civil rights action against Winans and proffered a second amended complaint repeating substantially the allegations of tortious misconduct in violation of Holton’s civil right to equal protection of Indiana law, and seeking damages. The district court denied leave to file the amended civil rights complaint on the ground that it would be prejudicial to the defendants, who had completed their discovery, to permit Holton to raise a new theory.

Holton contends that the district court erred in denying his motion for leave to file the second amended complaint.

The vital question before us is whether a prosecutor is immune from liability for damages sought in a civil rights action predicated on the prosecutor’s refusal to assist a citizen in regaining his property which is in the alleged unlawful possession of other persons.

Prosecutorial immunity is derived from the doctrine of judicial immunity. Judges are immune from liabilities under suits arising from acts performed within the scope of their judicial duties. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). This Circuit, however, has held a judge liable for damages when he acted outside the scope of his duties. Spires v. Bottorff, 317 F.2d 273 (7th Cir. 1963). Since prosecutorial immunity is derived from judicial immunity, it follows from Spires that a prosecuting attorney is not immune from liability for damages for acts outside of the scope of his official duties and without authority of law.

In Robichaud v. Ronan, 351 F.2d 533 (9th Cir. 1965), Judge Ely addressed himself to this issue by stating:

We believe, however, that when a prosecuting attorney acts in some capacity other than his quasi-judicial capacity, then the reason for his immunity — integral relationship between his acts and the judicial process— ceases to exist. If he acts in the role of a policeman, then why should he not be liable, as is the policeman, if, in so acting, he has deprived the plaintiff of rights, privileges, or immunities secured by the Federal Constitution and laws? See Monroe v. Pape, supra, 365 U.S. [167] at 187, 81 S.Ct. 473 [5 L.Ed.2d 492]; see also Schneider v. Shepherd, 192 Mich. 82, 158 N.W. 182, L.R.A.1916F, 399 (1916), cited in Yaselli [v. Goff], 12 F.2d [396] at 405. To us, it seems neither appropriate nor justifiable that, for the same act, immunity should protect the one and not the other. Id., at 536-537.

In accord with Robichaud, this Circuit recently held that a prosecutor is not absolutely immune from liability for damages even if it can be concluded that he was acting within the scope of his prose-cutorial duties. Hampton v. City of Chicago, Cook County, Illinois, 484 F.2d 602 (7th Cir. 1973), cert. den. 415 U.S. 917, 94 S.Ct. 1413, 39 L.Ed.2d 471 (1974). There the court was unpersuaded by defendants-prosecutors’ arguments that the drafting of a search warrant which was executed and gathering evidence constituted activities within the scope of prosecutorial immunity. Judge Stevens, writing for the majority, noted that “the availability of immunity depends on the character of the conduct under attack.” Id., at p. 608.

Holton’s second amended complaint alleges that Winans in his capacity as prosecuting attorney did under col- or of law deprive him, as “a Negro, and a citizen of another state, the equal protection of the laws [and] equal privileges and immunities under the laws, . . . . ” He has set out specific dates upon which Winans in conjunction with the other defendants is alleged to have engaged in activities in furtherance of a conspiracy to deprive him of his tractor-trailer. More precisely, Holton alleges that upon his request Winans refused to assist him in regaining possession of his tractor-trailer and refused to take official action against those in whose alleged unlawful possession his property was being held.

We think that Holton’s allegations are sufficient to state a civil rights cause of action requiring Winans to plead with respect to the allegation that his conduct was unlawful and beyond the scope of his official duties. We note, of course, that a prosecutor may not be subjected to liability in every instance where he refuses to prosecute. He should have a broad discretion to determine when his prosecutorial activity should be invoked. And where his refusal is in good faith he is immune from liability. Hampton v. City of Chicago, Cook County, Illinois, supra. However, when he is properly alleged to be guilty of conduct of a character not in the field of his prosecutorial authority or duty, the pleading against him may not be dismissed as not stating facts which if proven would subject him to liability.

We therefore conclude that the district court erred in denying Holton’s leave to file a second amended complaint. The judgment is reversed and the cause remanded with direction to grant Holton leave to file the second amended complaint and for further proceedings consistent with this opinion.

      . 42 U.S.C. §§ 1981, 1982, 1983 and 1985(3).

      . On May 9, 1973 we entered a hold order in this case pending the outcome of the United States Supreme Court decision in Littleton, et al. v. Berbling, etc., et al., 468 F.2d 389 (7th Cir. 1972). The Supreme Court recently handed down its decision sub nom. Spomer v. Littleton, et al., 414 U.S. 514,. 94 S.Ct. 685, 38 L.Ed.2d 694 (1974). The Supreme Court found, in the record, no “concrete controversy” between the plaintiff class and Spomer — who succeeded in office Berbling, named as defendant in the complaint — and remanded to this court for determination whether the case against Ber-bling was moot and to give the class an opportunity to amend to name Spomer. The Court did not address itself to the issue of damage relief. That issue, which has pertinence to the ease before us, was not before the Supreme Court for consideration since it had not been “timely filed.” As of the date of this opinion the Supreme Court has not yet defined the scope of immunity enjoyed by a state prosecutor.

      . Although this was Holton’s second amended complaint it was only the first amended complaint as to Winans. Accordingly reference to Holton’s amended complaints in this opinion shall be identified as they related to Winans.

      . As a result of our disposition we need not reach the other issues raised in Holton’s brief.


author: SNEED, Circuit Judge:

text:
    GOLDEN EAGLE, also known as Lee Roy Austine, Appellant, v. Deputy Sheriff JOHNSON et al., Appellees.
    No. 72-1820.
    United States Court of Appeals, Ninth Circuit.
    March 15, 1974.

      Raymond Cross (argued), Ukiah, Cal., William P. Lamb, Bruce R. Greene, Berkeley, Cal., for appellant.
    Lowell T. Carruth (argued), of McCormick, Barstow, Sheppard, Coyle & Best, Fresno, Cal., Brian G. Taugher, Deputy Atty. Gen., State of Cal. (argued), Nelson P. Kempsky, Deputy Atty. Gen., Sacramento, Cal., for appel-lees.
    Before TRASK and SNEED, Circuit Judges, and LINDBERG, District Judge.

       Honorable William J. Lindberg, Senior District Judge, Western District of Washington, sitting by designation.

   SNEED, Circuit Judge:

Golden Eagle, also known as Lee Roy Austine, brought this action, pursuant to 42 U.S.C. §§ 1981, 1983, 1985 and 1988 and 28 U.S.C. § 2201 and § 2202, seeking to have (1) certain laws of the State of California declared unconstitutional, (2) certain criminal proceedings in the California courts enjoined, (3) certain records destroyed, and (4) a recovery of damages from the defendants, who were the officers who arrested Golden Eagle, his jailers, various judges, prosecuting attorneys, and the public defender.

The complaint set forth what was described therein as seven causes of action. The defendants moved to dismiss the entire complaint and this motion was granted except as to the seventh cause of action. In accordance with Rule 54(b), Federal Rules of Civil Procedure, the trial court determined that there was no just reason for delay in the entry of a final judgment with respect to these causes of action and entered a final judgment with respect to them. The issue before us is whether this dismissal of six of the seven causes of action was proper. We hold that it was.

For the purposes of this decision, we assume the truth of the facts as alleged in Golden Eagle’s complaint. On the evening of July 11, 1970, Golden Eagle was returning from the Navajo Indian Reservation to his home in Los Altos, California in an automobile driven by Patrick Joseph Ryan. In his possession at that time were sacramental peyote, a wooden box containing other religious paraphernalia, and certain drugs sold to him on prescription which were used to treat his epilepsy. Between 10 p. m. and midnight the automobile was stopped by Officers Peters and Heerd of the California Highway Patrol because it lacked a license plate light and because the officers observed “furtive movements” in the vehicle.

After being stopped, Ryan could not provide satisfactory identification and the officers determined that the vehicle belonged to neither Golden Eagle nor Ryan. A search of the vehicle was initiated, allegedly so that the vehicle could be stored. Golden Eagle was asked by an officer what was in the wooden box and he responded by explaining that he was a member of the Native American Church, that the box contained religious paraphernalia, and that he had a constitutional right to use sacramental peyote for religious purposes.

Golden Eagle was handcuffed and forced to kneel on the ground. The officers, assisted by Deputy Sheriffs Hall and Johnson who had reached the scene, then conducted a thorough search of the vehicle without the consent of either Golden Eagle or Ryan. During this search the prescription drugs, the sacramental peyote, and the wooden box containing religious paraphernalia were seized by Hall and Johnson.

Following the search, Golden Eagle and Ryan were transported to the Mojave jail facility at Tehachapi, California. At that time, Golden Eagle again informed members of the Kern County Sheriff’s Department that he was a member of the Native American Church and as such he had a right to have sacramental peyote in his possession. Golden Eagle was permitted to call his landlady, and she told jail officials that he was a member of the Native American Church, that his membership could be confirmed by asking a church official whose name she supplied, that he suffered from epilepsy, and that this could be verified by taking him to a nearby hospital. No effort was made by anyone to follow up on these suggestions. About 6:45 a. m. on July 12, 1970, Golden Eagle and Ryan were transferred to the Kern County jail in Bakersfield. Again Golden Eagle’s landlady called and made suggestions regarding the manner in. which Golden Eagle’s membership in the Native American Church and his right to use sacramental peyote could be verified.

The complaint continued by alleging Golden Eagle’s incarceration in the Kern County jail for thirty-one days and certain events which allegedly occurred during that period. A recital of these allegations is not necessary here because counsel for Golden Eagle conceded in his brief and in oral argument that only with respect to the first and sixth causes of action was the motion to dismiss ¡improperly granted. Both of these causes are based on the allegations described above. It was acknowledged by counsel for the plaintiff that all criminal charges against the plaintiff had been dropped before trial and that this rendered moot all claims against the judges, prosecuting attorneys and public defender. This disposed of the second and third causes of action. The fourth and fifth causes of action were also recognized as moot except to the extent such causes were also embraced by the first and sixth causes. The seventh cause of action, which involves claims against certain jailers, is not involved in this appeal.

The first cause of action charges that Officers Peters and Heerd, Deputy Sheriffs Hall and Johnson, Deputy District Attorneys for Kern County Robinson, Rostain, and Vandernoor, and Assistant District Attorney for Kern County, Bradshaw arrested, booked, and charged Golden Eagle for violation of § 11910 (superceded by § 11377 of the 1972 California Uniform Controlled Substances Act) of the California Health and Safety Code by possessing peyote, a drug restricted by § 11540 (superceded by § 11363 of the 1972 California Uniform Controlled Substances Act) of the California Health and Safety Code, in bad faith and for the purpose of denying him the right to freely exercise his religion.

The sixth cause of action asserts that Officers Peters and Heerd and Deputy Sheriffs Hall and Johnson deprived Golden Eagle of property without due process of law by seizing and retaining the prescription drugs, the sacramental peyote, and the wooden box and its religious contents.

Precision is given these general allegations by the briefs and oral argument of the counsel for Golden Eagle. In essence, it is Golden Eagle’s contention that under the First and Fourteenth Amendments of the Constitution of the United States an arrest for the possession, and the seizure, of peyote should be preceded by an adversary hearing before a judicial officer to determine whether such possession was for a bona fide religious purpose. An alternative pre-arrest and pre-seizure procedure required by these Amendments, asserts Golden Eagle, might be a warrant issued by a judicial officer on the basis of an ex parte showing that there is probable cause to believe that the possession and use was not for bona fide religious purposes. At a minimum, Golden Eagle urges that the First and Fourteenth Amendments require an arresting officer to make an ef- , fort to check the good faith of the relig-, ious claims of one found in possession,, of peyote before placing him under arrest.

Golden Eagle argues that one of these' procedures is necessary to reduce the “chilling effect” of the possibility of arrest on the free exercise of religion by a member of the Native American Church. He points to the Supreme Court’s requirement, fashioned in A Quantity of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964), that an adversary hearing precede seizure of allegedly obscene material as recognition that sensitive procedural tools must be devised to safeguard against the infringement of First Amendment rights. He then asserts that the State of California in People v. Woody, 61 Cal.2d 716, 40 Cal.Rptr. 69, 394 P.2d 813 (1964), has recognized that the use of peyote, in the bona fide pursuit of a religious faith, is entitled to First Amendment protection. It follows, he continues, that pre-arrest and pre-seizure sensitive procedural tools also must be designed to minimize interference by the state with the bona fide use of peyote in the exercise of the religious faith of those who accept the teachings of the Native American Church. At least one of the procedural devices, he suggests, is constitutionally required.

Golden Eagle does not contend that his arrest was in any way improper absent such a constitutional requirement. Nor does he, despite the allegation of bad faith in the first cause of action, assert in his briefs or oral argument that the officers and deputy sheriffs believed that his arrest and the seizure of the box and his personal religious articles was unconstitutional. He does, however, assert that in all events the seizure violated the Fourth and Fourteenth Amendments.

As we understand it, the adversary hearing which Golden Eagle would have imposed by the First and Fourteenth Amendments in the context of the facts of this ease would have operated to require that the arresting officers take him into “protective custody” and “impound” the articles here seized pending a prompt hearing before a judicial officer to determine whether a bona fide religious purpose exists. Should the determination favor the person asserting such purpose, his release and the lifting of the impoundment would follow with the consequence that no record of arrest would exist. A contrary determination would lead to arrest and seizure, but it would not, of course, foreclose another determination of the good faith of the religious purpose at later stages of the criminal process.

The warrant procedure, suggested by Golden Eagle as the “second best” protection, envisions an ex parte hearing in which the possibility of bona fide use for religious purposes might be shown to be remote in the course of establishing probable cause for arrest or search and seizure. Golden Eagle’s least preferable form of protection, a check by the apprehending officers of the good faith of the asserted religious purposes prior to arrest and seizure, also contemplates limited “protective custody” and “impoundment.”

We hold the dismissal of the first and sixth causes of action was proper. We start with the proposition that neither the Supreme Court of the United States nor this Court has extended First Amendment protection to the religious use of peyote by the members of any church. See Kennedy v. Bureau of Narcotics and Dangerous Drugs, 459 F.2d 415 (9th Cir., 1972). Despite the opportunity that this case provides to pass on this issue, we decline to do so. To reach the issues which this case presents we will assume, without deciding, that the interpretation of the First Amendment appearing in People v. Woody, supra, is proper. We do this recognizing that our unwillingness to give an authoritative interpretation of the First Amendment as it relates to the religious use of a controlled substance such as peyote deprives our holding in this case of the underlying doctrinal commitment necessary to infuse it with maximum authority. Nonetheless, our notions of judicial restraint outweigh this consideration.

It follows from our assumption of the correctness of People v. Woody, supra, that we adopt for the purposes of this case the weights assigned to competing values by the California Supreme Court. Thus, the degree of danger to the state arising from the religious use of peyote is assumed by us to be outweighed by freedom of religion as protected by the First Amendment. We also accept, ar-guendo, the California Supreme Court’s determinations that the religious use of peyote does not lead to the use of more harmful drugs, that peyote is not used by Indians in place of proper medical care, that its religious use does not corrupt children nor obstruct enlightenment, and that immunity from prosecution for the religious use of peyote will not render impossible the effective enforcement of the narcotics laws of California. Finally, we will assume, but not decide, that People v. Woody, supra, affords protection to those who possess and transport peyote on a public street or road when their purpose for doing so is directly to facilitate the exercise of their good faith religious beliefs.

Our task is to confront issues not before the Supreme Court of California in People v. Woody, supra, viz. the scope of the unique sensitive procedural rules, if any, which constitutionally must precede the arrest of a person in possession of peyote and a seizure of the peyote and other articles with respect to which a proper “nexus” exists. See Warden v. Hayden, 387 U.S. 294, 309, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1966).

As already indicated, the authority for the imposition of such unique rules is derived from the restrictions imposed by the Supreme Court of the United States on the seizure of obscene and allegedly obscene material. A Quantity of Books v. Kansas, supra; Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961). Scholars have also suggested that such rules be extended to other First Amendment areas. See, e. g., Monaghan, First Amendment “Due Process”, 83 Harv.L. Rev. 518 (1970).

We believe, however, that the unique and sensitive procedures applicable to seizures of allegedly obscene material were designed more for the special purpose of protecting a right of the public than to protect the rights of the person from whom the allegedly obscene material was seized. Seizure of allegedly obscene material prior to any determination of obscenity by means of an adversary hearing will result inescapably in the suppression of large numbers of non-obscene books. The public has a First Amendment right to the unimpeded flow of nonobscene books. The usual safeguards provided by our constitution-alized criminal procedure to an accused can not protect, in the obscenity area, this right of the public. Additional tools are necessary and these have been devised. Mr. Justice Brennan underscored this reason for such tools when he observed, “For if seizure of books precedes an adversary determination o'f their obscenity, there is a danger of abridgment of the right of the public in a free society to unobstructed circulation of nonobscene books.” A Quantity of Books v. Kansas, 378 U.S. 205, 213, 84 S.Ct. 1723, 1727, 12 L.Ed.2d 809 (1963).

In this case there is no corresponding right of the public that can not be protected by the usual rules relating to arrest and to search and seizure. The arrest of the plaintiff in this case and the seizure of the peyote does not deprive other members of the Native American Church of the opportunity to practice their faith. There is no allegation in either cause of action before us that the peyote and religious paraphernalia seized from Golden Eagle are necessary to the practice by others of the faith they share with the plaintiff. Other supplies of such articles presumably exist in relative abundance. Any impairment of the free exercise of religion by others that exists flows from the “chilling effect” of the arrest of their fellow worshiper. The issue is whether the First Amendment requires an effort to reduce this “chilling effect” by utilizing any of the special procedures upon which the plaintiff insists.

We derive support for our holding that no such requirement exists from three sources. The first is Milky Way Productions, Inc. v. Leary, 305 F.Supp. 288 (S.D.N.Y.1969), aff’d. 397 U.S. 98, 90 S.Ct. 817, 25 L.Ed.2d 78 (1970), where a three judge district court refused to extend the pre-seizure adversary hearing requirement to arrests of those accused of promoting the sale of obscene material. It was recognized that such arrests have a “chilling effect”, but the court correctly observed that an adversary hearing itself would have a similar, or possibly greater, effect. Customary procedural safeguards available to an accused in a criminal proceeding, in the view of the court, were “surely permissible, and very probably preferred vehicles for enforcing bans against obscenity.” 305 F.Supp. at 297. At least with respect to arrests for the possession of peyote, this reasoning is very persuasive, if not conclusive. So long as an effort is made to enforce the laws of California relating to peyote, there is no way to avoid a “chilling effect” on those whose use of peyote is entitled to First Amendment protection by reason of People v. Woody. Indeed, as Milky Way Productions, Inc. suggests, pre-arrest adversary hearings could be used so indiscriminately as to increase the barriers to the free exercise of religion by the members of the Native American Church beyond those which exist under present procedures. Given this possibility, surely it is permissible in this area to rely upon customary criminal procedure to provide the means by which constitutional claims are made.

Our second source of support is People v. Woody, supra. It nowhere indicates that ordinary criminal procedures were to be altered in a questionable effort to reduce further the “chilling effect" of California laws relating to peyote. Nor is there to be found any suggestion that such laws should not be enforced in the interest of eliminating any trace of a chilling effect. In answering the Attorney General’s argument that First Amendment protection of the religious use of peyote would involve the courts in a case by case inquiry into the good faith of the religious beliefs of the particular defendant, the court said:

In so doing, we impose no undue burden upon the trier of fact. We do not doubt the capacity of judge and jury to distinguish between those who would feign faith in an esoteric religion and those who would honestly follow it. 40 Cal.Rptr. at 77, 394 P.2d at 821.

Certainly a belief on the part of the Supreme Court of California that its decision would require the special procedures urged on us by the plaintiff should have been revealed, or at least intimated, at this point. It was not, and that court concluded the portion of its opinion in which the above quotation appears by observing that a factual determination of the bona fides of a religious belief was not a unique judicial burden, it being required in other areas of the law, and did not “intrude into the religious issue at all.” 40 Cal.Rptr. at 77, 394 P.2d at 821.

We can not escape the conclusion that the Supreme Court of California assumed that prosecutions for the possession and use of peyote would call for no special or particularly unique procedures. This assumption; of course, is not controlling in this case, but it ik highly persuasive.

Its persuasiveness is enhanced by the third source of support for our holding, viz. the criminal procedure of California. The requirement of an expeditious hearing before a magistrate, West’s Ann.Penal Code, §§ 822, 825, 849, without regard to whether the arrest was with or without a warrant, the opportunity to set aside an indictment or information, West’s Ann.Penal Code, § 995, and the procedure provided for securing the return of property improperly seized, West’s Ann.Penal Code, § 1538.5, afford assurance that a determination of the good faith of a member of the Native American Church and a return of any sacred objects seized from him can be speedily resolved when the facts permit. These procedures will not yield in all instances a final disposition of the good faith issue. Only a trial on the merits will achieve this. Prior to that event an accused is likely to be released pending trial and thereafter may ensue offers to plead guilty to a lesser offense or, as in this case, a dismissal of charges.

The process that provides these opportunities for reconciling an accused’s First Amendment rights regarding the religious use of peyote and the proper interests of law enforcement should not be further refined by requiring either an adversary hearing on the good faith issue prior to arrest or seizure of peyote and related religious articles, a special warrant procedure in which there would be an ex parte examination of the probable good faith of the person about to be arrested and searched, or an awkward requirement that officers must make a reasonable effort to confirm an assertion of good faith prior to formal arrest and seizure. With respect to this last alternative, it surely must be recognized that those charged with law enforcement can not be expected to be competent curbside evaluators of the good faith of asserted religious beliefs or the credibility of references supplied by the apprehended individual. To impose upon them duties of this sort, accompanied, as the plaintiff in oral argument suggested, by interim protective custody of the apprehended and impoundment of the peyote, is to impair seriously the ability to enforce the laws relating to the controlled substance, peyote, as applied to those who do not subscribe to the beliefs of the Native American Church. People v. Woody, swpra, did not hold, nor suggest, that classifying peyote as a controlled substance was unconstitutional per se. An equivalent result should not be reached indirectly by the adoption of superfluous or unworkable procedures preceding arrest and seizure.

There remains only the charge that in all events the seizure of the box and Golden Eagle’s personal religious articles violated the Fourth and Fourteenth Amendments. It is argued that the arresting officers could not have believed that such articles could aid in conviction. The officers, on the other hand, insist that there was a sufficient nexus between the box and religious articles and the peyote to meet the test laid down in Warden v. Hayden, 387 U.S. 294, 307, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1966). Although the issue is not entirely free from doubt, we hold that the arresting officers could reasonably believe that these articles would aid in the conviction of Golden Eagle. This being so, it matters not whether these articles are classified as fruits, instrumentalities, or contraband, or mere evidence that-would aid in conviction.

The arrest and seizures before us in this case were not improper. The procedures which the plaintiff insists must precede arrest and seizure are not required by the First and Fourteenth Amendments. There existed probable cause for the arrest of Golden Eagle and probable cause to believe that the articles seized would aid in his conviction. In any event, defendants Peters, Heerd, Hall, and Johnson acted in good faith and with probable cause in making the arrest and search under statutes that they believed to be valid. See Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1966).

Affirmed.

      . Under the California Uniform Controlled Substances Act peyote is a Schedule I substance, § 11054, and possession of such a substance is made unlawful under § 11350. Planting, cultivating, and harvesting of peyote is proscribed by § 11363.

      . Analytically it would be possible for us to avoid assuming the correctness of People v. Woody by framing the issue before us as calling for a decision whether the interpretation of the First and Fourteenth Amendments which that case reflects, it being one not presently accepted by the federal courts, necessarily imposes upon California a burden, derived from the Due Process Clauses of the Fifth Amendment and the Fourteenth Amendment, to provide at least one of the procedural safeguards urged by the Plaintiff. To so frame the issue, however, would require the examination of perhaps an even more intriguing constitutional issue than that posed to us by Golden Eagle. Because we are very doubtful that the result should be different without regard to the manner in which the issue is framed, we prefer the more conventional framing of the issue which this opinion reflects.


author: CASTLE, Senior Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Barbara McLEOD, Defendant-Appellant.
    No. 73-1265.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 17, 1974.
    Decided March 21, 1974.

      Palmer K. Ward, Indianapolis, Ind., for defendant-appellant.
    Stanley B. Miller, U. S. Atty., William F. Thompson, Asst. U. S. Atty., Indianapolis, Ind., for plaintiff-appellee.
    Before CASTLE, Senior Circuit Judge, and PELL and SPRE'CHER, Circuit Judges.
   CASTLE, Senior Circuit Judge.

Defendant Barbara McLeod and two codefendants were convicted by a jury for crimes arising from the operation of a football parlay card business in Indianapolis, including conspiracy to use interstate telephone communications to promote and to carry on an unlawful gambling business from June 22, 1971 until November 10, 1971, use of interstate telephone communications to promote and to carry on an unlawful gambling business on October 26, 1971 and November 10, 1971, in violation of 18 U.S.C. § 1952, and knowing use of a telephone for the interstate transmission of information assisting in the placing of bets and wagers on sporting events on October 26, 1971 and November 10, 1971, a violation of 18 U.S.C. § 1084. On appeal, McLeod asserts that the court erred in failing to dismiss the indictment and in failing to sustain the motion to suppress certain evidence. McLeod also contends that the evidence was insufficient to support her convictions resulting from an alleged telephone call made on November 10, 1971 or to support her convictions for violating 18 U.S.C. § 1952.

To operate successfully a football parlay card operation, it is necessary for the bookmaker to print the most accurate prediction of football games’ point spreads on his parlay cards. He must also obtain this information quickly to print and to distribute the cards. The Las Vegas “line” of predictions is highly regarded in such circles for its accuracy and availability. For this reason, McLeod was stationed in Las Vegas to observe and to copy the line posted in local sport books and to relay this information from a public telephone to the Indianapolis operation. By prearrangement, codefendant Tomlinson would appear daily at one of four public telephones, depending on the day of the week, in an Indianapolis shopping center to receive McLeod’s calls.

McLeod challenges the court’s denial of her motion to suppress all evidence the government obtained by overhearing her speak, into a public telephone in Las Vegas. On four separate dates, a government agent stood about four feet from McLeod while she placed her call, and, without the aid of any listening devices, he overheard her give out football line information. Subsequently, telephone records identifying the numbers of the telephones which McLeod called were obtained. McLeod specifically complains that the government obtained no authorization order to intercept her communication. 18 U.S.C. § 2510, et seq. The short answer is that “ ‘intercept’ means the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device,” 18 U.S.C. § 2510(4); thus, that statute is patently inapplicable to the facts presented here, since no such device was used. McLeod’s Fourth Amendment claim is equally unavailing, for it is clear that “[Wjhat a person knowingly exposes to the public ... is not a subject of Fourth Amendment protection.” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). We agree with the Second Circuit that “conversations carried on in a tone of voice quite audible to a person standing outside . . . are conversations knowingly exposed to the public.” United States v. Llanes, 398 F.2d 880 (2d Cir. 1968). As the agent was located in a public place and overheard the conversation by McLeod without the use of any amplification device, the court properly overruled the motion to suppress.

McLeod also challenges the sufficiency of the evidence to show that a telephone call was made on November 10, 1971, as alleged in Counts III and V of the indictment. Although the government produced no toll record verifying this call, the jury could properly infer the existence of such a call from the following circumstantial evidence. McLeod was observed on that day copying the line in a local sports book. She then drove to a public telephone and unsuccessfully attempted to place a call. She next dialed the operator and after a pause she removed a line sheet from her purse and read its contents into the telephone. Within an hour, codefendant Lutz was arrested in Indianapolis. A line sheet was found in his possession bearing a November 10 posting identical to that copied and read by McLeod. Viewing the reasonable inferences in the light most favorable to the government, we find the evidence sufficient to support the jury’s conclusion that McLeod completed a telephone call to Indianapolis on November 10, during which she relayed that day’s line information.

McLeod further argues that the evidence was insufficient to establish violations of 18 U.S.C. § 1952, because, as other sources of line information were readily available to the gambling ring, her acts of transmitting line information to Indianapolis were only incidental to the gambling operation. In United States v. Miller, 379 F.2d 483 (7th Cir. 1967), this court ruled that the use of any facility in interstate commerce need not be essential to the gambling operation ; “it need only ‘facilitate’ the carrying on of illegal gambling. As used in this statute, ‘facilitate’ means ‘to make easy or less hard.’ ” Id. at 486. Clearly, McLeod’s line information from Las Vegas contributed to the success of this gambling operation, both because it permitted the codefendants to print and to distribute their cards before football lines from other sources would have been available to them and because its accuracy prevented the occurrence of substantial losses. The evidence thus amply supported the jury’s finding that McLeod’s telephone calls from Las Vegas facilitated the carrying on of this gambling enterprise.

McLeod finally attacks the court’s refusal to dismiss certain counts in the indictment. The government suggests that it is unnecessary for us to consider these arguments because McLeod does not challenge Counts II and III, her sentences on those counts being concurrent with her sentences on the challenged counts. There is no jurisdictional bar to a consideration of all counts under concurrent sentences where adverse collateral consequences may flow from the convictions. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L. Ed.2d 707 (1969). “Since we cannot say that there is no possibility of undesirable collateral consequences,” United States v. Tanner, 471 F.2d 128, 140 (7th Cir. 1972), this court, in the exercise of its discretion, will consider the validity of the challenged counts.

Respecting the conspiracy count, McLeod first argues that the indictment is insufficient because agreement is not defined. We note that the indictment alleged that the defendants did “agree together and with each other” to use telephone facilities to carry on a gambling business in violation of Indiana law and 18 U.S.C. §§ 1084, 1952. “To allege that the defendants conspired is, at least, to allege that they agreed to do the matters which are set forth as the substance of their conspiracy.” United States v. White, 171 F. 775 (2d Cir. 1909); accord, United States v. Manetti, 323 F.Supp. 683 (D.Del.1971). We find, therefore, that the indictment sufficiently defined the agreement element of the conspiracy. United States v. Deutsch, 243 F.2d 435 (3rd Cir. 1957) and Hamner v. United States, 134 F.2d 592 (5th Cir. 1943), cited by McLeod, are inapposite, for the indictment here clearly alleged the offenses which the defendants agreed to commit and thus defined the object of the agreement and not simply a course of conduct.

Next, McLeod contends that the conspiracy count is indistinguishable from the substantive counts which charge the defendants with the joint commission of the same offense which is the object of the conspiracy. In United States v. Hunter, 478 F.2d 1019 (7th Cir. 1978), this court stated that a conspiracy to commit an offense merges with the completed offense if the substantive offense requires concerted action of two wrongdoers and they are indicted for both conspiracy and the substantive crime. Id., at 1023-1024. The Court held an indictment may not properly charge both conspiracy to violate 18 U. S.C. § 1955 and the substantive violation of that act. But unlike the definition of § 1955, which requires five or more participants in an illegal gambling operation, neither a § 1952 nor a § 1084 offense by its terms “necessarily involves the mutual cooperation of two persons,” United States v. Zeuli, 137 F.2d 845, 846 (2d Cir. 1943), or “requires for its commission some reciprocal action of the conspirators.” United States v. Center Veal & Beef Co., 162 F.2d 766, 770 (2d Cir. 1947). Thus, as the Fourth Circuit found in United States v. McGowan, 423 F.2d 413 (4th Cir. 1970), in which defendants challenged their convictions for conspiracy to violate §§ 1084, 1952 and 1953 and for four counts of § 1952 joint offenses, there is not an identity of elements between the crime of conspiracy and a § 1952 offense. In language pertinent here, the court stated, “The fact that some of that evidence may have served double duty by also supporting the charge of conspiracy is of course immaterial.” Id. at 416 (citing Nye & Nissen v. United States, 336 U.S. 613, 618-619, 69 S.Ct. 766, 93 L.Ed. 919 (1949)). We therefore uphold the validity of the conspiracy conviction.

Respecting the substantive counts, McLeod contends that Counts II and IV, relating to the October 26 call, and Counts III and V, relating to the November 10 call, charge the same offense and therefore the indictment is multiplicitous, violating McLeod’s fifth amendment right against double jeopardy. The premise of McLeod’s argument is that conduct generally proscribed in § 1952 is specifically prohibited in § 1084. However, two offenses may be separately prosecuted and punished if each requires proof of an element which the other does not. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Unlike a § 1084 prosecution, to obtain a conviction under § 1952, the government must allege and prove as an element of the offense that the defendants carried on an activity in violation of state law. This court has stated, “Offenses are not the same for purposes of the double jeopardy clause simply because they arise out of the same general course of criminal conduct.” United States v. Bruni, 359 F.2d 807, 809 (7th Cir. 1966), cert. den., 385 U.S. 826, 87 S.Ct. 59, 17 L.Ed.2d 63 (1966). In United States v. Smith, 209 F.Supp. 907 (E.D. Ill.1962), the court applied that rule in holding that the defendant was not placed in double jeopardy merely because the indictment alleged that conduct occurring on two different dates was violative of both § 1084 and § 1952. The reasoning of the court is sound, and we similarly find no violation of McLeod’s constitutional rights nor multiplicity in the indictment. Moreover, this result is logically compelled by our decision in United States v. Ruthstein, 414 F.2d 1079 (7th Cir. 1969), in which we held that § 1084 did not preempt similar state statutes which provided the definitional predicates for § 1952 prosecutions.

Affirmed.

      . We emphasize that we need not have reached these issues, for while “the existence of concurrent sentences does not remove the elements necessary to create a justiciable case or controversy,” the concurrent sentence rule has continuing validity as a rule of judicial convenience. Benton v. Maryland, 395 U.S. 784, 790-791, 89 S.Ct. 2056, 2060, 23 L.Ed.2d 707 (1969). The Supreme Court recently demonstrated the operation of the concurrent sentence rule as a rule of judicial convenience in Barnes v. United States, 412 U.S. 837, 848 n. 16, 93 S.Ct. 2357, 2364, 37 L.Ed.2d 380 (1973): “Although affirmance of petitioner’s conviction on two of the six counts carrying identical concurrent sentences does not moot the issues he raises pertaining to the remaining counts [citing Benton], we decline as a discretionary matter to reach these issues.” Accord, United States v. Tager, 479 F.2d 120 (10th Cir. 1973), cert. den., 414 U.S. 1162, 94 S.Ct. 924, 39 L.Ed.2d 115 (1974).


author: MANSFIELD, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Ralph ROSA, Defendant-Appellant.
    No. 687, Docket 73-2324.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 18, 1974.
    Decided March 26, 1974.

      Richard A. Levy, New York City, for defendant-appellant.
    Eugene F. Bannigan, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S.D.N.Y., John D. Gordan III, Asst. U. S. Atty., New York City, of counsel), for appellee.
    Before FRIENDLY and MANSFIELD, Circuit Judges, and ZAMPANO, District Judge.

       Of the United States District Court for the District of Connecticut, sitting by designation.

   MANSFIELD, Circuit Judge:

This appeal from a judgment of conviction entered after a jury trial before Judge Charles L. Brieant, Jr. in the Southern District of New York brings to us a narcotics case with a factual outline and charges familiar to all who regularly read these pages. Appellant Ralph Rosa and co-defendant Alphonso Beauchamp were convicted on a three-count indictment charging them with conspiring to distribute cocaine (21 U. S.C. § 846), possessing one-eighth of a kilogram of cocaine with intent to distribute (21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A)), and finally assaulting a federal agent (18 U.S.C. § 111). For the most part the evidence supporting these charges reveals what has become almost a stereotyped fact pattern. On an evening in February, 1973, William Simpson, a Special Agent of the Bureau of Narcotics and Dangerous Drugs, and Nat James, a government informant, met Rosa and Beauchamp at the latter’s apartment for the closing of a narcotics sale. After some pleasantries Simpson quickly turned to business, asking Rosa if he had the cocaine. Rosa reported that he had only one-eighth of a kilogram, which was half of the agreed-upon amount, but that he could obtain it in 20 minutes. Brief negotiations over price followed, during which Rosa served as interpreter for Beauchamp, who spoke only Spanish. When Simpson and Beau-champ had finally agreed upon a price, Beauchamp left to pick up the remainder of the cocaine. Rosa, apparently a congenial host, offered Simpson and James some cocaine to taste while they awaited Beauchamp’s return.

Upon Beauchamp’s return Simpson weighed the cocaine, found to be 4% ounces, and announced that he was going to his car for the cash needed to complete the transaction. Once outside Simpson met his fellow agents and advised them that the cocaine was inside, but cautioned that one of the men might be .armed. All agents then returned to the apartment. Simpson knocked on the door. Rosa partially opened the door and, upon seeing the other men in the corridor, attempted to close it, whereupon the agents forced their way into the apartment. A melee ensued, with Rosa and the agents later offering conflicting versions of what occurred. The agents maintain that they met stiff resistance from Rosa, who grabbed Agent White’s gun, and from Beauchamp. Rosa alleges that the agents pummelled him and Beauchamp without justification. Uncontested is the fact that Beau-champ, during the first moments of the raid, was in the bathroom seeking to flush away the government’s evidence, i. e., the cocaine. When subdued, Rosa was taken by Agents Grant and Sennett to their car for immediate interrogation. The agents hoped to learn the source of the cocaine. Agent Grant testified that he advised Rosa of his rights and that Rosa said, “Look, you got me, my friend flushed it.” Because a crowd of spectators was gathering outside the apartment, the agents continued their interrogation of Rosa as they drove around the neighborhood. After approximately an hour of mobile interrogation, the agents delivered Rosa to the headquarters of the Narcotics Bureau. There Rosa, according to the agents’ testimony, admitted to Agent White that he had directed Beauchamp to flush the cocaine down the toilet. Traces of cocaine were found around the toilet and in the toilet water.

As might be expected in a case such as this, where the incriminating evidence is strong, the first line of defense is the suppression hearing. It is also the first source of alleged error. Rosa sought to suppress all his post-arrest statements on the grounds that he had not been advised of his Miranda rights and that he had been coerced into making the statements. At the suppression hearing Agents Grant and White testified that they had each warned Rosa of his rights, which Rosa acknowledged that he understood by nodding his head. Agent Grant went on to explain that they had conducted an immediate interrogation in an effort to induce Rosa to cooperate with them and reveal the location of his supplier, and that they then continued the interrogation in the cruising car because a crowd gathered when it was stopped.

Rosa took the stand to testify that the agents did not give him the Miranda warnings before interrogating him; instead they beat him in the back of the car as, he asserts, they had done earlier in the apartment. On cross-examination it was revealed that Rosa had two prior narcotics convictions as well as a conviction for attempted armed robbery.

Following Rosa’s testimony at the suppression hearing the judge and counsel for Rosa engaged in a colloquy that forms the basis for Rosa’s first objection. In response to an admonition by counsel that the court should not assume that the “police do exactly what they say they do,” the court said:

“No, but I have to evaluate the credibility of witnesses on the entire record including their demeanor and everything else and I tell you right now that I don’t believe your client as to most of what he has testified to.”

Rosa objects that the judge thus improperly made a premature ruling without having heard all the evidence on the suppression motion. We cannot agree that this comment made by the judge in medias res amounted to a ruling, premature or not. On the contrary, Judge Brieant specifically advised that he was not making any ruling and that he was not going to dispose of the motion until he had heard and considered the remaining evidence. Nor do we think that the judge’s comment meant that he had as a practical matter prejudged the issues on the suppression hearing or foreclosed objective and intelligent consideration of all of the evidence. To suggest that a judge must be precluded from reaching even tentative impressions of credibility until the final moment of judgment is unrealistic. Although we expect a judge to render his decision on the basis of all the evidence, it does not usually spring full blown from Zeus’ head. It is an evolving process in which he must tentatively register, albeit to himself, the impressions he forms of witnesses at the time when they furnish their testimony. The mere articulation of one of these impressions does not constitute a prejudgment or “a closed mind on the merits.” See United States v. Grinnell Corp., 384 U.S. 563, 580-583, 86 S.Ct. 1698, 16 L. Ed.2d 778 (1966).

Rosa claims another instance of error in the court’s refusal to order the government to produce as witnesses additional agents who had taken part in the appellant’s arrest. The government had called as witnesses at the suppression hearing Agent Grant, who interrogated Rosa in the car, and Agent White, who interrogated him at headquarters later that night. Rosa had called as a defense witness Agent Sennett, who drove the car during the first interrogation. The testimony of all three agents was substantially the same as to the events of the evening. All testified that Rosa had been informed of his rights before he made his admissions and that he had not been beaten or coerced. Agent White further testified that force had only been used against Rosa when he resisted arrest as the agents first entered the apartment. Despite the consistency of the agents’ testimony and Rosa’s concession that he expected any further testimony to be similar, Rosa maintained that he should be allowed to call still more government agents in the hope that he might develop some discrepancy in their stories. Noting that the testimony of Agent Sennett as a defense witness had corroborated the government’s case and contradicted Rosa’s allegations, the court denied the request. Rosa had made no showing that the testimony would be helpful. There was, therefore, every indication that the testimony of the other agents would be cumulative and contradictory of Rosa’s story. In such a setting we cannot conclude that the court abused its discretion in ruling as it did. If counsel for Rosa had really required the testimony, he should have subpoenaed the agents before or during the course of the hearing and thereby avoided any dependence on the hearing judge’s discretion.

Thus there was ample evidence to support the court’s conclusion that Rosa was not beaten as he alleged; that he had been warned of his rights; and that he made a knowing waiver of those rights. Rosa does not seriously challenge these findings. Instead he mounts a less ambitious, though perhaps more colorful, attack upon the surrounding circumstances of his interrogation. He argues that he “was driven around to isolated places, late at night, alone with agents and handcuffed, for purposes of interrogation. These constituted plainly overbearing circumstances.” While coercion might have been inferred in the absence of explanatory circumstances the government furnished plausible reasons for the agents’ conduct. They already had a strong case against Rosa, regardless whether he should confess to his own guilt. However, they were obviously interested in apprehending Rosa’s source, presumably someone higher up on the distribution ladder, located somewhere in the immediate vicinity of the arrest. They hoped Rosa would lead them promptly to that source before the supplier learned of the arrest and fled. To interrogate Rosa in Beau-champ’s apartment would pose obvious risks. Furthermore the apartment was too small to permit simultaneous questioning of both Beauchamp and Rosa. The agents therefore decided to interrogate Rosa in their car and were forced to drive around the area after a crowd had gathered around the parked car. The agents made it clear to Rosa that they were interested in his cooperation in apprehending his source, not in his confession. The questions they posed concerned his supplier’s identity and location. It cannot be said then that the circumstances of the car ride could reasonably convey even an appearance of coercion to Rosa.

Finally, we face the allegation that the trial judge erred in his instruction to the jury. Through a lapsus linguae the court indicated at one point in its instructions that the “guilt or innocence” of the defendant should be determined beyond a reasonable doubt. Defense counsel, who alone seems to have detected the error at the time, asked the court for a curative instruction, which Judge Brieant declined because he thought it most improbable that he had misread his instruction. The wiser course would have been to have the court reporter read the minutes of the crucial instruction or to instruct the jury that it should disregard any misstatement if one had occurred. This would have disposed of the problem with a minimum of disruption and delay. However, the court’s failure to take these steps was hardly fatal. The inadvertent reference to “innocence” during this portion of the charge, though error, was harmless beyond any reasonable doubt. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). Only moments before this slip the court had correctly instructed the jury on the burden of proof and presumption of innocence and repeated instructions as to these basic principles were flawless. It is inconceivable that the jury could have been misled by this solitary slip of the tongue in an otherwise accurate charge. See United States v. Glaziou, 402 F.2d 8, 18 (2d Cir. 1968), cert. denied, 393 U.S. 1121, 89 S. Ct. 999, 22 L.Ed.2d 126 (1969).

As his second claim of error in the instruction, appellant cites the court’s failure to give a requested charge on the subject of the “casual facilitator.” There is no requirement that a court charge a jury in the language requested by a defendant. United States v. Sacco, 436 F.2d 780, 783 (2d Cir.), cert. denied 404 U.S. 834, 92 S.Ct. 116, 30 L.Ed.2d 64 (1971); United States v. Jackson, 390 F.2d 317, 319 (2d Cir.), cert. denied, 392 U.S. 935, 88 S.Ct. 2304, 20 L.Ed.2d 1394 (1968). The court’s instruction that mere knowledge of the crime or mere presence at the site of the crime was not sufficient to support a conviction was both adequate and appropriate to the facts of this case. See United States v. Terrell, 474 F.2d 872, 876 (2d Cir. 1973).

The judgment is affirmed.

      . The evidence that remained to be adduced was of little assistance to Rosa. Indeed, it worked to contradict his story. Rosa called as a witness a federal agent who testified that Rosa had been informed of his rights before the interrogation. The medical records at the West Street jail where Rosa was delivered after his arrest and interrogation indicate that be made no complaints about any beating when he was first admitted there on the night of his arrest. He only complained of the alleged beating the next morning, at which point he was examined but was found to have no discoloration or bruises.