author: WISDOM, Circuit Judge:

text:
    GOVERNMENT OF THE CANAL ZONE, Plaintiff-Appellee, v. Michael Gilmore SCOTT, Defendant-Appellant.
    No. 73-3628.
    United States Court of Appeals, Fifth Circuit.
    Oct. 4, 1974.

      Eric W. Schmidt, New York City (Court-appointed), Bruce C. Waltzer, New Orleans, La. (Court-appointed), Mark G. Murov, New Orleans, La., for defendant-appellant.
    Lester Engler, U. S. Atty., Wallace D. Baldwin, Asst. U. S. Atty., Balboa, Canal Zone, for plaintiff-appellee.
    Before WISDOM and CLARK, Circuit Judges, and GROOMS, District Judge.
   WISDOM, Circuit Judge:

Michael Scott was convicted at a jury trial in the United States District Court for the District of the Canal Zone on two counts of knowingly or intentionally distributing cocaine, a controlled substance, in violation of 21 U.S.C. § 841(a)(1). He appeals from that conviction on the theory that he was deprived of his Fifth Amendment right to a grand jury indictment and that he was deprived of his right to an impartial jury in violation of both the Sixth Amendment to the United States Constitution and the Jury Selection and Service Act of 1968, 28 U.S.C. § 1861 et seq. He also contends that the trial court erred in refusing to grant the jury’s request to review the defendant’s testimony during its deliberations at the close of the evidence. Finally, he alleges denial of due process and equal protection under the Fifth and Fourteenth Amendments because the judge who presided at his trial was not invested with tenure of office for good behavior. We find no merit to these contentions. We affirm.

I.

First, Scott contends that the Government violated his Fifth Amendment right to answer for an infamous crime only after grand jury indictment in that the Government initiated his prosecution by information rather than by indictment. Scott recognizes that the Supreme Court has held that the Fifth Amendment right to presentment or indictment by a grand jury is inapplicable to the states through the Fourteenth Amendment. Hudgens v. Clark, 1964, D.Or., 218 F.Supp. 95, 96. Hurtado v. California, 1884, 110 U.S. 516, 4 S.Ct. Ill, 28 L'.Ed. 232. He argues, however, that a citizen of the United States charged with a violation of a federal law in a United States court is constitutionally entitled to the benefit of grand jury. This argument disregards the territorial status of the Canal Zone, as well as the special character of the United States courts sitting in the Canal Zone.

The constitution does not require the extension of all protections of the bill of rights to territories governed by the United States. In Soto v. United States, 3 Cir. 1921, 273 F. 628, 633, the court held that indictment by a grand jury is “not among the fundamental rights which Congress in legislating for a territory not incorporated into the United States must secure to its inhabitants”. Moreover, non-citizens and citizens of the United States resident in such territories are treated alike, since it is the territorial nature of the Canal Zone and not the citizenship of the defendant that is dispositive. Chief Justice Taft stated this principle as it applied to the right to jury trial in Balzac v. Porto Rico, 1922, 258 U.S. 298, 309, 42 S.Ct. 343, 347, 66 L.Ed. 627:

The citizen of the United States living in Porto Rico cannot there enjoy a right of trial by jury under the federal Constitution, any more than the Porto Rican. It is the locality that is determinative of the application of the Constitution in such matters as judicial procedure, and not the status of the people who live in it.

This Court followed that analysis in Government of the Canal Zone v. Griffith, 5 Cir. 1972, 459 F.2d 1036:

“Appellant’s primary contention is that the Fifth- Amendment requirement that infamous crimes be tried only upon grand jury indictment should be applied in the territory of the Canal Zone. We disagree. Article IV, § 3, of the Constitution empowers Congress to make ‘all needful Rules and Regulations respecting the Territory . . . ’ of the United
States. This constitutional provision has been specifically held to authorize Congress to dispense with grand jury indictments in the territories of the United States. See Rivera v. Government of Virgin Islands, 3 Cir., 1967, 375 F.2d 988, in which it was held that Congress could dispense with grand jury indictments in criminal trials in the territory of the Virgin Islands.” We find no compelling reason to depart from the Griffith rule.

II.

Scott’s second issue is the contention that the exclusion of military personnel from jury duty violated his rights to an impartial jury under the Jury Selection and Service Act of 1968, 28 U.S.C. § 1861 et seq., as well as the Sixth Amendment to the United States Constitution.

The argument is ingenious but unconvincing. Scott argues that the specific exemption of military personnel from jury duty under 28 U.S.C. § 1863(b)(6) is permissive rather than mandatory and that the United States District Court must be guided in the exercise of its discretion by the general language of 28 U.S.C. § 1861 and § 1862. Section 1861 declares that the general policy of the United States is to provide for all litigants a jury selected from a “fair cross section of the community”. Section 1862 provides that no citizen should be excluded from jury service on account of race, color, religion, sex, national origin, or economic status.

We find this construction untenable in that the relevant language of Section 1863(b)(6) merely tracks the language of its predecessor section, 28 U.S.C. § 1862 (1966). The earlier section was unambiguously mandatory in its exclusion of military personnel. The underlying rationale of the section was that members of such classes as military personnel were better left undisturbed at their usual occupations. The incorporation of old Section 1862 into the 1968 Act indicates a continued congressional belief in the desirability of excluding members of essential occupational classes from the obligation of jury service. More concretely, Scott’s argument must fail because it is incompatible with the provision of Section 1863(b)(6) requiring that the jury selection plan “shall provide for exemption of ... members in active service in the Armed Forces”.

The appellant also argues that the exclusion of military personnel from jury duty violates his constitutional right to an impartial jury because it removes from eligibility one element of the community and thus prevents the jury from representing “a fair cross-section of the community”. The mere exclusion of certain occupational classes for reasonable purposes is not constitutionally infirm. Justice Holmes stated the appropriate standard in Rawlins v. Georgia, 1906, 201 U.S. 638, 640, 26 S.Ct. 560, 561, 50 L.Ed. 899 (1906): certain occupations may be categorically excluded from jury duty on the “bona fide ground that it [is] for the good of the community that their regular work should not be interrupted”. In Peters v. Kiff, 1972, 407 U.S. 493, 500, n. 10, 92 S.Ct. 2163, 33 L.Ed.2d 83, the Supreme Court noted the continuing vitality of this standard as a qualification on the “fair cross-section” principle. • Because it is the “primary business of armies and navies to fight or be ready to fight wars should the occasion arise”, Parker v. Levy, 1974, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439, 451, the exclusion of military personnel from jury duty is reasonable and for the good of the community under the Rawlins standard.

Finally, Scott argues that the exclusion of servicemen from jury duty in the Canal Zone deprived him of his right to an impartial jury because of the divergence in racial composition between the military contingent in the Canal Zone and the civilian population there. We do not reach the constitutional merits of that argument, however, because the record does not provide us with sufficient data for assessing its factual basis.

III.

The third issue raised on appeal here turns on the refusal of the trial court to grant the jury’s request for a transcript of the defendant’s testimony to consider during the course of its deliberations. This argument also fails. Broad discretion is placed in the trial court in deciding whether to provide the jury with the transcript of a particular witness’s testimony or, alternatively, to have the witness’s testimony read back to the jury at its request. United States v. Pollack, 2 Cir. 1973, 474 F.2d 828, 832, United States v. Braxton, 5 Cir. 1969, 417 F.2d 878, United States v. DePalma, 9 Cir. 1969, 414 F.2d 394, 396. Here the trial judge explained to the jury his reasons for denying the re: quest for a transcript. He pointed out that furnishing a part of the transcript created the danger that the jurors might give undue weight to testimony which they would review isolated from its context. He also informed them that there would be some delay before such a transcript could be prepared by the reporter; the court does not keep a running up-to-date transcript of the testimony since it has only one court reporter who is engaged in the transcription of many cases.

We hold that the trial judge did not abuse his discretion in denying the jury’s request for a transcript of the defendant’s testimony.

IV.

Scott’s final argument is that he was denied due process and equal protection of the laws in that his trial was presided over by a non-tenured judge sitting as a so-called “legislative” court rather than a “constitutional” (Article III) court.

The appellant’s argument is one that Congress might well consider. “If judicial independence is of vital importance in the states, it is.hard to see why it is not equally valuable in the territories. The district judges there try persons for crimes against the United States. They hear civil cases in which the United States is a party. They should be able to decide such cases fearlessly and impartially, without being dependent upon the Department of Justice for their continued tenure. . . . The granting to these judges of tenure during good behavior, as was recently done for Puer-to Rico, would bring to an end the dubiously-conceived notion that courts of the United States can be other than ‘constitutional.’ ” Wright, Law of Federal Courts, p. 34 (1970). That is not now the law. In Palmore v. United States, 1973, 411 U.S. 389, 407, 93 S.Ct. 1670, 1681, 36 L.Ed.2d 342, the Supreme Court rejected a similar argument:

[N]either this Court not Congress has read the Constitution as requiring every federal question arising under the federal law, or even every criminal prosecution for violating an Act of Congress to be tried in an Art. Ill court before a judge enjoying lifetime tenure and protection' against salary reduction.

See also United States v. Montanez, 2 Cir. 1967, 371 F.2d 79, cert. denied, 389 U.S. 884, 88 S.Ct. 147, 19 L.Ed.2d 181.

Congress decides the appropriate system of justice for territories. A system suitable for a territory that is a candidate for statehood may be inappropriate for an area under the jurisdiction of the United States by virtue of a treaty between this country and the Republic of Panama, a treaty that is at this point being renegotiated. As Justice Harlan wrote in Glidden v. Zdanok, 370 U.S. 530, 546-547, 82 S.Ct. 1459, 1471, 8 L.Ed.2d 671 (1962), “It would have been dogmatic ... to fasten on those [territorial] judges a guarantee of tenure that Congress could not put to use and the exigencies of the territories did riot require.” Scott’s argument runs against the tide of a long line of authority beginning with Chief Justice Marshall’s analysis in American Insurance Co. v. Canter, 1 Pet. 511, 7 L.Ed. 242 (U.S.1828). It must therefore be rejected.

The judgment of the district court is affirmed.

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

      . U.S.Const. Amend. V provides:
      No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

      . U.S.Const. Amend. VI provides:
      In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

      . Under 28 U.S.C. § 1863(b) (6), the District Court jury plan must:
      “specify those groups of persons or occupational classes whose members shall be barred from jury service on the ground that they are exempt. Such groups or classes shall be exempt only if the district court finds, and the plan states, that their exemption is in the public interest and would not be inconsistent with sections 1861 and 1862 of this title. The plan shall provide for exemption of the following persons: (i) members in active service in the Armed Forces of the United States; (ii) members of the fire or police departments of any State, district, territory, possession, or subdivision thereof; (iii) public officers in the executive, legislative, or judicial branches of the Government of the United States, or any State, district, territory, or possession or subdivision thereof, who are actively engaged in the performance of official duties.”

      . 28 U.S.C. § 1861 provides :
      It is the policy of the United States that all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes. It is further the policy of the United States that all citizens shall have the opportunity to be considered for service on grand and petit juries in the district courts of the United States, and shall have an obligation to serve as jurors when summoned for that purpose.

      . 28 U.S.C. § 1802 provides:
      No citizen shall be excluded from service as a grand or petit juror in the district courts of the United States on account of race, color, religion, sex, national origin, or economic status.

      . 28 U.S.C. § 1862 (1966) provides:
      The following persons shall be exempt from jury service:
      (1) Members in active service in the armed forces of the United States.
      (2) Members of the Fire or Police departments of any State, District, Territory, Possession or subdivision thereof.
      (3) Public officers in the executive, legislative or judicial branches of the government of the United States, or any State, District, Territory, or Possession or subdivision thereof who are actively engaged in the performance of official duties. June 25, 1948, c.-646, 62 Stat. 952.

      . U.S.Const. Art. Ill, § 1 provides:
      “Tlie judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation which shall not be diminished during their Continuance in Office.”


source: Caselaw Access Project

license: Public Domain

text:
    James Milford DUNCAN, Petitioner-Appellant, v. STATE OF ALABAMA, Respondent-Appellee.
    No. 73-3820.
    United States Court of Appeals, Fifth Circuit.
    Oct. 10, 1974.
    George Peach Taylor, Univ. of Alabama, University, Ala., (Court-appointed) , for petitioner-appellant.
    William J. Baxley, Atty. Gen., Montgomery, Ala., Herbert H. Henry, Asst. Atty. Gen., Birmingham, Ala., for respondent-appellee.
    Before TUTTLE, WISDOM and GEE, Circuit Judges.
   WISDOM, Circuit Judge:

This appeal in forma pauperis by a state prisoner is from the denial of a habeas corpus petition without a hearing and without a response by the State. The district court adopted the report and recommendation of the United States Magistrate for dismissal of the petition. The case raises the question whether time served on death row during pendency of an appeal is required to be credited for parole consideration on a life sentence imposed following reversal and remand of the sentence of death. We hold that the petitioner-appellant is entitled to the credit for the time spent in the state penitentiary pending his appeal. North Carolina v. Pearce, 1969, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656; Wilson v. North Carolina, 4 Cir. 1971, 438 F.2d 284.

James M. Duncan, petitioner-appellant, was convicted of murder and sentenced to death on June 4, 1963. He appealed to the Supreme Court of Alabama.. During the pendency of the appeal, he was incarcerated in the state penitentiary. On June 30, 1965, the Supreme Court reversed because of the admission of evidence illegally seized without warrant. Duncan v. State of Alabama, 278 Ala. 145, 176 So.2d 840 (1965). After remand, Duncan entered a plea of guilty, and in October 1965 was sentenced to life imprisonment.

Title 42, Section 8, Code of Alabama (1940) (Recomp.1958) provides that state prisoners serving a life sentence are eligible for consideration for parole at the expiration of ten years imprisonment. Credit for the two years served by the petitioner-appellant in the state penitentiary during the pen-dency of his appeal would have made him eligible for consideration for parole in June 1973 rather than October 1975.

The constitutional basis for crediting appeal-time detention on the sentence imposed after remand by an appellate court is the Fifth Amendment guarantee against double jeopardy.

Simpson v. Rice (North Carolina v. Pearce) arose in the Middle District of Alabama. The state circuit judge had vacated the prisoner’s sentence, under Gideon v. Wainwright, 1963, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, and imposed a new sentence without giving him credit for the time served on the original sentence. Chief Judge Frank Johnson, relying on the due process clause, ruled that credit must be given for time served. 274 F.Supp. 116 (D.C. Ala., 1967). This Court affirmed, adopting Chief Judge Johnson’s opinion as its own. Simpson v. Rice, 5 Cir. 1968, 396 F.2d 499. The Supreme Court approved the requirement of credit for time served on the original sentence but based its holding on the double jeopardy clause of the Fifth Amendment. Simpson v. Rice, decided sub nom United States v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Mr. Justice Stewart, speaking for a unanimous Court, stated:

“We hold that the constitutional guarantee against multiple punishments for the same offense absolutely requires that punishment already exacted must be fully ‘credited’ in imposing sentence upon a new conviction for the same offense. If, upon a new trial, the defendant is acquitted, there is no way the years he spent in prison can be returned to him. But if he is reconvicted, those years can and must be returned — by subtracting them from whatever new sentence is imposed.”

395 U.S. 711, 718, 719, 89 S.Ct. 2072, 2077.

In Wilson v. North Carolina, the Fourth Circuit dealt with facts very similar to those in the instant case. Wilson, convicted of rape and sentenced to life imprisonment, was successful on appeal. He was tried again, and again convicted and sentenced to life imprisonment. He sought credit for the time pursuing appeals and awaiting trials in determining when he could be considered for parole. North Carolina law, like Alabama law, allows a life termer to be eligible for consideration for párole “when he has served ten years of his sentence”. North Carolina authorities, apparently like Alabama authorities, consider the ten year period to run from the date of the last sentencing. The North Carolina Attorney General, like the Magistrate and Court below, argued that a life sentence cannot be reduced by any crediting of previous imprisonment since the sentence lasts for the prisoner’s natural life. Judge John D. Butzner, Jr., for the court, held, however:

“In accordance with Pearce” the Board of Paroles must include in computing the statutory period of ten years “the length of time Wilson was imprisoned from the date of his first conviction to the date his sentence began to run following affirmance of his second appeal.”

438 F.2d at 287.

We agree with Wilson v. North Carolina. The credit for time served by a life-termer will not shorten his life sentence, but it will shorten time for consideration of his parole. Whether he will be granted parole rests in the sound discretion of the Board of Pardons and Paroles. Duncan may not be entitled to parole, but he is entitled to consideration for parole.

On appeal, the State now contends that Title 42, Section 8, Code of Alabama, 1940, Recompiled 1958, is interpreted by the State so as to give every state prisoner consideration for parole at any time after sentencing by unanimous vote of the Board of Pardons and Paroles; after one-third or ten years of the sentence, a simple majority can grant parole. Duncan insists that the argument runs counter to the prevailing practices of the Alabama Board of Pardons and Paroles. Moreover, if the State’s interpretation of the statute were correct, every prisoner now serving in state custody and every criminal awaiting transfer to the state penitentiary system would be able to apply for parole now and be entitled to a hearing in accordance with current rules and practices. A considerable number of hearings will be required in the immediate future if consideration is given to all prisoners as soon as they have been sentenced.

Even if Title 42, Section 8 does not preclude from consideration for parole any convict, no matter how long the sentence nor the length of time se:rved, it is a practical advantage to have to gain only two votes from the three man board, rather than to be required to secure a unanimous vote from the Board.

We have considered all of the other arguments the State has raised. We find them lacking in merit.

The judgment of dismissal is vacated and the case is remanded to the district court to require the Board of Pardons and Paroles to credit Duncan’s prison service with the time spent during imprisonment on “death row” and to grant the petitioner a hearing in the usual manner and under the same rules and regulations applying to all prisoners who have completed service of ten years on a life sentence. The propositions advanced by the State of Alabama in this Court, abuse of writ, prior consideration by the Board of this petitioner, and lack of controversy between the parties because of the yet-to-be proved fact of such prior consideration may be inquired into by the district court upon proper answer by the State injecting these issues into the ease. If the State elects to present such issues, a full hearing should be held in the district court, and the district judge should consider the propriety of appointing counsel to represent the petitioner at that hearing.

      . The Alabama Parole Statute provides that “the [parole] board shall not grant a parole to any prisoner who has not served at least one-third or ten years 'of his sentence, whichever is the lesser, except hy a unanimous affirmative vote of the hoard”, (emphasis supplied). Title 42, Section 8, Code of Alabama, 1940, Recompiled 1958.


author: HANNUM, District Judge. JAMES HUNTER, III, Circuit Judge

text:
    UNITED STATES of America v. Joseph CHRZANOWSKI, Appellant in No. 73-1591, and Alex Chrzanowski. Appeal of Alex CHRZANOWSKI, in No. 73-1592.
    Nos. 73-1591, 73-1592.
    United States Court of Appeals, Third Circuit.
    Submitted on briefs May 29, 1974.
    Decided Aug. 28, 1974.

      James Hunter, III, Circuit Judge, filed concurring opinion.
    James M. Horan, New York City, for appellants.
    Jonathan L. Goldstein, U. S. Atty., William T. Pizzi, John J. Barry, Asst. U. S. Attys., Newark, N. J., for appellee.
    Submitted Under Third Circuit Rule 12(6) May 29, 1974.
    Before ROSENN and HUNTER, Circuit Judges, and HANNUM, District Judge.
   OPINION OF THE COURT

HANNUM, District Judge.

Appellants, Joseph Chrzanowski and his brother Alex Chrzanowski, were convicted in the District Court for the District of New Jersey of (1) conspiracy to use extortionate means to collect extensions of credit (Count I), (2) using extortionate means to collect extensions of credit (Count II) and (3) using extortionate means to punish for non-payment of an extension of credit (Count III), all in violation of 18 U.S.C. § 894. Both defendants were sentenced to ten years imprisonment on each count, the sentences to run concurrently.

The main witness for the Government was one, James Jelicks. Jelicks testified that he had taken a $400 loan from the Chrzanowski brothers, paid it back several times over, suffered several beatings at their hands for non-payment, and yet was still in debt to them. After an alleged brutal beating on December 11,1971, Jelicks went to the police.

The defense attempted to establish that the beatings had never occurred, that in fact Jelicks had been intoxicated on December 11, 1971, and that the injuries received on that date were self-inflicted. In addition, two defense witnesses testified to the good character of the appellants.

Appellants urge that the trial court committed five specific errors:

1— in permitting certain rebuttal testimony ;

2— in failing to grant a mistrial when the jury glimpsed the defendant in handcuffs and in the custody of a United States Marshal;

3— in failing to include an entrapment instruction in the charge to the jury;

4— in refusing to read lengthy portions of the transcript to the jury when the jury so requested during its deliberations, and

5— in failing to include an instruction on immunity or inducement to testify in the charge to the jury.

The appellants request a reversal of the conviction, or in the alternative, a New Trial.

Appellants first contend that the court abused its discretion in admitting the testimony of two government witnesses in rebuttal. At the trial the defense presented three witnesses who disputed Jelicks’ account of one of the extortionate loan collections in issue, and two character witnesses who testified that the defendants were not the sort of persons who would commit such acts. Over appellants’ objections, the government called two witnesses in rebuttal who testified to incidents of beatings and extortionate loan collections by the appellants which were not charged in the indictment. Specifically, appellants contend that such evidence of other crimes is inadmissible, or at least improper as rebuttal.

This rebuttal testimony clearly would be admissible as part of the government’s case in chief. Although inadmissible to show a mere propensity or disposition to commit crime, evidence of other crimes is admissible to show appellants’ intent, plan, scheme, design or modus operandi. United States v. Todaro, 448 F.2d 64 (3d Cir. 1971), cert. denied, 404 U.S. 1040, 92 S.Ct. 724, 30 L.Ed.2d 732 (1972); United States v. Carter, 401 F.2d 748 (3d Cir. 1968), cert. denied, 393 U.S. 1103, 89 S.Ct. 905, 21 L.Ed.2d 797 (1969); United States v. Stirone, 262 F.2d 571 (3d Cir. 1958), rev’d on other grounds, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960).

After this testimony was received, the trial judge cautioned the jury on the limited use of such testimony, and again in his final charge he repeated the warning .as follows:

Now, the Government offered two witnesses, Orloff and Faver, who testified that they, too, owed money — Or-loff to a third brother of the defendants and Faver to the defendant John —or Joseph, rather, I am sorry — and that they were threatened, and in Faver’s case, struck.
This testimony was offered by the Government in an attempt to illustrate an intent, plan or scheme by the defendants to engage in this type of activity. I allowed you to hear it solely for that purpose.
Again, I cannot charge you in any stronger terms that before you can even consider this evidence of Faver or Orloff, you must first find that the other evidence in the case, standing alone, establishes beyond a reasonable doubt, as I have heretofore defined it, that either accused or both of them did the particular acts charged in the indictment or in any other counts thereof. (N.T. 1144-45)

Such limiting instructions given to the jury by the trial judge minimized any prejudice that might have resulted from the testimony.

It was also within the trial court’s discretion to allow the testimony as rebuttal. The admissibility of evidence in rebuttal is committed to the discretion of the trial judge. United States v. Hykel, 461 F.2d 721 (3d Cir. 1972); United States v. Riccardi, 174 F.2d 883 (3d Cir. 1949), cert. denied, 337 U.S. 941, 69 S.Ct. 1519, 93 L.Ed. 1746 (1949). The proper function and purpose of rebuttal testimony is to explain, repel, counteract or disprove the evidence of the adverse party. United States v. Mallis, 467 F.2d 567 (3d Cir. 1972). The testimony in dispute here was relevant and probative to rebut the testimony of the character witnesses by showing that the defendants had committed similar acts. Moreover, the testimony was admissible to rebut the testimony of the three defense witnesses who disputed Jelicks’ account of one of the extortionate loan collections in issue, since it showed a general scheme and modus operandi of such activity by the defendants.

Even though the testimony could or should have been offered as part of the government’s case in chief, the trial court’s decision to allow it as rebuttal is not reviewable in the absence of gross abuse of discretion. Goldsby v. United States, 160 U.S. 70, 16 S.Ct. 216, 40 L.Ed. 343 (1895); United States v. Fench, 470 F.2d 1234 (1972), cert. denied sub nom., Blackwell v. United States, 410 U. S. 909, 93 S.Ct. 964, 35 L.Ed.2d 271 (1973); Rodella v. United States, 286 F.2d 306 (9th Cir. 1960), cert. denied, 365 U.S. 889, 81 S.Ct. 1042, 6 L.Ed.2d 199 (1961). Not only was there no gross abuse of discretion but we find that it was clearly within the trial court’s discretion to allow evidence of other crimes committed by appellants in order to rebut evidence discrediting the government’s account of the crime and evidence of appellants’ good character.

Appellants next argue that a mistrial should have been declared because in the middle of its deliberations the jury may have briefly glimpsed one of the appellants being brought into the courtroom in handcuffs by a United States Marshal. Although the actual facts of the incident are in dispute, even if appellants’ version is taken as true, the incident was brief and not aggravated. The fact that jurors may briefly see a defendant in handcuffs is not so inherently prejudicial as to require a mistrial. United States v. Rickus, 351 F.Supp. 1386 (E.D.Pa.1972), aff’d, 480 F.2d 919 (3d Cir. 1973); United States v. Figueroa-Espinoza, 454 F.2d 590 (9th Cir. 1972); United States v. Hamilton, 444 F.2d 81 (5th Cir. 1971); United States v. Leach, 429 F.2d 956 (8th Cir. 1970), cert. denied, 402 U.S. 986, 91 S.Ct. 1675, 29 L.Ed.2d 151 (1971).

Appellants requested but were denied an instruction on entrapment. Their claim that this denial was error is baseless. At the trial, Jelicks admitted using money received from F.B.I. Agents to make payments to the appellants on the outstanding usurious loan. However, the F.B.I. did not begin to give Jelicks the money with which to make payments until June or July of 1969. This was months after Jelicks had gotten himself involved with appellants by borrowing money from them, and after Jelicks had already suffered a beating at their hands. As the government points out, the appellants’ defense at trial was not that the defendants had been induced into committing the crime by Jelicks, but rather that Jelicks had fabricated the entire story about the beatings, especially the beating on December 11, 1971. This point is aptly demonstrated by defense counsel’s closing argument wherein he stated that these incidents had never occurred, that is, that Jelicks had not been beaten up by the appellants, that Jelicks had never given money to the appellants, and that Jelicks had never received money from the F.B.I. with which to make payments to the appellants.

Since there was no evidence of entrapment, the trial judge correctly ruled that the instruction was not necessary, United States v. Giuliano, 383 F.2d 30 (3d Cir. 1967), cert. denied, 389 U.S. 1055, 88 S.Ct. 805, 19 L.Ed.2d 852 (1967); United States v. Aloisio, 440 F.2d 705 (7th Cir.), cert. denied, 404 U.S. 824, 92 S.Ct. 49, 30 L.Ed.2d 51 (1971).

Appellants next contend that the trial court committed plain error in refusing to have certain testimony read to the jury at its request. During its deliberations, the jury requested a transcript of the testimony of Jelicks regarding December 11, the day of the final beating. The trial judge was of the opinion that it would be impractical to have all of this testimony read to the jury since Jelicks testified for three days. However, the trial judge stated that if the jury could make their request more specific, a reasonable amount of testimony could be read to them. The trial judge then sent the jury back telling them he would stay on the bench for fifteen minutes before returning to Chambers just in case there was an additional request.

If the jury believes from the evidence that any person was induced to testify in this ease by any promise of immunity from further punishment, or that any hope was held out, or entertained by him that he would be regarded or in anywise benefit if he implicated any of the defendants in the crimes charged herein, the jury must take such fact into consideration in determining what weight should be given to the testimony, closely scrutinized [sic] it and unless they can reconcile it with truth, completely reject it.

Appellants contend that the relevant portions of Jelicks testimony could reasonably have been read to the jury. However, even if this is so it was still within the wide discretion of the trial court not to have the testimony read. It is a proper exercise of discretion to deny the jury’s request to have testimony read where, as here, the length of the requested portions is substantial and would require sifting through the entire testimony of a witness without any specific guidance as to what was desired. United States v. Chicarelli, 445 F.2d 1111 (3d Cir. 1971); United States v. DePalma, 414 F.2d 394 (9th Cir. 1969), cert. denied, 396 U.S. 1046, 90 S.Ct. 697, 24 L.Ed.2d 690 (1970).

Finally, appellants contend that it was prejudicial error not to instruct the jury on the issue of the credibility of one who is induced to testify by a promise of immunity from prosecution.

At the trial, testimony revealed that Jelicks, a parolee, had been found in possession of a gun by the F.B.I. agent with whom he had been cooperating. This was a violation of parole for which Jelicks could have been returned to prison. Testimony further revealed that the F.B.I. agent confiscated the gun and up to the time of Jelicks’ testimony nothing further had resulted from the incident other than Jelicks getting “yelled at about it.” From this incident appellants deduce that Jelicks was induced to testify by a promise of immunity from further punishment, and that, therefore, an instruction to that effect was required.

The trial judge rejected the instruction stating, “I will not .charge it simply pointing out that there is no one here who has testified who has been waiting a disposition of a charge.” N.T. 1149. We do not believe that under these circumstances the failure of the trial judge to give the requested instruction rises to the level of reversible error. The issue of the promise of immunity was at most tangential to the central question in the case, i. e., Jelicks’ credibility. ' The record shows that the jury received a thorough instruction on credibility. In our view, that instruction was sufficient.

The judgment of the district court will be affirmed.

JAMES HUNTER, III, Circuit Judge

(concurring):

I agree that evidence of other beatings and extortionate loan collections not charged in the indictment could have come in as part of the government’s case in chief under the Circuit’s precedent. Further, under the circumstances present in this case, I believe that its introduction on rebuttal was permissible. However, I cannot endorse the reasoning that leads the majority to this second conclusion.

The majority feels that this evidence was properly admitted as rebuttal for two reasons. First, they feel that it tended to refute the evidence, introduced by the defendants, that gave an account of the incidents leading to the indictments that differed from the government’s account. Second, they believe that this evidence tended to refute the testimony of the defendants’ “character” witnesses.

The majority’s first rationale is, in my opinion, invalid and results in an unfortunate expansion of the scope of rebuttal beyond its proper parameters. Rebuttal evidence is designed to “explain, repel, counteract or disprove the evidence of the adverse party." United States v. Mallis, 467 F.2d 567, 569 (3d Cir. 1972) (emphasis added). In this case, it is true that the defendants’ version of the events in question tended to undercut the government’s theory of the facts, while the rebuttal evidence tended to reinforce the government’s case in chief. However, this fact alone cannot qualify this evidence as rebuttal. Rebuttal cannot merely reinforce the government’s case in chief. It must specifically “explain, repel, counteract, or disprove” the defendants’ evidence. Here, the government’s rebuttal evidence in no way refuted the defendants’ theory of the events that led to their indictment; it merely reemphasized the government’s own theory of these events by showing modus operandi. As a result, I do not think that the evidence of other extortionate loan collections properly qualified as rebuttal to this aspect of the defendants’ casé.

The majority’s conclusion on this point concerns me since its effect is to permit the government to withhold affirmative evidence that , could as easily be a part of its case in chief, secure in the knowledge that it will be able to introduce it later under the guise of rebuttal. This will occur because any evidence that supports the government’s theory of the facts will be admissible as rebuttal the moment the defendant’s evidence begins to vary from the facts as related by the government. Thus, unless the facts are conceded by the defendant, the government will be able to split its ease in chief into two parts and save some of its best evidence until the end of the trial when its impact on the jury-will be greatest.

As a result, I believe that this rationale for the majority’s decision permits the use of rebuttal for a purpose it was not designed to serve and gives the government a tactical advantage that will unfairly hamper the right of an accused to defend himself. I do not believe that it is good law.

The majority’s second reason for permitting the introduction of this evidence on rebuttal is to refute the testimony of the defendants’ “character” witnesses. Ordinarily, this rationale would be improper also, since the rule appears to be that evidence of good character can be rebutted by the government’s own reputation evidence, but that it cannot be rebutted by evidence of specific acts of misconduct. Wigmore on Evidence, §§ 58, 53 (1940); see United States v. Michelson, 335 U.S. 469, 477-480, 69 S.Ct. 213, 93 L.Ed. 168 (1948); Shimon v. United States, 122 U.S.App.D.C. 152, 352 F.2d 449 (1965) (Burger, J.).

However, in this case, the defendants’ questioning of their “character” witnesses went beyond mere reputation evidence. At one point witness Lawrence, in response to defendants’ direct questions, stated that he had borrowed money from defendant. Alex Chrzanowski and had later paid it back. By asking these questions, the defense presented testimony that tended to establish that the defendants, in the normal course of their activities, engaged in legitimate loan operations. Thus, it is my view that evidence of earlier incidents of extortionate loan collections could properly come in, on rebuttal, to show the defendants’ true modus operandi but only to refute this specific, nonreputation, testimony.

      . 18 U.S.C. § 894 provides in pertinent part as follows:
      Collections of extensions of credit by extortionate means
      (a) Whoever knowingly participates in any way, or conspires to do so, in the use of any extortionate means
      (1) to collect or attempt to collect any extension of credit, or
      (2) to punish any person for the nonre-payment thereof, shall be fined not more than $10,000 or imprisoned not more than 20 years, or both.

      . The point for charge which was requested and denied by the trial court is as follows:

      . Naturally, if the defendant concedes the facts, the government’s statement of them will be fully established by the partial, but unrebutted evidence introduced by the government in its case in chief. Thus, this tactical maneuver can be undertaken by the government without risk.


author: PER CURIAM:

text:
    Martin GUERRERO, Jr., Plaintiff-Appellant, v. W. B. HAUCK, Individually and as the Sheriff of Bexar County, Texas, Defendant-Appellee.
    No. 73-3971
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct. 7, 1974.
    Rehearing Denied Nov. 14, 1974.

      Martin Guerrero, Jr., pro se.
    John L. Hill, Atty. Gen.; Austin, Tex., Norris W. Yates, Jr., Asst. Crim. Dist. Atty., San Antonio, Tex., for defendant-appellee.
    Before WISDOM, GOLDBERG and GEE, Circuit Judges.

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

   PER CURIAM:

Martin Guerrero, the plaintiff-appellant, brought this action under the Civil Rights Act, 42 U.S.C. § 1983, seeking compensatory and exemplary damages against W. B. Hauck, sheriff of Bexar County, Texas. He contended that Hauck had wrongfully placed him in solitary confinement while he was a prisoner in the Bexar County Jail. The district court, citing a number of decisions of other circuits and of the district courts in this circuit, held that merely placing a prisoner in solitary confinement, even if wrongful, is not actionable under § 1983 in the absence of bad faith or of some type of abuse of the prisoner. Guerrero had not alleged bad faith on the part of the sheriff; had not alleged that he had been abused; and had not alleged that the conditions in solitary were oppressive, inhumane, or damaging to him. Accordingly, the district court dismissed the complaint for failure to state a claim. The order of dismissal explicitly provided that the dismissal was with prejudice.

Guerrero filed a motion to vacate judgment under Fed.R.Civ.P. 60(b). He alleged that the district court erred in dismissing his complaint with prejudice. • The trial judge denied that motion to vacate. Guerrero filed a notice of appeal from the order of the district court denying the motion to vacate. On appeal, he again contends that the trial judge erred in dismissing with prejudice.

A dismissal with prejudice for failure to state a claim should not be entered “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”. Conley v. Gibson, 1957, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80; Haines v. Kerner, 1971, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652. This is particularly applicable, when, as in this case, the plaintiff is appearing pro se, and the allegations of the complaint are to be held “to less stringent standards than formal pleadings drafted by lawyers”. Haines, supra, at 520, 92 S.Ct. at 596.

Here, the district court’s opinion predicated the dismissal upon defects in the pleadings. The district court held that:

[t]he matter of internal management of prisons or correctional institutions is vested in and rests with the heads of those institutions operating under statutory authority, and their acts and administration of prison discipline and overall operation of the institutions are not subject to court supervision or control, absent most unusual circumstances, or absent a violation of a constitutional right.

The court emphasized that the plaintiff had not alleged abuse of the prisoner, and had not alleged any other “unusual circumstance” necessary to remove this case from the rule, assumed by the district court, against judicial supervision of internal prison administration. These were defects which might have been cured by amendment. These defects did not render it “beyond doubt”, Conley, supra, 355 U.S. at 45, 78 S.Ct. 99, that the plaintiff could not prove any set of facts which would show that the manner in which he was placed in solitary confinement, or the conditions of his confinement, violated his constitutional rights.

This ease is controlled by the Supreme Court’s decision in Haines. There the Court said:

Whatever may be the limits on the scope of inquiry of courts into the internal administration of prisons, allegations .such as those asserted by petitioner, however inartfully pleaded, are sufficient to call for the opportunity to offer supporting evidence. We cannot say with assurance that under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers, it appears ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief’.

404 U.S. at 520-521, 92 S.Ct. at 595.

Accordingly, we hold that the district court erred in attaching prejudice to the dismissal of Guerrero’s complaint, and in denying Guerrero’s Rule 60(b) motion to vacate on grounds that prejudice should not have attached. The case is remanded with the suggestion that the district court modify that part of its October 30, 1973, order of dismissal attaching prejudice to the dismissal, and stand ready to entertain an amended or modified complaint.

Reversed and remanded.


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Gary Gene WILLIAMS, Defendant-Appellant.
    No. 73-1809.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 14, 1974.
    Decided Sept. 3, 1974.

      Lester Watson, St. Louis, Mo., for defendant-appellant.
    William C. Martin, Asst. U. S. Atty., St. Louis, Mo., for plaintiff-appellee.
    Before JOHNSEN and VAN OOSTERHOUT, Senior Circuit Judges, and TALBOT SMITH, Senior District Judge.

      TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.

   PER CURIAM.

I.

Gary Gene Williams was convicted under 18 U.S.C. §§ 922(a)(1) and 924(a), on a jury trial, of engaging in the business of dealing in firearms without a federal license. It is undisputed that he had no license.

His brief sets out eight points or issues for reversal, but some of these are mere projections or refinements of the same general question. On this basis the questions and contentions reduce themselves in their substance to the following :

(1) That, on the definition made in § 921(a)(11) of the “term “dealer,” § 922(a) is too vague and indefinite to constitute a valid criminal statute, in that it provides no standard on (a) number of sales, (b) dollar volume of sales, (c) whether it relates only to a fixed place of business, and (d) number of employees, which elements are asserted to be necessary to enable one who sells a gun or guns to know whether he is a “dealer.”

(2) That the five sales of firearms, which the Government agents testified that defendant had made within a month’s time, were the result of such inducement by the agents as to constitute entrapment, and hence the court erred in denying defendant’s several motions for a directed verdict of acquittal.

(3) That the court further erred in denying defendant’s motion for a mistrial during the prosecutor’s opening statement, when in chronologizing the five sales, the prosecutor stated that the dealings with defendant had their beginning at a filling station where one of the Government’s informers or collaborators was employed, to which the defendant had gone, and at which the Government agent was at the time present, and then proceeded to interject that “ostensibly he was there to buy from Mr. Williams [defendant] a stolen credit card.”

(4) That the court “erred in failing to sustain Defendant’s Motion to Supply Defendant with the names of Witnesses who appeared before the Grand Jury in order that Defendant may [might] take their deposition and become fully apprised of the evidence the Government was relying upon to seek a conviction.”

II.

Each of these contentions and the projections or refinements of them involved in defendant’s total of eight points or issues are without merit in the situation.

As to contention (1) and the projection of it against the indictment, we agree with what was held by the District Court in United States v. Gross, 313 F.Supp. 1330, 1333 (D.C.S.D.Ind. 1970) and by the Court of Appeals of the Seventh Circuit in its affirmance, 451 F.2d 1355, 1357.

The District Court said (p. 1333): While it is true that 18 U.S.C. § 921 requires no minimum number of sales, dollar volume of sales, or number of employees to constitute “engaging in business,” as defendant asserts, there should be no doubt in the minds of men of common intelligence that “dealer” means one that is engaged in any business of selling * * * firearms and that “business” is that which occupies the time, attention and labor of men for the purpose of livelihood or profit.

Further, the Court of Appeals took occasion to reiterate and approve this holding, as follows (p. 1357):

There appears to be little doubt that “dealer” means anyone who is engaged in any business of selling firearms, and that “business” is that which occupies time, attention and labor for the purpose of livelihood or profit. Stone v. District of Columbia, 91 U.S.App.D.C. 140, 198 F.2d 601, 603 (1952).

The trial court’s instructions here similarly defined the term “dealer” and left it to the jury to determine whether or not upon that basis defendant had been engaged in the business of selling firearms in respect to the transactions involved.

As to contention (2), the court’s entitlement to leave the question of entrapment to the jury is equally clear. Entrapment ordinarily involves a question and a determination of fact. Banks v. United States, 348 F.2d 231, 237 (8th Cir. 1965). The court is not entitled to deal with it as a question of law unless the evidence is of such strength as to be without room for reasonable difference in judgment that the defendant committed the cr-ime only because the law enforcement officers attempted to set him up for that purpose and engaged in such “creative activities” to accomplish their aim as had control-lingly caused him to yield to their efforts. Cf. McDowell v. United States, 383 F.2d 599, 601 (8th Cir. 1967). “However, the fact that government agents ‘merely afford opportunities or facilities for the commission of the offense does not’ constitute entrapment * * *. To determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal.” Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 821, 2 L.Ed.2d 848.

The testimony of the Government agents showed that they had simply told the defendant, originally through the filling station employee and later through the contact which they thus established with him, that they were interested in buying any guns which he might have for sale, and that they availed themselves of the opportunity to make the several purchases as he presented the guns to them. As indicated, the transactions consisted of individual and not joint sales, and most of them occurred on defendant’s bringing a gun over to the filling station for them to see.

Defendant did not take the stand, nor did he offer any other evidence to show entrapment. The only witnesses which he called were his wife and her mother. The wife’s testimony sought to get the jury to believe that the first transaction (a machine gun) had not involved a sale at all, but simply a redemption by the filling station employee of his own gun. She said that when he and the Government agent came to defendant’s apartment in regard to the gun, the filling station employee had told her that he wanted to repay what defendant had loaned him on the gun and to get it back. The filling station employee denied that he had ever owned the gun or any other machine gun.

In any event, the wife’s testimony in this respect would hardly lend support to defendant’s contention that the whole situation was one of entrapment, but on the contrary would tend to discredit it. The mother-in-law’s testimony was brief and to the effect merely that she had seen the Government agents come to defendant’s apartment on three occasions and that once they had left a note for him to call them. Clearly there was nothing in either the wife’s or the mother-in-law’s testimony which entitled it to be held as a matter of law that there had been an entrapment.

To this there should be added that the court fairly instructed the jury that they must find the defendant not guilty if they believed that he was not ready and willing to engage in such conduct but that the officers induced him to do so and that he would not have done so except for such inducement.

As to contention (3), regarding the prosecutor’s remark in his opening statement that “ostensibly he was there to buy from Mr. Williams a stolen credit card,” the prosecutor stated to the court, out of the presence of the jury, that he regarded proof of the fact that defendant had come to the filling station to sell a credit card as being relevant on the question of entrapment as to the firearms’ sale. The court forbade any further credit card mention to be made by the prosecutor and instructed the jury to disregard his comment “concerning credit cards.” No further such mention or intimation by the prosecutor thereafter occurred in the proceedings.

While the remark was improper, we are in full agreement that it was not of such a nature or made in such manner or under such circumstances as to make it seem likely that the jury would not be able to disregard it and not be prejudi-cially affected by it. The conscientiousness with which the trial judge had evaluated and dealt with the matter is manifested by the observations in which he engaged at the hearing on defendant’s motion for a new trial:

* * * I recall looking pretty clearly at the jury and you can frequently tell if a jury is reacting to something. * * * [M]y impression was that the matter had passed right by them, and I did not deem it to be prejudicial. That was the court’s judgment. Indeed, on the attention which we

think a machine gun, a .16 gauge pump shotgun, a .38 caliber revolver, a .12 gauge double-barrel shotgun and a .22 caliber semi-automatic pistol would normally attract in a courtroom, together with the body of evidence relating to them, we would deem it highly improbable that the jury had even remembered the casual mention which had been made at the start of a stolen credit card. In any event, we do not believe it reasonably possible that it could at all have been a factor in the jury’s determination of guilt as to the overshadowing and hardly doubtable sales of guns.

As to contention (4), the thrust made appears to be that defendant was deprived of the opportunity to take the depositions of the Government witnesses. First of all, the motion was not one which came within the provisions of Rule 16, Fed.R.Crim.P., as a general discovery right. Cf. Kilgore v. United States, 323 F.2d 369, 372 (8th Cir. 1963). Further, it was,not one which came within the provisions of Rule 15 as a demonstratedly proper and necessary trial auxiliary. Beyond this, even if the situation had been one that was within Rules 15 and 16, it is not shown and it is not apparent how defendant could have been in any way prejudiced in the uncomplex factual situation involved. In fact, the contention would be entitled to be held to be legally frivolous.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Paul Darrell HENLEY and Stanley Paul Rutkowski, Defendants-Appellants.
    No. 74-1238
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct. 9, 1974.
    Rehearing and Rehearing En Banc Denied Dec. 16, 1974.
    John D. Shofi, Tampa, Fla. (Court-appointed), for Henley.
    Raymond E. LaPorte, Tampa, Fla., for Rutkowski.
    John L. Briggs, U. S. Atty., Jacksonville, Fla., D. Frank Winkles, Asst. U. S. Atty., Tampa, Fla., for plaintiff-appel-lee.
    Before COLEMAN, DYER and RO-NEY, Circuit Judges.

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

   PER CURIAM:

After a jury trial defendants were convicted of importation and possession with intent to distribute 14,550 pounds of marijuana. 21 U.S.C.A. §§ 952(a), 960(b)(2) and 21 U.S.C.A. §§ 841(a)(1) and (b)(1) (B). We have examined the briefs and record in respect to the errors assigned on this appeal. None of these points warrants disturbance of the District Court decision. The prosecutor’s statements, acts, and conduct were in reply to defense arguments, and were, in totality, not unfairly prejudicial to defendants. See United States v. Rhoden, 453 F.2d 598 (5th Cir.), cert. denied, 406 U.S. 947, 92 S.Ct. 2050, 32 L.Ed.2d 334 (1972).

The overwhelming evidence of possession of more than seven tons of marijuana justified the court’s refusal to instruct the jury on the lesser included offense of simple possession. See Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965).

Evidence as to defendant Henley’s reputation was properly allowed after he testified and introduced the defense of entrapment. Rocha v. United States, 401 F.2d 529 (5th Cir.), cert. denied, 393 U.S. 1103, 89 S.Ct. 905, 21 L.Ed. 796 (1969).

In United States v. Gaines, 489 F.2d 690 (5th Cir. T974), we rejected the argument that the government must prove the seized marijuana was Cannabis Sativa L.

The evidence amply warrants the finding of guilt and no error of law is perceived in the trial.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. William Morris HODGES, II, Defendant-Appellant.
    No. 74-1099
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct. 7, 1974.

      W. B. “Bennie” House, Jr., Houston, Tex., William M. Ravkind, Dallas, Tex., for defendant-appellant.
    William Sessions, U. S. Atty., James E. Bock, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.
    Before WISDOM, GOLDBERG and GEE, Circuit Judges.

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

   PER CURIAM:

The defendant-appellant, William Morris Hodges, II, appeals from his conviction of conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1). As grounds for reversal, Hodges contends (1) that the trial judge erred in denying his motion for a severance; (2) that the trial and conviction violate the double jeopardy clause; and (3) that certain deceptions practiced upon his trial counsel by an informer who was named as an unindicted co-principal in the indictment were so serious as to deny him the opportunity for a fair trial. We affirm.

In arguing that the trial judge abused his discretion in refusing to grant a severance, Hodges relies heavily upon the fact that several of his co-defendants took the stand to defend themselves, while he himself exercised his constitutional right to remain silent. Hodges points out that in their closing arguments the attorneys for the defendants who took the stand commented upon their clients’ willingness to testify. He suggests that under our decision in DeLuna v. United States, 1962, 308 F.2d 140, failure to sever denied him the opportunity for a fair trial. DeLuna,, however, involved an adverse comment by one co-defendant’s counsel on the other co-defendant’s failure to testify; one or the other defendant was guilty. The Court held that where one co-defendant’s counsel finds need to make such comment, a severance should be ordered to forestall any possible interference with the right to remain silent of the co-defendant who chooses not to testify. A mere favorable comment upon the fact that one of several co-defendants testified does not involve the same potential for prejudice as an adverse comment by counsel upon the failure to testify of the other co-defendant. We decline, to extend DeLuna to cover that situation.

Hodges also contends that a severance should have been granted because of inconsistencies between defensive theories he sought to assert and those asserted by his co-defendants. Our review of the record persuades us that whatever inconsistencies existed were not great enough to permit us to conclude the trial judge abused his discretion when he denied a severance.

The defendant’s double jeopardy claim is founded upon his trial in June 1973 for conspiracy to possess an 800-pound shipment of marijuana illegally imported into the country in June 1972. The trial judge directed an acquittal at that trial on grounds of improper venue. This trial involved a charge of conspiracy to possess a 2400-pound shipment brought into the country at another time. Nevertheless, the defendant contends that there was but one single “conspiracy” to possess marijuana, and that his acquittal in the first trial barred further prosecution, under the double jeopardy clause. We reject the contention. The two shipments involved entirely distinct offenses. The two conspiracies involved different parties. The conspiracies to commit those offenses were separate conspiracies, so that separate prosecution for each did not offend the double jeopardy clause.

Finally, we find no merit to the contention that the deceptions practiced by the co-principal who was cooperating with the Government constitute grounds for reversal. In several telephone interviews with the defendant’s counsel, the informer misled defendant’s counsel by failing to reveal that he was cooperating with the Government. He allegedly did this to protect his “cover” as a government informer; apparently he was still working with the Government in its investigation of the parties involved in this case at the time. We find no substantial prejudice flowed from the deceptions practiced by the informer. He was made available, and the fact that he had been cooperating with the Government was made known to defense counsel well over a month before trial. At the trial he was placed upon the stand and cross-examined vigorously. The defendant has pointed to no specific damage that flowed from the deceptions he had earlier practiced.

The judgment of the district court is affirmed.