author: WINTER, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Salvatore Thomas BADALAMENTE and Herbert Yagid, Appellants.
    Nos. 1186 to 1205, Dockets 74-1517, 74-1586.
    United States Court of Appeals, Second Circuit.
    Argued July 16, 1974.
    Decided Nov. 21, 1974.
    Certiorari Denied April 14, 1975.
    See 95 S.Ct. 1565.

      Alfred Lawrence Toombs, New York City (Michael P. Direnzo, New York City, on the brief), for appellant Badala-mente.
    William Epstein, New York City (William J. Gallagher, The Legal Aid Society, .New York City, on the brief), for appellant Yagid.
    Michael C. Eberhardt, Sp. Atty., U. S. Dept, of Justice, Washington, D. C. (Paul J. Curran, U. S. Atty., S. Andrew Schaf-fer, Asst. U. S. Atty., New York City, on the brief), for appellee.
    Before WINTER and MULLIGAN, Circuit Judges, and NEWMAN, District Judge.

       Of the Fourth Circuit Court of Appeals, sitting by designation.

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

   WINTER, Circuit Judge:

Salvatore Thomas Badalamente and Herbert Yagid, together with five others, including a certain Jerry Allen, were charged in a two-count indictment with conspiracy to transport in interstate and foreign commerce falsely-made, forged, altered and counterfeited passbooks and certificates of deposit obtained from various United States banks, in violation of 18 U.S.C. § 371, and with the substantive crime of interstate transportation of a falsely-made, forged, altered and counterfeited American Savings Association passbook and certificate of deposit, in violation of 18 U.S.C. §§ 2314 and 2. The essence of the government’s case was that the various defendants conspired to obtain a false or forged savings bankbook, to transport it to Europe for use as collateral for a bank loan and to distribute the proceeds of the loan among themselves, and that the defendants carried out the conspiracy at least to the point of interstate transportation within the United States. Allen and two of the other co-defendants pleaded guilty. Prior to trial, the district court granted the government’s motion to dismiss the substantive count against Bada-lamente. On the conspiracy count, Ba-dalamente, and on the conspiracy and substantive counts, Yagid, and another co-defendant, Stern, were tried jointly before a jury. Allen testified as a government witness. All were found guilty on all charges. Badalamente and Yagid both appeal; Stern does not.

Badalamente advances several reasons for reversal of his conviction, viz., legally insufficient evidence to convict him of conspiracy, denial of effective assistance of counsel, prejudicially restricted cross-examination by the district court, and erroneous instructions and omission of essential instructions. Persuaded that there were not reversible errors in Bada-lamente’s trial, we affirm as to him.

Yagid also advances numerous contentions why his conviction should be reversed. One is that the government suppressed exculpatory material having substantial relevance to the credibility of Allen, one of the two principal government witnesses against Yagid. Others relate to the district court’s rulings on evidence and the district court's instructions to the jury. We find merit in Yag-id’s first point, and therefore we reverse, as to him, and grant a new trial. Because it is possible that at the new trial the district judge who presided at the original trial may be required to testify concerning certain aspects of the suppression, we will not consider Yagid’s other claims of reversible error. This is so because, on retrial, another district judge should preside and he will not be bound by the rulings of the original trial judge but rather will be free to make his rulings on evidence and on instructions on the record developed before him.

Yagid’s appeal requires a more detailed discussion of the evidence than does that of his co-appellant. Because it will provide the context in which Badala-mente’s contentions are raised, we will discuss it first.

No. 74 — 1586—Yagid’s Appeal I.

The government’s case against Yagid rested principally on the testimony of Herbert Olsberg, a paid informer, and Allen, one of the co-defendants who pleaded guilty and testified as a government witness. Yagid sought to overcome its incriminating effect by testifying in his own behalf that Olsberg had entrapped him into joining the conspiracy but that, after becoming a member, he withdrew prior to the commission of the substantive offense. Olsberg, of course, denied entrapment, but the classic question of whom to believe was submitted to the jury.

Olsberg’s testimony, succinctly stated, was that on March 6, 1973, Yagid, known to Olsberg as a result of legitimate prior business dealings, made inquiries of Olsberg about the possibilities of using a fictitious bank passbook as collateral for a loan. Olsberg said that he would have to see the passbook before he could say, and it was agreed that there would be another meeting. The initial inquiry was made in the presence of Stern. Before another meeting, Ols-berg communicated with the F.B.I. and became a paid informer.

The next meeting occurred approximately March 9, 1973, at the Luxor Baths in New York City, where Yagid and Stern introduced Allen and a certain Berardelli, the purported holder of the passbook, to Olsberg. Again Olsberg was asked if the passbook could be used as collateral for a loan, and again Ols-berg declined a definitive opinion until he could examine the passbook, although he did say that if the passbook was “good” he would probably take it to Switzerland. There was a discussion of the split of the proceeds if the transaction was effected, and Yagid and Stern said that they would have to discuss the split with their “partner who sits across the river.”

There followed, over the period March 10, 1973 to April 2, 1973, a series of communications and meetings between the principals identified and others who were introduced into the conspiracy. Not only the split, but also many of the other details of the conspiracy were discussed and planned. Throughout, Ols-berg was pressing to examine the passbook to be used as collateral. He and Yagid made an abortive trip to the west coast for that purpose. On March 23, 1973, Olsberg and Yagid had a meeting at Fort Lee, New Jersey, ostensibly to meet the “man who sits across the river” at Leo’s restaurant. Badalamente was present, chastised a waiter who disclosed Badalamente’s identity, and engaged in a discussion of the progress of planning and how the proceeds of the “loan,” when effected, would be distributed. Badalamente offered the comment that if the deal went through, “it would be a good deal for all of us.”

Still the passbook had not been shown to Olsberg. Before it was, he was told that it would not be a passbook issued by a California savings and loan association as originally represented, but rather one from American Savings Association of Dallas, Texas. Olsberg and Yagid separately travelled to Chicago where Olsberg was to see the passbook, but on arrival Yagid advised Olsberg to leave Chicago immediately because law enforcement personnel were at the airport. Olsberg returned to New York without having made the examination.

Finally, on April 2, 1973, at a Holiday Inn, Olsberg was shown a passbook and certificate of deposit from American Savings Association. They were exhibited to him by a certain Leonard Turi who had purportedly flown to Newark for that purpose. The conspiracy was terminated then and there, because Turi was arrested by the F.B.I. Arrest of the other participants followed.

The witness Allen testified that Berar-delli first suggested the passbook deal in the summer of 1972. Allen said that he did not hear of it again until January or February, 1973, when Berardelli revived the proposal. After the latter conversation with Berardelli, Allen had contact with Yagid and Stern about the possibility of effecting the loan through them. At their request, he arranged, but did not attend, a meeting between them and Berardelli at the Luxor Baths. Allen had another conversation with Yagid thereafter about Allen’s inability to make the “loan,” and in the second week of March, 1973, he met with Olsberg (to whom he was introduced for the first time), Berardelli, Yagid and Stern at the Luxor Baths, at which numerous aspects of the transaction were discussed. He testified about his second attendance at a meeting with the same persons, again at the Luxor Baths, at which the expenses and payoff of the deal were discussed.

It is manifest from this summary of Allen’s testimony that if he was believed as a witness, Yagid’s defense of entrapment by Olsberg would be demolished even if Yagid’s testimony was believed, because Allen corroborated Olsberg’s denial of entrapment in all essential respects. According to Allen, the concept of the conspiracy originated with Berar-delli and not Olsberg, it was Allen who made the first approach to Yagid and not Olsberg, and Yagid evidenced a willingness to participate even before Ols-berg was introduced as a co-conspirator. The importance of Allen’s testimony is made greater by the fact that Olsberg, as a paid informer, was not the most credible witness in disputed, uncorroborated aspects of his testimony.

We turn now to the factual aspects of the claim of suppression. They arise from the filing, after the trial and as part of the record on appeal, of certain-letters passing between Allen, the trial judge and the United States attorney, and the investigations of counsel when the letters were discovered. The facts are not in dispute, only their legal consequence and the corrective action which is indicated. Prior to trial, the government, pursuant to the request of Yagid and others, agreed to furnish all Jencks Act material, 18 U.S.C. § 3500, by the time required by the Act, if not earlier; and the government acknowledged its duty to reveal exculpatory evidence in its possession.

On October 25, 1973, the district judge received a letter from Allen claiming, in extravagant terms, harassment by the United States Attorney’s Office. The text of the letter is set forth in the margin. On November 5, the district judge wrote to the United States attorney, sending him a xerox copy of Allen’s letter and stating that while the judge found it difficult to give credence to the assertions of the letter, the possibility that they may be true could not be dismissed out of hand. He therefore said that he was requesting the United States attorney to investigate the matter; and since it was one concerning the integrity of the latter’s office, he would require the United States attorney’s personal attention and personal assurances as to the results of the investigation. On the same day, the district judge wrote to Mr. Allen and advised him the United States attorney had been requested to look into the matter of Allen’s complaints.

Apparently the United States attorney did not respond to the district judge within a reasonable period, because the judge wrote to him again on January 10, 1974, mildly criticizing him for failure even to acknowledge the original letter, and renewing his earlier request for a personal investigation and a personal report. Counsel claim that their investigation, when they discovered the fact of the letters after trial, shows that the United States attorney visited the district judge about the matter in camera on or about January 10, 1974, and thereafter the district judge took no further steps nor did the United States attorney — not even to inform counsel about what had transpired. It was apparently at the instance of the district judge that the letters were forwarded to the clerk of the district court and included as part of the record in this appeal.

Counsel for Yagid also claim that, as a result of their investigation, they found six more letters written by Allen to various officials, all of which were in the possession of the prosecutors at the time of trial. The prosecutors do not dispute this. The letters allege a long, forceful attempt by two assistant United States attorneys to force Allen to become a government witness.

Notwithstanding the government’s agreement for their production, under 18 U.S.C. § 3500, none of the letters was produced for inspection by Yagid’s attorney before or during the cross-examination of Allen. In fact the letters were not known to Yagid’s counsel until after the conclusion of the trial.

II.

We can only read the letter which we have quoted, and those which we have not set forth but which have an even more hysterical tenor, as suggesting, as Yagid’s counsel so aptly characterizes, “that Allen was either under extreme pressure from the United States Attor- • ney’s office to testify, whether truthfully or not, or that he was either a liar or deranged.” All of these, or various combinations, are possibilities. Significantly, any one would have a powerful adverse effect on Allen’s credibility; and, as we have shown, his credibility may well have been the determinative factor in the minds of the jury when it disbelieved Yagid’s defense and found him guilty.

We have no doubt that the letter to the trial judge and the letters to other government officials were Jencks Act material, that they had a direct bearing on the persuasiveness of Allen’s testimony, and that their nonproduction was reversible error warranting the reversal of Yagid’s conviction and the award of a new trial. United States v. Sperling, 506 F.2d 1323 (2 Cir., 1974); United States v. Pacelli, 491 F.2d 1108, 1119 (2 Cir. 1973); United States v. Pfingst, 477 F.2d 177, 194-195 (2 Cir. 1973); United States v. Polisi, 416 F.2d 573, 577-579 (2 Cir. 1969). See also United States v. Mayersohn, 452 F.2d 521 (2 Cir. 1971). Although the prejudicial failure to produce the material in accordance with 18 U.S.C. § 3500 is enough to require reversal and a new trial, we think that as the trial continued after Yagid testified— where his testimony made the credibility of Allen crucial to the determination of Yagid’s guilt or innocence — the nonproduction of the Allen letter to the trial judge and the Allen letters to other public officials was a violation of the rule in Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963), that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”

The only problem that denial of Yagid’s Jencks Act rights — and, indeed, his constitutional rights — presents is the relief to be afforded him at the appellate stage of the proceedings. In its brief, the government urged that, at most, the case should be remanded to the district court for initial consideration of the issues surrounding the writing of the Allen letters, their nondisclosure and importance. Although in oral argument the government receded somewhat from that position, we see no reason for a remand and no reason why Yagid should not receive definitive relief from us. There is no dispute that the letters were in the possession of the prosecution during the trial, the government had bound itself to produce Jencks Act material and to comply with the Brady rule, the significance of the letters was evident on their face, and their importance as tools for impeachment of a crucial witness was inescapable. Accordingly, we perceive no useful purpose to be served by a remand. We reverse Yagid’s conviction and grant a new trial.

No. 74 — 1517—Badalamente’s Appeal

I.

The ground for reversing Yagid’s conviction is inapplicable to Badalamente, because the record reflects the accuracy of his brief that Allen’s testimony merely “confirmed the existence of the conspiracy and the participation of Yagid and Stern, but did not implicate Badalamente in any manner.” We proceed therefore to Badalamente’s first contention that the evidence against him was legally insufficient to support the guilty verdict on the charge of conspiracy.

Badalamente does not question that there was ample proof to show that he acted in concert with his co-defendants in a plan to obtain a loan from a Swiss bank using the passbook of a California savings and loan institution as collateral. His claim is that there was a failure of proof legally sufficient to show that he was aware of the illegal character of the plan, i. e., principally, that the passbook was forged, and secondarily, that the loan was not a legitimate one intended to be repaid but rather that it was a guise for defrauding the lending bank. We cannot agree that, taken in the light most favorable to the government, there was lacking proof from which the jury could infer, beyond a reasonable doubt, Badalamente’s knowledge of the contested elements of the conspiracy.

Olsberg testified that at the March 23, 1973 meeting at Leo’s restaurant at Fort Lee, New Jersey, Badalamente was the person with whom he and Yagid met, and thus that Badalamente was the “man across the river” who was at least one of the directors of the scheme and who could be expected to know its initi-mate details. Olsberg also detailed the conversation which then occurred, most of which could serve as the basis for the inference that Badalamente was very much a part of the inside group and lacking in essential knowledge. Olsberg made no claim that he or Yagid told Badalamente that the passbook which would be used was to be forged. On the other hand, a number of the aspects of the transaction discussed in Badala-mente’s presence provided a further basis from which the jury could have inferred that Badalamente quite reasonably knew that the passbook would be forged and that the proposed loan was not a legitimate transaction.

First, Olsberg said that Badalamente asked him whether he thought the passbook deal was good and if in fact he (Olsberg) could do it. Olsberg said that his reply was that he would have to see the passbook. This response,, we think, is quite inconsistent with a proposal for a legitimate loan secured by the pledge of a valid passbook. Only if the passbook were not legitimate would it be important for Olsberg to examine it to determine whether it would withstand the scrutiny of Swiss bankers. The jury could have inferred that Badalamente knew as much.

Second, the method by which the proceeds of the loan were to be brought to New York was thoroughly discussed and the discussion may properly have been considered to give rise to the reasonable suspicion on the part of Badalamente that the transaction was not legitimate. Badalamente contends that these surreptitious arrangements were consistent with an attempt to circumvent export restrictions or avoid taxes, but this was a matter of defense or interpretation which the jury could or could not believe. Certainly if such an explanation was not believed, the discussion of the proposed physical transfer of the money and distribution of it among various participants in the transaction provided an ample basis for the conclusion that the loan was not a legitimate transaction.

Finally, Olsberg testified that Badala-mente stated that the “splitting” of the funds would have to be settled after-wards, because the expenses would have to come off the top. Such a statement could well be considered by the jury as inconsistent with an understanding on Badalamente’s part that the transaction was a legitimate one. The jury may well have inferred that Badalamente was speaking of a transaction which would yield a profit to be divided among the participants when the funds were received rather than a transaction in which an obligation to repay was being voluntarily assumed. In sum, we think that a jury had a basis on which to infer beyond a reasonable doubt that Badala-mente knew that the deal in which he was participating was not a legitimate attempt to obtain a loan, but rather an attempt to defraud a Swiss bank by providing a forged passbook as collateral for a loan.

United States v. Infanti, 474 F.2d 522 (2 Cir. 1973), is not contrary to our conclusion, as claimed by Badalamente. There, a certain Kurtz was convicted not of conspiracy, but of the substantive offense of transporting stolen securities in interstate or foreign commerce. The conviction against him was reversed for lack of legally sufficient evidence to show that Kurtz knew that the securities were stolen. The only evidence in this regard was that Kurtz and a certain In-fanti flew from New York to Frankfurt, Germany, where they met in a hotel room with certain persons interested in purchasing stock certificates, subsequently shown to have been stolen, that Infanti had in his possession. There was no evidence that Kurtz had actual or constructive possession of the certificate so that no presumption of knowledge from possession of stolen property was created. The only evidence of Kurtz’s knowledge was that at one point during the negotiations the prospective buyers started to record the identification numbers on the stock certificates. When In-fanti saw this, he retrieved the certificates and said that he could not let their numbers be recorded before he obtained permission so to do from his principals. The government claimed that this should have given Kurtz knowledge that the certificates were stolen because he should have known that any listing of the certificate numbers could be compared with the New York stock exchange’s publication of the certificate numbers of stolen certificates.

In Badalamente’s case, we think there was more and stronger evidence from which it could be inferred that the passbook was stolen than the evidence that the stock certificates were stolen in Kurtz’s case. Moreover, in Infanti, Kurtz was prosecuted for the substantive crime, and the question was whether Kurtz knew that the certificates were stolen at the time he participated in the foreign transportation. Even if Kurtz gained knowledge in the hotel room, the transportation to Frankfurt had already occurred and there was no proof of subsequent transportation in foreign commerce. Thus, there was lacking proof of an essential element of the crime. By contrast, Badalamente was prosecuted for a conspiracy, and the continuing character of the conspiracy offense obviates the need to have the guilty knowledge contemporaneously with some other event so long as that knowledge is obtained during the life of the conspiracy. As we hold, the fact of such knowledge could properly have been inferred from the evidence concerning the March 23, 1973 meeting.

II.

Badalamente’s claim that he was denied effective assistance of counsel has several aspects. He claims that there was a conflict of interest between his trial attorney, Salvatore Nigrone, and Paul P. Rao, trial attorney for Yagid and Stern; that his trial attorney was improperly permitted to represent his co-defendant Turi, who pleaded guilty prior to trial, again creating a conflict of interest; and that his attorney was incompetent. We are not persuaded.

The claim of conflict of interest between Nigrone and Rao rests on the factual basis that both filed pleadings showing the same office address, 233 Broadway, New York City; that in pretrial proceedings Nigrone twice referred to Rao as his associate; and that in a pretrial pleading the government referred to them as partners. The record does not disclose the basis of the government’s assertion, and since it was made in the context of the government’s opposition to furnishing Yagid and Stern copies of other defendants’ statements possessed by the government, we think it of little weight. The record does not show that Nigrone and Rao were partners and that their interests overlapped in the acceptance of clients or sharing of fees. At most it shows that they worked in close physical proximity, that they shared an office and perhaps a secretary. We think this an insufficient basis on which to erect a claim of conflict of interest.

Nigrone did represent Turi as well as Badalamente, but we fail to see how, when Turi pleaded guilty and did not testify, a conflict of interest arose or how Badalamente suffered prejudice, even though Turi’s sentencing was postponed until after Badalamente’s trial. Cf. United States v. Lovano, 420 F.2d 769 (2 Cir. 1970). Our previous decisions concerning conflicts of interest have all arisen in the context of an attorney representing two or more defendants who pleaded not guilty and went to trial. More importantly, we see no merit in the argument that there was a likelihood that Turi was not called as a defense witness so as not to jeopardize his favorable treatment at sentencing. It is not likely that a truthful witness exonerating Badalamente would be penalized for his effort. It is more likely, we think, that Turi did not testify to spare Badalamente the damaging adverse testimony of a co-conspirator.

Badalamente asserts incompetence on the part of his trial attorney in three respects: (1) his counsel did not object to several continuances of the trial, requested by other counsel, and in the interim a “potential” witness — one who had been present at the March 23 meeting — died; (2) his counsel did not press the government for noncompliance with an order of court requiring the production of psychiatric and court records of Olsberg which would have been of value in cross-examination of Olsberg; and (3) his counsel, who was discharged shortly after the trial, failed to move for a new trial or to obtain an extension of time for such a motion so that when successor counsel filed the motion it was ruled untimely.

The rule by which these instances of alleged incompetence is to be measured is that “lack of effective assistance of counsel must be of such a kind as to shock the conscience of the Court and make the proceedings a farce and mockery of justice.” United States v. Wight, 176 F.2d 376, 379 (2 Cir. 1949), cert. den., 338 U.S. 950, 70 S.Ct. 478, 94 L.Ed. 586 (1950). See also United States ex rel. Walker v. Henderson, 492 F.2d 1311 (2 Cir. 1974); United States v. Sanchez, 483 F.2d 1052 (2d Cir. 1973). Neither singly nor collectively do Badalamente’s instances satisfy the tests. Failure to object to continuances is an accepted strategy for the guilty defendant who wishes to postpone the day of reckoning. The record shows an adequate cross-examination of Olsberg and a substantial effort to impeach him. Badalamente’s trial attorney had moved unsuccessfully for a directed verdict at the close of the government’s case and at the close of the entire case. It is unlikely that any motion for a new trial would have been worthy of more than cursory consideration.

III.

The contention that cross-examination was prejudicially restricted arises from the ruling of the district court sustaining the government’s objection to Badalamente’s attorney’s question to Yagid, “. . . was Sam Badalamente your partner in the bank book deal?” (emphasis added). The district court assigned no reason for its ruling. Strictly read, the question could be deemed objectionable for seeking to elicit a legal conclusion. To that extent, we do not think that the district court abused its discretion in sustaining the objection. At the same time we recognize that the word “partner” has factual connotations and is used in colloquial conversation. If construed to elicit a factual response, the question was a proper one; but any error in sustaining the objection was, however, harmless since the ruling did not preclude further development of the factual relationship between Yagid and Ba-dalamente. That Badalamente’s counsel did not choose to rephrase the question and abandoned the line of questioning does not alter this conclusion.

Nor do we think that there were errors or omissions in the instructions. Badalamente’s contention is that the charge failed to elaborate on his defense of noninvolvement and to distinguish it from the entrapment and withdrawal defense raised by Yagid and also by Stern.

The district court’s instructions made plain to the jury that it should consider each count of the indictment separately and consider whether the government had proved its case beyond a reasonable doubt as to each defendant in each count. While the district court did not remind the jury that Badalamente maintained that he did not participate in the conspiracy. Badalamente made that argument to the jury. The district court did tell the jury that only Yagid and Stern asserted the defense of entrapment and withdrawal, and in discussing that defense the district court referred to Yagid and Stern several times by name and not to Badalamente. Thus, we have no doubt that there was no confusion in the minds of the jury that only Yagid and Stern were claiming entrapment and that Badalamente was not. The general instructions about a defendant’s presumption of innocence, the quantum of proof needed to overcome it, and the instruction that the government’s case against each defendant on each count must be separately considered, we think was sufficient fairly to present to the jury Badalamente’s defense of no involvement.

No. 74-1517 — Affirmed.

No. 74-1586 — Reversed; new trial awarded.

      . October 25, 1973
      Le “Beau Rivage” Lausanne-Ouchy
      Judge Carter—
      I have written a letter to Judge Gerfein [sic] — please your honor, forgive my violating protocol — but I have been terrorized by an Assistant U.S. Attorney named Ira Sor-kin — and his sidekick, Tom Doonan, I stand indicted by Mr. Eberhardt on a case that will be heard before your Court — Mr. Eber-hardt has acted in a proper way—

        But Mr. Sorkin has insisted, using words and methods beyond rational belief — that I tape and entrap a number of prominent people — “or he will crucify me" — tapes made without court authorization—
      Unless I become his professional informer — Mr. Sorkin warned me — he would con- ■ tinue naming me in what he referred to as his “frivolous” indictments—
      He has badgered my family — my friends — has insisted seeing me without a lawyer — on many — many occasions—
      When I finally exploded and told him that I would write to the court he said — “Don’t bother — it won’t help"

      Respectfully, JERRY ALLEN
      P.S. Among those he wanted me to tape were Senator Javits — -and Senator Harrison Williams—
      He also insisted — in a rage — that I tape conversations with my own lawyer Marty Frank — (Mu 7-8930)
      I will stand before you, Your Honor, and swear as to the above statements—
      I realize the unorthodoxy of writing directly to you — but I am at the breaking point — so much so, that I’m almost afraid to come home—
      Again, my apologies Jerry Allen
      (Emphasis in original.)

      . United States v. Sperling and United States v. Pacelli are of special interest because both involved the nonproduction of letters, in the possession of the prosecutor, written to public officials by significant government witnesses. Both cases hold the nonproduction a violation of 18 U.S.C. § 3500. In Pacelli, the conviction of the single appellant was reversed and a new trial awarded. In Sperling, upon an analysis of the prejudicial effect of nonproduction in the light of the other evidence in the case, the convictions of some appellants were reversed while others were affirmed on the harmless error doctrine. In the instant case, we think, as developed in the text, that reversal is ineluctable. The stand-off between the testimony of Olsberg, an impeachable witness, and Yagid, also impeachable, may well have been resolved only by the testimony of Allen whose credibility may have been subject to further serious attack.

      . While Allen’s testimony did confirm the existence of the conspiracy, the fact that a conspiracy existed was not a question about which there was any real dispute at the trial. The jury was told that Yagid, Badalamente and Stern were charged with conspiring with each other and four other named individuals, including Allen who testified at trial and admitted his guilt. In fact, Turi, Berardelli and Allen, three of the named co-conspirators, pleaded guilty before the trial of Yagid and Badalamente began. The testimony of Ols-berg and others, excluding Allen, showed the existence of a conspiracy among all of the named co-conspirators. Indeed, Badalamente in his brief states that “the evidence abundantly demonstrated the existence of the conspiracy and the guilt of Yagid, Stem, Allen, Berardelli and Turi.”
      At trial, the dispute as to Yagid was whether he had been entrapped by Olsberg into joining the conspiracy and, if so, whether, after becoming a member, he had withdrawn prior to the commission of the substantive crime. At trial, the dispute as to Badalamente was whether he had joined the conspiracy with knowledge of its illegal objectives rather than simply participated with Yagid, Stern and Olsberg in a perfectly legal real estate transaction as he claimed.
      Since we are persuaded that there was no real possibility that the jury convicted Bada-lamente solely upon the finding that he conspired with Yagid alone, we conclude that the defect in Yagid’s conviction does not require that Badalamente be given a new trial.


source: Caselaw Access Project

author: STEVENS, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Oscar Leon Franklin SNOW, a/k/a Hank Snow, Defendant-Appellant.
    No. 74-1507.
    United States Court of Appeals, Seventh Circuit.
    Argued Nov. 5, 1974.
    Decided Dec. 11, 1974.

      James L. Cobb, Jr., W. Robert Lotz, Jr., Covington, Ky., for defendant-appellant.
    Steven C. Underwood, U. S. Atty., and John R. Byrnes, Asst. U. S. Atty., Madison, Wis., for plaintiff-appellee.
    Before STEVENS and TONE, Circuit Judges, and CAMPBELL, Senior District Judge.

       Senior District Judge William J. Campbell of the Northern District of Illinois is sitting by designation.

   STEVENS, Circuit Judge.

This appeal questions the sufficiency of the evidence of defendant’s illegal intent. He was found guilty of violating the Mann Act by .transporting Kathy Rogers from Covington, Kentucky, to Hurley, Wisconsin, “for the purpose of prostitution.”

The case is somewhat unusual because, even under the government’s interpretation of the evidence, defendant had a legitimate reason for taking Rogers to Wisconsin. Whether the legitimate reason was as important as the illegitimate is doubtful, but we certainly cannot say that Rogers’ prostitution was defendant’s sole reason for transportation, and the trial judge, who tried the case without a jury, did not find that it was the dominant reason. Before discussing the evidence we pause to explain our understanding of the government’s burden of proof on the intent issue in a Mann Act ease.

The government must prove that an intention to have females engage in immoral conduct is a dominant purpose for the interstate trip. As it is often stated, the dominant purpose test is somewhat ambiguous, both with respect to the precise purpose which is relevant and also with respect to how important the illegal purpose must be when additional motives are present.

In a criminal case we must be concerned with the intent of the defendant on trial. The purpose of the travelers as a group, or even the purpose of the female passenger, is relevant only insofar as it sheds light on the defendant’s intent. Moreover, when examining defendant’s purpose, the appropriate inquiry is not merely his reason for making the trip but, more precisely, his reason for taking a female companion with him. If the evidence indicates a single-minded reason for her presence, notwithstanding additional motivation for the trip itself, guilt would attach even if the government had the burden of proving that immoral conduct was “the dominant purpose” rather than merely “a dominant purpose” of the transportation. The distinction between “the” and “a” becomes significant only if the defendant may have had more than one reason for transporting the female.

The use of the word “dominant,” as well as one sentence in the Mortensen opinion, indicate that the immoral purpose must be the defendant’s most significant motivation. The statement in Mortensen, however, is clearly dictum because, as the Supreme Court analyzed the record in that case, the purpose of the Mortensens’ trip was entirely innocent. It now appears settled that prostitution or other immoral conduct, need not be the sole reason for the transportation; the Act may be violated if prostitution is a dominant or a compelling and efficient purpose. Despite the contrary implication suggested by the word “dominant,” it need not be the most important of defendant’s reasons when multiple purposes are present.

In the case before us we assume, as defendant argues, that he had substantial legitimate reasons for transporting Rogers from Kentucky to Wisconsin. Nevertheless, when considered in the light most favorable to the government, the evidence establishes that defendant had been taking all of Rogers’ earnings while they lived together in Covington; that he became aware of the significant employment possibilities for prostitutes working at the “Showbar” and of the fact that “the money was good”; that he “talked” Rogers into becoming a prostitute; that at the time of the interstate transportation, he was cognizant of Rogers’ intention to engage in prostitution; that he gave Rogers certain directions with respect to her prostitution; that Rogers engaged in prostitution on an average of two or three times per week in Hurley; that defendant, on at least one occasion, forced Rogers to remain there; and that defendant took all of the earnings derived from Rogers’ prostitution, as well as from her work as a dancer and “B-drinker.”

Defendant’s intent may, of course, be inferred from the conduct of the parties within a reasonable time before and after the transportation. Unquestionably, an important reason for taking Rogers to Wisconsin was to make it possible for her to engage in prostitution and thereby contribute to defendant’s financial support. Even if we make the assumption that this was not the sole, or even the most important reason for her transportation, we have no doubt that it satisfies the dominant purpose test as we understand it. In short, there was sufficient evidence to prove that defendant transported Rogers “for the purpose of prostitution” within the meaning of the Mann Act because her prostitution was one of his “dominant” purposes. Our holding today is not foreclosed by United States v. Hon, 306 F.2d 52 (7th Cir. 1962). Nevertheless, to the extent that Hon may be considered inconsistent with this decision, we expressly disapprove of that case and endorse the analysis in Judge Swygert’s dissenting opinion.

The judgment of conviction is Affirmed.

      . 18 U.S.C. § 2421 provides, in part, that it is unlawful to “knowingly transport in interstate . commerce . . . any woman or girl for the purpose of prostitution.”
      The grand jury charged that, on or about September 29, 1972, defendant
      “knowingly did transport in interstate commerce from Covington, Kentucky to Hurley, in the Western District of Wisconsin, a woman, that is, Kathy Rogers, for the purposes of prostitution, debauchery, and other immoral purposes.”

      . See, e.g., United States v. Kotakes, 440 F.2d 342, 345-346 (7th Cir. 1971), cert. denied, 403 U.S. 919, 91 S.Ct. 2230, 29 L.Ed.2d 696:
      . . it is well settled that to sustain a conviction under the Mann Act it is not necessary that the sole purpose of the transportation be for immoral purposes, it being sufficient if it was a dominant or an efficient and compelling purpose. Forrest v. United States, 5 Cir., 363 F.2d 348, 349-351 (1966), and cases therein cited.”

      . See United States v. Harris, 480 F.2d 601 (6th Cir. 1973), cert. denied, 414 U.S. 977, 94 S.Ct. 298, 38 L.Ed.2d 221; United States v. Hon, 306 F.2d 52, 57 (7th Cir. 1962) (Swygert, J., dissenting).

      . See Dingess v. United States, 315 F.2d 238, 240 n. 2 (4th Cir. 1963), cert. dismissed, 373 U.S. 947, 83 S.Ct. 1559, 10 L.Ed.2d 703.

      . Defined by Webster as “commanding, controlling, or having supremacy or ascendancy over all others. . . . ”

      . “An intention that the women or girls shall engage in the conduct outlawed by § 2 must be found to exist before the conclusion of the interstate journey and must be the dominant motive of such interstate movement.”
      Mortensen v. United States, 322 U.S. 369, 374, 64 S.Ct. 1037, 1040, 88 L.Ed. 1331.

      . After characterizing the journey as “an innocent vacation trip in no way related to the practice of their commercial vice,” in contrast to the immoral purposes condemned by the statute, the Court stated: “Here the interstate round trip had no such purpose and was in no way related to the subsequent immoralities in Grand Island.” 322 U.S. at 377, 64 S.Ct. at 1041.

      . See, e.g., United States v. Tyler, 424 F.2d 510, 512 (10th Cir. 1970), cert. denied, 400 U.S. 839, 91 S.Ct. 78, 27 L.Ed.2d 73; United States v. Bennett, 364 F.2d 77, 78-79 & n. 4 (4th Cir. 1966).

      . United States v. Kotakes, 440 F.2d 342, 345-346 (7th Cir. 1971), cert. denied, 403 U.S. 919, 91 S.Ct. 2230, 29 L.Ed.2d 696; United States v. Lomas, 440 F.2d 335, 338 (7th Cir. 1971), cert. denied, 404 U.S. 842, 92 S.Ct. 137, 30 L.Ed.2d 76; United States v. Auterson, 347 F.2d 503, 504-505 (7th Cir. 1965). See generally authority cited in United States v. Salter, 346 F.2d 509, 511 (6th Cir. 1965), cert. denied, 383 U.S. 943, 86 S.Ct. 1196, 16 L.Ed.2d 206.

      . According to defendant, the owner of the “Showbar” nightclub in Hurley, Dick Mattrel-la, needed women solely to dance and solicit drinks during the busy hunting season. Since the pay expected for this job was better than that which they had been receiving in Coving-ton, Lee Higgins, Carol Stegall and' Kathy Rogers, who had experience dancing and “B-drinking,” decided to leave Covington. Since defendant had been living with Rogers and Higgins, and since Mattrella also offered him a job, room and board and a chance to hunt, he agreed to drive the women.

      . See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680; United States v. Goff, 430 F.2d 396, 397 (7th Cir. 1970).

      . Tr. 32. There is nothing in the record which indicates that defendant ever actually received any substantial income other than that provided by Kathy Rogers and the other women with whom he associated.

      . Tr. 173-74.

      . The quoted language is from the testimony of Rogers (Tr. 49). She also testified during cross-examination that it was defendant’s “intention” that she become a prostitute once she reached Hurley (Tr. 54). See also Tr. 31, 41. Rogers had apparently not engaged in prostitution before going to work at the “Showbar” (Tr. 14).

      . See note 14 supra. Also, during the interstate trip, Rogers and Higgins conversed in defendant’s presence; they talked about “tricking” once they arrived (Tr. 13, 54) and Rogers was instructed on how to “go about turning tricks” (Tr. 23-24). At some point in the conversation, defendant told the women to charge a minimum of $50 per “trick” (Tr. 14) and not to “turn any tricks during working hours; do it after work, take them to the motel” (Tr. 15).

      . See note 15 supra. When they reached Hurley, defendant told Rogers to “dance and get all the drinks you can, and if you find a possible trick, see him after work, but check him out first” (Tr. 16). On one occasion in Hurley defendant refused the money which Rogers earned from an evening’s work. He destroyed the money and beat Rogers, saying that she had not received enough (Tr. 18-19). Apparently she had received only $50; her normal fee for an evening was $250 (Tr. 18).

      . Tr. 17, 52.

      . Rogers left Wisconsin shortly after arriving there. She returned, however, a few days later after defendant called her and said “either I [Rogers] came back or the guys [defendant’s motorcycle ‘club’] would find me and bring me back” (Tr. 20).

      . Tr. 18-19, 46.

      . United States v. Tyler, 424 F.2d 510, 512 (10th Cir. 1970), cert. denied, 400 U.S. 839, 91 S.Ct. 78, 27 L.Ed.2d 73; Flanagan v. United States, 308 F.2d 841, 842 (5th Cir. 1962).

      . Defendant has emphasized that Rogers spent six nights per week working as a dancer and “B-girl” and that her earnings from these activities amounted to approximately $160 per week. It is perhaps sufficient to note that she could make over 50% more for just one night of prostitution. See note 15 supra.

      . In the present case the trial judge’s explanation of his denial of the motion for acquittal, read out of context, might indicate that he merely considered it necessary to find that defendant was aware of Rogers’ intent to engage in prostitution. In view of the record as a whole, including the fact that defendant has not questioned the trial judge’s interpretation of the law, we are satisfied that such a narrow interpretation of the judge’s oral comment, which merely restated the dominant purpose test as it has repeatedly been phrased in appellate court opinions, would be unwarranted.

      . Judge Schnackenberg, who authored the majority opinion in Hon, later described it as a case in which
      “. . . the purpose of an interstate automobile trip by defendant was to enable a prostitute to visit her mother and child and her resort to her trade en route in the state of Indiana was in furtherance of the journey, which was not for an immoral purpose.”
      United States v. Auterson, 347 F.2d 503, 505 (7th Cir. 1965). See also Judge Schnacken-berg’s opinion for the court in United States V. Eddington, 328 F.2d 760, 763 (7th Cir. 1964), cert. denied, 379 U.S. 818, 85 S.Ct. 35, 13 L.Ed.2d 29.

      . As the Fifth Circuit observed in Forrest v. United States, 363 F.2d 348, 350 n.1 (1966), cert. denied, 386 U.S. 995, 87 S.Ct. 1315, 18 L.Ed.2d 343: “The Hon case drew a vigorous dissent, and seems to stand alone even in the Seventh Circuit.”

      . This opinion has been' circulated to all of the active judges, none of whom has requested that the case be reheard en banc.


author: OAKES, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Dennis D’AMATO, Appellant.
    No. 184, Docket 74-2008.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 24, 1974.
    Decided Dec. 5, 1974.
    Gerald Shargel, LaRossa, Shargel & Fischetti, New York City, for appellant.
    Howard Wilson, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., for the S. D. N. Y., John D. Gordan III, Asst. U. S. Atty., of counsel), for appellee.
    Before LUMBARD, FEINBERG and OAKES, Circuit Judges.
   OAKES, Circuit Judge:

On occasion a prosecution is completed under a statute that everyone, including defense counsel and trial court, assumes to be applicable. On closer examination on appeal, however, the panel raises a question that no one had considered, here the applicability of the statute, 18 U.S.C. § 1001, to statements filed in private civil litigation. After post-argument briefing, we have determined that the statute is not applicable to such statements. We therefore reverse the appellant’s conviction.

Appellant was convicted after a jury-trial for having made false statements in an affidavit filed in a civil action in the United States District Court for the Eastern District of New York. The civil action, in which appellant was a code-fendant, was one brought in July of 1972 by Johnson Products, Inc. (Johnson), the manufacturer of the cosmetic hair preparation “Ultra Sheen,” for damages and an injunction arising out of the sale by appellant of over 18,000 jars of a counterfeit product under the Ultra Sheen label. Appellant filed an affidavit in the civil suit dated August 8, 1972, denying knowledge of the fraudulent or counterfeit nature of the product which he sold. The prosecution here, under the so-called “false statement” statute, charged that the affidavit was false.

We start with the proposition that in no case has it ever been held that 18 U.S.C. § 1001 is applicable to a false statement made in a private civil action. While this would not necessarily control the question of statutory construction, it does partake of an administrative, here a prosecutorial, interpretation that the statute, in existence in essentially its present form since 1934 and used in cases the annotations for which cover 72 pages in the Annotated Code, does not apply to false statements made in a private civil action, at least where the Government is not a party.

The Government argues that, since the false affidavit was filed in a judicial proceeding, the statute bites, because even though civil in nature the proceeding was a “matter” and one “within the jurisdiction” of the judicial “department.” Because 18 U.S.C. § 6 defines “department” to include the “judicial branch” of government, United States v. Bramblett, 348 U.S. 503, 75 S.Ct. 504, 99 L.Ed. 594 (1955), this argument is not easily answered by reference solely to the language of § 1001. Beyond the wording of the statute, a review of the case law and the legislative history, which we make below, tends to indicate that the keys for applicability may be whether the false statement in question involved a fraud upon the Government or was made to an investigative or regulatory agency of the Government in connection with some matter legitimately within the agency’s jurisdiction. In the present case, the facts disclose neither a fraud upon the Government nor a deception upon an investigative or regulatory agency.

Here the Government was not a party to the suit in which the alleged false statement was made, nor was the statement one which was intended to further a scheme to defraud the Government. The Government argues, however, that § 1001 was intended to have a wider sweep, in the sense that a fraudulent statement in a court is ergo a “fraud upon the Government.” To be sure, there is broad language in at least one of our previous cases which suggests this conclusion. In United States v. Adler, 380 F.2d 917, 922 (2d Cir.), cert. denied, 389 U.S. 1006, 88 S.Ct. 561, 19 L.Ed.2d 602 (1967) (false statement to FBI), it was said, drawing on the language of United States v. Gilliland, 312 U.S. 86, 61 S.Ct. 518, 85 L.Ed.2d 598 (1941), that “§ 1001 was broadly drawn to protect the ‘authorized functions’ of federal agencies from ‘perversion’ . . . .” From this it is argued that the judicial function, surely “authorized,” will be “perverted” by failure to punish submission of false facts to the decision-making process in a private civil proceeding. But the Adler court was speaking to a particular case involving the argument that § 1001 did not apply to every criminal investigation. Adler is only one in a long line of decisions upholding prosecutions under § 1001 where false statements have tended to “impair the basic functions entrusted by law to [the] agency.” United States v. Bedore, 455 F.2d 1109, 1111 (9th Cir. 1972).

United States v. Kahan, 479 F.2d 290 (2d Cir. 1973), rev’d, 415 U.S. 239, 94 S.Ct. 1179, 39 L.Ed.2d 297 (1974), is also relied upon. In Kahan, the defendant had made statements in open court, not under oath, about his assets in connection with securing court-appointed counsel. The actual holding of this court was that these false statements could not be proven as false exculpatory statements in the course of a trial on bribery charges, a decision which was reversed by the Supreme Court. In a footnote, 479 F.2d at 292, n. 3, the Kahan panel did say: “If there has been willful misrepresentation by defendant of his assets, proper remedy lies in prosecution for perjury or false statement . . .” Accepting the footnote statement as sound law, such a false statement again operated to defraud the Government, which has to pay assigned counsel. D’Amato’s fraud was not on the Government, but on Johnson, the manufacturer of Ultra Sheen.

Our less expansive view of the scope of § 1001, that it does not apply where the Government is involved only by way of a court deciding a matter in which the Government or its agencies are not involved, receives some support from some of the cases in other circuits, though we do not necessarily have to agree with them to sustain our holding here. In Morgan v. United States, 114 U.S.App.D.C. 13, 309 F.2d 234 (1962), cert. denied, 373 U.S. 917, 83 S.Ct. 1306, 10 L.Ed.2d 416 (1963), it was held that an attorney who falsely represented himself as having been admitted to practice before the District of Columbia courts could be prosecuted under 18 U.S.C. § 1001. Although Morgan involved a situation where the statute in question was found to be applicable, the language of the District of Columbia court made it clear that 18 U.S.C. § 1001 applied to a limited number of statements made before a court.

The Morgan court was careful to say that the case went no further than to uphold a prosecution for a false statement made before a court in the exercise of its “administrative” or “housekeeping” functions, the court distinguishing the case then before it from one which, as here, would involve a false statement within the “judicial machinery” of the court. Id. at 237. United States v. Er-hardt, 381 F.2d 173 (6th Cir. 1967), while relying on Morgan, went even beyond that case in reversing a § 1001 conviction where the appellant had produced a forged receipt and testified falsely in a criminal proceeding against him. Our case is stronger than Erhardt, for in a criminal case where the Government is a party, it could at least be argued that the Government is defrauded by the false statement proffered; ours, however, relates to a civil case in which the Government is in no way involved. The Government’s distinction of Erhardt as involving only a false document submitted in conjunction with sworn testimony, while here there was no sworn testimony, is too tenuous to warrant reply-

The Government argues finally that “the best support for not carving out such a limitation on § 1001 is by reference to the perjury statutes which seek to prohibit the same type of conduct at which § 1001 is aimed.” (Emphasis added.) And it points to the fact that to the extent a differentiation between § 1001 and the perjury statute, 18 U.S.C. § 1621, may have rested on the two-witness rule incorporated in the latter, that distinction has been obliterated by new 18 U.S.C. § 1623, permitting prosecution on the basis of one witness’s testimony for false declarations in court proceedings or before grand juries. See United States v. Kahn, 472 F.2d 272 (2d Cir.), cert. denied, 411 U.S. 982, 93 S.Ct. 2270, 36 L.Ed.2d 958 (1973). It may be, as the Government suggests, that § 1001 and the perjury statutes may both overlap so that the same false statement may be prosecuted under both, United States v. Greenberg, 268 F.2d 120, 122 (2d Cir. 1959), while at the same time each covers different conduct in that a perjury conviction requires proof of oath while a false statement conviction does not. Id. It may be that an unsworn false statement submitted in a private civil action cannot be prosecuted either as perjurious or as a false statement, but we do not see the horrific consequences of such a “gap” or of the suggested “absurd anomaly” that a prosecution will lie for false statements submitted to thousands of executive agencies, but not for one submitted to a federal court in a private civil action. Generally, in any event, as here, the allegedly false statement will be sworn to and subject to prosecution for perjury, as of course it may be though made in a civil proceeding. Hale v. United States, 406 F.2d 476 (10th Cir.), cert. denied, 395 U.S. 977, 89 S.Ct. 2129, 23 L.Ed.2d 765 (1969); United States v. Lester, 248 F.2d 329 (2d Cir. 1957).

Such a “gap” or “anomaly” is not to be wondered at in the light of the legislative history of § 1001. That section, as United States v. Bramblett, supra, made clear, “had its origin ... in the wake of a spate of frauds upon the Government” in Civil War times. 348 U.S. at 504, 75 S.Ct. at 506. It was originally a statute penalizing the presenting “for payment or approval” of false claims “upon or against the Government ... or any department or office . . . .” 348 U.S. at 504-505, 75 S.Ct. at 506. False statements were proscribed only if they were made “for the purpose of obtaining, or aiding in obtaining, the approval or payment of such claim . . . Id. While the statute was extended in immaterial respects in various codifications, it was not until 1918, 40 Stat. 1015, that false statements were proscribed if made “for the purpose and with the intent of cheating and swindling or defrauding the Government of the United States” as well as if made for the purpose of obtaining payment of a false claim. 348 U.S. at 506 n. 2, 75 S.Ct. at 506. In the Act of June 18, 1934, 48 Stat. 996, at the urging of the Secretary of Interior, in connection with “hot oil” transportation, the words “cheating” and “swindling” were eliminated and the statute was no longer restricted to cases involving pecuniary or property loss to the Government. It was this amendment which the Supreme Court said in United States v. Gilliland, supra, indicated the congressional intent “to protect the authorized functions of governmental departments and agencies from the perversion which might result from the deceptive practices described.” 312 U.S. at 93, 61 S.Ct. at 522. But the Act of 1934 was still thought of, by the Court at least, “as a fitting complement” to those statutes “under which, in connection with the authorized action of governmental departments or agencies, the presentation of affidavits, documents, etc., is required.” Id. at 95—96, 61 S.Ct. at 523 (emphasis added). It was in the 1948 revision, Act of June 25, 1948, 62 Stat. 749, that the false claims and false statements sections were divided and assumed their present basic form as 18 U.S.C. § 287 and § 1001 respectively. The legislative history seems to confirm the fact that this statute, originally intended to protect the Government from those who would defraud it for monetary gain, was broadened to maintain the integrity of the administrative agencies whose historical development coincides with the 1934 amendments to this statute.

We see, in short, nothing in the case law or the legislative history which would support a prosecution under § 1001 for a false statement made in a private civil action even though it is made in the United States courts. Accordingly, we reverse the judgment without treating the only difficult or interesting point made by appellant, whether venue is proper in the Southern District of New York in a case where the affidavit was signed and filed in the Eastern District.

Judgment reversed.

      . At trial, both D’Amato and a codefendant, Robert Donovan, were charged with two counts of mail fraud. 18 U.S.C. § 1341. D’Amato alone was charged with having made a false statement in violation of 18 U.S.C. § 1001. Donovan’s conviction on the two mail fraud counts was affirmed in open court. D’Amato was found not guilty of mail fraud, but he was convicted of having made a false statement. His sentence was an 18-month term of probation on which sentence was stayed.

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

      . The statute derives from an Act of March 2, 1863, 12 Stat. 696, but attained its present form in 1934. 48 Stat. 996. See United States v. Bramblett, 348 U.S. 503, 504, 75 S.Ct. 504, 99 L.Ed. 594 (1955); United States v. Gilliland, 312 U.S. 86, 93-95, 61 S.Ct. 518, 85 L.Ed. 598 (1941).

      . 18 U.S.C. § 6 provides:
      As used in this title:
      The term “department” means one of the executive departments enumerated in section 1 of Title 5, unless the context shows that such term was intended to describe the executive, legislative, or judicial branches of the government.
      The term “agency” includes any department, independent establishment, commission, administration, authority, board or bureau of the United States or any corporation in which the United States has a proprietary interest, unless the context shows that such term was intended to be used in a more limited sense.
      United States v. Bramblett, supra, rejected the claim that § 1001 applied only to the executive branch.

      . United States v. Bramblett, 348 U.S. at 504, 75 S.Ct. 504; United States v. Gilliland, 312 U.S. at 93-95, 61 S.Ct. 518; United States v. Isaacs, 493 F.2d 1124, 1156-1158 (7th Cir. 1974); United States v. Bedore, 455 F.2d 1109, 1111 (9th Cir. 1972); United States v. Simon, 425 F.2d 796 (2 Cir. 1969), cert. denied, 397 U.S. 1006, 90 S.Ct. 1235, 25 L.Ed.2d 420 (1970).

      . But see Friedman v. United States, 374 F.2d 363 (8th Cir. 1967) (false complaint to the FBI not covered by 18 U.S.C. § 1001). The Friedman case, however, can be seen as holding only that the unsworn written statement there was not within the jurisdiction of a governmental agency. See also United States v. Levin, 133 F.Supp. 88 (D.Colo.1953).

      . E. g., United States v. Zeehandelaar, 498 F.2d 352 (2d Cir. 1974); United States v. Cohen, 489 F.2d 945 (2d Cir. 1973); United States v. Tirinkian, 488 F.2d 873 (2d Cir. 1973); United States v. Candella, 487 F.2d 1223 (2d Cir. 1973), cert. denied, 416 U.S. 977, 94 S.Ct. 1563, 39 L.Ed.2d 872 (1974); United States v. Adcock, 447 F.2d 1337 (2d Cir.), cert. denied, 404 U.S. 939, 92 S.Ct. 278, 30 L.Ed.2d 252 (1971).

      . See also United States v. Allen, 193 F.Supp. 954 (S.D.Cal.1961), reversing a conviction under § 1001 for a false statement made to a grand jury. But see United States v. Stephens, 315 F.Supp. 1008 (W.D.Okl.1970), upholding a conviction under § 1001 for a false statement made in a civil proceeding to vacate a criminal sentence.

      . The affidavit as printed in the appendix (A-15) refers only to “Notary Stamp,” but as actually filed on August 9, 1972, was notarized by Sylvia D. Garland, a Nassau County notary.


author: BARNES, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Sean H. McQUILLAN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Walter W. HAMILTON, Defendant-Appellant.
    Nos. 74-2461, 74-2691.
    United States Court of Appeals, Ninth Circuit.
    Dec. 12, 1974.

      James P. Hagerstrom, of Hagerstrom & Geller, San Diego, Cal. (for appellant McQuillan); Anthony Deutsch, of Deutsch, Parziale & McCabe, San Diego, Cal., (for Hamilton), for defendants-appellants.
    Henry D. Steward, U. S. Atty., San Diego, Cal., for plaintiff-appellee.
    Before BARNES and TRASK, Circuit Judges, and BALDWIN, Judge, Court of Customs and Patent Appeals.

       Honorable Phillip B. Baldwin, Court of Customs and Patent Appeals, sitting by designation.

   OPINION

BARNES, Circuit Judge:

Defendants appeal their conviction under 21 U.S.C. § 841(a)(1) for the offense of possessing a controlled substance (176 lbs. of marijuana) with intent to distribute the same, as charged in Count Four of the Indictment.

On December 23, 1973, Customs Patrol Officers Davis and McDermott were on routine patrol duty on the Border Park Beach approximately one half mile north of the international border [R.T. 12]. Around 2:00 a. m., McDermott observed four silhouettes (Hamilton, McQuillan, Sakel — a fugitive codefendant — along with another unidentified person) approximately halfway between him and the border. They appeared to be carrying backpacks on their backs and were proceeding north along the beach [R.T. 13]. McDermott then observed one silhouette (Defendant Hamilton) separate from the rest and head north of McDer-mott’s position and then return to the rest. This person appeared to be wearing a white type sneaker [R.T. 14]. Officers Davis and McDermott then radioed for assistance, and additional Customs Patrol officers, along with a Border Patrol agent, went to the area, cordoning it off [R.T. 14]. As the dragnet was tightened, seven people (the three defendants and four Mexican aliens) were flushed from various hiding places and apprehended before they could cross the line into Mexico [R.T. 15]. It appeared to McDermott that there were two distinct groups of people, but when the suspects turned to run back toward Mexico they appeared to group together [R.T. 15], Defendant Hamilton was found lying in the water. All three defendants had sand all over them. The four Mexican aliens, on the other hand, were fairly well-dressed and their clothes were not as soiled as the defendants [R.T. 16].

After the apprehension of the seven subjects, Border Patrol Agent Grasky— an expert tracker — backtracked the footprints of defendants Hamilton, McQuil-lan, and Sakel and discovered four backpacks containing 80 kilograms of marijuana abandoned on the beach (C.T. 42). Grasky compared the footprints of the backpackers with those of the defendants and determined that three of the backpackers were in fact Hamilton, McQuillan, and Sakel. He further compared the footprints of the backpackers with those of the Mexican aliens and determined that they did not make any of the tracks found around the area of the backpacks which contained the marijuana (C.T. 42).

After the arrests, DEA Agent Paul Provencio interviewed the four Mexican aliens found in the area along with the defendants and, on the basis of his interview together with his personal observations of the defendants, decided not to charge them in connection with the smuggling of the seized marijuana [R.T. 42-43]. Specifically, Provencio noted that the clothing of the aliens was inconsistent with the smuggling of the marijuana [R.T. 43]. They were neatly dressed; their shoes were not scuffed; their clothes were not dirty as it would have been had they been crawling; and the clothing on their backs did not have perspiration marks on them that would have been left had they in fact been carrying backpacks [R.T. 43, 45]. In addition, the aliens told' Provencio that they had just walked into the United States when one of the defendants had crawled over to them and stated that border policemen were in the area and that if they • followed him, they would not be apprehended [R.T. 44]. Agent Provencio then turned the aliens over to the Border Patrol for processing as illegal aliens [R.T. 43, 51]. Having concluded that the four aliens had no connection with, or knowledge of, the seized marijuana, the four aliens were, as is customary, returned to Mexico by the government.

At the hearing on the motions in the case, the government provided defense counsel with all the information it possessed with respect to the names and addresses of the four Mexican aliens arrested on the beach [R.T. 44].

On May 29, 1974, the date of trial, the court admitted into evidence letters from appellants addressed to the four witnesses. The letters had been returned undelivered by the Mexican postal system. Also admitted into evidence were copies of letters sent to the police departments in each of the Mexican cities and to the American Consul asking for their assistance in locating these individuals [R.T. 72-73],

The gravamen of this appeal and the sole issue raised, is that appellant feels that “the government’s action in returning to Mexico four witnesses [sic] to the alleged offense of possession of a controlled substance with intent to distribute, before defendants had an opportunity to interview the alien witnesses [sic], denied defendants’ [Fifth Amendment] right to Due Process and [Sixth Amendment] right to compulsory process.” (Appellant’s Brief at 5). In support of their proposition, appellant cites our decision in United States v. Mendez-Rodriguez, 450 F.2d 1 (9th Cir. 1971).

We disagree with appellant that this is a case controlled by Mendez-Rodriguez.

1. In Mendez-Rodriguez the court condemned the then policy of the United States in alien smuggling cases of keeping select alien eyewitnesses while returning others to Mexico without affording the defense an opportunity to interview them and ascertain whether any would be able to give testimony favorable to the defendant.

2. In Mendez-Rodriguez there was no question but that the aliens returned to Mexico were in fact eyewitnesses to, and active participants in, the crime with which defendant was charged. The border patrol had stopped Mendez as he was driving a car with six illegal alien passengers, three of whom were the returned witnesses. Mendez was subsequently charged with conspiring to smuggle and transport the three aliens in the group who were kept as government witnesses.

3. In Mendez-Rodriguez, the defendant had an alibi which might have been corroborated by the missing witnesses. Mendez testified that one of the passengers in his car had been hitchhiking along the highway and that he, Mendez, had stopped to give him a ride. When he did so, according to the defendant, the hitchhiker was joined by the other five and he consented to give them all a lift. The three aliens who did testify against defendant simply stated that they had been waiting beside the highway when Mendez stopped and they entered the car. There was thus a possibility that one of the missing aliens might have materially aided in Mendez’s defense. As a practical matter, however, the government effectively precluded the defendant from even exploring this possibility, and this court found that to be a violation of due process.

4. In Mendez-Rodriguez, the appellant was unable to show that the testimony of the missing witnesses would have been helpful. This court found this failure excusable in light of the fact that the government deprived defendants of the opportunity to even interview them. However, in Mendez-Rodriguez, there was at least a strong probability that the missing witnesses could have provided material and relevant information concerning the events constituting the crime.

In the instant case, it is not alleged by defendants that there was any mistaken identity between aliens and defendants as to who was smuggling the marijuana, or that the aliens were in any way participants in the crime. There is no connection whatsoever between the aliens and the crime defendants were committing except that the aliens happened to be attempting to illegally immigrate into this country at the same time and place defendants were illegally smuggling in marijuana.

In sum, Mendez-Rodriguez is inapplicable to the instant case because there is nothing to indicate that the aliens here were witnesses to the crime of which appellants were convicted, and nothing to indicate the barest possibility that their testimony could have been of any benefit to the accused.

Inasmuch as the only issue raised on this appeal is the action of the government in returning four alleged alien “witnesses” to Mexico; and it being clear they were not witnesses to the crime charged, of which defendants were convicted, we affirm the conviction.

Affirmed.


author: LIVELY, Circuit Judge.

text:
    H. T. SAUNDERS, d/b/a Saunders Dispensary, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 74-1444.
    United States Court of Appeals, Sixth Circuit.
    Dec. 6, 1974.

      Martin F. Sullivan, Jr., Louisville, Ky., for plaintiff-appellant.
    George J. Long, U. S. Atty., Louisville, Ky., James H. Barr, Richard A. Dennis, Asst. Dist. Atty., Louisville, Ky., for defendant-appellee.
    Before LIVELY and ENGEL, Circuit Judges, and O’SULLIVAN, Senior Circuit Judge.
   LIVELY, Circuit Judge.

The district court granted summary judgment in favor of the United States in this action to review a final administrative determination of the Department of Agriculture under the Food Stamp Act of 1964, 7 U.S.C. §§ 2011-2026. The appellant, a Louisville, Kentucky merchant, was disqualified from further participation in the food stamp program for a period of one year on an administrative finding that his store had violated provisions of the Act. 7 U.S.C. § 2020. The alleged violations consisted of accepting food stamps in payment for articles other than “food” as defined in 7 U.S.C. § 2012(b) and regulations issued in connection with the program.

Appellant was charged with five specific violations during a two-week period in October 1972. In the letter of notification sent to appellant on March 27, 1973, the date of each alleged violation was set forth, together with details as to the ineligible merchandise claimed to have been received in exchange for food stamps. In this letter the appellant was identified as having made two of the transactions, and unidentified female clerks were said to have accepted the food stamps on the other occasions. The record before us does not disclose what response, if any, was made to the charges. However, after requesting a review of the initial determination, in two letters to the Food Stamp Review Officer assigned to the matter, the appellant, through his attorney, wrote on July 9, 1973, “We deny specifically each and every allegation made”; and on July 19, 1973, “All charges levied are categorically denied.” Copies of these letters together with a copy of the letter from the Food Stamp Review Officer sustaining the original determination are included in the appendix filed with this court.

One of appellant’s chief arguments in seeking review of the initial administrative determination was that the Department of Agriculture had never disclosed to him the identity of the persons who made the charges against him and that he had had no opportunity to cross-examine them or otherwise question the evidence upon which the determination was made. In responding to this argument a Department official wrote to appellant’s attorney that formal discovery proceedings and an adversary hearing are not part of the disqualification or review procedures. He pointed out, however, that the Act provides for a trial de novo in a court of competent jurisdiction.

Following the decision of the Review Officer, appellant brought this action in district court to obtain judicial review of the final administrative determination pursuant to 7 U.S.C. § 2022(c), which provides in part that one who “feels aggrieved by such final determination may obtain judicial review thereof by filing a complaint against the United States in the United States district court . . . requesting the court to set aside such determination.” This section also provides “The suit in the United States district court . shall be a trial de novo by the court in which the court shall determine the validity of the questioned administrative action in issue.” Appellant’s complaint charged that the Department of Agriculture had acted arbitrarily and capriciously and that its determination was not supported by any evidence. The answer filed by the appellee denied these charges and stated “that the plaintiff has whatever opportunity to examine witnesses that the Federal Rules of Civil Procedure provide.” The appellant then filed interrogatories seeking the names and addresses of each witness whom the appellee expected to call in the case and also asking whether or not requests were made during the administrative proceedings for the identity of these witnesses and the authority for denying such information. The appellee filed objections to the interrogatories and a motion for summary judgment. Attached to this motion were five unsworn statements of persons who claimed that they had purchased ineligible items in exchange for food stamps at the store of appellant. The date of each purchase was given and the ineligible items were listed. In his response to the motion for summary judgment appellant pointed out that none of the information filed in support of the summary judgment was in affidavit form or otherwise sworn to and that he continued to demand a trial de novo. In its memorandum opinion the court stated: “The exhibits submitted by the United States clearly show a violation of the Food Stamp Act in that plaintiff made sales of products which are not eligible under the Act. Although the exhibits are not affidavits, the information supplied in them by Agent Elliott has not been denied nor has any information to counter it been supplied by plaintiff.” On this basis summary judgment was entered. We reverse and remand for further proceedings.

It is true that the appellant did not deny the charges in the district court proceedings. However, we do not believe that those proceedings reached the point where a denial was required. Because of the nature of the district court action for a review of an administrative determination, there was nothing before the court for the appellant to deny at the time his complaint was filed. The answer of the appellee merely denied that the government had acted arbitrarily or in derogation of any constitutional rights of appellant. It did not plead any facts upon which the court could decide the validity of the determination made at the administrative level. Only when the appellee made its motion for summary judgment did it reveal to the court, and to appellant for the first time, the factual basis for its ruling of disqualification. However, none of the supporting documents was sworn to and, thus, they were of no greater dignity than the denials of illegal transactions contained in the letters from appellant’s attorney to the Food Stamp Review Officer. If the documents filed by the appellee had complied with the requirements of Rule 56(e), Fed.R.Civ.P., it would have been incumbent upon appellant either to deny them under oath or suffer summary judgment.

In granting summary judgment in the present case the district court relied primarily on Save More of Gary, Inc. v. United States, 442 F.2d 36 (7th Cir.), cert. dismissed, 404 U.S. 987, 92 S.Ct. 535, 30 L.Ed.2d 549 (1971). While we agree with the principle of that case that a request for a judicial review under Section 2022 may be disposed of by summary judgment if there is no genuine issue of material fact, we find that it is distinguishable from the present ease on several grounds. As the court in Save More pointed out “The defendant’s motion for summary judgment was supported by an abundance of documentary material including affidavits, contemporary reports, letters and memoranda in addition to depositions.” 442 F.2d at 37. In addition to the repeated references to affidavits and depositions in the opinion of the court of appeals, the district court referred to affidavits of shoppers in granting summary judgment. Save More of Gary, Inc. v. United States, 309 F.Supp. 39 (N.D.Ind.1970). The court of appeals also found that it was implicit in a whole series of letters that Save More admitted that the violations did in fact occur. We find no such admission implicit in the letters from appellant’s counsel. While these letters did complain of the procedures employed by the Department of Agriculture and argued that the penalty was disproportionate to the charged violation, nevertheless, each one contained a categorical denial of the charges.

In J.C.B. Super Markets, Inc. v. United States, 57 F.R.D. 500 (W.D.N.Y.1972), the court recognized that summary judgment may be used to avoid trial in this type case if there is no genuine issue as to any material fact. The court found, however, that the vendor had never admitted making the sales in the administrative proceedings and held that a trial was required after the parties had filed conflicting affidavits. The appellant in the present case should have been given the opportunity to demonstrate to the district court that a genuine issue of material fact does exist. However, he was not required to do so in the absence of a showing that the case against him was based on evidence of a quality acceptable in a trial.

In providing for a trial de novo upon court review of disqualification determinations, Congress intended a broader scope of review than that permitted under the general provisions of the Administrative Procedure Act. 5 U.S.C. § 706; J.C.B. Super Markets, Inc. v. United States, supra, 57 F.R.D. at 502— 503. This requires a reexamination of the entire matter rather than a mere determination of whether the administrative findings are supported by substantial evidence. Great Atlantic & Pacific Tea Co. v. United States, 342 F.Supp. 492, 493 (S.D.N.Y.1972); contra, Marbro Foods, Inc. v. United States, 293 F.Supp. 754, 755 (N.D.Ill.1968). The court should make its own findings of fact based on the preponderance of the evidence and not limit itself to matters considered in the administrative proceedings. J.C.B. Super Markets, Inc., supra, 57 F.R.D. at 503. Even if the unsworn statements relied upon by the government were sufficient to support a determination at the administrative level, the provision for a trial de novo requires that the district court make its determination on evidence of a kind and quality sufficient to support findings of fact under Rule 52(a), Fed.R.Civ.P. Since the procedures followed at the administrative level do not provide for discovery or testing the evidence of the Department of Agriculture by cross-examination, it is particularly important that an aggrieved person who seeks judicial review in a trial de novo not be deprived of these traditional tools unless it is clear that no issue of fact exists. As the court pointed out in Miller v. United States, 54 F.R.D. 471 (W.D.Pa.1972), all doubts as to the presence of a genuine issue of material fact should be resolved against a party moving for summary judgment. The unsworn denials of appellant through his counsel raised sufficient doubts about the facts set forth in the unsworn statements which were the basis of the administrative determination of disqualification to preclude summary judgment at this stage of the proceedings.

In returning the case to the district court we note that appellant demanded a trial by jury in his complaint. The statute provides for trial by the court. 7 U.S.C. § 2022(c). He also sought review of the length of his disqualification. In Martin v. United States, 459 F,2d 300, 301 (6th Cir.), cert. denied, 409 U.S. 878, 93 S.Ct. 129, 34 L.Ed.2d 131 (1972), we held that “[t]he statute authorizes a review only on the merits of the case, and not on the period of disqualification.”

The judgment of the district court is reversed and the case is remanded for further proceedings as indicated herein.