text:
    UNITED STATES of America, Plaintiff-Appellee, v. Michael John HALLIDAY et al., Defendants-Appellants.
    No. 73-1831.
    United States Court of Appeals, Fifth Circuit.
    Nov. 28, 1973.
    Rehearing and Rehearing En Banc. Denied Jan. 4, 1974.
    Lee A. Chagra, El Paso, Tex., for defendants-appellants.
    William Sessions, U. S. Atty., San Antonio, Tex., Edward Marquez, Ralph E. Harris, Asst. U. S. Attys., El Paso, Tex., for plaintiff-appellee.
    Before GEWIN, AINSWORTH and MORGAN, Circuit Judges.
   PER CURIAM:

Appellants Halliday and Rowe were arrested and charged with violations of 21 U.S.C. §§ 841(a), 846, 952(a), and 963. Appellant Duran was arrested and charged with violations of 21 U.S.C. §§ 841(a)(1) and 846. All charges stem from appellants’ dealings with marihuana. They waived a jury trial and were tried and convicted in the United States District Court for the Western District of Texas. Each received a sentence of five years imprisonment and five years special probation. Appellants appeal their convictions on the grounds that an illegal arrest of appellant Rowe led to searches which produced evidence that should have been excluded at trial.

FACTS

Sometime prior to November of 1972, Customs Agents received information from a reliable informant that a large quantity of marihuana was going to be smuggled into the United States from Mexico. Appellant Halliday was implicated by the informant as being involved in the transaction. On November 3, 1972, the agents received further information from the informant that the marihuana had come into the United States and was being stored at 7203 Dale Road in El Paso, Texas. As a result of this information, the agents set up a stake-out of the residence described above. After establishing this stake-out, the agents learned from another reliable informant that a large quantity of marihuana was being smuggled into the United States and was to be located at the Dale Road residence. During the period of 'surveillance, the agents observed a 1956 Chevrolet automobile parked at the Dale Road residence. A license cheek showed it belonged to a person who had previously been arrested for illegally importing 1,200 pounds of marihuana into the United States. On November 5, 1972, a 1971 Oldsmobile, pulling a U-Haul trailer, arrived at the Dale Road residence. The license plates on the car had been switched with those on the trailer. Agents observed through an open gate boxes being loaded into the trailer. The car and trailer were then observed proceeding to Interstate Highway 10 and traveling in an easterly direction out of El Paso. The vehicle was stopped in Van Horn, Texas, by Customs Agents who had been observing it since it left El Paso. The driver, appellant Rowe, was arrested and found on his person were two keys of which he denied all knowledge. The agents then became aware of the strong odor of marihuana emitting from the trailer and upon opening the trailer with the keys found on Rowe, found 31 boxes containing 908 pounds of marihuana. Customs Agents obtained a search warrant based upon this evidence for the residence on Dale Road, where they found 13 pounds of marihuana and 126 empty cardboard boxes identical to those found in the U-Haul trailer.

PROBABLE CAUSE

Appellants urge that the evidence seized from the trailer and the house should have been suppressed at trial because Rowe’s arrest, search and seizure were without probable cause and therefore in violation of the Fourth Amendment. If the search of the trailer was illegal, then the evidence obtained pursuant to a warrant based on that search must be suppressed. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The only question before this court is whether the Customs Agents had probable cause to stop, arrest and search Rowe, the car he was driving and the trailer.

Certain carefully defined classes of case which constitute exceptions to the warrant requirement of the Fourth Amendment have been recognized by the courts. One of these is when an officer has probable cause and exigent circumstances exist which make it impractical to obtain a warrant. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, reh. den. 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971), Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, reh. den. 400 U.S. 856, 91 S.Ct. 23, 27 L.Ed.2d 94 (1970). The cases recognizing the exigent circumstances exception to the warrant requirement have always insisted that the officers conducting the search have reasonable or probable cause to believe that they will find evidence pertaining to a crime. Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968).

Furthermore, as regards the search of vehicles, it appears that the exigent circumstances required can be generally described as unforeseeable circumstances which furnish probable cause and a fleeting opportunity to search. Coolidge v. New Hampshire, supra,, Chambers v. Maroney, supra.

The following facts were known to the agents at the time of the trailer search:

1. Information from two separate informants clearly indicated that a large quantity of marihuana was to be stored at the Dale Road residence.

2. A known narcotics dealer was seen at the residence.

3. A car registered to another known narcotics violator was seen at the residence.

4. A car and trailer with illegal license plates arrived at the residence and the trailer was quickly loaded with numerous boxes.

5. The car and trailer immediately went to Interstate 10 and headed in an easterly direction.

6. The strong odor of marihuana emanated from the trailer.

It is clear that the agents did not have sufficient time to obtain a warrant. The suspected marihuana was on an interstate highway leaving their jurisdiction.

In this specific situation the agents possessed knowledge of facts and circumstances gained from reasonably trustworthy sources that would justify a man of reasonable caution and prudence to believe that Rowe was transporting marihuana. Miller v. United States (5 Cir. 1966), 356 F.2d 63, 66, cert. den. 384 U.S. 912, 86 S.Ct. 1357, 16 L.Ed.2d 365. Also, they were faced with the classic Carroll situation, where the vehicle was easily and quickly moveable. United States v. Brown (5 Cir. 1969) 411 F.2d 478, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

The array of information, plus the Carroll factor, is a clearly sufficient basis for a search under the probable cause standard. Chambers v. Maroney, supra; United States v. Bean, 484 F.2d 1275, 5 Cir. 1973. The judgment of the district court is in all respects

Affirmed.

      . § 841.
      (a) Except as authorized by this subchapter, 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; or

        (2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.
      § 846.
      Any person who attempts or conspires to commit any offense defined in this sub-chapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt ' or conspiracy.
      § 952.
      (a) It shall be unlawful to import into the customs territory of the United States from any place outside thereof (but within the United States), or to import into the United States from any place outside thereof, any controlled substance in schedule I or II of subchapter I of this chapter, or any narcotic drug in schedule III, IV, or V of subehapter I of this chapter, except that—
      (1) such amounts of crude opium and coca leaves as the Attorney General finds to be necessary to provide for medical, scientific, or other legitimate purposes, and
      (2) such amounts of any controlled substance in schedule I or II or any narcotic drug in schedule III, IV, or V that the Attorney General finds to be necessary to provide for the medical, scientific, or other legitimate needs of the United States- — -
      (A) during an emergency in which domestic supplies of such substance or drug are found by the Attorney General to be inadequate, or
      § 963.
      Any person who attempts or conspires to commit any offense defined in this sub-chapter is punishable by imprisonment or fine or both which may not- exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

      . Testimony at trial demonstrated that this informant had supplied Customs Agents with accurate information on previous occasions throughout a two-and-one-half year period.


source: Caselaw Access Project

author: DYER, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Louis Albert WOODS, a/k/a Rashid Wood, a/k/a Milton Woodard, Defendant-Appellant.
    No. 73-1694.
    United States Court of Appeals, Fifth Circuit.
    Dec. 7, 1973.
    Joseph Bankoff, Atlanta, Ga. (Court-appointed), for defendant-appellant.
    William J. Schloth, U. S. Atty., O. Hale Almand, Jr., Asst. U. S. Atty., Macon, Ga., for plaintiff-appellee.
    Before GODBOLD, DYER and GEE, Circuit Judges.
   DYER, Circuit Judge:

Woods was convicted in a jury trial of escaping from the custody of the Attorney General of the United States in violation of 18 U.S.C.A. § 751. In this appeal, the central issue is whether the trial court’s action in requiring Woods to stand trial without benefit of counsel, after discharging Woods’ court-appointed attorney at Woods’ request, was violative of his Sixth Amendment right to assistance of counsel. Woods also contends that his Fifth Amendment privilege against self-incrimination was violated, and that evidence of Woods’ state court convictions was error. We reverse and remand for a new trial.

In 1970, Woods was incarcerated in a Georgia state prison to serve two federal sentences concurrently with four state sentences. After an escape from prison and subsequent recapture, Woods was arraigned on March 1, 1973 for violation of the federal escape statute, at which time the trial judge prudently appointed counsel for Woods, although the appellant indicated an interest in retaining an attorney. At the conclusion of the arraignment, Woods met briefly with his appointed attorney, who indicated that in his years of practice he had never encountered the type of case brought against Woods. Apparently, some confusion on the part of both Woods and the attorney resulted from the fact that Woods was charged with a federal offense for escaping from a state institution, a dilemma which was apparently never resolved for Woods’ benefit by his attorney during the course of his service.

Thereafter, during the three-week interval between arraignment and trial, the only attempted communication between Woods and the attorney was Woods’ dispatching a letter to the attorney which went unanswered, apparently due to counsel's having moved to a new office. In any event, no further contact between attorney and client occurred until the day of trial.

At the outset of his trial, Woods objected to proceeding with the court-appointed attorney. The substance of his prompt objection was that counsel was unprepared to proceed with his defense in view of their entire lack of communication. The trial judge thereupon reminded Woods that he was enjoying the services of highly competent counsel and that Woods must either accept these services or be relegated to defending himself. Throughout the ensuing colloquy, Woods consistently maintained that he was unable to defend himself, a fact which is clearly borne out by the trial record, but that the attorney’s representation was also unacceptable. At no time did the trial judge inquire as to the merit of Woods’ allegation, nor did counsel proffer any statement as to his ability or willingness to proceed. After Woods persisted in his objection, the trial judge discharged the attorney, and the trial proceeded with Woods inartfully attempting to represent himself.

The critical issue for resolution in this case is whether under the totality of these circumstances. Woods’ refusal to accept the representation of his court-appointed attorney constituted a waiver of his Sixth Amendment right to the assistance of counsel. On the record before us, and we expressly limit our holding to these unique facts, we can discern no basis for transforming Woods’ uncontradicted and substantial objection to his appointed counsel into a knowing and intelligent waiver of his constitutional right to counsel.

Woods’ objection to his lawyer went to the issue of the preparation of counsel, not his sheer presence or basic competence, yet the trial judge accorded dispositive weight to the fact that appointed counsel was a highly competent attorney who was present to defend Woods. Despite there being perhaps some salutary effect from the mere presence of a competent attorney available to a defendant in a criminal proceeding, physical presence alone fails to satisfy the mandate of the Sixth Amendment. It is now firmly established that the right to counsel means no less than the right to effective counsel. MacKenna v. Ellis, 5 Cir. 1960, 280 F.2d 592, 599. As this Court has observed, “an attorney cannot render reasonably effective assistance unless he has acquainted himself with the law and facts of the case.” Caraway v. Beto, 5 Cir. 1970, 421 F.2d 636, 637. It was precisely this principle that Woods seasonably sought to invoke in his trial below. Steadfastly interposing an uncontradieted objection to a denial of effective counsel, while fully disclaiming any ability or desire to represent himself, simply cannot be fairly construed as a waiver of the right to effective counsel.

We are unpersuaded that Johnson v. United States, 8 Cir. 1963, 318 F.2d 855, relied on by the Government, supports a contrary position. There the defendant’s appointed attorney made a statement in open court which indicated “that he was prepared to and intended to protect defendant’s rights to the best of his ability.” Id. at 858. Moreover, it was undisputed in that case that the attorney had rendered advice to the defendant with respect to various important matters relevant to his defense. In the case sub judice, counsel made no statement as to his preparedness, and the record indicates no occasion before trial on which he rendered advice to Woods. Kates v. Nelson, 9 Cir. 1970, 435 F.2d 1085, is similarly inapposite. In that case, the defendant objected during the course of an ongoing trial to his attorney’s method of conducting the case. Hence, the court determined that “[t]he record bespeaks of simple disagreement between Appellant and his appointed counsel as to the manner in which the case was to be conducted.” Id. at 1088.

Importantly, in both cases relied on by the Government, the trial judge had a meaningful basis for evaluating the preparation and industry of counsel as a result of either counsel’s own statements or his conduct at trial. This critical factor was, of course, absent in Woods’ case, inasmuch as the trial judge did not undertake to gauge counsel’s performance on behalf of his client, nor did he make any inquiry as to the basis of Woods’ allegation of non-preparation.

Our determination that Woods’ Sixth Amendment rights were violated under these circumstances should not be construed as sanctioning dilatory tactics by a defendant whose tardy objections to an attorney’s representation frustrates the orderly course of litigation. An eleventh-hour objection by a defendant who enjoyed ample time to make his viewpoint known is, of course, an intolerable disruption of the criminal justice process. In the instant case, however, three weeks transpired between arraignment and trial, during which time Woods attempted to contact his attorney in connection with the case. This short interval, combined with the fact that Woods immediately objected on substantial grounds at the very outset of his trial, strongly indicates that, under the circumstances present here, Woods in no manner slept on his rights.

In view of our holding that Woods’ Sixth Amendment rights were abridged, it is unnecessary for us to reach the other errors assigned by Woods.

Reversed and remanded.

      . The trial judge appointed counsel in this case since he doubted whether Woods would succeed in retaining an attorney before the trial. This premonition subsequently proved well-founded, since Woods came to trial with only the court-appointed attorney engaged to represent him.

      . Our holding is, of course, not addressed to the truth or falsity of Woods’ contention at trial with respect to the non-preparation of his attorney. We offer no view in that regard inasmuch as our decision is simply limited to finding no waiver of counsel in this ease where the nature of liis timely objection, which was in no manner frivolous or insubstantial, went uneontradicted. This, of course, points up the responsibility of the trial court in such an instance to make inquiry of the defendant and appointed counsel concerning defendant’s claim of lack of preparation.


author: RONEY, Circuit Judge:

text:
    ASSOCIATED THEATRES, INC., Plaintiff-Appellee, v. Henry WADE, etc., et al., etc., Defendants-Appellants.
    No. 73-2993
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 7, 1973.
    Henry Wade, Crim. Dist. Atty., Gerald Weatherly, Asst. Crim. Dist. Atty., Harvey Jay Ethington, John H. Hagler, Dallas, Tex., for defendants-appellants.
    Mike Aranson, Tony Kaufman, Dallas, Tex., for plaintiff-appellee.
    Before THORNBERRY, GODBOLD and RONEY, Circuit Judges.

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

   RONEY, Circuit Judge:

We hold that we have no jurisdiction to review a preliminary injunction issued by a single judge on an appeal taken subsequent to the designation of a three-judge district court to hear the case.

After requesting and receiving the appointment of a three-judge court, the District Judge, by the authority given him in 28 U.S.C.A. § 2284(3), preliminarily enjoined the enforcement of a temporary restraining order issued by a Texas state court commanding Associated Theatres to “cease and desist” from showing obscene motion pictures.

Seeking a review of this preliminary injunction, the defendant state officials noticed the appeal to this Court. Such procedure would have been appropriate had it occurred prior to the convening of the three-judge court. The Supreme Court recently decided in Hicks v. Pleasure House, Inc., 404 U.S. 1, 92 S.Ct. 5, 30 L.Ed.2d 1 (1971) whether such an appeal should be taken to the United States Supreme Court, which has appellate jurisdiction of three-judge court decisions, or to the Court of Appeals, which has appellate jurisdiction from the single judge district court.

In Hicks, the Supreme Court was asked to review a temporary restraining order entered by a single District Judge in a case certified for presentation t<\a three-judge court. The order stayed a pending state obscenity prosecution and temporarily restrained further enforcement of the obscenity laws.- After holding that 28 U.S.C.A. § 1253 did not provide for a direct appeal to the Supreme Court from a temporary restraining order issued by a single judge and dismissing the appeal for lack of jurisdiction, the Court explored where jurisdiction did lie:

[I] f a single judge oversteps his limited authority under § 2284(3), a court of appeals may correct his error. In addition, a temporary restraining order issued pursuant to § 2284(3) is reviewable in a court of appeals to the extent that any such order is reviewable under 28 U.S.C. §§ 1291 and 1292(a).

404 U.S. at 3, 92 S.Ct. at 7.

The Court then stated that if no appeal is taken before the convening of the three-judge court, review of the single judge action must be addressed to the three-judge court.

However, if no such appeal is taken before the three-judge court is convened, application must be made to. that court for vacation .or modification of the temporary restraining order pending a final determination on the merits.

404 U.S. at 3, 92 S.Ct. at 7.

A three-judge court is “convened” when the Chief Judge of the Circuit designates the judges under 28 U. S.C.A. § 2284(1). At that time such a court is available to review any prior or subsequent action by the single judge, pursuant to the authority of 28 U.S.C.A. § 2284(5):

The action of a single judge shall be reviewable by the full court at any time before final hearing. .

The chronology of the case sub judice reveals that the three-judge court was designated by order of Chief Judge Brown filed on July 12, 1973, some two weeks prior to the issuance of the preliminary injunction on July 27, 1973, and clearly before any appeal from that injunction. Jurisdiction to review, vacate or modify the single judge temporary injunction properly lies in the three-judge court convened to hear the case. This Court must dismiss the appeal for want of jurisdiction.

Dismissed.

      . Section 2284(3) of 28 U.S.C.A. reads in part (3) In any such case in which an application for an interlocutory injunction is made, the district judge to whom the application is made may, at any time, grant a temporary restraining order to prevent irreparable damage. The order, unless previously revoked by the district judge, shall remain in force only until the hearing and determination by the full court.

      . Section 1253 of 28 U.S.C.A. provides
      Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.

      . 28 U.S.C.A. § 1291:
      The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States except where a direct review may be had in the Supreme Court.
      28 U.S.C.A. § 1292:
      (a) The courts of appeals shall have jurisdiction of appeals from:
      (1) Interlocutory orders of the district courts of the United States, . . . or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court ....

      . 28 U.S.C.A. § 2284(1) :
      (1) The district judge to whom the application for injunction or other relief is presented shall constitute one member of such court. On the filing of the application, he shall immediately notify the chief judge of the circuit, who shall designate two other judges, at least one of whom shall be a circuit judge. Such judges shall serve as members of the court to hear and determine the action or proceeding.

      . The chronology is as follows:
      June 20, 1973 — Complaint filed in the 193d Judicial District Court of Dallas County, Texas, State of Texas v. Associated Theatres of Texas, Inc., No. 73-4528-L. A temporary restraining order was issued against Associated Theatres.
      June 26, 1973 — Associated Theatres filéd suit in the United States District Court for the Northern District of Texas against the District Attorney of Dallas County, several Assistant District Attorneys, and the Judge of 162d District Court of Dallas County seeking declaratory relief, a tempo- ' rary restraining order, preliminary and permanent injunctions.
      July 12, 1973 — Order of Chief Judge John R. Brown filed designating three-judge district court.
      July 27, 1973 — United States District Judge W. M. Taylor, Jr. signed (filed August 1, 1973) preliminary injunction enjoining the defendants from enforcing the state court restraining order.
      August 1, 1973 — Defendants filed notice of appeal from the preliminary injunction.


author: MULLIGAN, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Joseph P. CANDELLA et al., Defendants-Appellants.
    No. 195, Docket 73-1894.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 11, 1973.
    Decided Nov. 26, 1973.
    Certiorari Denied March 18, 1974.
    See 94 S.Ct. 1563.

      Howard Wilson, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S. D. N. Y., John W. Nields, Jr., Asst. U. S. Atty., of counsel), for appellee.
    Harvey Tropp, New York City (Gordon & Tropp, Joel R. Schweidel, New York City, of counsel), for defendants-appellants.
    Before FRIENDLY, ANDERSON and MULLIGAN, Circuit Judges.
   MULLIGAN, Circuit Judge:

Joseph P. Candella and John Kevin Gilgan were the principal officers and the sole owners of Beacon Moving and Storage, Inc., a Brooklyn-based moving company. In 1971, Beacon undertook to move the property of four commercial tenants, Lapchinsky Iron Works, Chelsea Desk Co., Precision Container Co. and G.A.L. Manufacturing Co., each of which had been forced to move from Manhattan and Brooklyn sites because of federally funded urban renewal projects. Their property had been condemned by the City of New York and each was entitled to reimbursement from the City for its moving expenses.

The tenants, who had the initial obligation of paying the mover for his services, assigned their claims for reimbursement from the City to the mover, as permitted by the United States Department of Housing and Urban Development (HUD) regulation (24 C.F.R. § 41.12). The City then had the responsibility to process and pay the claims made by the movers. The City, in turn, was entitled to reimbursement by HUD. The City agency in charge,, the Department of Relocation, based its payments on bills submitted by the moving company which were accompanied by so-called “bills of lading,” which detailed the number of man-hours worked on each day by the employees of the mover, plus an affidavit by the mover which attested to the accuracy of the bills of lading. The affidavits relating to the moves involved herein were executed on forms prepared by the City and not by HUD. The convictions appealed from were based on indictments charging that the bills of lading and affidavits submitted by the defendants for the four moves in question were false, in violation of 18 U.S.C. § 1001 and 18 U.S.C. § 2 (aiding and abetting).

Counts 1, 2, 3 and 5 related to false affidavits, and counts 6, 7, 8 and 10 charged that the bills of lading submitted exaggerated the amount of work performed. (Counts 4 and 9, which related to a fifth moving operation, were dismissed for jurisdictional reasons before trial with Government consent.) The jury trial was conducted before Hon. Dudley B. Bonsai, United States District Judge, Southern District of New York. The three defendants were found guilty on all eight counts on February 16, 1973, and judgments were entered on April 3, 1973. Judge Bonsai sentenced Candeda and Gilgan to concurrent prison terms of 60 days on each of the eight counts and fines of $1000 on each count. The corporate defendant Beacon was fined $2000 on each of the eight counts. This appeal followed.

I. JURISDICTION

Appellants first claim that counts 1, 2, 3 and 5 of the indictment, which charged that the “Affidavits by Moving Company for Moving Expenses” with respect to the four moves in question were false, should have been dismissed on defendants’ pre-trial motion for lack of jurisdiction of the subject matter. Appellants’ argument is based on the contention that the affidavits in question were not within the jurisdiction of HUD because they were not forms required by HUD, and were not only gratuitous but improper. Since the statute involved in this case prohibits the making of any false statements in any matter within the jurisdiction of a federal agency, the counts based upon the affidavits must fall if the affidavits were not in a matter within the jurisdiction of HUD.

The applicable HUD regulation is as follows:

(a) Form of claim. To obtain a relocation payment, site occupants shall file written claims with the agency on the appropriate HUD forms.

(b) Documentation in support of a claim. A claim shall be supported by the following:

(1) If for moving expenses; except in the case of a fixed payment, a receipted bill or other evidence of such expenses. By prearrangement between the agency, the site occupant, and the mover, evidenced in writing, the claimant or the mover may present an unpaid moving bill to the agency, and the agency may pay the mover directly.

(2) If for actual direct loss of property, written evidence thereof, which may include appraisals, certified prices, copies of bills of sale, receipts, canceled cheeks, copies of advertisements, offers to sell, auction records, and such other records as may be appropriate to support the claim.

(3) In any other case, such documentation as may be required by the agency, which may include income tax returns; withholding or information statements, and proof of age.

24 C.F.R. § 41.12.

This regulation is interpreted by appellants to preclude the use of the affidavit required by the City. They read § 41.-12(b)(3) to mean that the City may require other documentation in its discretion only in cases not covered by subdivisions (1) and (2). While § 41.-12(b)(1) requires that a claim for moving expenses be supported by a receipted bill (here the “bill of lading”), we cannot construe the regulation to hamstring the City so as to make the bill the sole and exclusive documentation to be submitted. The section in fact permits “other evidence of such expenses.” While HUD may not have provided its own forms for reimbursement in cases not involving moving expenses or direct property losses, there is no language at all in the regulation which precludes the City from employing supplemental documentation in a moving expense situation. We read the regulation as only requiring the minimum; if further documentation was meant to be excluded the regulation could have easily so provided.

The jurisdiction of HUD here is clear. The City entered contracts with the United States on specific urban renewal projects including those which prompted the moving here. The United States became ultimately responsible for paying 100% of the moving expenses incurred by the four concerns involved. The interest of HUD in this matter was made abundantly clear to the appellants. They agreed to be paid by the City instead of the tenants. The affidavits they executed to obtain reimbursement from the City fully explained their purpose and HUD’s involvement, reciting in part:

[T]his affidavit is sent to the City of New York, knowing that the said City of New York, will "rely thereon in making proper payment of Relocation payment for the moving of said Tenant by virtue of Section 114 of the Housing Act of 1949 as amended, and will make this affidavit available to the Department of Housing and Urban Development of the United States of America for the purpose of secur- . ing approval for full or partial reimbursement, and that any false statement will be a violation of the provisions of the United States Code subjecting the maker hereof to the penalties contained in the pertinent sections thereof.

It is thus clear beyond any doubt that the mover not only knew that the City would make the affidavits available to HUD for reimbursement purposes, but that any false statements contained therein would constitute violations of the United States Code subjecting him to criminal sanctions.

In arguing that the affidavits were not made in matters within the jurisdiction of any agency of the United States, appellants rely upon Lowe v. United States, 141 F.2d 1005 (5th Cir. 1944). in that case, an employee of a private shipbuilder made a false statement to his foreman as- to the number of hours he had worked on a particular day. The company had an agreement with the United States Maritime Commission under which it was reimbursed for its payroll costs. The court held that the payroll department of the shipyard company was not an agency of the United States, nor was it controlled or supervised by the federal agency. Hence, there was no offense against the United States. The fact pattern here was, of course, markedly different. Urban renewal is a joint enterprise of the City and the Federal Government. Each government cooperates in the funding of federally assisted projects. The City is responsible for administering federally funded projects, as well as those in which it provides the funding alone. The City’s procedures for direct payment to movers are subject to explicit regulation, supervision and audit by HUD.

In distinguishing Lowe, the Eighth Circuit in Ebeling v. United States, 248 F.2d 429, 435, cert. denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 261 (1957) stated:

We read the opinion as implying that there was in that case no charge, or anything to show, that the employee knew that the work which he was doing, and the wages which he claimed, had been made the subject of an express contract provision between his employer and the government, constituting them a matter of direct charge and reimbursing obligation on the part of the United States; that the working time which he turned in thus necessarily would be a matter which was to be used against the government and as to which it accordingly had a right of audit and adjustment; and that in making the false statement with which he was charged, he had turned it in on this basis and with the intent that it was to be accepted and used in that relationship.

The case here is even stronger since the appellants were not only made aware of the nature and purpose of the affidavit, but were further advised that false statements would be violative of the United States Code.

Appellants also argue that counts 1 and 6 of the indictment involving the affidavit and bill of lading submitted by the appellants for the moving of the Lapchinsky Iron Works should have been dismissed since they involved a payment of only $3300. HUD regulations require that all claims for moving expenses in excess of $10,000 be approved by HUD. In the case of claims under $10,000, the City is authorized to make payment without securing express approval from HUD, although the complete file on such claims must be kept available by the City for audit and inspection by HUD. The affidavits and bills presented in connection with the Lapchinsky move thus were not turned over to HUD. Because of this, appellants argue that counts 1 and 6 cannot be said to concern “matters within the jurisdiction” of HUD. Case law makes it clear, however, that a violation of § 1001 does not require that the false statement must actually have been submitted to a department or agency of the United States, but rather that it was contemplated that the statement was to be utilized in a matter which was within the jurisdiction of such department or agency. See United States v. Kraude, 467 F.2d 37, 38 (9th Cir.), cert. denied, 409 U.S. 1076, 93 S.Ct. 684, 34 L.Ed.2d 664 (1972); United States v. Greenberg, 268 F.2d 120, 122 (2d Cir. 1959); United States v. Ebeling, supra, 248 F.2d at 434; United States v. Myers, 131 F.Supp. 525, 529-530 (N.D.Cal.1955).

II. VENUE

The appellants argue that venue was improperly laid in the Southern District of New York with respect to counts 1, 3, 6 and 8, which involved the affidavits and bills of lading of Lapchin-sky and Precision, both Brooklyn-based companies which were being moved from Brooklyn locations. The argument is that since the allegedly false statements were prepared, executed and handed to New York City officials in Brooklyn, the crime was committed there, and the venue is therefore proper only in the Eastern District of New York, which embraces Brooklyn. While the question of whether the trial is conducted almost literally at one end of the Brooklyn Bridge or the other might seem to be a quibble, questions of venue in criminal cases are of constitutional concern. United States v. Johnson, 323 U.S. 273, 276, 65 S.Ct. 249, 90 L.Ed. 562 (1944). Venue must be laid where the crime was committed, and that place is to be “determined from the nature of the crime alleged and the location of the act or acts constituting it.” United States v. Anderson, 328 U. S. 699, 703, 66 S.Ct. 1213, 1216, 90 L.Ed. 1529 (1946). The Government argues that venue properly lies in the Southern District because the affidavits and bills of lading in question were simply accepted at the City’s branch offices in Brooklyn for the convenience of parties seeking to file papers with the Department of Relocation and were then conveyed to the central office in Manhattan for examination and payment. The Lap-chinsky documents remained in the City’s Manhattan office for subsequent audit by HUD in New York. The Precision documents, involving expenses in excess of $10,000, were sent to the HUD office in Manhattan, where the City’s initial decision to make payment was approved. The appellants cite no authority for their position but seem to rely on the theory that since enough had been done to constitute a crime in the Eastern District, the crime therefore terminated.

However, under 18 U.S.C. § 3237(a), an offense begun in one district and completed in another, or committed in more than one district, may be prosecuted in any district in which such offense was “begun, continued, or completed.” Although enough was done in the Eastern District to constitute a crime there, as appellants admit (cf. United States v. Ruehrup, 333 F.2d 641 (7th Cir.), cert. denied, 379 U.S. 903, 85 S.Ct. 194, 13 L.Ed.2d 177 (1964)), it does not follow that the crime then terminated, and that what transpired in Manhattan was irrelevant for venue purposes. See United States v. Miller, 246 F.2d 486 (2d Cir.), cert. denied, 355 U.S. 905, 78 S.Ct. 332, 2 L.Ed.2d 261 (1957); De Rosier v. United States, 218 F.2d 420 (5th Cir.), cert. denied, 349 U.S. 921, 75 S.Ct. 660, 99 L.Ed. 1253 (1955). Appellants seek to distinguish Miller and De Rosier because the City and not the defendants (as in those cases) forwarded the offending documents to Manhattan. The City’s accepting the papers in Brooklyn, however, no more confined the offense to Brooklyn than the Post Office Department’s acceptance of the documents in Miller and De Rosier confined the offense in those cases to the district in which the mailbox was located.

We think that venue is properly laid in “the whole area through which force propelled by an offender operates.” United States v. Johnson, supra, 323 U.S. at 275, 65 S.Ct. at 250. The force propelled here by the defendants immediately contemplated Manhattan. 18 U. S.C. § 1001 defines the offense as the making of a false or fraudulent statement or representation in a matter within the jurisdiction of a federal agency. The false statements here were intended to produce funds. The statements continued to be false and continued to be within the jurisdiction of the United States not only when initially presented but also upon arrival in Manhattan, where the decision was reached to make the funds available. See United States v. Kenofskey, 243 U.S. 440, 37 S.Ct. 438, 61 L.Ed. 836 (1917). Venue for all counts thus was properly laid in the Southern District of New York.

III. EVIDENCE

The appellants urge that the court below erred in not directing a verdict of acquittal on the ground that the Government had not established that the bills of lading were false. The Government sought to establish falsity by comparing the man-hours for each moving job claimed on the bills of lading with the corporation’s own payroll books. The appellants argue that their payroll books were grossly inaccurate or that even if they were accurate, the Government arbitrarily deleted men and hours found in the payroll book from its computations. We are of course bound to view the evidence in the light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Tutino, 269 F.2d 488, 490 (2d Cir. 1959). There is ample evidence from which the jury could infer that the bills of lading were knowingly false and fraudulent. The claims of appellants were fully presented to the jury below, and we cannot substitute our view for that of the jurors who heard the evidence and observed the witnesses.

IV. CHARGE TO THE JURY

The trial court erroneously charged the jury with respect to the defendants’ position as to the bills of lading. While Judge Bonsai did say that the defendants denied their falsity, he further added: “As- I understand it, they contend here really that they were doing the best they could and that they thought that they should come out with something that was approximating at least the estimate, the City’s estimate of the cost of the job.” However, after objection to this characterization of the position of the defense was made, the trial judge corrected his statement and said: “Then, from the defense side, the defendants are contending here that the hours they did expend on these jobs did total the hours that were in the bills of lading, and I will tell you that that is what the defendants are so contending.” Appellants argue that the judgment below should be reversed because the erroneous charge was never expressly retracted by the trial judge but was merely supplemented.

We cannot agree that reversal is required on these facts. In addition to the corrective charge, the original erroneous charge was not one of law but of fact, and it had been preceded by the statement:

It may help you in your own recollection if I review what I understand to be the contentions here. But this again is a matter for your recollection. I am doing it only perhaps to help you with your recollection.

In light of the prior admonition and the subsequent correction, we cannot find the error so prejudicial as to require a new trial. As the appellants admit, the testimony of defendant Candella that the bills of lading were in fact accurate made the position of the appellants abundantly clear. It is equally clear that the jury did not accept it.

Affirmed.

      . 18 U.S.C. § 1001 provides :
      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.

      . Under HUD regulations, the City shares a responsibility to pay a portion of the moving expenses of the tenant. Present regulations continue to provide for City involvement. 24 C.F.R. § 41.13. Due to procedural problems detailed in the affidavit of a HUD official appearing in the record before us, the Comptroller General ruled that HUD would pay for all of the moving expenses involved in the projects here in issue. Thus, the City is not a gratuitious intruder in the auditing process but has a definite stake in assuring that the bills submitted accurately re-fleet the cost of moving. With the widespread publicity attendant upon raids of the City treasury, the affidavit requirement here cannot be at all characterized as improper but is in fact commendable.

      . Cases involving erroneous charges of applicable principles of law are not apposite, since the jury is bound by the law enunciated by the judge. Where, as here, the misstatement is one of facts, the jurors’ own recollections of the facts as testified to are controlling and, as we have indicated, they were so advised by the court.


author: LEWIS, Chief Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Vernon Willis BOWMAN, Jr., Defendant-Appellant.
    No. 73-1271.
    United States Court of Appeals, Tenth Circuit.
    Argued Aug. 15, 1973.
    Decided Nov. 29, 1973.

      Eugene S. Hames, of Wood, Ris & Hames, Denver, Colo., for defendant-appellant.
    Harris L. Hartz, Asst. U. S. Atty., Albuquerque, N. M. (Victor R. Ortega, U. S. Atty., Albuquerque, N. M., with him on the brief), for plaintiff-appellee.
    Before LEWIS, Chief Judge, BARRETT, Circuit Judge, and TALBOT SMITH, District Judge.

       Of the Eastern District of Michigan, sitting by designation.

   LEWIS, Chief Judge.

Vernon Willis Bowman, Jr., was convicted on the charge of possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) after a nonjury trial in the United States Dis-. trict Court for the District of New Mexico. He now appeals, challenging the legality of the search of his automobile which uncovered approximately forty-eight pounds of marijuana.

The events leading to Bowman’s arrest took place at a so-called checkpoint station located about three miles north of Truth or Consequences, New Mexico. Bowman was stopped in the early morning hours of October 21, 1972 by United State Border Patrol Agent Bruce Goad. Bowman rolled his car window down and responded to routine questions concerning his citizenship. During the course of this conversation Agent Goad detected the odor of marijuana. He directed Bowman to pull off to the side of the traffic lane and open his trunk. When the trunk was found empty, Agent Goad proceeded to the interior of the vehicle and noticed a footlocker and a suitcase. A search of the footlocker uncovered twenty-five bricks of marijuana. A small bag of marijuana was found in the suitcase. Bowman was' immediately placed under arrest.

Bowman contends that Agent Goad’s search was conducted solely because he had detected the odor of marijuana and that probable cause was therefore lacking. We agree with the factual predicate of this contention and thus face directly for the first time in this circuit the question of whether the smell of marijuana alone can satisfy the probable cause requirement for warrantless searches of this nature.

In our disposition of this issue, we do not write on a clean judicial slate. It is well settled within the Ninth Circuit that smell alone is sufficient to constitute probable cause for a subsequent search for' marijuana. United States v. Barron, 9 Cir., 472 F.2d 1215, cert. den., 413 U.S. 920, 93 S.Ct. 3063, 37 L.Ed.2d 1041 (1973); United States v. Campos, 9 Cir., 471 F.2d 296; Fernandez v. United States, 9 Cir., 321 F.2d 283. And in this circuit smell has been held to be a valid factor in determining probable cause for such a search. United States v. Anderson, 10 Cir., 468 F.2d 1280; United States v. Miller, 10 Cir., 460 F.2d 582.

In United States v. McCormick, 10 Cir., 468 F.2d 68, cert. den., 410 U.S. 927, 93 S.Ct. 1361, 35 L.Ed.2d 588, the court was faced with the issue of whether a customs agent had probable cause to make a warrantless search of a van at the same checkpoint as the one in the case at bar. Other factors were present in addition to the odor of marijuana and the court’s language might thus be regarded technically as dicta, but the meaning is clear:

A border patrol agent who has learned how to identify marijuana by sight or by its odor has probable cause to search and seize and to effect arrests upon discovery of marijuana in a vehicle. McCormick, supra at 73.

We agree with this statement and hold that it properly applies to the facts of this case. The record shows that on numerous occasions Agent Goad had smelled marijuana while on duty and that he was familiar with its odor. The court below made the specific finding that Agent Goad did, in fact, detect the odor of marijuana. The search of Bowman’s car was based upon probable cause.

In their briefs, both parties have called into question the applicability here of the recent Supreme Court decision in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). In that case a warrantless automobile search by a roving patrol about 25 miles north of the Mexican border, conducted without probable cause, was held to violate the fourth amendment prohibition against unreasonable searches and seizures. This type of search was held not to be justified by § 287(a) of the Immigration and Nationalization Act, 8 U.S.C. § 1357(a), which authorizes warrantless searches for aliens in automobiles and other conveyances “within a reasonable distance from any external boundary of. the United States . . ..”

We conclude that the Almeida-Sanehez decision is inapplicable to the facts of this case. That case involved a warrant-less search for aliens without probable cause which resulted in the discovery of illegally imported -marijuana. The search of Bowman’s car was a specific search for marijuana which was based upon an independent determination of probable cause.

We need, then, only to inquire as to the validity of the initial stopping of Bowman’s vehicle. Immigration officers are authorized under 8 U.S.C. § 1357(a)(1) to “interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States.” The constitutionality of this provision has been consistently upheld. Fernandez v. United States, 9 Cir., 321 F.2d 283; United States v. Correia, 3 Cir., 207 F.2d 595; United States v. Montez-Hernandez, E.D.Cal., 291 F.Supp. 712. The brief detention of a motorist for the purpose of determining his nationality has also been upheld without resort to this statutory provision. Contreras v. United States, 9 Cir., 291 F.2d 63. While the Almeida-Sanchez decision refers to 8 U.S.C. § 1357(a) generally, it is clear from both the reasoning and language of the majority opinion that it is the limitations of 8 U.S.C. § 1357(a)(3) specifically which are brought into question, for only that subsection authorizes the search and seizure which the Court found constitutionally impermissible under the facts of that case. We therefore do not read the Court’s decision as challenging the right of immigration officials to make routine inquiries as to an individual’s nationality.

Agent Goad’s brief detention of appellant Bowman for the limited purpose of determining his citizenship was entirely justified. Bowman’s car having been stopped for this purpose, probable cause for the search of the vehicle arose upon Agent’s Goad’s detection of the odor of marijuana. The search and seizure under these circumstances was entirely valid. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543.

Affirmed.

      . 8 U.S.C. § 1357(a) (3) provides:
      (a) Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant—
      (3) within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle ....


author: GEWIN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Marshall Crosby MILNE, Defendant-Appellant.
    No. 73-1696.
    United States Court of Appeals, Fifth Circuit.
    Dec. 3, 1973.

      Anderson E. Hatfield, III, Gainesville, Fla. (court appointed), for defendant-appellant.
    William H. Stafford, Jr., U. S. Atty., Robert L. Crongeyer, Jr., J. Worth Owen, Asst. U. S. Attys., Pensacola, Fla., for plaintiff-appellee.
    Before GEWIN, AINSWORTH and MORGAN, Circuit Judges.
   GEWIN, Circuit Judge:

Marshall C. Milne appeals from the judgment of conviction pursuant to a jury verdict of guilty of the unlawful distribution of a controlled substance in violation of 21 U.S.C. § 841(a)(1). 2On February 6, 1973 he was sentenced to terms of imprisonment on the two counts of the indictment. Two issues are presented for our review. First, appellant contends that the trial court erred in denying his motion for acquittal because of insufficiency of the evidence. Secondly, he asserts that it was prejudicial error for the trial court to exclude from the evidence the opinions of three lay witnesses as to his insanity at the time of the offense. We agree with appellant’s second contention and accordingly reverse and remand for a new trial.

I

Appellant’s contention regarding the sufficiency of the evidence is based upon the alleged failure of the prosecution to establish that the substance he distributed was indeed a controlled substance, heroin.' The weights recorded by the field agents of the substances appellant delivered were significantly different from the weights recorded by the laboratory chemist who analyzed the substances. There was also conflicting evidence as to whether the undercover field agent obtained the allegedly controlled substances from more than one individual on the same evening in question.

Upon an exámination of the record we find appellant’s first contention to be without merit. The laboratory chemist testified that weight discrepancies were often present. Field scales are apparently not as accurate as those used in the laboratory. Furthermore, field agents are not as fully trained or experienced as laboratory chemists in the use of scales. In this case the containers used to mail the substance were identified by the field agent and the receiving chemist. Any question of sufficiency of the evidence was .properly left for jury determination.

II

Appellant'attempted to pursue an insanity defense by offering the testimony of three lay witnesses. The witnesses were permitted to describe their relationship with the appellant and all had substantial opportunity to observe his behavior. The witnesses were also permitted to testify concerning the appellant’s heavy drug use and his bizarre behavior. Based upon this foundation the appellant sought to elicit the lay opinion as to his insanity from one of the witnesses who knew him and testified as to his bizarre conduct.’

The trial court ruled, however, that lay opinion would not be allowed because “only a medical expert can answer a question which contains that magic wording, . . .”

Because the court had ruled adversely as to appellant’s first witness, John Black, he did not attempt to solicit an opinion from the succeeding witnesses, L. C. Williams and Clay Ridgeway. Although no opinion as to appellant’s insanity was ever admitted into evidence the court did give a charge on the issue of insanity to the jury.

The sanity of the accused is always an element of the offense charged; when the issue is not raised, however, a presumption in favor of sanity satisfies the prosecution’s burden of proof. But even if only slight evidence of insanity is introduced, the presumption disappears, and the burden is on the prosecution to prove the accused’s mental capacity beyond a reasonable doubt. When the issue of insanity is raised as a defense in a criminal case all relevant evidence, both lay and expert, should be admitted. As this court pointed out in Mims v. United States, “[t]he real value of expert testimony in these cases is in the explanation of the disease arid its dynamics, that is, how it occurred, developed, and affected the mental and emotional processes of the defendant; it does not lie in the mere expression of conclusion.” We must, of course, recognize that opinions as to sanity or insanity are distinct from opinions as to criminal capacity. Criminal capacity is a legal conclusion and even an expert, medical or legal, may npt speak so as to employ a legal definition.

It has long been the rule in most jurisdictions that the lay opinion of a witness who is sufficiently acquainted with the person involved and has observed his conduct is admissible as to the sanity of such individual. In such circumstances the lay witness uses his opinion as a shorthand rendition of a set of collective facts otherwise difficult to state. Assuming that a proper foundation is laid there seems to be little justification for distinguishing opinions of sanity from those of insanity. The quantum of proof necessary to establish an adequate factual background showing sufficient acquaintance with the individual involved and an opportunity to observe his conduct may vary from case to case. While familiarity with such person and an opportunity-to observe usual or normal human behavior may support a lay opinion as to sanity, additional or more substantial proof may be required to support a lay opinion as to insanity. Insanity is a variance from usual or normal conduct. For that reason a lay witness should be required to testify as to unusual, abnormal or bizarre conduct before being permitted to express an opinion as to insanity. As in other cases involving the --qualificatiori of a witness, the trial judge must exercise a sound discretion in concluding whether or not a- particular witness is qualified. In this case the court ruled, in effect, .that a lay witness would not be perinitted to testify as to insanity regardless of his knowledge of the appellant and his observations and knowledge of bizarre or abnormal conduct.

Although it is unquestioned that the trial judge must exercise a sound discretion in deciding whether a particular witness is qualified to testify on the issue of insanity, as we have indicated earlier, this court is committed to a liberal policy with respect to the ad-. missibility of such evidence. As we stated in Blake v. United States:

It follows that if there is some evidence supporting the claim of insanity, a conceded fact here, the issue must be submitted to the jury. Brock v. United States, 5 Cir. 1967, 387 F.2d 254, 257; Mims v. United States, 5 Cir. 1967, 375 F.2d 135, 140. This means only slight evidence. Lee v. United States, 5 Cir. 1937, 91 F.2d 326-330; Howard v. United States, 5 Cir. 1956, 232 F.2d 274, 276. (Emphasis added).
* * * * * * '
We come then to the sufficiency of evidence question. The district court followed the salutary principle, applicable in cases involving the defense of insanity, of admitting all evidence, both, lay and expert, in any wise relevant or pertinent, to the issue of insanity. This is in keeping with the philosophy of letting in all facts which might be helpful to the jury in making the final determination of the criminal responsibility of the accused. See Mims v. United States, supra, 375 F.2d, at p. 143, where the court pointed to the sound rule that the issue of insanity should be determined by the jury from all of the evidence rather than from the opinion of experts alone.

A jury is certainly free to reject and may indeed reject such lay opinions. The witnesses here were friends of the appellant and of questionable credibility. We cannot say, however, that under these circumstances such testimony would have no potential to influence the jury. Appellant was entitled to the admission of such testimony, and hence his conviction must be reversed. The case is remanded for a new trial consistent with this opinion.

Reversed and remanded.

      . 21 U.S.C. § 841(a) (1) provides :
      (a) except as authorized by this subehap-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;

      . Appellant was sentenced to fifteen years imprisonment on one count and ten years on the other. The sentences were to run consecutively, and special parole terms of six years were imposed as to each count.

      . The controlled substance was expended in testing. Thus, only the chemist’s reports were placed into evidence. Appellant admits that the government established a proper chain of custody and identification for the containers.

      . All three witnesses had known the appellant for a year or more, and they saw him every day.

      . The following testimony is perhaps the best example of the proof of appellant’s bizarre conduct. In response to a question concerning his actions L. C. Williams replied :
      A. Well, everytime he got off of them [apparently drugs] I mean, everytime he shoot them, like he, you know, the blood be left in the syringe, he would take it and draw water in it and like this wasn’t his house, these people was on vacation, you know, they left him.
      It was a beautiful house. He would take it and shoot blood all over the walls, you know, wrote Superman on the, you know, Superman in blood on the floor, you know. He did things like that. . . .

      . Apparently the trial court was not concerned about the adequacy of the foundation laid. After the court ruled the opinion testimony inadmissible, the defense counsel asked :
      Mr. Hatfield: Your Honor, is this passed upon the fact that what the man knows about what he has testified as to what he knows about Mr. Milne or is it possible to lay a predicate to elicit further evidence that might allow—
      The Court: If you are asking me if you can ask this man a question as to whether in his opinion Mr. Milne was mentally competent, the answer is no, you may not. I don’t care how much time you elicit, from him.

      . The appellant’s first witness on this issue, John Black, was asked whether he had formed an opinion as to the appellant’s mental state. The court sustained a prosecution objection stating:
      I will not receive any argument from you [defense counsel] on this. This man is not qualified to testify as to the mental condition.
      You know that has a legal significance, that term, and this man is not qualified or has not been shown to be qualified to testify as to this man’s mental condition.
      Defense counsel then attempted to rephrase the question to elicit the opinion of the witness as to his insanity rather than his mental state.
      [Defense Counsel]
      Well, can he answer the question as to whether he believes he was insane?
      The Court: No sir, he may not. The objection is sustained.

      . The “magic wording” to which the court referred was mental competency. Defense counsel then pointed out that he wished to question the witness concerning insanity not mental competency. Also see note 7, supra. From an examination of the record it appears that the terms insanity, mental state, mental competency and mental illness were used almost interchangeably or at least without precision. A fair summary of the court’s ruling seems to be that lay opinion was inadmissible on the insanity issue regardless of the phraseology. There is some indication, however, that the court would allow lay testimony on the issue of normalcy or sanity.

      . Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895) ; Mims v. United States, 375 F.2d 135, 140 (5th Cir. 1967).

      . Mims v. United States, 375 F.2d 135, 140 (5th Cir. 1967) ; Blake v. United States, 407 F.2d 908, 911 (5th Cir. 1969).

      . Mims v. United States, 375 F.2d 135, 143 (5th Cir. 1967) ; Blake v. United States, 407 F.2d 908, 911 (5th Cir. 1969).

      . 375 F.2d 135, 143 citing Carter v. United States, 102 U.S.App.D.C. 227, 252 F.2d 608, 617 (1957).

      . J. Wigmore, Evidence § 1958(3) (3d ed. 1940). Of course, a medical expert may always give an opinion as to sanity.

      . See J. Wigmore, Evidence § 1938 (3d ed. 1940) and cases cited therein. Also see Breland v. United States, 372 F.2d 629 (5th Cir. 1967).

      . See, United States v. Pickett, 152 U.S.App.D.C. 346, 470 F.2d 1255, 1257 (1972) where the court stated, “[Lay] persons may testify as to observed symptoms of a mental disease or defect, but may express an opinion as to the sanity or insanity of the individual.” (Emphasis added).

      . Some courts appear not to distinguish the foundation necessary for the admissibility of an opinion as to sanity from the proper foundation necessary for an opinion as to insanity. See, United States v. Pickett, 152 U.S.App.D.C. 346, 470 F.2d 1255, 1258 (1972).

      . 407 F.2d 909, 911 (5th Cir. 1969).


author: PER CURIAM.

text:
    Guy F. BROWN, Appellant, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, et al., Appellees.
    No. 73-1530.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 19, 1973.
    Decided Nov. 30, 1973.
    Rehearing Denied Dec. 21, 1973.

      Guy F. Brown, pro se.
    John C. Danforth, Atty. Gen., and Stephen D. Hoyne, Asst. Atty. Gen., Jefferson City, Mo., filed typewritten brief, for appellees.
    Before VOGEL, Senior Circuit Judge, and HEANEY and STEPHENSON, Circuit Judges.
   PER CURIAM.

This appeal is from an order entered by The Honorable William H. Becker, Chief Judge, United States District Court for the Western District of Missouri, m which the Court dismissed a petition for writ of habeas corpus sought under 28 U.S.C. § 2254.

On September 5, 1963, in the Circuit Court of Jackson County, Missouri, the appellant was charged by indictment with one count of forceable rape and three counts of assault with intent to rape. Thereafter, the three indictments charging assault with intent to rape were quashed and three informations were substituted which charged the appellant with assault with intent to rape with malice. On January 31, 1964, appellant entered guilty pleas in all four proceedings and was sentenced to terms of 25 years’ imprisonment in ea<?h case, the sentences to run concurrently. No appeal followed, but on July 5, 1967, appellant initiated in the Circuit Court of Jackson County a motion to vacate judgment and sentence under Missouri Supreme Court Rule 27.26, V.A.M.R. On September 18, 1967, the Circuit Court denied the motion without a hearing. No appeal was taken. On February 20, 1970, however, appellant filed a second motion pursuant to Rule 27.26 in the Circuit Court of Jackson County. On October 2, 1970, an evidentiary hearing was held on the appellant’s second motion. At the hearing appellant was present in person and was represented by his third attorney, Dqrragh K. Ka-sakoff of the Legal Aid and Defender Society of Greater Kansas City.

In his motion, the appellant made the following allegations: (1) The charges of assault with intent to rape with malice were, null and void because of failure to comply with statutory requirements; (2) the assistance of counsel, Leona Pouncey Thurman, was • ineffective; and (3) the guilty plea entered by appellant was defective because the trial qourt did not make a determination that at the time it was entered the plea wqs made voluntarily and with an understanding of the nature of the charge.

Leona Pouncey Thurman, appellant’s counsel employed at the time of hi? conviction by guilty plea, appeared a? the first witness. A summary of her testi-many reveals the following: Prior to November 24, 1963, she received a letter from the appellant seeking to employ her for legal assistance. She also received letters from appellant’s sisters, Mrs. Robert Starnes and Ms. Rhoda Jane Brown, asking her to represent the appellant. After receiving these letters she conducted an initial investigation which included a talk with appellant’s wife and a personal call on the appellant at the county jail. Between the dates of January 6, 1964 and January 31, 1964, she saw appellant on several occasions and discussed with him the possibility of having an examination by a psychiatrist. Prior to her attendance in court with appellant on, the 31st of January, she had discussed the range of sentences he could expect based upon her personal knowledge of six prior convictions he had sustained, ranging from rape to indecent exposure. Mrs. Thurman stated that her initial investigation led her to believe that the appellant might have been mentally deranged but that after talking .to the various individuals, she concluded that appellant was not mentally deranged and accepted his case with such a belief. She made telephone calls to check the dates of the incidents with the people involved in the charges and personally talked with a 16-year-old victim for an hour in the prosecuting attorney’s office. She also indicated that she had discussed with the appellant the possibility of taking depositions but concluded that the appellant preferred not to reopen it with the victims. She stated that the appellant admitted to her the dates, times, places and victims of the incidents and that the appellant gave her some details of the events of the assaults. Mrs. Thurman testified, “ * * * i want the record to reflect that at no time did he deny that he did not participate in these offenses.” Brown v. State of Missouri (Circuit Court of Jackson County, Missouri, No. 734,159, December 23, 1970.)

At this point in her investigation Mrs. Thurman indicated that she was inclined to have appellant re-examined and suggested this possibility to the appellant’s relatives. After reviewing the reports filed in the prosecuting attorney’s office relating. to prior psychiatric examinations, she concluded that a re-examination would not be any more favorable to appellant than the reports that she had reviewed. She stated that she was aware of the fact that appellant could have had a psychiatric examination conducted without any expense to himself, and stated, “ * *' * I was proceeding in that direction until I read these other findings which came after the charges as serious as the one he is under * * * and that is why I concluded that a re-examination would probably not be favorable.” Brown v. State of Missouri, supra.

In her testimony, Mrs. Thurman stated that her immediate idea of a defense was on a basis of a mental disturbance or of not being capable at the time of the charged offense. Her testimony reflects, however, that the appellant was alert and clear in helping her to work out what he thought was a good defense and that he was not in such state of mind as to be incapable. The following colloquy occurred between Mrs. Thurman and appellant’s counsel during the evidentiary hearing:

Q. Do you feel on the basis of your personal observation of him that he needed — or he was perhaps in such a state of mind that perhaps he was incapable ?
A. No, he was alert and clear in helping me to work out what he thought was a good defense, and he didn’t want it to be on the basis of insanity.
Q. You are saying he did not violently object to your not making such a motion before the court?
A. I am saying that he objected to my going forward with that suggestion.
Q. Just the contrary?
A. Yes, And subsequent letters from him indicated to me that he was glad that I followed the procedure that we did. [Brown v. State of Missouri, supra.]

She further indicated that at the time Mr. Brown entered the plea of guilty it was her understanding that a recommendation would be made by the state that 25 years be set as a maximum. She testified that there never was any statement made by her to Mr. Brown, or statement from the state to her that a recommendation of 15 years would in fact be the recommendation that the state would make.

Upon examination by the court, Mrs. Thurman testified as follows:

Q. But did he thoroughly understand the nature of his plea ?
A. I am certain that he did.
Q. You explained that to him?
A. I explained it to him thoroughly, and he and I discussed it back and forth. He felt that he was really, he would be fortunate if he received a sentence of 25 years. [Brown v. State of Missouri, supra.]

Appellant was then called as a witness in his own behalf. His testimony was in direct conflict to that of the prior witness. Appellant stated that he had never discussed with Mrs. Thurman the possibility or the issue of a mental examination. Appellant testified that Mrs. Thurman told him that the prosecuting attorney had recommended 45 years. He further stated that he at no time indicated to counsel that he was guilty of the charges and that he had no other reason for pleading guilty than the advice of his counsel.

On December 23, 1970, the Circuit Court of Jackson County, Missouri, entered findings of fact and conclusions of law holding that the sentences imposed upon the three pleas of guilty of assault were in excess of those allowed by law and that these sentences could not stand. The Court additionally held that the in-formations charging assault with intent to commit rape with malice did not follow the proper form under the Missouri statutes, were a nullity and had to be set aside. Brown v. State of Missouri, supra. However, the court further held that the indictment charging the appellant with rape complied with the Missouri statutes, that the punishment assessed was within the range specified by statute, that the appellant had enjoyed effective assistance of counsel during those proceedings, and that the plea of guilty was made knowingly and voluntarily. This decision was affirmed by the Supreme Court of Missouri in Brown v. State, 473 S.W.2d 683 (Mo.1971).

The present case was commenced by the appellant when he filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Missouri on March 2, 1972. It is from the District Court’s order denying such petition that appellant now appeals. We affirm the order of the District Court.

Appellant contends initially upon this appeal that he was denied effective assistance of counsel by the failure of his counsel to investigate the circumstances surrounding the case and by the failure of his counsel to request a mental examination. As noted by the District Court, “[These contentions are] without merit as reliably found by the state trial court and affirmed by the Supreme Court of Missouri.” Brown v. Swenson, Civ. No. 20063-3 (W.D.Mo., April 25, 1973). The record indicates that appellant’s counsel, Mrs. Thurman, thoroughly investigated the facts and discussed them with the petitioner. He provided her with details regarding the assaults alleged in the informations and did not deny committing the acts. She also made telephone calls verifying dates and interviewed one of the victims. She examined the prosecuting attorney’s file, including prior reports of psychiatric examinations of the appellant, and discussed with the prosecutor the maximum penalty which would be sought by the state. Mrs. Thurman discussed the appellant’s competency with his sisters and with the appellant himself. She explained to the appellant his right to request a mental examination but he indicated that he did not want to take it. The evidence adduced at the hearing indicated that the appellant was alert and clear in helping prepare a defense which he did not want to be based upon insanity. It is well established that in order to show a basis for relief on the ground of ineffective assistance of counsel the appellant must show actions of his lawyer which would constitute such conscious conduct as to render pretextual the attorney’s legal obligation to fairly represent the appellant and circumstances which demonstrate that which amounts to a lawyer’s deliberate abdication of his ethical duty to his client. Robinson v. United States, 448 F.2d 1255 (8th Cir. 1971).

Habeas corpus relief on the ground of incompetency of counsel or denial of effective counsel will be granted “only when the trial was a farce, or a mockery of justice, or was shocking to the conscience of the reviewing court, or the purported representation was only perfunctory, in bad faith, a sham, a pretense, or without adequate opportunity for conference and preparation.” Sealf v. Bennett, 408 F.2d 325, 327-328 (8th Cir. 1969).

See also, Cardarella v. United States, 375 F.2d 222 (8th Cir. 1967). The District Court reviewed the evidence and noted its authority to make independent findings of fact based on the records of the state proceedings. The District Court determined these facts against the appellant. On appeal, we must accept such findings unless they are clearly erroneous. Taylor v. Swenson, 458 F.2d 593 (8th Cir. 1972); Rule 52(a), Fed.R.Civ.P. From a complete examination of the record, we are forced to conclude that the factual determinations thereof are not clearly erroneous. In passing, we cannot help but comment, however, that counsel’s allowing her client to plead guilty to three felony informations, determined some six years thereafter to be a “nullity”, and allowing him to be sentenced to 25 years’ confinement on each one of the informations, whereas even correctly drawn informations carried a maximum sentence of only five years, hardly equates with the services of an able and diligent counsel acting with professional ability in the client’s best interests. We nevertheless, because of other testimony in the record, and the fact that everyone, including the court and prosecuting attorney, was concentrating on the forceable rape count and the fact that all sentences were concurrent, must conclude that the holding of the District Court is not clearly erroneous and that the appellant’s claim of ineffective assistance of counsel is without substantial merit. Robinson v. United States, 448 F.2d 1255 (8th Cir. 1971); Redus v. Swenson, 468 F.2d 606 (8th Cir. 1972).

Appellant next contends that his plea of guilty was involuntary because the trial judge did not determine at the time appellant entered his plea of guilty that it was made voluntarily and with an understanding of the nature of the charge. Appellant urges that the absence of specific inquiries by the trial judge is sufficient to show that his plea was involuntary. Since this plea was entered in 1964, subsequent procedural requirements concerning inquiries into specific issues do not apply to this case. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969). The determinative question in the present case is whether under the totality of the circumstances the petitioner’s plea was entered knowingly and voluntarily. Meller v. Missouri, 431 F.2d 120 (8th Cir. 1970), cert. denied, 400 U.S. 996, 91 S.Ct. 469, 27 L.Ed.2d 445 (1971). The record of petitioner’s plea of guilty and sentencing on January 31, 1964, indicates that petitioner knew the nature of the charges against him, was informed of the range of punishment and of his right to trial by a jury, and that the state recommended a sentence of 25 years’ imprisonment when he admitted the facts establishing his guilt by changing, his plea from not guilty to guilty. The totality of the facts indicates that the appellant’s plea of guilty was voluntary and intelligently made with the advice of counsel, and resulted from his knowledge of the strength of the state’s ease against him. Sappington v. United States, 468 F.2d 1378 (8th Cir. 1972), cert. denied, 411 U.S. 970, 93 S.Ct. 2164, 36 L.Ed.2d 693 (1973) ; Kotz v. United States, 353 F.2d 312 (8th Cir. 1965). The findings of fact made on these issues by the District Court and the Missouri courts are supported by the evidence and are not clearly erroneous. Taylor v. Swenson, 458 F.2d 593 (8th Cir. 1972); Rule 52(a), Fed.R.Civ.P. Since the proper federal standards were applied to the findings of fact, the resulting conclusion that the appellant is not entitled to relief is proper. Meller v. Missouri, 431 F.2d 120 (8th Cir. 1970), cert. denied, 400 U.S. 996, 91 S.Ct. 469, 27 L.Ed.2d 445 (1971).

Appellant also contends that the trial court was required to hold a hearing sua sponte on the issue of his competency to plead. The failure to do so, he contends, violated his federally protected rights as enunciated in Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 5 L.Ed.2d 815 (1966). The District Court found that the appellant, in this respect, had failed to exhaust his state remedies, holding that:

This ground for relief has not been properly presented to the state courts of Missouri under Rule 27.26. Petitioner failed to include this ground for relief in his state postconviction motion under Rule 27.26 and in his amendments thereto. As a result, no findings of fact on this issue were made by the Circuit Court of Jackson County. This contention was untimely presented for the first time in the state postconviction proceedings under Rule 27.26, in petitioner’s brief on appeal to the Missouri Supreme Court in Brown v. State, supra. The Missouri Supreme Court appropriately declined to rule on this contention. [Brown v. Swenson, supra, at 10-11.]

Only when the Missouri Supreme Court has been given the opportunity to rule on the merits of petitioner’s contentions can his state remedies be deemed exhausted for the purpose of federal habeas corpus jurisdiction. Section 2254, Title 28, United States Code; Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Russell v. Swenson, 251 F.Supp. 196 (W.D.Mo.1966) ; Cox v. Nash, 226 F.Supp. 87 (W.D.Mo.1964).

We find nothing in appellant’s 27.26 petition, or amendments thereto, which suggests that this contention was presented to the Circuit Court.

Appellant urges that this allegation was presented in his initial 27.26 petition in 1967, and therefore was properly before the Missouri Supreme Court on appeal. We disagree. Ten days after the order of the Circuit Court became final, the period of time allowed to file a notice of appeal under Missouri law expired. V.A.M.S. § 512.050. Since appellant failed to appeal this 1967 order, and did not raise this issue in his 1970 petition, we agree with the District Court that this contention was not properly before the Missouri Supreme Court.

Affirmed.


author: GIBSON, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Russell PRUITT, Appellant.
    No. 73-1342.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 13, 1973.
    Decided Dec. 4, 1973.
    Rehearing Denied Jan. 8, 1974.

      William J. O’Herin, St. Louis, Mo., for appellant.
    Richard K. Coffin, Dept. of Justice, St. Louis, Mo., for appellee.
    Before GIBSON, LAY, and HEANEY, Circuit Judges.
   GIBSON, Circuit Judge.

Russell Pruitt appeals his judgment of conviction, entered after a jury trial, on two counts of distribution of heroin in violation of 21 U.S.C. § 841(a)(1). He was sentenced by The Honorable James Meredith, Chief Judge of the District Court for the Eastern District of Missouri, to a term of imprisonment of five years on each count, to run concurrently.

On appeal defendant alleges three grounds of error: (1) failure to instruct the jury on his “procuring agent” or “purchasing agent” defense and other proffered instructions, (2) the giving of the defendant’s “actual transfer” instruction prior to the definitions of “distribute” and “deliver”, and (3) prejudicial closing argument by the prosecutor.

There is little controversy over the facts giving rise to this prosecution. Defendant admitted at trial that he physically handed over heroin to a government informer on the two occasions charged in the indictment; his claim is that this is not a “distribution” as defined by 21 U.S.C. § 802(11). We will not detail the facts but will assume ar-guendo for purposes of this appeal that Pruitt was a so-called “procuring agent” or “purchasing agent”. We find, as did the District Court, that Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801 et seq. (Controlled Substances Act) has eliminated the “procuring agent” defense to a prosecution under 21 U.S.C. § 841(a)(1). We use “procuring agent” here in the context of including the related “purchasing agent” defense.

Defendant asserts otherwise. His contention is based upon an involved semantic analysis of the terms used and defined by the Act. In essence he asks this Court to redefine the statutory terms in order to create a loophole where none exists by the clear terms of the statute. 21 U.S.C. § 841(a)(1) makes it a crime to “manufacture, distribute, or dispense * * * a controlled substance * * Distribution, the charge against the defendant, is defined in § 802(11) as “to deliver (other than by administering or dispensing) a controlled substance.” A distributor is “a person who so delivers a controlled substance.” It is the definition of “deliver” contained in § 802(8) which defendant would have us believe creates the loophole through which a “procuring agent” would escape the criminal proscriptions of § 841(a)(1). Sec. 802(8) provides:

(8) The terms “deliver” or “delivery” mean the actual, constructive, or attempted transfer of a controlled substance, whether or not there exists an agency relationship, (emphasis supplied).

It is the emphasized words of this subsection which give rise to defendant’s argument that the procuring agent defense is still valid, while it is the same language that the Government contends eliminates the defense. Obviously, both parties cannot be correct. The Government’s position is supported by all the courts that have considered the question to date. United States v. Miller, 483 F.2d 61, 62 (5th Cir. 1973); United States v. Johnson, 481 F.2d 645, 646-647 (5th Cir. 1973); United States v. Hernandez, 480 F.2d 1044, 1046 (9th Cir. 1973); United States v. Workopich, 479 F.2d 1142, 1147 (5th Cir. 1973); United States v. Holland, 360 F.Supp. 908, 913 (E.D.Pa.1973); United States v. Pierce, 354 F.Supp. 616, 619 (D.D.C.1973).

The defendant argues that the words “whether or not there exists an agency relationship” must be limited by the definition of “agent” in § 802(3), which provides:

(3) The term “agent” means an authorized person who acts on behalf of or at the direction of a manufacturer, distributor, or dispenser; except that such term does not include a common or contract carrier, public warehouseman, or employee of the carrier or warehouseman, when acting in the usual and lawful course of the carrier’s or warehouseman’s business.

Because of this definition of agent, defendant argues that “agency relationship” in § 802(8) applies only to agents of manufacturers, distributors or dispensers, and not to agents of purchasers. We must reject this argument.

We do not read “agency relationship” set forth in § 802(8) as being limited by the definition of “agent” in § 802(3). The Act is an attempt to deal comprehensively with the problems of drug abuse. Therefore, the entire statutory scheme must be looked at to determine the meaning of “agency relationship”. We think that the term “agent” as defined in § 802(3) refers to the use of agent in § 802(2) (A) and § 822(e) and was not intended to limit the term “agency relationship” in § 802(8).

The “agent” status is an important one under the Act since it creates an exception to the general requirement of registration in § 822 for all persons who manufacture, distribute or dispense a controlled substance. The definition in § 802(3) strictly limits the class of persons who may claim such an exemption from the registration requirement. These persons are those within the legitimate distribution chain, while the terms “whether or not there exists an agency relationship” covers as well transactions outside the legitimate distribution chain, i. e., transactions by a procuring, agent.

Congress did not indicate the significance of the phrase “whether or not there exists an agency relationship”. House Report, supra at 4597. There are strong indications, however, that Congress had no intention of creating the loophole that defendant would have us believe exists. “All persons in the distribution chain are required to be registered * * House Report, supra at 4569. The emphasis of the Act is upon registration in order to keep controlled substances out of illegitimate distribution. It is clear that defendant was involved in an illegitimate distribution chain, yet he would have us adopt an interpretation which would leave him free to avoid both registration and the criminal sanctions for illegitimate distribution. This is a strong argument for not torturing the statutory language to narrowly limit “agency relationship”. Further, United States v. Pierce, supra, quotes from a Summary and Analysis of the Bill, prepared by the Justice Department for the Chairman of the House Ways & Means Committee.

“Distribute” and “Distributor” are defined to cover anyone who transfers, or attempts to transfer, a controlled dangerous substance.

United States v. Pierce, supra at 619, n. 6 of 354 F.Supp.

While the Justice Department’s views on the bill do not control, they at least show that the department charged with enforcement of its provisions interprets the literal language of the Act in the same manner as have all courts that have considered the question. It is not the agency relationship itself which determines whether a criminal distribution under § 841(a)(1) has occurred, for it is clear that even registered persons or their agents “distribute” a controlled substance within the meaning of the Act; but it is the lack of authority under the Act to engage in distribution which makes the conduct criminal and hence punishable under § 841(a)(1).

The defendant, by his own admission on the stand, transferred heroin to a government informant without authority. The elements of the crime of “distribution” were thus established and defendant was not entitled to an instruction relative to his status as a procuring agent. This status is no longer relevant under the terms of the Controlled Substances Act.

Further, defendant has not convinced us that he would have been entitled to a procuring agent instruction under the prior statute, 26 U.S.C. § 4704(a), dealing with distribution. In United States v. MacDonald, 455 F.2d 1259, 1261-1262 (1st Cir.), cert. denied, 406 U.S. 962, 92 S.Ct. 2070, 32 L.Ed.2d 350 (1972), it was recognized that:

[T]he circumstances justifying a “buyer’s agent” [procuring agent] charge are extremely rare. Before such a charge is given, there must be some evidence that the defendant’s involvement was confined solely to acting as the agent of the recipient, physically handing drugs whose ownership had already passed to such recipient and hence not personally engaging in the sale, barter, exchange or gift proscribed by § 4705(a). (emphasis supplied).

The “procuring agent” charge has primary relevance when dealing with a sale or the offense of selling, see Lewis v. United States, 119 U.S.App.D.C. 145, 337 F.2d 541, 544 (1964). Under the prior statutes, if in fact the defendant was acting as an agent for the buyer, then he could not be punished as a seller; as stated in United States v. Moses, 220 F.2d 166, 168 (3rd Cir. 1955): “[A] participant in a particular transaction must be punished either as a seller or a buyer. There is no general offense of participation in the transaction viewed as a whole.”

These prior concepts have been discarded in the Controlled Substances Act which contains no sale or buying requirement to support a conviction; there is now an offense of participation in the transaction viewed as a whole. The Comprehensive Drug Abuse Prevention and Control Act of 1970 is extremely broad in scope, no longer restricted to the narrower concepts of buy and sell, but all inclusive in covering the entire field of narcotics and dangerous drugs in all phases of their manufacturing, processing, distribution and use. All distribution is controlled or prohibited, legitimate or illegitimate. Any individual who participates in any manner in the unauthorized distribution of such “controlled substances” is amenable to the Act and the sanctions provided therein. Congress undoubtedly intended by this new Act to make an all-out attempt to combat illicit drugs by subjecting any individual who knowingly participates in the distribution to substantial, and in some cases severe, penalties while dealing less severely with, and attempting to aid, the unfortunate individuals who are the ultimate users of the illicit drugs. House Report, supra at 4571. 4571.

Defendant cites United States v. Haley, 452 F.2d 398 (8th Cir. 1971), cert. denied, 405 U.S. 977, 92 S.Ct. 1205, 31 L.Ed.2d 253 (1972) and United States v. Shoemaker, 429 F.2d 530 (8th Cir. 1970), as support for his argument that a procuring agent instruction was required for a charge of distribution under § 4704(a) as well as for a sale under § 4705(a). The court’s discussions of the procuring agent defense in Haley and Shoemaker indicate only that the court did not find any error in submitting the question to the jury under a procuring agent instruction. Convictions were affirmed in both cases. If the defendant receives an instruction favorable to his case, even though not entitled to the instruction, obviously no prejudice has occurred. This, however, does not establish a requirement that the issue must be so submitted on a charge of distribution and we think the rationale of requiring the procuring agent instruction on a selling charge under the prior statute does not extend to requiring the instruction upon a charge of distribution under either the former or present statutes.

The contention that the Court erred in failing to charge the jury relative to other concepts requested by the defendant in connection with his procuring agent defense must also fail, as they were dependent upon the validity of such a defense. The challenge to the order in which the instructions were given is patently frivolous, instructions are considered as a whole, Stump v. Bennett, 398 F.2d 111, 116 (8th Cir., en banc), cert. denied, 393 U.S. 1001, 89 S.Ct. 483, 21 L.Ed.2d 466 (1968); further, no objection to the instructions was made by defense counsel as required by Rule 30, Fed.R.Crim.P.

Defendant also challenges the prosecutor’s closing argument as being prejudicial. The trial court has broad discretion to control closing arguments, and absent a clear showing of abuse, its discretion will not be overturned. Bryant v. United States, 462 F.2d 433, 436 (8th Cir. 1972); United States v. Turchick, 451 F.2d 333, 339 (8th Cir. 1971). While some of the statements of the prosecutor were perhaps marginally improper, we are convinced that no prejudice ensued and that defendant received a fair trial. No clear showing of an abuse of discretion has been made.

The judgment of conviction is affirmed.

      . The requested instruction reads :
      “If you believe that Ozell Johnson asked defendant Russell Pruitt to get some narcotics for him, and thereupon defendant Pruitt undertook to act in behalf of the prospective purchaser, Johnson, and in so doing purchased the drugs from a third person with whom he was not associated in selling, and thereafter physically transferred them to Johnson, defendant Pruitt did not act in the capacity of a distributor and cannot be convicted under this indictment.”

      . See also, United States v. Jackson, 482 F.2d 1264, 1267 (8th Cir. 1973) wherein this court recognized the difference between the new statute, 21 U.S.C. § 801 et seq. and the previous statutes under which the procuring agent defense was recognized. As the facts in Jackson did not support a procuring agent defense, the Court was not faced with determining whether the defense was still valid.

      . Section 802(2) provides in pertinent part:
      The term “administer” refers to the direct application of a controlled substance to the body of a patient or research subject by—
      (A) a practitioner (or, in his presence, by his authorized agent) * * *. (emphasis supplied).

      . Section 822(c) provides in pertinent part:
      The following persons shall not be required to register and may lawfully possess any controlled substance under this title:
      (1) An agent or employee of any registered manufacturer, distributor, or dispenser of any controlled substance if such agent or employee is acting in the usual course of his business or employment, (emphasis supplied).

      . H.R.Rep.No.91-1444, 91st Cong.2d Sess., 3 Cong. & Adm.News, 4566, 4569 (1970) (hereinafter House Report) :
      The bill provides for control by the Justice Department of problems related to drug abuse through registration of manufacturers, wholesalers, retailers, and all others in the legitimate distribution chain, and makes transactions outside the legitimate distribution chain illegal.

      . Moses was not concerned with the offense of “facilitating” a sale under 21 U.S.C. § 174. Several courts have viewed facilitation as an offense of participation in the transaction. Lewis v. United States, supra at 545 of 337 F.2d; Bruno v. United States, 259 F.2d 8, 10 (9th Cir. 1958).