author: DUNIWAY, Circuit Judge: BURNS, District Judge,

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Noe LARIOS-MONTES, Defendant-Appellant.
    No. 73-3571.
    United States Court of Appeals, Ninth Circuit.
    July 11, 1974.

      Robert L. Boles (argued), of Federal Defenders, San Diego, Cal., for defendant-appellant.
    Richard Strauss, Asst. U. S. Atty. (argued), San Diego, Cal., for plaintiff-appellee.
    Before DUNIWAY and GOODWIN, Circuit Judges, and BURNS, District Judge.

       The Honorable James M. Burns, United States District Judge for the District of Oregon, sitting by designation.

   OPINION

DUNIWAY, Circuit Judge:

Since the decision of the Supreme Court in Almeida-Sanchez v. United States, 1973, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596, the government seems to be turning more and more to the doctrine of “founded suspicion” to justify searches and seizures that would otherwise be found to violate the Fourth Amendment as expounded in Almeida-Sanchez. In that case, the Court held that random roving stops and searches, even in areas known to have a high instance of smuggling, violate the Fourth Amendment. The present case involves the founded suspicion doctrine.

Larios-Montes was convicted under one count of conspiracy to transport aliens illegally in this country (18 U.S.C. § 371) and under nine counts of illegal transportation of such aliens (8 U.S.C. § 1324 (a)(2)). On appeal he argues that the district court erroneously denied both his motion to suppress and his motion to sever. We affirm.

Larios-Montes’ principal claim is that his motion to suppress evidence obtained as a result of a stop of his car should have been granted because the stop was a violation of his Fourth Amendment rights. The district court held that under the facts and circumstances of this case, Border Patrol Agents had a founded suspicion on the basis of which they could properly stop Larios-Montes’ car.

Stated most favorably to the government, the facts are these: On September 9, 1973, two Border Patrol Agents were stationed at a Border Patrol traffic checkpoint located on Highway 86, some fifty miles north of the border and about thirty yards south of Highway 78. Highway 78 comes from the west and ends at the point where it connects with Highway 86. There is a stop sign at the intersection facing drivers approaching on Highway 78. At approximately 12:05 a. m., the agents saw two eastbound cars on Highway 78 traveling at a normal rate of speed about 150 yards apart. They watched the cars approach for about half a mile. The first car slowed down to five or ten miles an hour at the stop sign before it entered Highway 86 and turned north. The second car did not stop at all at the intersection but just “skidded around the corner” and proceeded north. Agent Strain saw only one passenger in the first car and that passenger appeared to be a Mexican. The agent saw three people in the front seat of the second car and it appeared to him that several other people were slouched down in the back seat. The second car was also riding extremely low to the ground.

There is usually very little traffic on Highway 78 at this hour, and no other cars had been seen there for forty minutes. Strain said that Highway 78 was a route often used by smugglers to bypass fixed checkpoints. Strain also testified that he was familiar with the “lead car-load ear” modus operandi, whereby two cars travel together during a smuggling venture with the first car operating primarily as a scout car.

The agents, thinking that the two cars were jointly engaged in smuggling aliens, pursued them and stopped them one mile north of the checkpoint. The stop of the second ear, driven by co-defendant Casillas-Perez, revealed that five aliens, all illegally in this country, were riding in the cab and a search of the trunk turned up three more such aliens. Neither this stop nor this search are challenged here. Agent Strain stopped the first ear, which was driven by Larios-Montes. In response to an inquiry, he learned that the single passenger was also an “illegal” alien.

Larios-Montes argues that the officers did not have probable cause or even a founded suspicion as a basis for stopping his ear. If he is right, the stop violated his Fourth Amendment rights. “Federal agents cannot constitutionally stop automobiles systematically or randomly on the chance of discovering something illegal.” United States v. Mallides, 9 Cir., 1973, 473 F.2d 859, 860; Carroll v. United States, 1925, 267 U.S. 132, 153, 45 S.Ct. 280, 69 L.Ed. 543. A stop of an automobile is a “seizure” and the Fourth Amendment requires that it be justified by articulable facts and circumstances which support the conclusion that the intrusion was not unreasonable. United States v. Mallides, supra, 473 F.2d at 861. Cf. Terry v. Ohio, 1968, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.

We have held in a number of cases that the minimal requirement for the authorization of a stop of a car is founded suspicion. United States v. Jaime-Barrios, 9 Cir., 1974, 494 F.2d 455; United States v. Bugarin-Casas, 9 Cir., 1973, 484 F.2d 853; United States v. Barron, 9 Cir., 1973, 472 F.2d 1215; United States v. Roberts, 9 Cir., 1972, 470 F.2d 858; Wilson v. Porter, 9 Cir., 1966, 361 F.2d 412. While we are aware that law enforcement officers must often act swiftly and rely upon their judgment and experience, Wilson v. Porter, supra, we have never “upheld the legality of a detention based upon an officer’s unsupported intuition,” United States v. Mallides, supra, 473 F.2d at 862. To do so would be to move perilously close to justifying a stop solely on the basis of the fact that “[t]he agent’s intuition led him to the jackpot.” United States v. Portillo, 9 Cir., 1972, 469 F.2d 907, 911. Fourth Amendment rights cannot be so easily circumvented.

, We are convinced, however, that such a post hoc rationalization of police behavior is not involved here. Given the time and the place, the officers had reason to carefully observe any vehicle that bypassed their checkpoint by proceeding on Highway 78. The fact that the first car to appear in the area in forty minutes was followed fairly closely by a second car could reasonably be expected to trigger the officers’ suspicion of the lead car-load ear modus operandi. Standing alone, however, such suspicion is not sufficient to justify stopping either car. It is not unusual for a driver on a lonely road at night, especially if he is unfamiliar with the road, to follow another car that is maintaining a steady pace. The movements of the car ahead, the flashing of its brake lights, its entering upon curves, etc., will give him warning of hazards of which he might otherwise be unaware. Members of this court have done just such driving. We think, too, that the fact that the first car made what is sometimes called a “rolling stop” at Highway 86 is not a fact sufficient to found a suspicion. We doubt if there is a driver alive who has not done the same thing under similar circumstances. Here, however, there is more. The second car, which was heavily loaded, with passengers in the back seat who appeared to be trying to hide, made no stop. The officers could reasonably believe that its driver was following the first car for a special reason, and that the driver did not want persons at the checkpoint to get a good look at his car. Taken altogether, the facts did supply a founded suspicion justifying the stop.

Larios-Montes’ second claim of error is that the trial court abused its discretion in denying his motion for a severance. At trial he asserted that if a severance were granted his co-defendant, Casillas-Perez, would testify in his favor. However, he had the burden of supporting this assertion. United States v. Bumatay, 9 Cir., 1973, 480 F.2d 1012, 1013. This burden he did not sustain. Casillas-Perez’s attorney would not substantiate his assertion. Casillas-Perez would not testify unless the government would dismiss nine of the counts against him, which the government was unwilling to do. In short, Larios-Montes did not sustain his burden of showing that he would be prejudiced by a joint trial and the trial court did not abuse its discretion in denying his motion to sever. United States v. Thomas, 9 Cir., 1971, 453 F.2d 141, 144; United States v. Donaway, 9 Cir., 1971, 447 F.2d 940, 943.

Affirmed.

BURNS, District Judge,

dissents from the portion of the foregoing opinion dealing with the doctrine of founded suspicion. He concurs in the portion of the opinion dealing with the second claim of error.


source: Caselaw Access Project

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Anibal TORRES, Appellant.
    No. 756, Docket 73-2493.
    United States Court of Appeals, Second Circuit.
    Argued Feb. 1, 1974.
    Decided June 14, 1974.

      Robert B. Hemley, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S. D. N. Y., and John D. Gordan III, Asst. U. S. Atty., on the brief), for appellee.
    Sheila Ginsberg, The Legal Aid Society, New York City (William Gallagher, Federal Defender Services Unit, New York City, of counsel), for appellant.
    Before WATERMAN and MULLIGAN, Circuit Judges, and BRYAN, District Judge.

       Frederick van Pelt Bryan, of the Southern District of New York, sitting by designation.

   FREDERICK van PELT BRYAN, District Judge:

Anibal Torres appeals from a judgment of the United States District Court for the Southern District of New York finding him to be a juvenile delinquent after proceedings before Judge Gurfein without a jury. The appellant challenges the constitutionality under the Sixth Amendment of the provisions of the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031-5037, which provide that juvenile delinquency proceedings shall be without a jury and that the required consent of a juvenile to be proceeded against as a juvenile delinquent is deemed a waiver of trial by jury.

The sixteen-year-old Torres was tried on a six-count information charging him with acts of juvenile delinquency in violation of various provisions of 18 U.S.C. § 474. That section deals with unlawful possession or use without proper authority of plates, photographs, prints or impressions of obligations of the United States.

Torres was found guilty on the third count of the information charging an act of juvenile delinquency is unlawfully, intentionally, knowingly and without proper authority making an unauthorized photographic negative of the face side of a one dollar Federal Reserve Note. He was found not guilty on the first count charging the possession of such negative with intention to use it in counterfeiting. Counts 2, 4, 5 and 6 were dismissed.

Torres was arrested on charges of violation of 18 U.S.C. § 474 at the New York Training School for Boys at Otis-ville, New York, to which he had been committed as a juvenile by the Family Court of New York County. The acts with which he was charged had taken place there and involved, among other things, his use of the facilities of the print shop of the school to make allegedly unlawful and unauthorized negatives of a one dollar bill which he had borrowed from one of the supervisors.

Section 5032 of the Federal Juvenile Delinquency Act provides:

§ 5032. Proceeding against juvenile delinquent
A juvenile alleged to have committed one or more acts in violation of a law of the Unites States not punishable by death or life imprisonment, and not surrendered to the authorities of a state, shall be proceeded against as a juvenile delinquent if he consents to such procedure, unless the Attorney General, in his discretion has expressly directed otherwise.
In such event the juvenile shall be proceeded against by information and no criminal prosecution shall be instituted for the alleged violation.

Section 5033 provides:

§ 5033. Jurisdiction; written consent; jury trial precluded
District Courts of the United States shall have jurisdiction of proceedings against juvenile delinquents. For such purposes, the court may be convened at any time and place within the district, in chambers or otherwise. The proceeding shall be without a jury. The consent required to be given by the juvenile shall be given by him in writing before a Judge of the District Court of .the United States having cognizance of the alleged violation, who shall fully apprise the juvenile of his rights and of the consequences of such consent. Such consent shall be deemed a waiver of a trial by jury.

Torres, as a juvenile alleged to have committed acts in violation of Federal law, was brought before Judge Stewart in the Southern District of New York, represented by assigned counsel. With the advice of counsel, he executed a consent in writing to be proceeded against as a juvenile delinquent pursuant to Sections 5032 and 5033. The information charging Torres with acts of juvenile delinquency in violation of Section 474 was then filed, and the case was assigned to Judge Gurfein.

When the information came on before Judge Gurfein, Torres’ consent in- writing to being proceeded against as a juvenile delinquent was presented to the Court and Judge Gurfein fully advised him of his rights and of the consequences of his consent, including his waiver of the trial by jury to which he would be entitled if tried as an adult.

Nevertheless, Torres’ counsel contended that Torres was entitled to a trial by jury. He urged, first, that a juvenile had a right to a jury trial in a juvenile delinquency proceeding under the Sixth Amendment and that the provision of 18 U.S.C. § 5033 that such a proceeding “shall be tried without a jury” was therefore unconstitutional, relying on Nieves v. United States, 280 F.Supp. 994 (S.D.N.Y.1968) (three-judge court). Secondly, he urged that the provision of Section 5033 that a juvenile’s consent to juvenile delinquency proceedings “shall be deemed a waiver of a trial by jury” was likewise unconstitutional because it unduly penalized the exercise of the juvenile’s Sixth Amendment right to a jury trial and thus induced him to relinquish that right, relying on United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968).

Judge Gurfein rejected these contentions and held that these sections were constitutional and that Torres was not entitled to a jury, relying primarily on McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971) and United States ex rel. Murray v. Owens, 465 F.2d 289 (2d Cir. 1972), cert. denied, 409 U.S. 1117, 93 S.Ct. 930, 34 L.Ed.2d 701 (1973). The proceedings then went forward before the Court without a jury and resulted in the judgment appealed from. On this appeal Torres makes substantially the same contentions he made below.

I.

Appellant maintains that Mc-Keiver v. Pennsylvania, supra, did not determine that a juvenile had no constitutional right to a trial by jury in a federal juvenile delinquency proceeding and that the four cases in three circuits which, relying on McKeiver, held that a juvenile had no such right, were wrongly decided. Appellant seeks to have this court hold that the provision of the Federal Act requiring that juvenile proceedings be without a jury is unconstitutional as violative of the Sixth Amendment. This we decline to do.

McKeiver held that the juvenile appellants, who had been found to be delinquent in Juvenile Court proceedings in Pennsylvania and North Carolina, had no constitutional right to a trial by jury in the adjudicative stage of such proceedings.

Justice Blackmun, writing for the plurality, reviewed the history and background of the Juvenile Court system in the United States and discussed at length the way in which the system operated and the criticisms directed at it. He recognized that “the fond and idealistic hopes of the juvenile court proponents and early reformers of three generations ago have not been realized,” (403 U.S. at 543-544), and that the system as now in operation has many defects and is subject to abuses. He concluded, however, that the Juvenile Court system providing intimate, informal, protective and paternalistic procedure for the juvenile accused of wrongdoing, with rehabilitation rather than punishment as its goal, still had promise. To impose on that system trial by jury as a matter of right would be a regressive and undesirable step. It would undermine the Juvenile Court’s ability to carry out its praiseworthy functions and goals and “would tend once again to place the juvenile squarely in the routine of the criminal process” (403 U.S. at 547).

He concluded that a juvenile proceeding is not a “criminal prosecution” within the meaning and reach of the Sixth Amendment and that therefore the right to trial by jury in “all criminal prosecutions” guaranteed by the Sixth Amendment as extended to the states by the Due Process Clause of the Fourteenth Amendment did not apply in such proceedings. He concluded further that a jury trial was not constitutionally required under the due process standards of “fundamental fairness” applicable in juvenile proceedings, as developed in such cases as In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The states were, therefore, free to determine for themselves whether juvenile delinquency proceedings should be tried with or without a jury, and Pennsylvania and North Carolina had not deprived appellants of a constitutional right by denying them a trial by jury.

The argument of the appellant in the case at bar, that proceedings under the Federal Juvenile Delinquency Act are so materially different from those under state acts considered in McKeiver as to be criminal prosecutions subject to the Sixth Amendment jury trial guarantee, is not persuasive.

The Federal Act, passed as long ago as 1948, follows the pattern of the system for the treatment and handling of the juvenile delinquency problem generally in force in the United States.

A juvenile (a person under 18) accused of violation of federal law, if he consents and the Attorney General does not object, must be proceeded against as a juvenile delinquent. He is proceeded against by information and “no criminal prosecution shall be instituted for the alleged violation” 18 U.S.C. § 5032. The proceedings are before a United States District Judge without a jury and may be conducted “at any time and place within the district, in chambers or otherwise” 18 U.S.C. § 5033.

On a finding of delinquency, the Judge may place the juvenile on probation for a period not to exceed his minority or commit him to the custody of the Attorney General for a like period, which, in any event, must not exceed the term which might have been imposed in a criminal prosecution. The judge may require detailed study and report by the Attorney General on the juvenile’s personal traits, social background and all other factors contributing to his delinquency.

If there is a commitment, “[t]he Attorney General may designate any public or private agency or foster home for the custody, care, subsistence, education, and training of the juvenile during the period” of commitment. 18 U.S.C. § 5034. When arrested, a juvenile is not to be placed in jail unless special circumstances dictate otherwise and if so, must be kept apart from adult prisoners. 18 U.S.C. § 5035. He may be released on parole at any time the Board of Parole deems proper. 18 U.S.C. § 5037.

The procedures established by the Federal Act were designed to protect the wayward youth from the stigma and other consequences of a criminal conviction and to rehabilitate rather than to punish him. Proceedings under the Act are plainly different from the ordinary criminal prosecution. It does not appear that the Federal Act is any less capable of carrying out its praiseworthy objectives or any more subject to the Sixth Amendment Jury Trial requirement than the state acts which were considered in McKeiver.

We hold, as did the Sixth, Eighth and Ninth Circuits, that the principles applied in McKeiver are applicable to the Federal Juvenile Delinquency Act. Thus, the requirement that proceedings under the Act shall be tried without a jury does not violate the Sixth Amendment or Due Process standards of fundamental fairness, and there is no constitutional right to a jury trial in such proceedings.

II.

The appellant also contends that, even if there is no right to a jury trial in juvenile proceedings under the Federal Act, the provision of Section 5033 that the juvenile’s consent to be proceeded against as a juvenile delinquent “shall be deemed a waiver of trial by jury” is unconstitutional. The argument focuses on the choice given to the juvenile between a criminal prosecution for the alleged offense in which he would be entitled to a jury trial and juvenile delinquency proceedings without a jury. Relying on United States v. Jackson, supra, appellant argues that the choice thus given the juvenile impermissibly penalizes and burdens the exercise of a Sixth Amendment jury trial right.

In our view, the case at bar does not fall within the ambit of United States v. Jackson, swpra. There the Supreme Court considered the provisions of the Federal Kidnapping Act which authorized the death penalty in aggravated kidnapping cases, only upon recommendation of a jury after a jury trial. However, if a defendant waived jury trial and was tried by a judge without a jury, or pled guilty, the death penalty could not be imposed. The Court held that to require that a jury trial must be waived in order to escape the threat of a death penalty needlessly chilled and placed an impermissible burden on the exercise of the defendant’s basic constitutional right to a jury trial. The Court struck down the death penalty provision of the Act on that ground.

The defendant in Jackson was constitutionally entitled to a trial by jury on the charge of aggravated kidnapping whether the death penalty could be imposed on the jury’s recommendation or whether no death penalty could result. Had Congress provided that a defendant so accused should be tried by the Court without a jury, it would have exceeded its powers and such a provision would have been clearly unconstitutional as vi-olative of defendant’s Sixth Amendment rights. Under the statutory scheme of the Federal Kidnapping Act, however, Congress required the defendant to relinquish the right to a jury trial to which he was constitutionally entitled, as a condition of avoiding the risk of the death penalty. By imposing such a condition and thus penalizing the assertion of defendant’s constitutional right to be tried by a jury, Congress sought to accomplish indirectly what it could not do directly. In essence, the constitutional infirmity in Jackson stemmed from the defendant’s undoubted right to a jury trial in a criminal prosecution, with or without the imposition of the death penalty, and the circumscription of that right by the impermissible burden placed by the statute upon its exercise.

A juvenile has no comparable constitutional right to a trial by jury in proceedings under the Federal Juvenile Delinquency Act. Whether or not such proceedings should be tried without a jury was for Congress to determine. As we have held, the provision that proceedings under the Act shall be tried without a jury was a constitutional exercise of legislative power. Congress could have gone farther and required that no criminal prosecution could be instituted against a juvenile and that all juveniles alleged to have violated Federal law should be dealt with only in juvenile proceedings under the Act triable without a jury. Congress did not so provide. Instead, it permitted the juvenile to choose between the relatively beneficent and rehabilitative juvenile delinquency proceeding in which he was not entitled to a jury and prosecution as an adult with trial by jury. This provision is in furtherance of the strong public interest in encouraging resort to the procedures for handling and treatment of juvenile delinquents established by the Federal Juvenile Delinquency Act.

The appellant’s choice in the case at bar was freely, intelligently and voluntarily made. We hold that the provisions of the Act requiring that the consent of a juvenile to delinquency proceedings “be deemed a waiver of a trial by jury” are constitutionally valid. The choice afforded the appellant under these provisions did not deprive him of any constitutional right to a jury trial or impermissibly burden the exercise of any such right.

III.

The appellant’s additional contention that the evidence is insufficient to support the finding of juvenile delinquency is patently without merit and requires no discussion.

The judgment appealed from is affirmed.

      . The Sixth Amendment provides, in pertinent part:
      “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. . . .”

      . Judge Gurfein committed Torres to the custody of the Attorney General for a period of 60 days for observation and study pursuant to U.S.C. § 5034. Thereafter, Torres was committed to the custody of the Attorney General for 18 months pursuant to that section.

      . Cotton v. United States, 446 F.2d 107 (8th Cir. 1971); United States v. King, 482 F.2d 454 (6th Cir.), cert. denied, 414 U.S. 1076, 94 S.Ct. 594, 38 L.Ed.2d 483 (1973); United States v. James, 464 F.2d 1228 (9th Cir.), cert. denied, 409 U.S. 1086, 93 S.Ct. 697, 34 L.Ed.2d 675 (1972); and United States v. Salcido-Medina, 483 F.2d 162 (9th Cir.), cert. denied, 414 U.S. 1070, 94 S.Ct. 582, 38 L.Ed.2d 476 (1973).

      . The question remains open in this circuit, see United States v. Williams, 459 F.2d 903 (2d Cir. 1972), and United States v. Jenkins (496 F.2d 57, 75, n. 13) (2d Cir. 1974).

      . See Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), and Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968).

      . Mr. Justice Brennan, concurring and dissenting, agreed “with tlfe plurality opinion’s conclusion that the proceedings below in these cases were not ‘criminal prosecutions’ within the meaning of the Sixth Amendment.” 403 U.S. at 553.

      . See also, Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948); Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962); Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966); DeBacker v. Brainard, 396 U.S. 28, 90 S.Ct. 163, 24 L.Ed.2d 148 (1969).

      . The plurality opinion pointed out that “at least 29 States and the District of Columbia by statute deny the juvenile the right to a jury trial in eases such as these. The same result is achieved in other States by judicial decision. In 10 States statutes provide for a jury trial under certain circumstances.” (403 U.S. at 548-549 [footnotes omitted].) It further pointed out that the great majority of States which have faced the issue since In re Gault, supra, and Duncan v. Louisiana, supra, have concluded that the considerations leading to the result in those cases do not compel a trial by jury in the1 juvenile court. Since then this court has reached the same conclusion as to the New York Juvenile Court system in United States ex rel. Murray v. Owens, supra. See also, In re D., 27 N.Y.2d 90, 313 N.Y.S.2d 704, 261 N.E.2d 627 (1970), appeal dismissed, 403 U.S. 926, 91 S.Ct. 2244, 29 L.Ed.2d 705 (1971).

      . See footnote 3, supra.

      . Nieves v. United States, supra, on which appellant relies, holding there to be a constitutional right to a jury trial in Federal juvenile proceedings in the light of In re Gault, supra, and similar cases, was decided prior to McKeiver and the cases in other circuits just referred to. It no longer represents the law on this question.

      . It may be noted that in the trilogy of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); and Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), in holding that, in plea bargaining, waiver of the constitutional right to a trial induced by expectation of lesser penalties, did not violate defendants’ constitutional rights, the Court considered the legitimate public interest in plea bargaining and the advantages of the bargain to both the public and the defendant.

      . The Sixth, Eighth and Ninth Circuits, in holding that under McKeiver a jury trial is not constitutionally required in federal juvenile proceedings, apparently assumed, without discussing In re Jackson, that the provision of the Act deeming consent to juvenile proceedings to be a waiver of jury trial is also constitutionally valid. Cotton v. United States, supra; United States v. King, supra; United States v. James, supra; United States v. Salcido-Medina, supra. Only Judge Hufstedler, dissenting in United States v. James (464 F.2d at 1230), was of the view that the waiver of jury trial requirement was unconstitutional under the principles enunciated in United States v. Jackson, supra. The pr z-McKiever holding of the three-judge court in Nieves v. United States, supra, that the waiver of jury trial provision of the Federal Act was unconstitutional, was predicated on the assumption that there was a constitutional right to the jury trial in Federal juvenile delinquency proceedings. Chief Judge Fuld made the same assumption in his pre-McKeiver opinion in People v. A. C., 27 N.Y.2d 79, 86-87, 313 N.Y.S.2d 695, 700-701, 261 N.E.2d 620 (1970) in which the New York Court of Appeals held a similar waiver requirement in Youthful Offender proceedings unconstitutional.


author: SWYGERT, Chief Judge.

text:
    OLD BEN COAL CORPORATION, a corporation, Plaintiff-Appellee, v. LOCAL UNION NO. 1487 OF UNITED MINE WORKERS OF AMERICA, et al., Defendants-Appellants.
    No. 73-2000.
    United States Court of Appeals, Seventh Circuit.
    Argued May 30, 1974.
    Decided Aug. 2, 1974.

      Joseph A. Yablonski, Lewis D. Sar-gentich, Washington, D. C., for defendants-appellants.
    J. Roger Edgar, St. Louis, Mo., for plaintiff-appellee.
    • Before CLARK, Associate Justice, SWYGERT, Chief Judge, and CAMPBELL, Senior District Judge.

       Associate Justice (Retired) Tom C. Clark of the Supreme Court of the United States is sitting by designation. '

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

   SWYGERT, Chief Judge.

Defendants United Mine Workers of America, Local 1487 and four of its officers were enjoined by a permanent injunction from causing work stoppages and strikes at the Old Ben Coal Corporation Mine No. 26 by the district court. The injunction prohibits work stoppages and strikes resulting from any differences or local trouble which the parties are contractually obligated to arbitrate under the terms of their 1971 National Bituminous Coal Wage Agreement. The union appeals the propriety of the issuance and breadth of the order. We affirm.

. The record shows that the union on October 14, 1968 entered into a contractual agreement for employment with Old Ben under the 1968 National Bituminous Coal Wage Agreement. Prom March 25, 1969 through November 19, 1970 union members walked off their jobs fourteen times, causing operations at the mine to lose coal production in excess of fifty-five days. On August 8, 1970, as a result of a strike, Old Ben Coal sought and was granted a permanent injunction against further stoppages or strikes effective until the expiration of the 1968 Agreement. The union appealed this order in Old Ben Coal Corp. v. United Mine Workers Local 1487, 457 F.2d 162 (7th Cir. 1972). (Hereinafter referred to as Old Ben I.) Prior to the decision in that appeal, the union and Old Ben Coal Corporation entered into a new contract, the 1971 National Bituminous Coal Wage Agreement. Union workers engaged in eleven strikes since the inception of the 1971 Agreement. Of these, three were prior to our decision in Old Ben I. On March 16, 1972 we affirmed the grant of an injunction in Old Ben /, but the scope of the injunction was narrowed to cover only the particular disputes before us. There were eight walk-outs following that decision, including one on October 19, 1972 over defendant Charles Swisher’s discharge for refusal to change a flat tire on a roof bolting machine assigned to Swisher. Old Ben Coal sought and was granted a temporary injunction against the work stoppage on October 19, 1972. The defendants ignored the order until October 22, 1972 when, at a union meeting, it was decided that the employees should return to work the next day. On October 24, 1972 a hearing on Old Ben’s request that the injunction be made permanent was held. On June 8, 1973, the injunction was made permanent, enjoining all work stoppages and .strikes resulting from Swisher’s discharge or from any other differences or local troubles which the parties were obligated to arbitrate under the 1971 Agreement. In challenging the issuance and breadth of the injunction the defendants raise the following issues: (1) it is claimed that the injunction issued by the district court is not justified by the evidence and district court’s findings that the union flagrantly, repeatedly, and completely repudiated its contractual arbitration duty are clearly erroneous; and (2) it is contended that the injunction is over-broad in light of certain holdings of the United States Supreme Court and this court, the Norris-LaGuardia Act, and standard doctrines of equity, and applicable Federal Rules of Civil Procedure.

I

Defendants argue that the district court justified the issuance of the permanent injunction on the basis of its finding that the union had a general policy of “resort to self help through strikes and work stoppages which were in violation of existing labor agreements.” They claim that the judge should not have considered any strikes other than those of July 28, 1972 and October 19, 1972, because only these strikes occurred after the members of the union had a fair opportunity to appraise and to absorb the impact of Old Ben I. They attempt to substantiate this claim by stating that the other work stoppages preceded the order in Old Ben I or occurred within, a month after the decision in Old Ben I and before the lesson of that case to the effect that the agreement did imply a no-strike duty could fully be brought home to them. Defendants contend that a mere two stoppages hardly indicate a pattern of persistent, continuing misconduct so as to justify the trial court’s finding that the union is a chronic disregarder of its contractual duty to arbitrate.

We know of no rule which allows a union a grace period of immunity from an applicable prior court decision. The two strikes subsequent to our first decision are not the sole evidence of the union’s attitude. The union was bound immediately by the order in Old Ben I and all violations of that order following its issuance are relevant. In light of the frequency of the work stoppages and of the nature of the disputes, most if not all of minor dimension, it is apparent that defendants have utilized the device of work stoppages with questionable motivation and little justification. We are far from convinced that without a permanent injunction similar conduct would not continue. We need not decide if two, four, or six strikes would render such an injunction appropriate for bare numbers are not necessarily an adequate measure.

The defendants also argue that by their very nature the stoppages of only one or two days duration should be viewed as wildcat strikes and as not subject to union control. This contention is without worth for the record amply re-fleets significant union involvement and control.

The defendants urge the availability of relief other than a permanent injunction, such as damages and disciplinary measures against the offending employees. We think that damages are inadequate since the coal production lost by such stoppages — not an inconsiderable amount — is lost forever. The record shows Old Ben sells its coal three years in advance and that the coal mining industry is currently working at full capacity. Once a day’s production is lost it cannot be recovered. In addition to the plaintiff’s loss of over 300,000 tons of coal production thus far (or $10,000 per day for each of these stoppages), its customers experience much hardship as a result of their reliance on the delivery of the coal which they have bought. Damages would be an inadequate remedy. With regard to disciplinary measures, prior efforts by Old Ben to discipline employees have provoked additional stoppages. Moreover there is difficulty in pinpointing individual responsibility

in impetuous strikes. Resort to disciplinary measures is an inefficacious remedy. Accordingly we cannot agree that other avenues of relief short of a permanent injunction are available to Old Ben. As the Supreme Court stated in Boys Markets, Inc. v. Retail Clerk’s Union, Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970): “An award of damages after a dispute has been settled is no substitute for an immediate halt to an illegal strike. Furthermore, an action for damages prosecuted during or after a labor dispute would only tend to aggravate industrial strife and delay an early resolution of the difficulties between the employer and union.” In sum, we hold that findings of the district court are not clearly erroneous and that the injunction is justified by the evidence.

II

Defendants also contend that the injunction is overly broad. They argue that an injunction of this breadth is unique and should not have been granted in light of the present case law. We do not agree. Our decision in Old Ben I, which was based on the Boys Markets interpretation of the Norris-LaGuardia Act, holds that the act does allow an injunction of this scope under the proper circumstances. In Old Ben 1 we admonished the union that: “Perhaps a broad injunction would be appropriate in some future action should it appear that the union is unwilling to accept the present adjudication with respect to its rights.” We agree with the trial judge that the instant action is an appropriate one for application of our admonition.

The Norris-LaGuardia Act declares that the breadth of an injunction is to be determined by the extent of the misconduct. The decision in Boys Markets allows an injunction to be broad enough to aid the arbitration process between the parties, as they may be bound by their contract. Accordingly, there is a proper basis for the issuance of a broad injunction, given the appropriate facts. Here the union participated in or permitted numerous stoppages over arbitrable differences. Old Ben Coal has suffered heavy losses. Any remedy therefore less than a permanent injunction is inadequate. Also of great importance is the fact that the very terms of the injunction were framed from the language of the 1971 Agreement as adopted from the 1968 Agreement. As such the trial court’s order incorporates the contractual language of the parties’ own agreement.

Defendants claim that the injunction is too vague and not sufficiently specific. They argue that the union will not know when it can or cannot strike. In essence the union is claiming it does not know what differences or local troubles are arbitrable. We think the incorporation of the parties’ own contractual language into the injunction is of sufficient specificity to avoid the complaint of vagueness. With respect to situations which are arguably within or without the arbitration clause, the union would have access to declaratory remedies to avoid potential violations. The union also urges that they must carry the burden of possible criminal contempt for violations which are arguably within or without the arbitration clause. We think that proper consideration of circumstances of this nature will be given in any future contempt proceedings.

We affirm the permanent injunction granted by the district court.


author: LAY, Circuit Judge. ROSS, Circuit Judge

text:
    UNITED STATES of America Appellee, v. James C. GOODLOW, Appellant. UNITED STATES of America, Appellee, v. Alfred GLASS, Appellant.
    Nos. 73-1737 and 73-1738.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 11, 1974.
    Decided Aug. 5, 1974.
    Rehearing and Rehearing En Banc Denied Sept. 17, 1974.

      James D. Keast, St. Louis, Mo., for appellant, Goodlow.
    Anthony L. Anderson, St. Louis, Mo., for appellant, Glass.
    William Martin, Asst. U. S. Atty., St. Louis, Mo., for appellee.
    Before VOGEL, Senior Circuit Judge, and LAY and ROSS, Circuit Judges.
   LAY, Circuit Judge.

Defendants James C. Goodlow and Alfred Glass appeal their respective convictions on charges of breaking the seal of an interstate trailer in violation of 18 U.S.C. § 2117. Defendants urge several separate grounds of error. We find that the only meritorious ground of error is raised by the defendant Goodlow. We reverse his conviction and remand for a new trial. We affirm the conviction of the defendant Glass.

On February 6, 1973, St. Louis police were notified that two men had been observed breaking the seals on three interstate trailers. The chief government witness, Doyle Payne, called the police and gave them a description of the two men and their automobile, along with the car’s license number. The next day, police officers located the car described by Payne and arrested the three black male occupants. The men arrested were Major Bogan, James Goodlow and Alfred Glass. The car belonged to Joyce Bogan, the sister of Major Bogan. The three men were taken to the police station where Payne was allowed to view them. He identified Goodlow and Glass as the two individuals he had observed the day before, whereupon Major Bogan was released.

The identification of the defendants by Payne was one of the main areas of controversy at trial. Payne testified that he was in the trucking business and that on the afternoon of February 6, 1973, while at his place of business, he had observed two black males drive up to the vacant lot across the street, get out of their car, and open the door on the back of one of the trailer units parked on the lot. Payne said he saw the taller of the two men take a small box from the trailer and give it to the shorter man who in turn placed the box in their car. He then observed one of the trailer company’s employees approaching the back of the trailer, whereupon the two men ran to the car and drove off. Payne then called the police. He said he was 100 yards away when he made his first observation. He later moved closer to the area and eventually got within 50 yards of the men.

The record reveals several discrepancies between the description Payne gave to the officers on the day of the incident, his later statements to defense counsel, and his description of the men at trial. The accuracy of his identification was, of course, a question for the jury.

An employee of the express company, Garland Collier, told officers on the day of the theft that he had walked around the trailer and surprised the men. He testified that he had approached to within 12 to 15 feet of the men before they fled. He could not describe either man to the police, however, nor could he identify the defendants at trial.

Defendant Glass alleges 17 grounds of error. Since this case must be retried as to Goodlow, we note here that there is no merit 'to Glass’ claim of racial discrimination in the jury selection process. There is no evidence in this case of any systematic plan of racial exclusion by either the District Court Clerk’s office or the United States Attorney’s office. Cf. United States v. Whitley, 491 F.2d 1248 (8th Cir. 1974); Little v. United States, 490 F.2d 686 (8th Cir. 1974).

In addition to his allegations of discrimination in the grand and petit jury selection, defendant Glass makes 16 other assignments of error which he groups under three general classifications: (a) due process violations, (b) violations of his Sixth Amendment rights, and (c) violations of procedural due process. We have carefully reviewed each of these assignments of error and find them to be without merit. This court has previously passed on many of the specific questions raised in other eases. In those instances in which we have not, we are satisfied after an examination of the record and existing case law that no error prejudicial to the defendant Glass occurred.

Defendant Goodlow, on the other hand, urges only four grounds for reversal. We find one ground, that the trial court excluded certain testimony as hearsay, to be prejudicial error.

At trial, Barbara Goodlow (defendant Goodlow’s wife), Eugene King and defendant Goodlow offered to testify that on three separate occasions shortly after the defendants had been identified at the police station, Major Bogan (who disappeared before trial and did not respond to an issued subpoena) told each of them that he was “good for the crime” and that defendant Goodlow was not “good for it.” The statements allegedly made by Bogan were objected to as hearsay and excluded by the trial court.

It is urged on appeal that the trial court erred in failing to admit this evidence as a declaration against penal interest. We note at the outset of our discussion that Major Bogan’s statement that the defendant Goodlow was not “good for it” does not amount to a declaration against penal interest. Such a statement, standing alone, is only exculpatory as to Goodlow and, as such, constitutes inadmissible hearsay. Cf. United States v. Seyfried, 435 F.2d 696 (7th Cir. 1970), cert. denied, 402 U.S. 912, 91 S.Ct. 1393, 28 L.Ed.2d 654 (1971); Mason v. United States, 257 F.2d 359 (10th Cir.), cert. denied, 358 U.S. 831, 79 S.Ct. 52, 3 L.Ed.2d 69 (1958). However, since the statements were allegedly given at the same time and within the same general context of Major Bogan’s admission of guilt, their overall exclusion or admission should be considered as one. The proposed Federal Rules of Evidence would clearly admit Major Bogan’s statement, which was against his penal interest. These rules were not controlling at the time of the defendants' trial nor are they yet in effect. Nevertheless, we believe that the proposed rule which recognizes the admissibility of declarations against penal interest simply reflects the overwhelming weight of authority on that question. See, e. g., United States v. Seyfried, 435 F.2d 696 (7th Cir.), cert. denied, 402 U.S. 912, 91 S.Ct. 1393, 28 L.Ed.2d 654 (1971) (dicta); Mason v. United States, 257 F.2d 359 (10th Cir.), cert. denied, 358 U.S. 831, 79 S.Ct. 52, 3 L.Ed.2d 69 (1958) (dicta); State v. Larsen, 91 Idaho 42, 415 P.2d 685, 691-692 (1966); People v. Spriggs, 60 Cal.2d 868, 36 Cal.Rptr. 841, 389 P.2d 377 (1964) (en banc); People v. Lettrich, 413 Ill. 172, 108 N.E.2d 488, 492 (1952); Osborne v. Purdome, 250 S.W.2d 159, 163 (Mo. 1952) (en banc); Newberry v. Commonwealth, 191 Va. 445, 61 S.E.2d 318, 325-326 (1950); In re Forsythe’s Estate, 221 Minn. 303, 22 N.W.2d 19, 25 n. 3 (1946); Sutter v. Easterly, 354 Mo. 282, 189 S.W.2d 284, 289-290 (1945); Hines v. Commonwealth, 136 Va. 728, 117 S.E. 843, 846-850 (1923); Blocker v. State, 55 Tex.Cr. 30, 114 S.W. 814 (1908); Moore v. Metropolitan Life Ins. Co., 237 S.W.2d 210 (Mo.App.1951); McCormick, Evidence § 278 (2d ed. 1972); 5 Wigmore, Evidence §§ 1476, 1477 (3d ed. 1940).

The only Supreme Court case to consider the question, Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820 (1913) (Holmes, J., dissenting), held that the hearsay exception is limited to interests of a pecuniary or proprietary nature. Accord, Scolari v. United States, 406 F.2d 563 (9th Cir), cert. denied, 395 U.S. 981, 89 S.Ct. 2140, 23 L.Ed.2d 769 (1969). Recently, however, the Supreme Court has observed that Donnelly has been widely criticized. See Chambers v. Mississippi, 410 U.S. 284, 299, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); United States v. Harris, 403 U.S. 573, 584, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). In Chambers, the Court reserved decision on whether, under some circumstances, the Donnelly rule might serve some valid purpose by excluding untrustworthy testimony. It held, however, that under the facts in Chambers it was error to exclude the declarations against penal interest. The Court observed that the statements “were originally made and subsequently offered at trial under circumstances that provided considerable assurance of their reliability.” Chambers, supra, 410 U.S. at 300, 93 S.Ct. at 1048.

In the present case, as in Chambers, there are corroborative circumstances giving an aura of trustworthiness to the statements. Here two witnesses in addition to the defendant Goodlow offered to testify that Major Bogan had made the statements. The witnesses each specified the time and place at which the statements were made and identified the persons who were present. To reason that the credibility of these witnesses is such that their testimony would not be believed attempts to substitute judicial discretion in an area where factfinding prerogatives control. There are also other factors tending to corroborate the fact that an admission was made. It is undisputed that the car involved in the crime belonged to Major Bogan’s sister. Officer Ubben testified that Bogan was a known interstate carrier thief. Finally, several discrepancies in Doyle Payne’s identification of the defendant make it at least plausible that Bogan, rather than Goodlow, was one of the two men seen by Payne. In view of these facts, we believe that circumstances which provided considerable assurance of reliability were present and that the district court erred in excluding the testimony in question.

Since we have found error in the exclusion of evidence, and because we cannot say beyond a reasonable doubt that the excluded evidence would not have changed the jury's verdict, particularly in view of the overall record relating to the identification evidence, we reverse the conviction of the defendant Goodlow and remand for a new trial. This is not to say a different verdict or result will or should be reached. We simply cannot say beyond a reasonable doubt that the result would have been the same had the evidence been admitted. See Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); United States v. Stabler, 490 F.2d 345 (8th Cir. 1974).

Reversed and remanded as to defendant Goodlow; judgment affirmed as to defendant Glass.

ROSS, Circuit Judge

(dissenting).

I do not disagree with the majority’s discussion of the declaration against penal interest exception to the hearsay rule. It properly notes the general trend toward applying that exception and correctly indicates that the Supreme Court in Chambers v. Mississippi, 410 U.S. 284, 293-302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), and the House of Representatives in its version of the proposed Federal Rules of Evidence, H. R. 5463, 93d Cong., 2d Sess. 36-37 (1974), have taken a cautious approach to adopting the penal interest exception. Both have required that for the exception to apply there must be corroborating circumstances indicating clearly that the proffered hearsay testimony is trustworthy. The majority finds that such circumstances are present here. I cannot agree.

Three witnesses offered to testify to the effect that Major Bogan has told them that he — not defendant Goodlow— was responsible for the crime. These three witnesses were: (1) Goodlow himself; (2) Goodlow’s wife; and (3) Eugene King, a personal friend of Good-low. These are not three independent individuals who have no personal interest in the outcome of the case. Rather, their testimony regarding Bogan’s out-of-court declarations would seem to be particularly suspect due to their natural concern that the defendant be acquitted.

The proffered testimony also revealed that Bogan had allegedly made his declaration to Mrs. Goodlow when no one else was present, and he allegedly made his statement to Goodlow with only King present and to King with only Goodlow present. While the statements to Good-low and King were supposedly made in a pool hall, neither of them could say who else might have overheard them, although Goodlow stated that other persons had done so. The result of all this is that the only witnesses to Bogan’s alleged declarations against penal interest were three individuals with a strong interest in the outcome of the case. This hardly gives an “aura of trustworthiness” to this testimony, especially when Bogan was unavailable for cross-examination.

The trial judge, in ruling that the hearsay testimony was inadmissible, specifically found “that the contributing circumstances do not clearly indicate the trustworthiness of the statements of Bo-gan. On the contrary, they indicate otherwise.” During the voir dire examination of the witnesses on this point the judge had the opportunity to observe them and their demeanor and was thus in a better position to make a determination on trustworthiness than we are.

If we are to apply the exception to the hearsay rule for declarations against penal interest, we should require more evidence of reliability than the bare testimony of the defendant, his family and friends. In the instant case the profferred hearsay evidence smacks of a concocted story to place blame on the conveniently missing Major Bogan. The indicia of trustworthiness which were present in Chambers are missing here.

I would affirm the judgment of the trial court.

      . Both defendants challenge the arrest “showup” where Glass, Goodlow and Major Bogan were shown at the police station as a group of. three to the witness Payne, who identified Goodlow and Glass at that time. Although the showup procedure is not to be condoned (cf. Stoval v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967)), nevertheless we cannot say that by itself the showup was a denial of due process. Cf. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Furthermore, Payne’s direct testimony reflects that his identification was based on his observation of how the men appeared (clothing, etc.) at the time of the theft and not as they appeared at the police station the next day. Cf. United States v. Ranciglio, 429 F.2d 228 (8th Cir. 1970).

      . Rule 804(b) (4) provides:
      (4) Statement Against Interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability or to render invalid a claim by him against another or to make him an object of hatred, ridicule, or disgrace, that a reasonable man in his position would not have made the statement unless he believed it to be true. This exception does not include a statement or confession offered against the accused in a criminal case, made by a codefendant or other person implicating both himself and the accused. (Emphasis added).
      Proposed Federal Rules of Evidence, Rule 804(b)(4), 51 F.R.D. 315, 438-439 (1971).
      The Committee on the Judiciary of the House of Representatives, in its Report on the Federal Rules of Evidence, H.R.Rep.No. 93-650, 93rd Cong., 1st Sess. 16, 17 (1973), recommended that the proposed rule be amended to read as follows:
      (3) Statement against interest. — A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to criminal liability, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to crimi-pi liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. A statement or confession offered against the accused in a criminal case, made by a codefendant or other person implicating both himself and the accused, is not within this exception. (Emphasis added).
      The House of Representatives adopted the bill with this language intact. H.R. 5463, 93d Cong., 2d Sess. 36-37 (1974). The bill has not passed the Senate.

      . Where the statement against penal interest lacks inherent trustworthiness, its admissibility has likewise been rejected. See United States v. Sheard, 154 U.S.App.D.C. 9, 473 F.2d 139 (1972), cert. denied, 412 U.S. 943, 93 S.Ct. 2784, 37 L.Ed.2d 404 (1973); United States v. Alexander, 139 U.S.App.D.C. 163, 430 F.2d 904 (1970).

      . Professor Wigmore, in addressing the exclusion of declarations against penal interest in Donnelly, observes:
      But, furthermore, it cannot be justified on grounds of policy. The only plausible reason of policy that has ever been advanced for such a limitation is the possibility of procuring fabricated testimony to such an admission if oral. This is the ancient rusty weapon that has always been brandished to oppose any reform in the rules of Evidence, viz., the argument of danger of abuse. This would be a good argument against admitting any witnesses at all, for it is notorious that some witnesses will lie and that it is difficult to avoid being deceived by their lies. The truth is that any rule which hampers an honest man in exonerating himself is a bad rule, even if it also hampers a villain in falsely passing for an innocent.
      The only practical consequences of this unreasoning limitation are shocking to the sense of justice; for, in its commonest application, it requires, in a criminal trial, the rejection of a confession, however well authenticated, of a person deceased or insane or fled from the jurisdiction (and therefore quite unavailable) who has avowed himself to be the true culprit. The absurdity and wrong of rejecting indiscriminately all such evidence is patent.
      5 Wigmore, Evidence § 1477 at 288-89 (3d ed. 1940).

      . In Chambers the declarant was present and available for cross-examination. In the present case, Major Bogan was unavailable. The general rule allowing the admission of statements against penal interest recognizes as a prerequisite the unavailability of the declarant. See, e. g., Proposed Federal Rules of Evidence, Rule 804(b)(4), Advisory Committee Comment, 51 F.R.D. 315, 439-445 (1971).

      . While it does not bear directly on the question of. admissibility, it is noteworthy that the jury herein did not find Goodlow, his wife and King convincing witnesses either. All three testified to the jury to the effect that Goodlow had a complete alibi, in that he was accompanying King and several others on a trip to Columbia, Missouri, at the time the crime occurred in St. Louis.

      . In Chambers the declarant was present in the court and was, therefore, available for cross-examination. The declarant had signed a sworn confession, and there was corroborating testimony from an eyewitness to the crime (a shooting). There was also testimony that the declarant had been seen with a gun immediately after the shooting. Additionally, the declarant had given independent confessions numerous times. These many indicia of trustworthiness found in Chambers clearly distinguish that case from the one before us.