author: PICKETT, Circuit Judge.

text:
    In the Matter of JOHN RICH ENTERPRISES, INC., a Delaware corporation et al., Debtors-Appellee. Emanuel Fields, Claimant-Appellant.
    No. 72-1514.
    United States Court of Appeals, Tenth Circuit.
    June 27, 1973.

      William G. Fowler, Salt Lake City, Utah, for debtors-appellee.
    M. Emanuel Fields, New York City, pro se, claimant-appellant.
    Before PICKETT, SETH and MC-WILLIAMS, Circuit Judges.
   PICKETT, Circuit Judge.

The issue presented by this appeal arises out of a claim for attorney fees wherein several corporations with common directors and officers sought a reorganization under Chapter X of the Bankruptcy Act. The district court approved the claim in part as it applied to the corporation for whom the legal services were rendered, but entered judgment against claimant Fields for recovery of $20,000 of a total of $30,000 which had been paid by one of the other corporations. Limiting his appeal to the money portion of the judgment, Fields contends that the payment was authorized and was later approved by formal action of the board of directors.

John W. Rich had patents or applications for patents for a water bumper device and for a product described as a television or movie chair. John W. Rich Manufacturing Company, a California corporation, was created for the purpose of manufacturing and distributing the water bumper product. The distribution was accomplished by the sale of franchises throughout the United States and abroad. International Movie Chairs, Inc. (I.M.C.), a California corporation, was* formed to promote the manufacture and sale of the television or movie chair device and its funds were raised from public investors. The directors and officers of these two corporations were the same and their businesses were conducted in the same building in Sacramento, California, and generally by the same employees.

Through an arrangement between the two corporations the Rich Manufacturing Company, for an agreed consideration, manufactured the chairs for I.M.C. Financial difficulties developed in the water bumper business. To overcome these difficulties the board of directors of the manufacturing company decided to form John W. Rich Enterprises, Inc., a California corporation, for the purpose of eliminating the franchise operation by substituting stock of the new corporation for the franchises and to raise additional funds by a public offering of stock. This project failed and C. Allen Elggren, a Salt Lake City lawyer who was a director, officer and general counsel for all the corporations, recommended that appellant Fields, a New York attorney and expert in the field of corporate financing, be employed to obtain the necessary authority for a public offering of stock in John W. Rich Enterprises, Inc. of California.

In April, 1969, Fields met with the board of directors of John W. Rich Enterprises, Inc. in Sacramento, California. At this meeting Fields agreed to undertake the task of obtaining the necessary authority for a public offering of securities in John W. Rich Enterprises, Inc. for a fee not to exceed $50,000, of which $10,000 was to be paid immediately. The offer of employment was accepted by the board, and upon return to Salt Lake City Elggren delivered a cheek to Fields for $10,000 drawn upon the account of I.M.C.

It was determined that the better procedure was to organize a Delaware corporation under the name of John W. Rich Enterprises, Inc. and to file the necessary information with the Securities Exchange Commission for authority to sell publicly the stock of the Delaware corporation. The new corporation was created and Fields proceeded to obtain the required material for SEC approval. Fields also circularized the holders of the water bumper franchises notifying them of the proposed plan to exchange stock for franchises. During the course of these activities and at the suggestion of Elggren, Fields billed I.M.C. for additional attorney fees, and through cheeks drawn by Elggren, I.M.C. paid $20,000 over and above the original $10,000.

The SEC brought a federal court action in California against the corporations, Fields and others, charging violations of the federal securities laws. A consent decree was entered in this case enjoining the activities of John W. Rich Enterprises, Inc. in regard to its securities. Apparently as an outgrowth of the consent decree, all of the Rich corporations, including I.M.C., then were joined in Chapter X Bankruptcy proceedings instituted in the State of Utah seeking an acceptable reorganization. It was in these proceedings that Fields filed a claim for additional attorney fees. The trustee denied the claim and sought recovery of the $30,000 paid to Fields from the funds of I.M.C.

The validity of Fields’ claim and the trustee’s counterclaim was tried in the United States District Court for the District of Utah. The trial court’s finding that there was no agreement, express or implied, for performance of legal services for I.M.C. by Fields and that no professional services were rendered for and on behalf of that corporation by Fields is sustained by the evidence. The testimony of Fields and Elggren was that Fields had not been employed by I.M.C. and performed no service for it. The record is barren of evidence that I.M.C. received any consideration or benefit from the work of Fields. On this evidence the court held that the payments to Fields by I.M.C. were unauthorized and ultra vires acts of that corporation. The counterclaim for the original $10,000 payment was disallowed on the basis that the trustee was estopped to recover that amount and judgment was entered in favor of the trustee for later payments totaling $20,000. The claim of Fields as against John W. Rich Enterprises, Inc. (Delaware and California) was approved in part.

I.M.C. is a corporation separate and distinct from the other Rich corporations and created for different purposes. Its assets were obtained from different sources. It is the general law, as well as that of California and Utah, that in the absence of statute or corporate charter provision a corporation cannot divert its property by gift or by indirect means without a consideration or benefit to the corporation, and such acts cannot be ratified by the board of directors. In Knox v. First Security Bank of Utah, 196 F.2d 112, 117 (10th Cir. 1952), this court said:

It is well settled in Utah and elsewhere that a corporation cannot bind itself as guarantor or otherwise to discharge an obligation solely for the benefit of another, unless that be one of the purposes for which the corporation was organized. In the absence of a statute or a provision in its charter authorizing it to do so, an undertaking on the part of a corporation to discharge the obligation of another in which it has no interest and from which it derives no benefit is ultra vires and therefore unenforceable. Tracy Loan & Trust Co. v. Merchant’s Bank, 50 Utah 196, 167 P. 353; Louisville, New Albany & Chicago Railway Co. v. Louisville Trust Co., 174 U.S. 552, 19 S.Ct. 817, 43 L.Ed. 1081; Williams v. Sawyer Bros., 2 Cir., 45 F.2d 700; Pantaze v. Murphy, 5 Cir., 54 F.2d 895, certiorari denied, 287 U.S. 599, 53 S.Ct. 10, 77 L.Ed. 522. And it is elementary that unless authorized by statute or effective charter provision expressly creating the power, a corporation organized solely for conventional business? or commercial purposes may not alien its property by gift or indirect channels of diversion without consideration and not in furtherance of its pecuniary interests. 6 Fletcher Cyclopedia Corporations, §§ 2938, 2939. The alienation or disposition of property of a corporation in that manner constitutes a violation of the rights of the stockholders and is ultra vires.

See also, McCormick v. Market Bank, 165 U.S. 538, 17 S.Ct. 433, 41 L.Ed. 817 (1897); S. E. C. v. Insurance Securities, Inc., 254 F.2d 642 (9th Cir.), cert. denied, 358 U.S. 823, 79 S.Ct. 38, 3 L.Ed.2d 64 (1958); Knox v. First Security Bank of Utah, 206 F.2d 823 (10th Cir. 1953); Elliott v. Federal Home Loan Bank Board, 233 F.Supp. 578 (S.D.Cal.1964), rev’d on other grounds, 386 F.2d 42 (9th Cir. 1967), cert. denied, 390 U.S. 1011, 88 S.Ct. 1260, 20 L.Ed.2d 161 (1968); Burt v. Irvine Co., 237 Cal.App.2d 828, 47 Cal.Rptr. 392 (1965); Elggren v. Woolley, 64 Utah 183, 228 P. 906 (1924) ; 2 Fletcher Cyc.Corp. § 752 (Perm.Ed. 1969); 7 Fletcher Cyc.Corp. §§ 3426, 3428 and 3432 (Perm.Ed.1964).

Finding no error, we affirm the judgment.

      . In April of 1969 approximately 2,500 franchises had been sold.

      . The California Corporations Commissioner held this circulation to be illegal and issued a cease and desist order.

      . After the institution of the federal proceeding by the Securities Exchange Commission, the board of directors of I.M.C. adopted a resolution ratifying all of the payments to Fields.

      . Of the various corporations, I.M.C. was the only one that had any liquid assets, and those assets were derived from public investors in that corporation.

      . With reference to the ratification resolution, Exhibit 5-1, Elggren testified:
      THE COURT: Then I can’t understand this recitation in 5-1 [Exhibit 5-1 is the resolution of the board of directors ratifying the payment to Fields], just before the Court that we’ve been discussing:
      “Resolved, that actions of the officers in paying over the following funds to Emanuel Fields for anticipated Securities and Exchange work on behalf of the corporation and John Ricli Enterprises as sot forth above and are hereby ratified.”
      Now, just before that, as above stated, it is recited that “The chairman — ” That would be you, wouldn’t it?
      THE WITNESS: Yes.
      THE COURT : And then : “ — stated on the 29th of April 1969, there had been certain funds paid over to Emanuel Fields, attorney at law, in connection with a proposed filing of registration statement on behalf of John Rich Enterprises, Inc., and a separate registration statement on behalf of International Movie Chairs — ”
      Was that true that there were funds paid over for a separate registration statement on behalf of International Movie Chairs, or was that just a check to try to justify this payment?
      THE WITNESS: Well, as I — your Honor, I was stating that with respect to International Movie Chairs, there had been contemplated, and if these things had gone along the way—
      THE COURT: But in the April conversation it was suddenly, “No funds paid over for any services to International Movie Chairs”?
      THE WITNESS: No.
      THE COURT: Why does this appear in this recitation?
      THE WITNESS: I don’t — I can’t give you an answer.
      THE COURT: It’s just sort of a cloak or a mask to conceal what actually occurred ; is that true?
      THE WITNESS: The purpose of it, of course, was to ratify at least the general acts of authorization that—
      THE COURT: But there couldn’t be a ratification if there were a dishonest disclosure or an inaccurate disclosure, could there?
      THE WITNESS: That’s probably right. That’s right.


source: Caselaw Access Project

author: GEWIN, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America Plaintiff-Appellee, v. Rafael R. MARTINEZ, Jr., Defendant-Appellant.
    No. 72-2685.
    United States Court of Appeals, Fifth Circuit.
    July 3, 1973.
    Rehearing and Rehearing En Banc Denied Aug. 14, 1973.

      Anthony Nicholas, San Antonio, Tex., for defendant-appellant.
    William S. Sessions, U. S. Atty., Joel D. Conant, W. Ray Jahn, Asst. U. S. Attys., San Antonio, Tex., for plaintiffappellee.
    Before GEWIN, THORNBERRY and SIMPSON, Circuit Judges.
   GEWIN, Circuit Judge:

On this appeal, Rafael R. Martinez seeks the reversal of his two count conviction for (1) conspiring to import approximately 628 pounds of marijuana into the United States, 21 U.S.C. §§ 952(a), 963, and to possess the same with intent to distribute, 21 U.S.C. §§ 841(a)(1), 846, and (2) the substantive offense of possessing marijuana with intent to distribute, 21 U.S.C. § 841(a)(1). He attacks his conviction on the following grounds; (1) the search and seizure which yielded the marijuana introduced into evidence violated the fourth amendment; (2) the declaration of two alleged co-conspirators were inadmissible under the co-conspirators exception to the hearsay rule; (3) the evidence was insufficient to support his conviction; (4) the special parole provisions under which he was sentenced, 21 U.S.C. §§ 841(b)(1)(B), 960(b)(2) violate the due process and the cruel and unusual punishment clauses of the constitution; and (5) Title II of the Drug Abuse Prevention and Control Act, 21 U.S.C. § 801 et seq., is an unconstitutional regulation of intrastate activity. We have carefully reviewed each of these contentions and for the reasons which follow affirm the conviction.

We begin with a discussion of the search and seizure contention. On January 26, 1972 government agents received a tip that an orange colored 1969 International flatbed truck would enter the United States from Mexico at Laredo, Texas and would be carrying approximately 600 pounds of marijuana in a secret compartment. Two days later, the truck crossed the border exactly as predicted. It was not inspected at that time, but a check of its license plates with the computer monitoring system indicated that it should be placed under surveillance immediately. The truck was discovered some thirty-five minutes later at a Laredo cafe located about four miles from the border. It was kept under constant surveillance for the next six days, a period during which it traveled more than three hundred miles from place to place in south Texas until it was stopped by customs agents in San Antonio. The details of this meandering journey need not detain us. The agents searched the truck without a warrant and found 628 pounds of marijuana in one pound packages wedged into a secret compartment beneath the bed of the truck. Between one and two hours were required to unload the marijuana.

The appellant recognizes that probable cause is not a constitutional requirement for a valid border search and further that the concept of the border is an elastic one which is not susceptible of precise definition. Nonetheless, placing particular emphasis upon the distance from the border at the time of the search (150 miles), the total mileage traveled by the truck (more than 300) and the time elapsed after the border crossing (142 hours), he contends that the search in this case was unconstitutional. He asserts that it took place after the truck’s entry into the United States was complete and therefore after the full fourth amendment protections became applicable. He further claims that even if the border search rationale is held applicable, the search still cannot be sustained because of the thirty-five minute break in the surveillance immediately following the border crossing. Alluding to the change of condition doctrine, he apparently suggests that there can be no reasonable certainty that the truck was in fact carrying marijuana when it entered this country.

We find none of these arguments to be persuasive. Only a brief review of the applicable legal and constitutional principles is essential to our discussion. As this court observed very recently in United States v. Thompson: “Border searches, absent search warrants or probable cause, have been uniformly upheld by the Courts as long as the customs agents have had a reasonable suspicion of violations of the customs laws.’’ Although proximity to the border and the lapse of time since the crossing are proper factors for consideration, no specific temporal or spatial limitations on the authority to conduct a border search have been imposed either by statute or by judicial decisions. Thus to reiterate, the appropriate constitutional test is a reasonableness standard, which requires a full evaluation of the circumstances leading to the search as a basis for determining its propriety.

Examining the facts of this case in light of the preceding principles, we are compelled to hold that the search in this case fell within permissible constitutional limits. An event of twofold significance occurred when the truck crossed the border at Laredo, Texas on January 28, 1972. The first independent corroboration of the informant’s tip was provided and for all practical and constitutional purposes a nexus with the border was established which continued thereafter. These facts were entirely sufficient to arouse a reasonable suspicion that the customs laws were being violated. We have no doubt that a warrantless search of the truck could have been conducted at that point under the traditional border search doctrine.

Admittedly the search now under constitutional attack was far removed from that context. It took place approximately 150 miles from the border and 142 hours later in time. It is also of some importance to recall that there was a brief 35 minute hiatus just after the border crossing in Laredo during which no surveillance was in effect. The question which we must decide is whether the intervention of these factors operated to make the traditional border search rationale inapplicable to the search here involved. We think not.

As indicated earlier the courts have long recognized that the border is an elastic concept, not susceptible to precise definition in temporal or spatial terms. The wisdom of this salutary legal principle is cogently illustrated by the circumstances of this case. In order to enforce the customs laws, particularly those dealing with the illegal importation of drugs, law enforcement officials must do more than arrest the street level operative; they must, if at all possible, apprehend the ringleaders as well. This objective would not be easily attainable if the authority of customs agents to search was strictly limited to the physical border. By following the truck inland the customs agents obviously hoped to apprehend others involved in the smuggling of a large quantity of marijuana. In view of their purpose we think they used a legitimate law enforcement technique which did not undermine their authority. Moreover, at no time was the crucial nexus with the border broken, nor was there any reason for the agents to doubt their original suspicions. Except for the 35 minute hiatus which we find too brief to have been of any consequence, the truck was kept under constant surveillance. It is significant that during the course of this surveillance the agents’ suspicions about the truck’s illicit cargo were further heightened when the smell of marijuana was detected emanating from the compartment hidden beneath the floor.

The application of the border search rationale to the search in this case does not offend the fourth amendment. To conclude otherwise would place this court in the untenable position of formulating a per se rule that warrantless searches 150 miles inland and 142 hours after entry into this country cannot be sustained as border searches. The appealing simplicity of such an approach must be resisted. It emphasizes the factors of time and distance to the exclusion of all other factors and thus represents a poor substitute for the reasonableness standard. We hold that the customs agents here had reasonable suspicion to believe that the customs laws were being violated and that the search of the truck was constitutionally permissible under the border search exception to the fourth amendment warrant requirement.

The appellant next contends that certain portions of the testimony of two alleged co-conspirators, Hermelindo Garcia and Benito Solis, were improperly admitted into evidence against him under the co-conspirators exception to the hearsay rule. To fully understand and assess this contention it is necessary to summarize the facts alleged to constitute the conspiracy.

As stated earlier, the 1969 flatbed truck carrying the marijuana crossed the border on January 28, 1972. After being driven to several different locations in south Texas by at ‘least three different drivers, it finally came to rest on the evening of January 31 in Laredo where it was parked at Cabello Brothers Wrecking Yard. Hermelindo Garcia, part of whose testimony is now being challenged, came into the picture on February 2. While drinking in a bar on the Mexican side of the border, he was approached by a man whom he had never seen or met before and was asked if he would drive a truck from Laredo to San Antonio that same day. He told Garcia that the truck would be carrying marijuana and was probably under surveillance. Pay for the driver was to be about a thousand dollars. Garcia declined the offer, but referring to Benito Solis, indicated that he knew someone else who might be interested. The unidentified man agreed to the counter proposal and gave Garcia $180 to $200 in cash to pay Solis’ travel expenses plus a piece of paper with the name Richard Pie and a phone number written on it. It was understood that a man known as El Coreano would arrange for Solis to pick up the truck at Cabello Brothers in Laredo and also would pay him after he completed the assignment.

Pursuant to this conversation, Garcia contacted Solis and told him the details of the job offer, specifically mentioning the marijuana shipment and the likelihood of surveillance by federal agents. He also gave him the money and the paper with Richard Pie’s name and phone number on it. Solis’ testimony substantially corroborates Garcia’s except that Solis denied any knowledge of the nature of the shipment and the illegality of his activities. He explained that he was asked by Garcia to pick up a load of used lumber in San Antonio.

The remainder of the testimony pertinent to the existence of the conspiracy is largely uncontroverted. After their conversation, Garcia and Solis went to Cabello Brothers where Solis picked up the truck. He drove it to Von Ormy, a town not far from San Antonio. Unsuccessful in his attempts to contact Richard Pie, he decided to leave the truck parked there and hitched a ride back to Laredo arriving at 3:00 a. m. February 3, 1972.

Solis was aroused from his sleep about four hours later by the appellant Martinez. Though he had seen Martinez the day before in a filling station on the road to San Antonio, Solis had never had any previous contact with him. Martinez asked him to get up and drive the truck in to San Antonio as he had originally agreed to do. Solis indicated that he would cooperate and thereupon rode to Von Ormy in a blue Ford along with Martinez and another man whom he also did not know. At Von Ormy Martinez instructed Solis to drive the truck to a Texaco station on the freeway and to wait there until he arrived. Later, when the blue Ford drove up, Martinez’s companion instructed Solis to follow their ear. He did so until he lost sight of the Ford in a San Antonio residential area. He was arrested shortly after returning to the freeway at which time the search took place.

The challenged portions of Garcia’s and Solis’ testimony consist principally of references to El Coreano, Richard Pie and the suggestion of some connection between the two. At the outset, we should lay to rest any thought that the admission of this testimony was of no serious consequence to the appellant’s defense in this case. In view of the fact that Martinez was known by the nickname of Richard Pie, the damaging character of this testimony should be obvious. It clearly tended to place him in the conspiratorial web.

It is not disputed that such hearsay testimony can be admitted in a conspiracy trial. The question which we must decide is whether the proper foundation was laid. Though at times difficult to apply, the controlling rule of law is relatively simple to state: any declaration by one co-conspirator made in furtherance of the conspiracy and during its pendency is admissible against each co-conspirator provided that proof of the existence of a conspiracy is established by independent evidence.

In determining whether there is independent evidence of a conspiracy, the trial judge has substantial discretion. He need be satisfied only that the evidence is credible and sufficient to support a finding of a joint undertaking. The prosecution unquestionably does not have to establish conspiracy beyond a reasonable doubt. Upon a finding that a conspiracy exists and that the defendant is a participant herein, the trial court can then admit the hearsay declarations of a fellow conspirator against the defendant.

In our judgment the record before this court is replete with evidence tending to support the existence of a conspiracy. Apart from its hearsay aspects, Garcia’s testimony plainly reveals that he knew of the illegal aims of the conspiracy and agreed to advance them by recruiting Solis to drive the truck. Though Solis contradicted Garcia on the question of his personal knowledge of the illegal nature of the activities he was to perform, he corroborated Garcia in other respects and, in fact, provided a service that was essential to the ultimate objective of the conspiracy. Solis further provided direct testimony linking the appellant Martinez to this combination as did the surveilling customs agents. Viewing the actions of the trial judge in this light, we are convinced that he did not commit reversible error by permitting the jury to consider the hearsay aspects of the testimony of Garcia and Solis. Our conclusion in this respect would not be altered even if we were to find as a fact that Martinez joined the conspiracy after the hearsay declarations in this case were made.

Extensive discussion of the appellant’s remaining contentions is not required. In dealing with his hearsay contention, we have reviewed the evidence in some detail. This review, we believe, makes clear that there was sufficient evidence to sustain the appellant’s conviction on both counts. Likewise without merit are the appellant’s constitutional attacks on the special parole provisions and Title II of the Drug Abuse Prevention Act, 21 U.S.C. § 801 et seq. The judgment of conviction against the appellant is affirmed.

      . The appellant derives this conclusion from Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 154, 69 L.Ed. 543, 552 (1925). See also United States v. Warner, 441 E.2d 821, 833 (5th Cir. 1971) ; Thomas v. United States, 372 F.2d 252, 254 (5th Cir. 1967) ; Marsh v. United States, 344 F.2d 317, 325 (5th Cir. 1965).

      . Alexander v. United States, 362 F.2d 379, 382 (9th Cir. 1966) ; King v. United States, 348 F.2d 814, 816 (9th Cir. 1965).

      . 475 F.2d 1359 (5th Cir. 1973). See also United States v. McDaniel, 463 F. 2d 129, 133 (5th Cir. 1972) ; United States v. Valdez, 456 F.2d 1140, 1142 (5th Cir. 1972).

      . United States v. McDaniel, 463 F.2d 129, 132-133 (5th Cir. 1972) ; United States v. Warner, 441 F.2d 821, 832-833 (5th Cir. 1971).

      . The statutory basis for border searches by customs agents appears in 19 U.S.C. §§ 482, 1581. Neither section contains any reference to distance limitations on this authority. The search in the instant case is a customs search since the investigating officers had reasonable cause to suspect that there was a violation of the customs laws. A customs search, however, is to be compared with an immigration search, authorization for which can be found in 8 U.S.C. § 1357 and 8 C.F.R. § 287.1. It will be noted that a specific geographic limitation has been placed upon immigration searches. As provided in 8 C.F.R. § 287.1, all searches for the purpose of discovering illegally entered aliens must be conducted within 100 air miles from an external boundary of the United States. See United States v. Thompson, 475 F.2d 1359 (5th Cir. 1973) ; United States v. McDaniel, 463 F.2d 129, 132 (5th Cir. 1972).

      . See notes 3 and 4 supra.

      . This standard in the border search context is less rigorous than the probable cause requirement which normally obtains under the fourth amendment. United States v. Garcia, 452 F.2d 419, 421 (5th Gir. 1971) ; United States v. Warner, 441 F.2d 821, 832 (5th Cir. 1971).

      . See cases cited notes 3 and 4 supra. See also United States v. Glaziou, 402 F.2d 8, 12 (2d Cir. 1968) ; Marsh v. United States, 344 F.2d 317, 324 (5th Cir. 1965).

      . The record discloses that it took customs agents between one and two hours to unload the entire 628 pound shipment of marijuana. It is highly improbable that the marijuana could have been placed in the truck’s secret compartment after it crossed the border and before surveillance was commenced.

      . Although we do not base our holding that the instant search was valid on the automobile search theory, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) ; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), several factors in this case suggest the soundness of such an approach : (1) the tip of a reliable informant that the truck contained marijuana; (2) the odor of marijuana coming from the secret compartment; (3) the presence of the truck on the open highway and the concomitant possibility that the contraband would be lost or destroyed. We have little doubt that a finding of probable cause to search the truck could be sustained on the record now before us.

      . Customs searches have been upheld under the border search rationale even though conducted a considerable distance from the border. See, e. g., United States v. Reagor, 441 F.2d 252 (5th Cir. 1971) (60 miles) ; Castillo-Garcia v. United States, 424 F.2d 482 (9th Cir. 1970) (105 miles) ; United States v. Harris, 427 F. 2d 1368 (9th Cir. 1970) (150 miles; see statement of facts at 400 U.S. 1211, 1212, 91 S.Ct. 4, 27 L.Ed.2d 30, 32) ; Ramirez v. United States, 263 F.2d 385 (5th Cir. 1959) (75 miles). Cases involving a substantial time lapse are not as common, but this court recently upheld a border search which took place a full week after the defendant entered this country. United States v. Cristancho-Puerto, 475 F.2d 1025 (5th Cir. 1973).

      . In the briefs and at oral argument, both parties stated that it was El Coreano whom Garcia met in the bar on February 2, 1972. We think the record is somewhat unclear on this point. At times Garcia’s testimony seems to indicate that the man in the bar was not El Coreano, but perhaps his agent or intermediary. Regardless of which account is correct on this minor factual detail, our conclusion would not be affected.

      . Glasser v. United States, 315 U.S. 60, 74-75, 62 S.Ct. 457, 86 L.Ed. 680, 701 (1942) ; Lutwak v. United States, 344 U.S. 604, 616-617, 73 S.Ct. 481, 97 L.Ed. 593, 602-603 (1953) ; United States v. Apollo, 476 F.2d 156 (5th Cir. 1973) ; United States v. Martinez, 466 F.2d 679, 685 (5th Cir. 1972) ; United States v. Spanos, 462 F.2d 1012, 1014 (9th Cir. 1972).

      . United States v. Johnson, 467 F.2d 804, 807 (1st Oir. 1972) ; United States v. Sanders, 463 F.2d 1086, 1088 (8th Oir. 1972) ; United States v. Bey, 437 F. 2d 188, 190 (3d Oir. 1971) ; United States v. Elliott, 437 F.2d 1253, 1255 (5th Cir. 1971).

      . United States v. Elliott, 437 F.2d 1253, 1255 (5th Cir. 1971).

      . The trial court has the discretion to admit hearsay statements of alleged co-conspirators subject to later proof of the existence of the conspiracy and the defendant’s connection with it. United States v. Apollo, 476 F.2d 156 (5th Cir. 1973) ; United States v. King, 467 F.2d 478, 479 (6th Cir. 1972) ; Nelson v. United States, 415 F.2d 483, 487 (5th Cir. 1969). This was the procedure followed in the instant case. Before Garcia and Solis were allowed to give any testimony, the trial court instructed the jury in great detail about the restrictions under which they would be able to consider the hearsay testimony against the appellant. The trial court displayed an abundance of caution in protecting the appellant’s rights.

      . United States v. United States Gypsum Co., 333 U.S. 364, 393, 68 S.Ct. 525, 92 L.Ed. 746, 765 (1947) ; United States v. Sarno, 456 F.2d 875, 878 (1st Cir. 1972).

      . Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680, 704 (1942) ; United States v. Warner, 441 F.2d 821, 831 (5th Cir. 1971). Once evidence of a conspiracy is shown, only slight additional evidence is required to connect a particular defendant with that conspiracy. United States v. Iacovetti, 466 F.2d 1147, 1154 (5th Cir. 1972) ; United States v. Morado, 454 F.2d 167, 175 (5th Cir. 1972).

      . United States v. Simpson, 481 F.2d 582 (5th Cir. 1973) ; United States v. Scales, 464 F.2d 371, 376 (6th Cir. 1972).

      . United States v. Lopez, 459 F.2d 949 (5th Cir. 1972) ; United States v. Scales, 464 F.2d 371, 375 (6th Cir. 1972).


author: PER CURIAM:

text:
    UNITED STATES of America, Appellee, v. Michael NEWMAN, Defendant-Appellant.
    No. 677, Docket 72-2407.
    United States Court of Appeals, Second Circuit.
    Argued March 14, 1973.
    Decided July 2, 1973.
    Joel A. Brennei’, Mineóla, N. Y., for defendant-appellant.
    Kenneth R. Feinberg, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y., and John W. Nields, Jr., Asst. U. S. Atty., of counsel), for appellee.
    Before HAYS, MULLIGAN and OAKES, Circuit Judges.
   PER CURIAM:

This appeal is from a judgment of conviction on a jury verdict of guilty on charges of possessing counterfeit currency, 18 U.S.C. §§ 472 and 2, and conspiring to possess and deal in such, 18 U.S.C. § 371. The sentence on this second trial of appellant was as a youthful offender, under 18 U.S.C. § 5010(a), to a five-year period of probation. Appellant claims that the trial judge, Hon. Charles M. Metzner, should have disqualified himself and by his conduct denied appellant a fair trial; that certain rebuttal testimony was improperly admitted; and that the court erred in failing to charge the jury on the question whether the proof established multiple conspiracies. We affirm.

Appellant argues not that the trial judge was personally biased or prejudiced, but that under United States v. Bryan, 393 F.2d 90, 91 (2d Cir. 1968) (per curiam), a criminal case should ordinarily be retried before a different trial judge. Here this is especially true, the argument runs, because at the end of the first trial while the jury was deliberating Judge Metzner indicated his belief in the defendant’s guilt by saying, “Obviously there are three people on the jury who aren’t going to convict that defendant because he is twenty years old.” But the appellant cannot have it both ways. The single remark does not rise to the level of obliging the judge to recuse himself; appellant is aware of this and accordingly did not urge below or here that the judge was biased. Our review of the record, discussed below, makes it evident that even a “suspicion of partiality,” 393 F.2d at 91, could not be raised by Judge Metzner’s conduct of this case. Furthermore, the court in Bryan was speaking of reassignment as the “wiser practice” in retrials of “lengthy criminal cases,” 393 F.2d at 91, not setting down a requirement in every case. See also Wolfson v. Palmieri, 396 F.2d 121, 126 (2d Cir. 1968) (per curiam) (Bryan [cited as United States v. Simon] limited to “particular facts” there presented). Here there was involved the retrial of a case consuming only four days at the first trial. More importantly, a date of September 21 for the retrial was set at the time the first trial ended in a hung jury in May of 1972, and it was only a few minutes before the start of the second trial when appellant’s counsel first invoked Bryan. This delay in making the motion to disqualify alone justified its denial.

Appellant argues that the judge intruded himself sufficiently into the trial to warrant reversal under United States v. Nazzaro, 472 F.2d 302 (2d Cir. 1973). Examination of the transcript reveals, however that Nazzaro and this case are two different kettles of fish. It is true that from time to time the trial judge interrogated witnesses, generally to clarify testimony, or had a few exchanges with counsel, generally following an inept question or inappropriate comment. See United States v. Pellegrino, 470 F.2d 1205, 1207 (2d Cir. 1972), cert. denied, 411 U.S. 918, 93 S.Ct. 1556, 36 L.Ed.2d 310 (1973), and United States v. Cruz, 455 F.2d 184, 185 (2d Cir.), cert. denied, 406 U.S. 918, 92 S.Ct. 1769, 32 L.Ed.2d 117 (1972). But the only instance even approaching error was in connection with the court’s interrogation of the appellant himself relative to a counterfeit ten dollar bill that appellant said was given him in his car by one Farnsworth. Appellant handed the bill to a gas station attendant at Massapequa, Long Island, who in turn gave it back to Newman because the bill “didn’t look too good.” Newman took the bill back and at trial was quite evasive as to why he took it back and whether he thought the bill was counterfeit; he denied that he had any conversation with Farnsworth (who was with him at the gas station) about the bill and the fact that it might have been “phony.” Appellant was in the dilemma that if the bill were counterfeit his friend, Farnsworth, would have been “out ten dollars.” To challenge his denial of having talked at all about the bill, the prosecutor asked a further question as to whether Newman and Farnsworth hadn’t even talked about being out ten dollars. Appellant said, “That’s why Jay [Farnsworth] wondered why he [the gas station attendant] didn’t accept it.” The court interjected: “That’s all the conversation? Ten dollars dropped from heaven? Next question.” The comment in the form of a question was probably not inappropriate in view of appellant’s evasiveness, but in any event no objection was taken to it at the time, and the court subsequently cautioned the jury that its comments or questions were not in any way to be construed as expressing any opinion or view as to appellant’s guilt or innocence. United States v. Boatner, 478 F.2d 737 (2d Cir., 1973); United States v. Cruz, supra, 455 F.2d at 185; United States v. D’Anna, 450 F.2d 1201, 1206-1207 (2d Cir. 1971). While curative comments must be taken with a grain of salt, in the light of the record, we cannot say that there was plain error here; this particular passage does not alone, or in cumulation with the other conduct of the trial judge, in any way indicate that appellant was denied a fair trial. We find appellant’s claim to the contrary to be “without merit or substance.” See United States v. Nazzaro, supra, 472 F.2d at 303.

Proving that the coincidences of life are remarkable indeed, the Government called in rebuttal an investigator with the same name as the appellant, Michael Newman. Appellant argues that the rebuttal was improper because it was not in answer to appellant’s direct ease, but rather contradicted appellant’s answer given in cross-examination. See 6 J. Wigmore, Evidence § 1873 (3rd ed. 1940). But investigator Newman’s testimony in rebuttal was to the effect that appellant Newman told him appellant had a conversation with one Jack Martin and an undercover agent going under the name of “Sonny Fletcher” during which counterfeit money was discussed. Previously, in his direct testimony appellant had testified that while a discussion took place it had to do with trouble with a car — “nothing more than that” — and that he and Martin had had no discussion with reference to getting counterfeit bills “or anything.” As such, the rebuttal testimony was proper, since it rebutted appellant’s direct case. United States v. Keilly, 445 F.2d 1285, 1289 (2d Cir. 1971), cert. denied, 406 U.S. 962, 92 S.Ct. 2064, 32 L.Ed.2d 350 (1972).

A “multiple conspiracy” charge was never requested, nor was any objection taken to the court’s charge on conspiracy. Moreover, while there were different times at which the counterfeit money was allegedly passed, there was evidence of one acquisition of counterfeit with intent to dispose of a substantial part of it in Florida, and while “Fletcher” may not have been a member of the conspiracy in the first instance, there was evidence that the appellant was. Thus, the jury could properly find the single conspiracy charged. United States v. Calabro, 449 F.2d 885, 892-894 (2d Cir. 1971), cert. denied, 404 U.S. 1047, 92 S.Ct. 728, 30 L.Ed.2d 735 (1972).

Judgment affirmed.


author: JOHN W. PECK, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. William Cullen SECOY, Defendant-Appellant.
    No. 72-2098.
    United States Court of Appeals, Sixth Circuit.
    Argued April 9, 1973.
    Decided July 19, 1973.
    Stephen K. Valentine, Jr., Court-appointed, Detroit, Mich., on brief, for defendant-appellant.
    Kenneth J. Haber, Asst. U. S. Atty., Detroit, Mich., for plaintiff-appellee; Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., on brief.
    Before WEICK and PECK, Circuit Judges, and CECIL, Senior Circuit Judge.
   JOHN W. PECK, Circuit Judge.

Appellant was indicted in October 1971 on two counts of violating Title 50, U.S.C.A. App., § 462(a) , the Universal Military Training and Service Act: namely, (1) failing to report for induction, and (2) failing to keep his local draft board advised of his current address. Tried without a jury in June 1972, appellant was acquitted of count one and convicted on count two. This is a direct appeal from that conviction.

At the outset we note that Title 50, U.S.C.A. App., § 465(b), requires “ . . . every registrant to keep his local board informed as to his current address ... as required by such rules and regulations as may be prescribed by the President.” Pursuant to this statutory authorization, two regulations have been promulgated which require registrants to inform their local boards of their whereabouts. 32 C.F.R. § 1641.3 applies to “mailing address” and provides:

“It shall be the duty of each registrant to keep his local .board advised at all times of the address where mail will reach him. . . . ”

32 C.F.R. § 1641.7(a) pertains to “home address” and provides:

“It shall be the duty of every classified registrant to keep his local board currently informed of his home address .... Every classified registrant shall, within 10 days after it occurs, report to his local board in writing every change in such home address. . . . ”

The record does not indicate which regulation is the basis of this action. As the facts of this case will show, however, during the period of appellant’s three-month sojourn, he did not maintain a home address and consequently it would have been impossible for him to inform his local board of such an address. And since the record does not reveal that a § 1641.7(a) violation was alleged, we will restrict our review to the application of § 1641.3.

The - essential facts are as follows. Appellant registered with his local Selective Service Board in Pontiac, Michigan, giving a Pontiac mailing address. After being notified in June 1968 of his 1-A classification, appellant moved to 3202 Mission Boulevard in San Diego, California. In October 1968, he informed his Pontiac Board of this move and his May 1969 pre-induction physical was transferred to San Diego. Later, on August 8, 1969, the Board mailed him an order to report for a September 10, 1969, induction. It was sent to the Mission Boulevard address but was returned to the Pontiac Board on August 13, 1969, unopened and labelled “moved, no forwarding address.” The Board then remailed the order to appellant’s home address in Pontiac, Michigan. Upon receiving the induction order, appellant’s parents, not knowing that appellant had left the Mission Boulevard address, sought to forward the induction order to that address. Inadvertently, the letter was returned to the Pontiac Board unopened without going to the Mission Boulevard address. The Board also mailed an inquiry to appellant’s last known employer but the letter was incorrectly addressed and the employer never received it. In addition, the Board wrote to the person designated as the person always knowing appellant’s address, but no reply was ever received by the Board and no follow-up action was instituted. The Board next heard from him on March 4, 1970, when he reported a change of address in San Diego and made a request for a form to submit a conscientious objector claim. Although he filed the necessary forms, he was denied this status in April 1970. In January 1971, the appellee filed these charges against the appellant.

In defense of himself, appellant propounded the following argument: that he left San Diego in the late summer or early fall of 1969 to travel through the west coast area of the United States, that he was gone for approximately three months, and that he asked his landlord to hold his mail for him until he returned. He also claims that he returned twice to San Diego during his sojourn, once for at least a week, and each time checked his mail without discovering the induction order.

The leading case construing the statute and regulation here applicable is Bartchy v. United States, 319 U.S. 484, 63 S.Ct. 1206, 87 L.Ed. 1534 (1943). In that case, Bartchy had been classified 1-A, had completed his final physical examination and had been notified of probable induction within 20-30 days. Six days after receiving this notice, Bartchy requested a deferment on the ground that he was employed by the Merchant Marine. In that request he noted a change of address to that of the National Maritime Union, which had agreed to forward his mail. Within a month after issuance of the classification, the Board sent an induction order to Bartchy through the Union. However, the Union returned the order to the sender without notifying Bartchy. The Supreme Court found that Bartchy could have been more diligent by telephoning the Union at intervals but concluded that he justifiably relied on the procedures he had established. The Court stated:

“We think the Government correctly interprets the Act, Section 11, and the regulation, Section 641.3, not to require a registrant who is expecting a notice of induction to remain at one place or to notify the local board of every move or every address, even if the address be temporary. The Government makes the point, however, that a registrant with knowledge, as here, of the imminence of the posting of the notice ‘is plainly obligated to keep in close communication with the forwarding address.’ If this suggestion is meant as a rule of law that at his peril the registrant must at short intervals inquire at his last address given to the board, here 7543 Harrisburg Boulevard, Houston, or at his own forwarding address, here the Maritime Union in New York, we are of the view that the Government demands more than the regulation requires. The regulation, it seems to us, is satisfied when the registrant, in good faith, provides a chain of forwarding addresses by which mail, sent to the address which is furnished the board, may be by the registrant reasonably expected to come into his hands in time for compliance.” (Emphasis supplied.) 319 U.S. at 488-489, 63 S.Ct. at 1208.

Appellant contends that the Supreme Court, in the subsequent case of Ward v. United States, 344 U.S. 924, 73 S.Ct. 494, 97 L.Ed. 711 (1953), restricted the standard of Bartchy when it reversed a conviction on the basis that the record failed to support a finding of “deliberate purpose” to avoid the Selective Service laws. In that case, Ward had provided his local board, through its classification questionnaire, his revised employment address and his revised residence address. Subsequently, he moved from that residence address without notifying his board, relying instead on his employer’s address which remained valid and at which he proved he did receive his mail. Apparently the board did not use the questionnaire response to update its records to reflect Ward’s current employer’s address. The board, however, did communicate with both Ward’s former employer and the “person who would always know” his address, but was unable to discover a current address. Without discussing the facts, the Supreme Court held:

“Per Curiam. The indictment in this case charged that between the dates of March 30, 1951, and May 31, 1951, petitioner ‘knowingly’ failed to furnish his local Selective Service Board with a correct address where mail might be delivered to him. 50 U.S.C. App. Secs. 462(a), 465(b), 50 U.S.C.A. Appendix, §§ 462(a), 465(b); 32 C.F.R. Sec. 1641.3. The record does not support the charge that, during this period, there was deliberate purpose on the part of petitioner not to comply with the Selective Service Act or the regulation issued thereunder. Accordingly, the decision below is reversed.” 344 U.S. at 924, 73 S.Ct. at 494.

We conclude that appellant’s contention that Ward restricted the Bartchy standard is without merit. It seems clear that the record of the Ward case contained sufficient facts to show that a valid address had been provided. Further, the weight of case authority does not support the distinction the appellant proposes. See, e. g., United States v. Booth, 454 F.2d 318 (6th Cir. 1972); United States v. Read, 443 F.2d 842 (5th Cir. 1971); United States v. Ebey, 424 F.2d 376 (10th Cir. 1970); Kokotan v. United States, 408 F.2d 1134 (10th Cir. 1969).

Appellant also contends that there is not sufficient evidence to sustain his conviction. Viewing the evidence in the light most favorable to the Government together with all the inferenees that may be fairly drawn therefrom, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1944), we conclude that sufficient evidence does exist.

Appellant testified that he waited for 3Yz months after his May 21, 1969 physical examination for official notification of the results, whereupon he decided to “see the country” and left in “late summer or early fall” for a 3-month trip along the west coast. In this regard, we first acknowledge that appellant’s Selective Service file indicates that he was mailed a notice on July 2, 1969 advising that he was acceptable for induction. Since the record does not specifically show any address to which the notice was sent, this fact can be given no more weight than that of a permissible inference. Cf. Flowers v. Aetna Casualty & Surety Co., 163 F.2d 411 (6th Cir. 1947). Secondly, it would appear that either the 3V2 month waiting period from May 21, 1969, would overlap, or the “late summer or early fall” departure would be later than, the August 8-13 time period; that is, the period from the mailing of the notice to 3202 Mission Boulevard to the return of the unopened and unclaimed notice to the board. The record does not resolve the apparent conflict, nor does appellant’s brief do so. In any event, assuming that appellant left before the notice arrived, a 3-month sojourn would suggest a return on or about November, 1969. The fact remains that appellant did not advise his board of a new address until March 1970, or 4 months later. We only observe that the circumstances of a 7-month incommunicado period when appellant was anticipating induction orders assume a different proportion than that of a 3-month sojourn, as appellant maintains.

In addition, although it is settled that a registrant is not required to remain at one place or report every move he makes to his board, United States v. Ebey, supra at 377, we note that despite the circumstances of expecting notice from his draft board, appellant did not advise either his board, his parents or the person designated as the “person other than a member of his household who will always know his address” of his trip. Nor did he establish any alternate means of communication for this period. However, appellant claims he did ask his landlord to hold his mail while he was gone. The landlord was selected because, according to appellant, mail deliveries to all tenants of the building were made to the landlord who later slipped the mail under the respective tenant’s door. Although the appellant did not maintain or pay rent on these quarters during this period of the sojourn, appellant testified that the proprietor agreed to hold the mail. There is no evidence that any mail was in fact held nor is there other evidence of such an agreement. We note that evidence either of instructions to hold mail or the actual holding of mail was found in the Bartchy and Ward cases. Such proof would seem to be particularly important here since the Board’s letters to the Mission Boulevard address at best must have arrived almost immediately after appellant left that address.

Appellant also testified that he returned twice during his sojourn to, among other things, pick up his mail. During one return visit he claims he stayed in San Diego for about a week and on the other occasion he remained for a few days. There is no corroborating evidence of these facts and the specific dates are not indicated in the record. At best, the testimony reflects on the matter of the appellant’s good faith and the weight to be given the testimony would have been a proper matter for the fact-finder to consider.

Viewing all the evidence in a light most favorable to the Government, we conclude that sufficient evidence does exist to conclude that appellant knowingly failed to furnish his local Selective Service Board with a “good” mailing address.

The judgment of the District Court is affirmed.

      . Title 50, U.S.C.A.App., § 462(a) provides in relevant part as follows:
      “Any . . , person charged ns herein provided with the duty of carrying out any of the provisions of this title [sections 451, 453-456 and 458-471 of this Appendix], or the rules or regulations made or directions given thereunder, who shall knowingly fail or neglect to perform such duty . shall, upon conviction in any district court of the United States of competent jurisdiction, be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment.


author: LUMBARD, Circuit Judge:

text:
    UNITED STATES of America, Petitioner, v. Morris E. LASKER, United States District Judge for the Southern District of New York, Respondent. UNITED STATES of America, Appellant, v. Raymond F. CARR, Appellee. UNITED STATES of America, Appellant, v. Dorothy Lubkert SHEA, Appellee. UNITED STATES of America, Appellant, v. Lamont H. MUNNS, Appellee. UNITED STATES of America, Appellant, v. Melville L. BISGYER, Appellee. UNITED STATES of America, Appellant, v. Martin L. ROEMER, Appellee. UNITED STATES of America, Appellant, v. Albert FERGUSON, Appellee. UNITED STATES of America, Appellant, v. Donald F. CARONE, Appellee.
    Nos. 692-698, Dockets 73-1370, 73-1102 to 73-1108.
    United States Court of Appeals, Second Circuit.
    Argued March 7, 1973.
    Decided June 11, 1973.

      John W. Nields, Jr., Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y., on the brief), for appellant.
    Gregory J. Perrin, New York City, for appellees Carr and Ferguson.
    Max Wild, New York City (Rubin, Waehtel, Baum & Levin, New York City, on the brief), for appellee Car one.
    Peter Lushing, New York City (Robert E. Goldman, New York City, on the brief), for appellee Shea.
    Henry J. Boitel, New York City (Philip Vitello, New York City, on the brief), for appellee Bisgyer.
    Jack S. Hoffinger, New York City, for appellee Roemer.
    Before LUMBARD and TIMBERS, Circuit Judges, and WYZANSKI, District Judge.

       Senior District Judge of the District of Massachusetts, sitting by designation.

   LUMBARD, Circuit Judge:

The government appeals from an order of the Southern District dismissing the indictments against the seven appellees, Carr, Shea, Munns, Bisgyer, Roemer, Ferguson, and Carone. Alternatively, the government has petitioned this court for mandamus ordering the district judge to reinstate the indictments. We dismiss the appeal for lack of jurisdiction and we grant the petition for mandamus.

In seven indictments handed up February 25, 1970, appellees were individually charged with having conspired with a co-defendant, Fritz Claudius Mintz, and an unindicted co-conspirator, Morton Penn, to defraud the United States, in violation of 18 U.S.C. § 371. The defendants were all employed as civilian buyers for European or American post exchanges. The indictments charged that the defendants conspired with Mintz and Penn, who represented certain American manufacturers, to receive substantial payments during the period from 1960 to 1967 in return for causing the post exchanges to purchase products offered by Mintz’ and Penn’s principals. Mintz was named as a co-defendant in each indictment.

All the indicted defendants-appellees pleaded not guilty to the indictment in which he or she was named. Mintz has not appeared; he is a fugitive who has been living in Europe since some time prior to the filing of the indictments.

In April, 1970, each of the appellees moved pursuant to Rule 48(a), F.R. Crim.P., for dismissal on several grounds, one of which was pre-indictment delay. However, defendants-appellees at no time made a request for a trial date. The district court denied all motions for dismissal.

On January 5, 1971, the Second Circuit Judicial Council promulgated the Rules Regarding Prompt Disposition of Criminal Cases (“Prompt Disposition Rules”), which became effective on July 5, 1971. After the Prompt Disposition Rules went into effect, the government listed the seven indictments on the monthly report of eases over six months old as an exception to the general six-month rule under Rule 5(e).

Ever since the filing of the indictments, the government has attempted to obtain Mintz’ presence in the Southern District. However, he has remained in Europe and has refused to return. In June, 1971, the government commenced proceedings to extradict Mintz from Spain. Either because Mintz has left Spain or because the Spanish authorities have been unable to locate him, the extradition proceedings have not been successful. Thus, the government’s efforts to return Mintz to this country have proved fruitless.

In an ex parte meeting with the government’s counsel in March, 1972, the district judge insisted that the government notify the appellees of the basis for these cases being carried as Rule 5(e) exceptions, which the government did by letter on March 10, 1972. Shortly thereafter, the defendants each moved to dismiss the indictments under Rule 4 of the Prompt Disposition Rules, as well as under Rule 48(b), F.R.Crim.P. The government indicated that, if the district judge concluded that it was not reasonable to wait any longer for Mintz, it was able and willing to proceed with the trials forthwith. On December 5, 1972, the district judge dismissed the indictments under Rule 4 of our Prompt Disposition Rules. Thereupon, the government took this appeal and brought the instant petition for mandamus.

Initially, we must agree with appellees’ contention that this court is without appellate jurisdiction to review the order of the district court. Although as presently structured 18 U.S.C. § 3731, which governs this court’s jurisdiction of criminal appeals brought by the government, would clearly give this court jurisdiction to review the district court’s order on appeal, the statute applicable to this appeal is § 3731 as it was phrased prior to its amendment by § 14(a) of the Omnibus Crime Control Act, 84 Stat. 1890 (1970). For reasons set forth in Part I of Chief Judge Friendly’s opinion in United States v. DiStefano, 464 F.2d 845 (2d Cir. 1972), § 3731 does not give this court jurisdiction to review on appeal the district court’s dismissal of these indictments. Accordingly, we dismiss the government’s appeals.

Turning to the petition for mandamus, we must acknowledge at the outset that mandamus will not issue merely as a substitute for ordinary appellate review. Mandamus is only available in extraordinary eases, where the action of the lower court amounts to a usurpation of power or a gross abuse of discretion. Mandamus cannot “be availed of to correct a mere error” of the district court. De Beers Consolidated Mines, Ltd. v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130, 89 L.Ed. 1566 (1945). Thus, we must determine whether any error of the district court is of sufficient magnitude to justify the issuance of mandamus.

The issue presently before us involves the proper application of Rules 4 and 5(e) of the Prompt Disposition Rules. Rule 4 provides that:

In all cases the government must be ready for trial within six months from the date of the arrest, service of summons, detention, or the filing of a complaint or of a formal charge upon which the defendant is to be tried (other than a sealed indictment), whichever is earliest. If the government is not ready for trial within such time, or within the periods as extended by the district court for good cause, then upon application of the defendant or upon motion of the district court, after opportunity for argument, the charge shall be dismissed.

Rule 5(e) states that:

In computing the time within which the government should be ready for trial, the following periods should be excluded:
(e) A reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and there is good cause for not granting a severance. In all other cases the defendant should be granted a severance so that he may be tried within the time limits applicable to his case.

Here the threshold question under Rules 4 and 5(e) is whether the Prompt Disposition Rules require the government to apply to the district court for “a reasonable period of delay” under 5(e) beyond, and before the expiration of, the six-month period otherwise applicable under Rule 4. Two other questions are 1) how the 5(e) “reasonable period of delay” is to be determined and applied, and 2) who shall have the burden of moving for the severance contemplated by Rule 5(e) “in all other cases.” This case demonstrates the significance of these questions, in that, if the government is not required to apply for a 5(e) “reasonable period of delay” before the end of the ordinary six-month period and if neither the defendant nor the court seeks a severance, there is considerable danger that the government will be “mouse-trapped” by the defendant moving for a Rule 4 dismissal some time after the six-month period and by the court retroactively determining that the period during which the government has delayed under Rule 5(e) was unreasonable. In the cases involved here, this series of events resulted in the mass dismissal of seven conspiracy indictments.

The Rules were not intended to operate in this fashion. In light of United States v. Rollins, 475 F.2d 1108 (2nd Cir., 1973), it now seems clear that it was not necessary for the government to apply for an extension of the six-month period under Rule 5(e) before the end of the six month calendar period. Indeed, the phraseology of Rule 5 would seem to militate against any other result; for that rule clearly provides that “[i]n computing the time within which the government should be ready for trial,” certain listed periods of time “should be excluded.” Thus, it seems that one cannot sensibly talk about the six-month period having run or not without making initial reference to the excluded periods under Rule 5. As a result, it would involve strained logic to say that applications for exclusions under Rule 5 must be made to the district court before the elapse of the six-month period, since by definition any Rule 5 excluded period is not to be included in calculating the six-month period. Accordingly, we hold that, as indicated in Rollins, it was not necessary for the government to apply for a Rule 5(e) exclusion before the expiration of the six-month calendar period.

A more difficult problem involves the proper course of action for the district court when it decides that the period of delay contended for by the government is unreasonable. The rule itself provides some guidance for this situation when it indicates that “ [i] n all other cases, the defendant should be granted a severance so that he may be tried within the time limits applicable to his case.” In determining the proper operation of Rule 5, it is important to remember that the primary purpose of the Prompt Disposition Rules was to vindicate the strong public interest in the prompt resolution of criminal prosecutions. It was the intent of the Circuit Council to stimulate the district courts and counsel to resolve criminal cases expeditiously. It was not the Council’s aim to make the government vulnerable to dismissal of an indictment where a co-defendant is a fugitive from justice and the government, with some reason, delays action against defendants who are present.

Defendants argue for a literal and technical application of the first sentence of Rule 5(e). In essence, they contend that, even if a defendant is joined for trial with a co-defendant as to whom the Rule 4 period has not run, if the court determines that the amount of delay that has elapsed up to the time the dismissal motion is made is unreasonable, then Rule 5(e) will not permit any period of time to be excluded in determining the Rule 4 period. On the other hand, the government argues that the first and second sentences of Rule 5(e) must be interpreted together. The essence of the government’s position is that whenever the district court is presented with a question of the propriety of a Rule 5(e) exclusion, it should proceed as follows: 1) determine whether the defendant is joined with a co-defendant as to whom the Rule 4 period has not run; 2) if the first requisite is met, determine whether any further delay would be unreasonable under the circumstances — not determine retroactively whether the previous delay was unreasonable; and 3) determine whether, independently of the reasonableness of future delay, there is good cause for a severance. If the court determines either that further delay would be unreasonable or that there is good cause for a severance, the government contends it should then sever the defendant’s case so that defendant’s Rule 4 period would henceforth run independently of his co-defendant.

■ We think that the approach suggested by the government is more nearly consistent with the purpose of the Prompt Disposition Rules than is that urged by the defendants. Especially in light of the fact that the Prompt Disposition Rules do not requiz'e the government to seek the court’s approval prior to the running of the six-month calendar period, interpreting Rule 5(e) in the manner defendants contend would interpose an unnecessary hazard in the way of the government’s prosecution of criminal cases without any concomitant promotion of the public interest. Therefore, we conclude that the district court was in error when it dismissed the instant indictments. Rather, it should have found that, under the circumstances of Mintz’ likely continued unavailability, any further delay under the auspices of Rule 5(e) would have been unreasonable, and thus should have severed Mintz from each defendant’s indictment so that trial could proceed forthwith, as the government assuz-ed the court it was prepared to do. This would have given appropriate weight to both sentences of Rule 5(e) and would have adequately vindicated the public interest in the prompt resolution of criminal charges.

The defendants argue that such a result does not comport with Rule 8 of the Prompt Disposition Rules, which states, in pertinent paz't, that “[a] demand by a defendant is not necessary for the purpose of invoking the rights conferred by these rules.” We do not agree. The point that Rule 8 emphasizes is that it is not necessary for a defendant to demand a trial date in order'to bring the Prompt Disposition Rules into operation. Rule 8 was not intended to place all the burdens of administering the Prompt Disposition Rules on the government. On the contrary, the prime responsibilty for enforcing the Rules, as well as for drafting them (see Rule 50(b), F.R.Crim.P.), is placed on the district court. This is necessarily so because the main interest to be served by the Rules is the public interest, and not the interest of one or both of the parties. Moreover, in the case of Rule 5(e), it would be unrealistic to expect the government to take the initiative to move for a severance, since in the natural course of events, the government would likely argue that the period of delay is reasonable and that there is no good cause for a severance.

The Circuit Council must have expected either that the defendant would seek a severance or that the court would so proceed on its own motion. This is the logical fashion in which one would expect the second sentence of Rule 5(e) to be effectuated. And we see no reason under the policy of the Prompt Disposition Rules to dismiss an indictment merely because neither the defendant nor the district judge took the initiative in requesting or ordering a severance. Therefore, we do not see Rule 8 as precluding the interpretation that we give to Rule 5(e).

Of course, that the district couz-t might have been in error in dismissing the indictments is alone not sufficient to justify the issuance of mandamus. Mandamus “is meant to be used only in the exceptional case where there is clear abuse of discretion or ‘usurpation of judicial power.’ ” LaBuy v. Howes Leather Co., 352 U.S. 249, 257, 77 S.Ct. 309, 314, 1 L.Ed.2d 290 (1957), citing Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 383, 74 S.Ct. 145, 98 L.Ed. 106 (1953). It is argued that the district judge had unquestioned power or jurisdiction to dismiss the indictments and that, therefore, this is an inappropriate case for mandamus. However, we do not believe that the propriety of mandamus depends on whether the asserted error is labeled as an exercise of non-existent power or merely as an abuse of discretion. The important considerations, in the final analysis, are the gravity of the issue involved and the necessity that the reviewing judges see for corrective action.

In recent years, the Supreme Court has held that the courts of appeals have the power to issue mandamus in certain instances in support of their supervisory authority over the district courts of the circuit. In LaBuy v. Howes Leather Co., 352 U.S. 249, 256, 260, 77 S.Ct. 309, 313, 1 L.Ed.2d 290 (1957), the Court, quoting from Los Angeles Brush Corp. v. James, 272 U.S. 701, 706, 47 S.Ct. 286, 71 L.Ed. 481 (1927), said:

“Where the subject concerns the enforcement of the . . . [rjules which by law it is the duty of this Court to formulate and put into force,” mandamus should issue to prevent such action thereunder so palpably improper as to place it beyond the scope of the rule invoked.
We believe that supervisory control of the District Courts by the Courts of Appeals is necessary to proper judicial administration in the federal system. The All Writs Act confers on the Courts of Appeals the discretionary power to issue writs of mandamus in the exceptional circumstances existing here.”

See also Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964). We think that this is a particularly appropriate case for our exercise of our supervisory authority by means of mandamus. The most important factor in this regard is that, in dismissing the indictments, respondent purported to apply rules promulgated by the judges of this court acting as a circuit council and, in so doing, interpreted those rules in a fashion that subverts the policies they were designed to serve. Having given the district courts a weapon by which to dismiss indictments, we have the power through mandamus to see that it is not wielded in a manner that subverts or ignores the interests that were intended to be served.

The issue in this case involves the proper interpretation to be given to our Prompt Disposition Rules. We have found that the district judge interpreted the Rules in a fashion that does violence to the policies that the Rules were intended to promote, without any offsetting benefit to the public interest. The result was a wholesale dismissal of seven indictments of government officials alleged to have conspired to receive bribes to influence their official conduct. There is a compelling public interest in the determination on the merits of charges of corrupt and illegal practices by those acting as government officers. In light of these factors, we conclude that corrective action is necessary within our supervisory authority over the district courts.

Defendants argue that this is not a proper case for the issuance of mandamus in support of our supervisory authority because, if such a dismissal recurs in later cases, the government will have the statutory right of direct appeal to this court. Therefore, defendants contend that mandamus is unnecessary to the effectuation of our supervisory authority. We do not agree. This is the first case that has come before this court in which the district court has interpreted the rules in question. Although we may later have similar cases under the new rules, which we can examine on appeal, this does not eliminate the uncertainty that the shadow of the district court’s decision may throw over the conduct of the United States Attorney and the delay in the prosecution of future indictments pending appeals from dismissals such as that before us here. It is the business of this court to prevent such potential disruption of the orderly administration of criminal justice in this circuit whenever it can; indeed, the very rules involved here were promulgated with that end in mind. Therefore, we conclude that this is an appropriate ease for the issuance of mandamus to effectuate this court’s supervisory authority.

Nothing in the decision of Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967), prevents our issuance of mandamus in this case. The Court’s decision in Will reversing the Seventh Circuit's grant of mandamus was based at least in part on the fact that the writ issued without any written opinion stating the reasons therefor. As the Court said:

Mandamus is not a punitive remedy. The entire thrust of the Government’s justification for mandamus in this case, moreover, is that the writ serves a vital corrective and didactic function. While these aims lay at the core of this Court’s decisions in LaBuy and CSchlagenhauf], we fail to see how they can be served here without findings of fact by the issuing court and some statement of the court’s legal reasoning. 389 U.S. at 107, 88 S.Ct. at 280.

See United States v. Griesa, 481 F.2d 276, 278 (2d Cir., 1973). This “corrective and didactic function” that the Court seemed to recognize assumes a special significance when the question involves the application of a rule promulgated by the issuing court.

The Court’s reference to LaBuy and Schlagenhauf would indicate that Will did not retreat from these earlier decisions. Defendants argue that Will means that the use of mandamus in support of the court’s supervisory power, which was recognized in LaBuy and Schlagenhauf, is limited to civil cases. Indeed, the Court did seem to indicate that it did not find the necessary extraordinary circumstances to justify mandamus in a criminal case. After enumerating several situations where the writ had issued and where it had not, the Court said:

But this Court has never approved the use of the writ to review an interlocutory procedural order in a criminal case which did not have the effect of a dismissal. We need not decide under what circumstances, if any, such a use of mandamus would be appropriate. It is enough to note that we approach the decision in this case with an awareness of the constitutional precepts that a man is entitled to a speedy trial and that he may not be placed twice in jeopardy for the same offense. 389 U.S. at 98, 88 S.Ct. at 275.

In this case, of course, we are dealing with a dismissal and neither of the constitutional precepts noted by the Court is in any way jeopardized by our issuance of mandamus. Thus, we find that Will presents no obstacle to the writ’s issuance here.

Finally, defendants argue that, even if it is proper for the writ to issue on the question of the dismissal under Rule 4 of the Prompt Disposition Rules, the writ should not issue here because the dismissal was proper in any event on the motion to dismiss under Rule 48(b) of the Federal Rules of Criminal Procedure, on which the district judge did not rule. However, since we feel that the Rule 48(b) motion should have been denied, this is no obstacle to mandamus.

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Court laid down a balancing test to determine whether a particular delay had violated the defendant’s right to a speedy trial. The Court listed four factors that should be considered in striking the balance: the length of delay, the reason for the delay, whether defendant has demanded a speedy trial, and prejudice to the defendant. The Court further indicated that these factors were interrelated and that no one was “either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial.” We feel that the balance in this case must be struck in the government’s favor. The delay here from the time of indictment to the making of the motions was slightly more than two years. This is far less than that involved in Barker, where the Court found no deprivation of the right. This delay is mitigated by the reason for the delay, the government’s desire to secure the presence of Mintz and to try him jointly with each of his alleged co-conspirators, which would have obviated the inconvenience of a separate trial for Mintz.

In addition, there is the fact that none of the defendants asserted his speedy trial rights. Although this factor is not conclusive, the Supreme Court indicated that it is entitled to great weight:

Whether and how a defendant asserts his right is closely related to the other factors we have mentioned. The strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences. The more serious the deprivation, the more likely is the defendant to complain. The defendant’s assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial. 407 U.S. at 531-532, 92 S.Ct. at 2192.

Finally, we must look to any prejudice suffered by the defendants. For the most part, defendants have asserted general claims of prejudice, such as damage to reputation while the indictments have been pending and the dulling of witnesses’ memories. However, we find these claims to be relatively insubstantial in light of defendants’ failure to demand a trial date. This seems to be the import of the language noted above from Barker v. Wingo. The fact that defendants did not assert their right to a speedy trial during the period of the delay is strong evidence that these general claims of prejudice are not substantial. In addition, defendant Bisgyer claims prejudice because two witnesses whom he had intended to call to testify about his character died during the period of the delay. The first of these witnesses died five months after the indictment was rendered, and the second died eleven months after the indictment. However, here again there was no complaint from Bisgyer about the delay until 24 months after the indictment. And there is conspicuously absent any allegation that Bisgyer is now unable to secure other character witnesses. Therefore, we conclude that this claim of prejudice is also insubstantial.

On balance, therefore, we find that there has been no violation of defendants’ right to a speedy trial and that the Rule 48(b) motion would have had to be denied. Thus, it is appropriate for this court to issue mandamus directing the district judge to reinstate the indictments that he dismissed in reliance on the Prompt Disposition Rules.

Accordingly, the government’s appeal is dismissed and its petition for mandamus is granted. The writ shall issue.

      . The Second Circuit’s Rules Regarding the Prompt Disposition of Criminal Cases were superseded, effective April 1, 1973, by Plans for Achieving Prompt Disposition of Criminal Cases for each of the six districts in the circuit. These Plans were adopted in accordance with Rule 50(b), F.R.Crim.P. The Prompt Disposition Rules that are relevant to this decision remain unchanged in the Plans of eacli of the districts. Therefore, although this case is governed by the prior Prompt Disposition Rules, the decision bears also on the proper interpretation of the District Plans.

      . In any event, as we liave determined that the Prompt Disposition Rules should be interpreted, the Rule 4 period had not yet run at the time respondent dismissed the indictments. Therefore, even under a power analysis, it is clear that respondent was without power under Rule 4 to dismiss the indictments, and mandamus would be proper. See Hilbert v. Dooling, 476 F.2d 355 (2nd Cir., 1973).

      . This court’s appellate jurisdiction in any subsequent dismissals under the District Plans for Achieving Prompt Disposition of Criminal Cases will be governed by 18 U.S.C. § 3731 as amended by the Omnibus Crime Control Act, 84 Stat. 1890 (1970), which unquestionably gives this court appellate jurisdiction over such a dismissal. As noted earlier, this case is governed by § 3731 prior to its amendment.

      . Although the Prompt Disposition Rules by their offspring, the District Plans, have been rescinded, they are paralleled which took effect April 1, 1973. See Note 1, supra.