author: MULLIGAN, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Frank MASULLO et al., DefendantsAppellants.
    Nos. 200, 224, 300, Dockets 73-1733, 73-1772, 73-1907.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 10,1973.
    Decided Nov. 26, 1973.

      Michael B. Mukasey, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty. for the Southern District of New York, John D. Gordan III and John W. Nields, Jr., Asst. U. S. Attys., of counsel), for appel-lee.
    Abraham Glasser, New York City (Jacob P. Lefkowitz, New York City, on the brief), for defendant-appellant Masullo.
    Gilbert Epstein, Theodore Krieger, New York City, for defendant-appellant Edelman.
    Before FRIENDLY, ANDERSON and MULLIGAN, Circuit Judges.
   MULLIGAN, Circuit Judge:

This is an appeal by Frank Masullo, Ambrose Pare and Michael Edelman from judgments of conviction which were entered on May 7, 1973 in the United States District Court for the Southern District of New York. Appellants were all convicted of conspiracy to distribute and to possess with intent to distribute a Schedule II controlled substance (methamphetamine hydrochloride —popularly known as “speed”) in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B) and 846, after a jury trial before Hon. Arnold Bauman, United States District Court Judge, which commenced on April 3, 1973 and ended on April 10, 1973. The jury did not reach a verdict on a substantive count of distribution of speed as to which Judge Bauman declared a mistrial. On May 7th Masullo was sentenced to a five-year prison term and a special parole period of two years, and Pare was sentenced to a prison term of two years. Sentence was suspended on Pare who was placed on probation for three years. Judgments affirmed.

In view of the character of the arguments raised on appeal, no elaborate discussion of the facts is necessary. The evidence of the Government established that an undercover agent, Nicholas Alie-va, with the assistance of an informant, Joseph Swiatek, conducted negotiations with Pare for the purchase of pure amphetamine. After the usual furtive negotiations and meetings which characterize this business, the sale of about a half pound of amphetamine for $4500 was made on August 17, 1972 in Pare’s apartment at 41 West 35th Street in New York City. All three of the defendants were present in addition to Al-ieva and Swiatek. Also present, but not named as a defendant was fellow conspirator Charles Velasquez. The supplier was Masullo who was observed to take $4000 of the payment which was in marked bills. Pare’s share was $500. Masullo had been the subject of a two-year investigation by the Bureau of Narcotics and Dangerous Drugs (BNDD) as a major supplier of speed. Edelman was a henchman of Masullo, who on the afternoon of the sale told Swiatek that he had been sent ahead by Masullo to count the money before the package was delivered. Swiatek vehemently insisted that the deal had to be made directly with Masullo and not with his underling.

Agents who were surveilling Masullo observed him arriving with Edelman at a hotel near Pare’s apartment carrying a brown paper bag. Edelman was then observed entering 41 West 35th Street carrying the same brown paper bag. Masullo soon followed and the sale was then consummated as described. Masul-lo and Pare were arrested on August 29, 1972. Masullo still had in his possession $1700 in the marked currency employed in the sale. Neither Masullo nor Edel-man presented any defense.

I

On appeal Edelman urges that there was insufficient evidence upon which to base his conspiracy conviction. Looking at the evidence in the light most favorable to the Government as we must (Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Tutino, 269 F.2d 488, 490 (2d Cir. 1959)), there is no doubt that Edelman, although not a figure of major importance, was nonetheless an active participant in the conspiracy charged in the indictment. The uncon-tradicted evidence established that Edel-man was a trusted lieutenant of the major figure of the conspiracy, Masullo. He was sent out to make sure that everything was in readiness for the transaction including the payoff; he was observed carrying the inevitable brown paper bag which the jury could reasonably infer contained the speed which was eventually sold to the agents. He was not only present at the sale, but extolled the quality of the merchandise. There was clearly sufficient evidence to support the jury’s determination that Edel-man was part and parcel of the criminal enterprise and not an innocent bystander. See United States v. Martinez, 479 F.2d 824, 829 (1st Cir. 1973); United States v. Garguilo, 310 F.2d 249, 253-254 (2d Cir. 1962).

Appellant’s argument that there could be no conviction of Edelman without proof that he was in actual or constructive possession of the amphetamine is not sound. Edelman was indicted for conspiracy to violate 21 U.S.C. § 841(a) which involves not only possession but also, in the alternative, the distribution or dispensing of the contraband. The court made this point clear in its instructions to the jury. Even if the charge had been limited to conspiracy to possess there would have been no need of showing actual or constructive possession. See United States v. Rappy, 157 F.2d 964, 966-967 (2d Cir. 1946), cert. denied, 329 U.S. 806, 67 S. Ct. 501, 91 L.Ed. 688 (1947).

II

The appellant Pare makes the argument that it was reversible error for the court to refuse to give the so-called “procuring agent charge,” to wit:

If you find that the defendant, Pare, was asked by a federal agent or his special employee to buy drugs for him, and the defendant, Pare, then purchased from a third person with whom he was not associated in selling, then you must acquit Pare of the charges against him.

The procuring agent charge had validity where a defendant was charged with selling narcotics (United States v. Winfield, 341 F.2d 70 (2d Cir. 1965)), and there was evidence that he in fact was acting on behalf of a buyer rather than the seller. The legal theory is that as an agent for the buyer he is a principal in or is conspiring in the purchase rather than the sale of the contraband. United States v. Sawyer, 210 F.2d 169, 170 (3d Cir. 1954). See also Lewis v. United States, 119 U.S.App.D.C. 145, 337 F.2d 541, 543-544 (1964), cert. denied, 381 U.S. 920, 85 S.Ct. 1542, 14 L. Ed.2d 440 (1965).

It has no present application where the charge is not sale but rather distribution or possession with intent to distribute. The statute (21 U.S.C. §§ 802(10) & 802(11)) defines “dispense” and “distribute” to mean “deliver” and the term “deliver” is defined to mean “the actual, constructive, or attempted transfer of a controlled substance, whether or not there exists an agency relationship” (21 U.S.C. § 802(8)). Under any view of the evidence, Pare was unquestionably actively seeking a transfer of the controlled substance and therefore the requested charge was properly refused*. Other circuits have recently reached the same conclusion in cases which are directly in point. United States v. Miller, 483 F.2d 61, 62 (5th Cir. 1973); United States v. Johnson, 481 F.2d 645, 646-647 (5th Cir. 1973); United States v. Hernandez, 480 F.2d 1044, 1046 (9th Cir. 1973); United States v. Workopich, 479 F.2d 1142, 1147 (5th Cir. 1973); see United States v. Jackson, 482 F.2d 1264, 1267 (8th Cir. 1973).

Ill

The appellant Masullo argues that his conviction should be reversed because of the admission of testimony of BNDD agents to the effect that after his arrest Masullo admitted that he had delivered and sold about a half pound of speed to one Nick Alonzo (the undercover name of Alieva) on August 17th. He further objects to the testimony of a former Assistant United States Attorney that Ma-sullo admitted at an interview not only the August 17th deal but conceded that he lived on the money he made selling speed. The admissions made were of course damaging and supported the direct testimony of Swiatek and Alieva as to the August 17th transaction. Masullo argues that the admission of his statements violated his Fifth and Sixth Amendment rights as well as the Canons of Professional Ethics.

With respect to his Fifth Amendment rights, we see no merit whatever in appellant’s claims. Masullo was given Miranda warnings at the time of his arrest, at the time he was interrogated by BNDD agents in their office after his arrest, and finally at the interview before the Assistant United States Attorney where he admitted that his prior statements were given “freely and voluntarily.” This question was the subject of a suppression hearing prior to trial at which Masullo did not testify or offer any evidence. A reading of the transcript of the hearing makes it clear beyond doubt that Masullo’s admissions constituted a waiver of his right to remain silent. See United States v. Ramirez, 482 F.2d 807, 815 (2d Cir. 1973). There are no claims made of unnecessary, prolonged or harassing custodial interrogation. See United States v. Marrero, 450 F.2d 373 (2d Cir. 1971), cert. denied, 405 U.S. 933, 92 S.Ct. 991, 30 L.Ed.2d 808 (1972).

Appellant’s Sixth Amendment argument rests on the failure of the agents to notify Masullo’s attorney that he had been arrested and was presently in custody. On the morning of the day of his federal arrest, Masullo, who had previously been arrested by the New York City Police for another drug violation, appeared in a New York State proceeding at the New York Criminal Court Building, 100 Centre Street, New York City. Upon his departure he was observed taking a taxi to 299 Broadway, where he proceeded to the offices of Rubin, Gold and Geller, who had represented him in the past and in the existing New York State criminal action. Masullo was arrested across the street immediately after he left the building. He was taken to the BNDD office in Manhattan. Appellant’s theory is that since the BNDD agents knew or should have known that Masullo had “regular” counsel, their failure to notify such counsel of his arrest constituted a violation of his Sixth Amendment rights which in turn mandated the exclusion of his inculpatory statements. The argument of course overlooks the Supreme Court’s holding in Kirby v. Illinois, 406 U.S. 682, 688, 92 S.Ct. 1877, 1881, 32 L.Ed.2d 411 (1972):

In a line of constitutional cases in this Court stemming back to the Court’s landmark opinion in Powell v. Alabama, 287 U.S. 45 [, 53 S.Ct. 55, 77 L. Ed. 158] it has been firmly established that a person’s Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him. See Powell v. Alabama, [supra]; Johnson v. Zerbst, 304 U.S. 458 [, 58 S.Ct. 1019, 82 L.Ed. 1461]; Hamilton v. Alabama, 368 U.S. 52 [, 82 S.Ct. 157, 7 L. Ed.2d 114]; Gideon v. Wainwright, 372 U.S. 335 [, 83 S.Ct. 792, 9 L.Ed.2d 799]; White v. Maryland, 373 U.S. 59 [83 S.Ct. 1050, 10 L.Ed.2d 193]; Massiah v. United States, 377 U.S. 201 [84 S.Ct. 1199, 12 L.Ed.2d 246]; United States v. Wade, 388 U.S. 218 [87 S.Ct. 1926, 18 L.Ed.2d 1149]; Gilbert v. California, 388 U.S. 263 [87 S.Ct. 1951, 18 L.Ed.2d 1178]; Coleman v. Alabama, 399 U.S. 1 [90 S.Ct. 1999, 26 L.Ed.2d 387].

It follows that since no federal judicial proceedings had begun, Masullo had no Sixth Amendment right to counsel at the time he made the admissions which wei'e testified to on trial. United States v. Ramirez, supra,, 482 F.2d at 815-816.

Appellant argues however, that the Government knew the defendant had representation in his state case and that therefore there was a constitutional obligation on the part of the agents to advise that counsel of his apprehension. Appellant places primary reliance for this proposition on the case of People v. Vella, 21 N.Y.2d 249, 287 N.Y.S.2d 369, 234 N.E.2d 422 (1967). In Vella the defendant, after having been arraigned and having been assigned counsel in New York County on a charge of receiving stolen property, was arrested by State Police from Suffolk County who were present in the courtroom while he was being arraigned on the receiving charge. He was brought to Suffolk County and there questioned in the absence of his assigned counsel with respect to the theft of the very property he was previously charged with receiving. Whether or not we would follow Vella on its facts, there is a clear distinction between that case and this. There is no showing at all here that Rubin, Gold & Geller who represented Masullo in the state case had been retained to represent him in the federal matter and there was no proof that the crimes were related. Subsequent New York cases have clearly limited Vella to its facts. Thus in People v. Taylor, 27 N.Y.2d 327, 332, 318 N.Y.S.2d 1, 5, 266 N.E.2d 630, 633 (1971) the court stated:

,[T]he thrust of our prior decisions is that once the police learn that an attorney has entered the proceeding, it is offensive to our system of justice, in the absence of a waiver, to permit further questioning by representatives of the People. Implicit in this rationale is the concept that the rule does not obtain unless and until the police or prosecutor learn that an attorney has been secured to assist the accused in defending against the specific charges for which he is held. (Emphasis in original).

See also People v. Hetherington, 27 N. Y.2d 242, 245, 317 N.Y.S.2d 1, 2, 265 N. F.2d 530 (1970).

Appellant also relies upon United States v. Thomas, 474 F.2d 110 (10th Cir.), cert. denied, 412 U.S. 932, 93 S.Ct. 2758, 37 L.Ed.2d 160 (1973), which is again distinguishable. There, after a criminal complaint had been filed and after counsel had been assigned and appeared for the defendant at a preliminary hearing the BNDD obtained a written statement from the defendant while he was in jail in the absence of and without the knowledge of the defendant’s attorney. The defendant requested the interview, and Miranda warnings were given to him before the statement was taken. On trial the statement was admitted in evidence over the objection of defense counsel. On appeal, the court, although condemning the practice of agents conferring with a prisoner, even at his own request, and taking a statement after counsel had been assigned, affirmed the conviction. The court commented that the practice there did not necessarily involve a constitutional issue but rather a violation of the Canons of Ethics, which it would not remedy by a reversal of Thomas’ conviction. It is unnecessary for us to decide what sanctions by way of exclusion, if any, a prosecutor’s violation of the Canons of Ethics should entail, for here there was none. That Masullo had retained counsel in other past and current drug transactions is not necessarily indicative of his retention of them for the August 17th sale of speed. In fact, his failure to enlist their aid after being given Miranda warnings practically on their doorstep is indicative of his intention to confess rather than to contest. He was not a befuddled youth ignorant of where to turn for legal talent.

Aside from the lack of precedent for appellant’s position here we find no sound reason at all to extend the exclusionary rule as appellant proposes. The concept that professional criminals have “house counsel” because of prior escapades and that therefore Government agents knowing the identity of prior counsel have an obligation of constitutional or even ethical dimension to contact counsel before questioning them, is hardly appealing. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) requires that all who are arrested be advised of their right to obtain counsel and to remain silent. This, in our view, adequately protects their rights. Those who have no “regular” counsel and no means to retain counsel would seem to be more deserving of our solicitude.

IV

Masullo and Pare also urge that the indictment should be dismissed because of the failure of the Government to file a notice of readiness within six months of their arrest, pursuant to Rule 4 of the Rules of the Second Circuit Regarding Prompt Disposition of Criminal Cases. The defendants were arrested on August 29, 1972 and an initial indictment was filed on September 8, 1972, which was followed by a superseding indictment on October 10, 1972. At a pre-trial conference in October before Judge Bauman, he pointed out that the superseding indictment listed amphetamine as a Schedule III instead of Schedule II substance, and indicated the variance would result in the dismissal of the indictment. The Government at that time indicated its readiness for trial. A second superseding indictment was then filed on November 3, 1972 and the Government filed a notice of readiness on March 7, 1973, eight days beyond the six-month period. Since the second superseding indictment of November 3 charged the same crime and was based on the same transaction embodied in the prior indictment except for the technical change in the schedule of the controlled substance from III to II, it is difficult to imagine how the defendants .or the district court, who were advised of the Government’s readiness to proceed in October, needed further or other notification. Although the Government must communicate its readiness in some fashion, we have held that the rules do not require any formal notification procedure. United States v. Pierro, 478 F.2d 386, 389 (2 Cir. 1973). Here that readiness was made known in October 1972, well within the mandated time frame, and realistically the second superseding indictment could not be reasonably interpreted by defendants as an indication that the status of readiness was then terminated. '

V

Other points raised by appellants require little discussion. Masullo argues that in the court’s charge to the jury the word “narcotics” was used twice rather than the correct term “stimulant”. This was so prejudicial and inflammatory that without more, the judgment of conviction should be reversed, the argument continues. If the use of the term narcotic twice in a thirty-page charge was so prejudicial, it is difficult to understand the failure of any trial counsel to object or ask for corrective instructions. In the two pages óf the transcript where the word “narcotic” is used, Judge Bauman on four occasions mentions that the crimes charged involved the distribution of methamphetamine hydrochloride (a formidable enough term per se) which he twice characterized as a Schedule II controlled substance. The argument that the additional shorthand description “narcotic” constitutes reversible error, is frivolous.

Appellant Pare conplains that certain hearsay declarations of Charles Velasquez introduced through the testimony of the witness Swiatek were inadmissible since he was not a member of the conspiracy charged. There was sufficient evidence to establish that Velasquez was a member of the conspiracy and the evidence objected to was only cumulative. Velasquez had advised Swiatek on the morning of August 17th that the package had arrived after Masullo and Edelman had entered the Collingwood Hotel, and he was later present at the sale. Judge Bauman found that there was sufficient non-hearsay testimony to establish the conspiracy; that the statement was in furtherance of the conspiracy; that the declarations were reasonable, reliable, not crucial to the Government’s case and not devastating to the defendant’s case, thereby complying with United States v. Puco, 476 F.2d 1099 (2d Cir. 1973).

We have considered all the other arguments raised by appellants and consider them to be without merit.

Affirmed.

      . Possession was often a crucial element in drug trafficking cases prior to the Comprehensive Drug Abuse Prevention and Control Act of 1970 (Pub.L.No.91-513, 84 Stat. 1236). Before its repeal by the 1970 Act, 21 U.S.C. § 174 (1964) made it unlawful to import narcotic drugs into the United States or to buy, sell, transport or conceal them knowing that they have been illegally imported. In the absence of direct proof that a defendant, even though he was a conspirator, knew that the drugs were imported, it was necessary for the Government to rely upon the statutory presumption which provided that proof of his possession was deemed sufficient to authorize conviction. See United States v. Steward, 451 F.2d 1203, 1205-1207 (2d Cir. 1971). The present' Act has repealed and replaced the old, and there is no necessity to establish knowledge of importation and therefore no independent need to establish possession.

      . Appellant does not cite Kirby v. Illinois, supra, and makes no claim that any adversary judicial proceedings had been initiated against him. In Kirby, the Court stated that the critical point at which the right to counsel attaches is when “the Government has committed itself to prosecute, [for it is] only then that the adverse positions of Government and defendant have solidified.” 406 U.S. at 689, 92 S.Ct. at 1882. Here all of Masullo’s statements preceded the arraignment before the Magistrate where he was represented by counsel. See also Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L. Ed.2d 387 (1969). Moreover, it is clear that “the fact that the questioning by an Assistant United States Attorney occurred just prior to arraignment . . . [would not] furnish a basis for excluding the statement.” United States v. Ramirez, supra, 482 F.2d at 815-816.

      . Disciplinary Rule 7-104 of the ABA Code of Professional Responsibility (successor to Canon 9 of the ABA Canons of Ethics) provides that a lawyer shall not:
      Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so. (Emphasis added).
      A number of courts in addition to the Thomas court, have held that prosecutors in criminal proceedings are governed by this standard of conduct. See, e. g., United States v. Springer, 460 F.2d 1344, 1353-1354 (7tli Cir.), cert. denied, 409 U.S. 873, 93 S.Ct. 205, 34 L.Ed.2d 125 (1972); United States v. Four Star, 428 F.2d 1406, 1407 (9th Cir.), cert. denied 400 U.S. 947, 91 S.Ct. 255, 27 L.Ed.2d 253 (1970); United States v. Wilson, 398 F.2d 331, 333 (5th Cir. 1968), cert. denied, 393 U.S. 1069, 89 S.Ct. 727, 21 L.Ed.2d 712 (1969); United States v. Wedra, 343 F.Supp. 1183, 1188 (S.D.N.Y. 1972). See generally Drinker, Professional Ethics 202 (1953); Broeder, Wong Sun v. United States: A Study In Faith And Hope, 42 Neb.L.Rev. 483, 599-604 (1963). This question was left undecided by this court in United States v. Massiah, 307 F.2d 62, 66 (1962), rev’d on other grounds, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).

      . These rules have been superseded by prompt disposition plans promulgated by the various district courts within the circuit, and approved by the Judicial Council. Those plans became effective April 1, 1973.


source: Caselaw Access Project

author:
PER CURIAM:
      AINSWORTH, Circuit Judge:

license: Public Domain

text:
    Eugene M. BAZAAR et al., Plaintiffs-Appellees, v. Porter FORTUNE et al., Defendants-Appellants.
    No. 72-2175.
    United States Court of Appeals, Fifth Circuit.
    Dec. 6, 1973.
    Ainsworth, Circuit Judge, concurred in the result; Bell, Circuit Judge, filed a dissenting opinion in which Roney, Circuit Judge, joined.
    Heber Ladner, Jr., A. F. Summer, Atty. Gen., State of Mississippi, Jackson, Miss., for defendants-appellants.
    Bill Joyner, Harvard Law School, Cambridge, Mass., Stanley L. Taylor, Jr., Oxford, Miss., for plaintiffs-appel-lees.
    Leonard Schwartz, Columbus, Ohio, for A. C. L. U. of Ohio Foundation.
    Melvin L. Wulf, Joel M. Gora, New York City, for Amer. Civil Liberties Union Foundation.
    Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORN-BERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.
   PER CURIAM:

Upon consideration of the record, briefs and oral argument in this cause en banc, the court concludes that the opinion and judgment of the panel should be and the same are hereby affirmed, subject to the following modification :

The defendants-appellants may, at their option, place or stamp on the cover or the format of the magazine Images the following disclaimer {in haec ver-ba) : “This is not an official publication of the University.”

Affirmed as modified.

AINSWORTH, Circuit Judge:

I concur in the result.

BELL, Circuit Judge, with whom RO-NEY, Circuit Judge, joins, dissenting:

I respectfully dissent. This is a curious case. The majority decision, despite the en banc allowance of a disclaimer to the University of Mississippi, portends a substantial diminution in the First Amendment right not to be compelled to sponsor the writing of another.

The suit underlying this appeal was brought by the students having charge of the student-English Department magazine Images and by the student author whose articles gave rise to the controversy. The faculty advisor to Images was later added as a plaintiff.

The complaint sought to enjoin the defendant officers of the university from violating plaintiffs’ right to publish and distribute literary materials. The complaint was filed on May 15, 1972. There was an evidentiary hearing three days later on a motion for a temporary restraining order. The district court entered oral findings and conclusions immediately following the hearing and granted the restraining order. The appeal to this court was from that order. The order has been stayed in the interim.

It developed at the hearing that the particular edition of Images had been printed but was being held at the behest of the university. After some backing and filling on the part of the parties, it became clear that the university was not seeking to confiscate the edition as claimed nor was it seeking to prohibit private distribution. It was made plain that plaintiffs could distribute the issue as a private venture. The sole extant issue then and on appeal was the claim of the university that it should not be compelled to sponsor the publication and the opposite claim of plaintiffs that they were entitled to sponsorship.

The Chancellor of the university testified that his purpose in holding up publication was because he did not consider two stories in Images as appropriate for a university sponsored or endorsed publication. He pointed to the fact that Images was a product of the English Department of the university, and was comprised of student materials published with the advice of the department. This position of sponsorship was somewhat tenuous, public-wise, but the following language was carried on the foreword:

“Images is a student publication of the University of Mississippi, sponsored by the University of Mississippi Associated Student Body with the advice of the Department of English.”

The issue was drawn by the testimony of the faculty advisor, a plaintiff:

“Q I was saying if the magazine should be circulated privately among a group of students, wouldn’t your needs then be satisfied without university sponsorship?

A Not really, because the university would have taken the position that this is not a thing- — this open expression and discussion and writing is not a thing that it approves of and would thereby have helped to influence the students, many students, and the state to think that this is wrong and would have been, it seems to me, exercising an adverse educational influence.”

Unlike a student newspaper, it did appear that Images was an academic endeavor with its staff being selected by the faculty advisor and that he had a vote on all matters pertaining to the publication. If not essentially an undertaking of the English Department, it was at least a joint student-English Department publication. This nexus with the academic side as distinguished from the extra-curricular side of the university was the hinge on which the matter should have turned. Instead, the case was treated in the district court and here as one of censorship and a violation of the open forum doctrine.

The right of the university not to sponsor is in conflict with that of the plaintiffs to publish with sponsorship. The students have the right to publish and distribute Images on their own. The question was and is whether they have the right to require sponsorship by the university.

The only discernible constitutional basis for compelling the university to sponsor Images over its objection is that the magazine had been approved as a student-English Department publication and that the few previous issues had been sponsored. At bottom, the argument is that the management of the magazine had been delegated to the students and the English Department ad-visor and thus the university could not refuse to sponsor it despite any objection as to its content.

The district court stated that the constitution conferred upon the students in charge of Images freedom of speech and press but pointed to the few limitations upon those rights; e. g., the classic exceptions based on clear and present danger, disrupting or frustrating the functioning of the university, undue interference with the educational process, or where the writing or speech is obscene. Cf. Healey v. James, 408 U.S. 169, 92 S. Ct. 2338, 33 L.Ed.2d 226 (1972). The coui't then found prohibited censorship on the part of the university through the denial of its facilities to the student publication. The conclusion was that there was no difference between furnishing a forum for campus speech and providing facilities for a student publication. The claim of the university that it should not be compelled to be an unwilling sponsor was simply ignored. A panel of this court affirmed. Bazaar v. Fortune, 5 Cir., 1973, 476 F.2d 570. Now the court en banc has also affirmed.

It seems to me that the case has been only one-half decided. The conflict between the right of the university not to sponsor and the right of the students to publish with sponsorship is a very live issue. As stated, the decision in the censorship portion of the case was reached on the legal basis that the university printing facilities and a university meeting hall are one and the same from the First Amendment standpoint. But, it is one thing to allow or compel the use of facilities on an equal basis once they have been opened; it is quite another to require sponsorship of writing or speech by a university. It is also quite another thing — and one step further — to require a university, by a federal court writ, to approve and sponsor the activities of one of its academic departments. This latter specter may well be in the case as a part of the sponsorship issue. The control retained in the English Department over Images is a matter that should be developed on remand. Under the simplistic approach to date, no consideration has been given to the role of the English Department — the premise has been that Images is strictly a student publication.

In short, only the student side of the case has been considered. Each side asserts constitutional rights and those rights should have been balanced. At the very least the district court and this court should have ruled on whether the university had a right not to sponsor. I do not know just what the answer would be if the university could have persuaded the district court or this court to consider its position. Assuming that the university had such a right, the district court, sitting as it was in equity, might have found a vehicle for preserving the right of the university as well as the right of the student plaintiffs.

It happens that this court has found one method of accommodating the separate rights, that of permitting the university to file a disclaimer. The en banc court seems to recognize that there is a right in the university not to be compelled to sponsor and, consequent thereto, has allowed the university to disclaim. It has done so, however, in a niggardly manner entirely out of keeping with First Amendment rights; it has written the disclaimer and required that it be used “in haec verba”. In my judgment, such a restricted approach, without any explanation whatever, is in itself a disparagement and denigration of any right worthy of protection under the First Amendment.

It must again be recorded that this right of the university has not yet been litigated; there is not one line in the district court opinion or in the panel opinion in recognition of its existence. In a one sentence order, the en banc court restricts the right of disclaimer to its specific terminology.

I would vacate the temporary restraining order and remand the case for a full hearing on the issue of sponsorship and with the direction that the rights of the parties be balanced if under the facts as developed a right not to be compelled to sponsor is found. The constitutional rights involved are too important to be finally decided on the record of a hearing held for the purpose of considering only a motion for a temporary restraining order.

As is often the case, the rights of one group do not exist in a vacuum; they usually touch the rights of others. It is this touching of rights and the necessity to give the maximum possible protection to all rights that is fundamental to a free society. This constitutional truth is nowhere more applicable than in the university enclave which is at the heart of a free society. Our Constitution is diminished when a right is vindicated at the expense of denying the right of another in circumstances where the rights of each might be accommodated.

Mr. Hubbard, the author of the articles giving rise to this controversy, stated that the theme of one of the articles, “Autumn Evening”, was the story of a young man experiencing frustration. His articles have turned out to be the impetus for a real world form of frustration in that his university has been unable to obtain consideration of what it deems to be a legitimate constitutional position. Its position has not been voted up or down. Believing that the university is due a reasoned ruling on its position before having a federal writ imposed upon it, I dissent.

      . The possibility of adding such a notation to the publication was suggested by the American Civil Liberties Union, Amicus Curiae, at page 6 of its brief on rehearing en banc.

      . On tlie right of the students to be free from censorship in their publications, see Papish v. University of Missouri Curators, 410 U.S. 667, 93 S.Ct. 1197, 35 L.Ed.2d 618 (1973), and the cases cited in the panel opinion, Bazaar v. Fortune, 5 Cir., 1973, 476 F.2d 570 at 574-575. The open forum doctrine safeguards the First Amendment right to use university facilities on an equal basis for purposes of speech and hearing, once the forum is opened by the university. Brooks v. Auburn University, 5 Cir., 1969, 412 F.2d 1171.

      . The basic contention of the university that it could not be compelled to sponsor has yet to be considered except in the tangential way of the terse disclaimer allowed by the en banc court, to be discussed infra.

      . In the view I take of this case, the right not to sponsor does not depend on whether the literary materials are distasteful or are deemed inappropriate except perhaps to the extent of deciding whether the university was acting arbitrarily in withdrawing its sponsorship.

      . I use “sponsorship” in terms of endorsement or offering or distributing as a university xxroduct. The edition had been printed. The facts were not fully developed as to the arrangement for printing and there is no need to decide any question regarding the right to use the printing facilities of the university.


author: CUMMINGS, Circuit Judge.

text:
    UNITED STATES of America, Petitioner, v. Honorable Thomas R. McMILLEN, Judge United States District Court, etc., Respondent.
    No. 72-1648.
    United States Court of Appeals, Seventh Circuit.
    Oct. 17, 1972.
    Rehearing En Banc Denied Nov. 14, 1972.
    James R. Thompson, U. S. Atty., W. T. Huyck and Arnold Kanter, Asst. U. S. Attys., Chicago, III., for petitioner.
    Melvin B. Lewis, Richard B. Caifano, Jerome Rotenberg, Chicago, 111., for respondent.
    Before SWYGERT, Chief Judge, and KILEY and CUMMINGS, Circuit Judges.
   ORDER

CUMMINGS, Circuit Judge.

This case is before us on the Government’s petition for a writ of mandamus directed to respondent district judge.

The October 1971 Grand Jury indicted Robert Siegel, together with Robert Buss and four others, charging them in two counts with conspiracy to hijack and hijacking certain goods in violation of § 659 of Title 18 of the United States Code. The criminal case was assigned to the respondent judge. On December 20, 1971, the defendant Siegel made a pre-trial motion for discovery which asked that the Government be ordered to produce “statements made by any co-defendant hereto, together with whom defendant Siegel is intended to be tried JJ '

On March 24, 1972, Judge McMillen ordered that the Government produce “ [statements of all defendants which mention Robert Siegel in connection with this case . . . .” Subsequently, the Government refused to comply with respondent’s order. Trial was ordered to proceed as scheduled, but the Court indicated that it would exercise its discretionary power under Rule 16(g) Fed.R.Crim.P. to prohibit the Government from introducing into evidence the statements which were not produced.

The Government filed a petition for issuance of a writ of mandamus on August 4, 1972. The petition asks this Court to order Judge McMillen to vacate his order of March 24, 1972. We grant the writ of mandamus and direct the respondent to modify his order to deny the defendants access to statements made by Robert Buss to the Government until such time as Buss has testified on direct examination.

Section 3500 of Title 18 provides:

(a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) to an agent of the Government shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case. 18 U.S.C.A. § 3500 (Cum.Supp.1972).

The prohibition of § 3500 is engrafted on Rule 16(b) of the Fed.R.Crim.P. The Government relies on these prohibitions in refusing to comply with respondent’s order and in seeking a writ of mandamus.

We agree that Rule 16(b) and § 3500 prohibit a district judge from ordering production of statements of Government witnesses, whether or not they are co-defendants, before they have testified. Robert Buss is the only co-defendant named by the Government as a prospective witness for the Government.

We realize that the writ of mandamus is an extraordinary remedy reserved for extraordinary circumstances. Will v. United States, 389 U.S. 90, 107, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967). On the record before us two grounds appear which bear the weight of justification for this writ. First, the writ is necessary to confine the district court to a lawful exercise of its prescribed jurisdiction. Jurisdiction in this context is not limited by a “technical definition” but rather encompasses judicial usurpation of power. Will v. United States, supra at 95, 88 S.Ct. 269. Secondly, on the record it appears that the respondent intends to force this cause to trial and then to invoke his power under Rule 16(g) Fed.R.Crim.P. to prevent the testimony of Buss from being presented. The Government has admitted that without Buss’ testimony it cannot establish its ease. Without mandamus, the Government would be remediless.

Mandamus will prevent the respondent from “usurping power” by ignoring the prohibition of the Jencks Act. The legislative history of the Act leaves no doubt that a statement of a Government witness cannot be discovered until after he testifies. The Senate Report on the Jencks Act contains the following declaration :

[I]t is the specific intent of the bill to provide for the production of statements, reports, transcriptions or recordings, as described in the bill, after the Government witness has testified against the defendant on direct examination in open court, and to prevent disclosure before such witness has testified. S.Rep.No.981, 85th Cong. 1st Sess. (1957), U.S.Code Cong, and Admin.News 1957, p. 1863.

The Conference Report provides:

The changes agreed upon by the conferees ... (3) make it abundantly clear that no such statement need be produced until said witness has testified on direct examination in the trial. Conf.Rep.No.1271, 85th Cong. 1st Sess. (1957), U.S.Code Cong, and Admin.News 1957, p. 1870.

Since initial passage, the Act has been amended only to expand the coverage of the prohibition. 18 U.S.C.A. § 3500 (Cum.Supp.1972); cf. H.Rep.No.91-1549, 91st Cong., 2d Sess. (1970). Moreover, § 3500 has repeatedly withstood Constitutional challenge. E. g., Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1958).

The Act limits the prohibition to Government witnesses or prospective Government witnesses. The prosecution has stated that co-defendant Buss is its only witness or prospective witness that will be called against the two remaining co-defendants Robert Siegel and Arthur Veals. We agree with respondent that defendants are entitled to the statements of any other co-defendants. 8 J. Moore, Federal Practice ¶l6.03[2], at 16-24 (2d ed. 1953); and Rezneck The New Federal Rules of Criminal Procedure 54 Geo.L.J. 1276, 1286 (1966). Accordingly the writ shall issue to deny defendants’ access to Robert Buss’ statements until he testifies at the trial.

      . The record indicates that George Beecher, a co-defendant, was permitted on February 17, 1972, to join in Siegel’s motion for discovery. However, Beecher