author: GOLDBERG, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. John T. GOODWIN, Defendant-Appellant.
    No. 73-1294.
    United States Court of Appeals, Fifth Circuit.
    April 19, 1974.

      Fred A. Jones, Jr. (Court-appointed), Richard W. Aschenbrenner, Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Carol M. Anderson, Miami, Fla., for plaintiff-ap-pellee.
    Before TUTTLE, BELL and GOLDBERG, Circuit Judges.
   GOLDBERG, Circuit Judge:

On March 16, 1972, the federal grand jury for the Southern District of Florida returned an indictment charging, inter alia: that appellant, John T. Goodwin, imported approximately 1000 pounds of marijuana, a Schedule I controlled substance, into the United States in violation of 21 U.S.C. § 952(a); and that Goodwin, along with Allen Charles Ritsema, Wilbur Roger Hansen, and “divers other persons whose names are to the Grand Jury unknown,” conspired to import into the United States and possess marijuana in violation of 21 U.S.C. § 963. The indictment contained several other counts accusing Ritsema, Hansen, and one Patrick Angelo Zaccheo, Jr., of additional substantive offenses; Ritse-ma and Hansen entered guilty pleas to certain substantive counts, and the government dismissed all other charges against them, including the conspiracy count. Goodwin, however, was not arrested until November 30, 1972, at which time he was in the water about 500 yards off the coast of Key Largo, Florida. Pursuant to Goodwin’s arrest, customs agents seized approximately 3000 pounds of marijuana. On January 23 and 24, 1973, Goodwin was tried before a jury and was found guilty both of importing and of conspiring to import marijuana. He was sentenced to five years imprisonment and a two year special parole term on each count, the two sentences to run concurrently.

On this appeal Goodwin seeks to have his conviction reversed for any of four alleged errors on the part of the district court. First, appellant contends that the court erred in failing to grant his motion for acquittal after the conspiracy charges against the other alleged co-conspirators had been dismissed. Second, Goodwin argues that the court should have granted various motions for directed verdict of acquittal because the evidence presented at trial was insufficient to support a conviction. Third, Goodwin claims that several comments by the prosecutor during closing argument were prejudicial, and that the court erred in denying motions for a mistrial on that basis. Finally, appellant maintains that the trial court erred in permitting the government to introduce testimony regarding his arrest while committing a similar offense nine months after the crime charged herein. We find the first two assignments of error unpersuasive. As to the third contention, we believe that at least one of the statements in the government’s closing argument exceeded the limits of permissible prosecutorial zeal, and that the district court erred by failing, at a minimum, to provide a corrective cautionary instruction to the jury. Finally, after careful study of the record in this ease and the decisions of this Circuit, we conclude that the district court committed prejudicial error by admitting evidence of subsequent similar conduct on the part of appellant. We therefore reverse for a new trial.

I.

Appellant argues that because conspiracy charges against his alleged co-conspirators, Ritsema and Hansen, were dropped he should have been acquitted. This Court has followed the general rule that the conviction of only one defendant in a conspiracy prosecution will not be upheld if all other alleged co-conspirators are acquitted. Farnsworth v. Zerbst, 5 Cir. 1938, 98 F.2d 541; United States v. Peterson, 5 Cir. 1974, 488 F.2d 645, 651. The reason for the rule is obvious: at least two persons must join in an unlawful enterprise in order for a conspiracy to exist. The dismissal of conspiracy charges against Ritsema and Hansen, however, did not leave a situation in which fewer than two persons remained who could have joined in the crime. The conspiracy. count of the indictment charged, in addition to Goodwin, Ritsema and Hansen, “divers other persons whose names are to the Grand Jury unknown.” Testimony was presented at trial which specified at least five persons other than those named in the indictment who apparently were involved in the alleged conspiracy. A person can be convicted of conspiring with persons who are not identified by name in an indictment so long as the indictment asserts that such other persons exist and the evidence supports such an assertion. See Rogers v. United States, 1950, 340 U.S. 367, 375, 71 S.Ct. 438, 95 L.Ed. 344, 350. This is no less true simply because the co-conspirators named as codefendants in the indictment were not prosecuted for conspiracy. United States v. Cabrera, 5 Cir. 1971, 447 F.2d 956; Jenkins v. United States, 5 Cir. 1958, 253 F.2d 710. In Rosecrans v. United States, 5 Cir. 1967, 378 F.2d 561, we held that the defendant’s conspiracy conviction was not invalidated by the acquittal of his five named codefendants, particularly because

Count One of the indictment (the conspiracy count) charged that Roseerans conspired not only with his five code-fendants, but with divers other persons to the grand jury unknown, and the written statements made by Rosecrans to the F.B.I. agents and evidence adduced at the trial showed persons other than Roseerans and his five codefendants were parties to the conspiracy.

378 F.2d at 567. We reject appellant’s first claim of error.

II.

The government’s case rested on testimony indicating a conspiracy among a number of people, including appellant, to import marijuana from Jamaica on the MARIA, a boat captained by a man named “John Goodwin.” The government sought to link the seized marijuana with the MARIA, and then to identify appellant as the captain of the MARIA. Appellant argues that the government did not show beyond a reasonable doubt that he was the same “John Goodwin” who was captain of the MARIA, and thus failed to establish a nexus between him and the marijuana. The crime for which appellant was being tried occurred in February 1972; appellant was not arrested until November 30, 1972, while apparently involved in another incident of importing marijuana. Goodwin argues that the government arrested him for the latter incident, and when they discovered his name was the same as that of the man charged in the present indictment, placed him on trial for this offense.

Two alleged co-conspirators, Allen Charles Ritsema and Richard Delise (who was not charged by name in the indictment), testified as to the identity of the captain of the MARIA. Asked if he saw “John Goodwin” in the courtroom, Ritsema pointed to appellant and said, “I’m reasonably sure that is him there.” After the court denied a motion to strike that testimony, Ritsema added: “It has been over a year since I have seen him. He had much longer hair and a mustache then.” Delise was unable to identify appellant as the John Goodwin who captained the MARIA; in fact, he described the boat captain as being “five foot, 170 or 160 pounds” with long hair and a mustache — a description substantially different from that of appellant in every particular. Also on the issue of identity, Customs Agent William Buchanan testified that he had observed appellant at the address where the MARIA was docked on the evening of February 24, 1972, the date of the crime charged herein. Except for the critical issue of identity, all elements of the government’s case were soundly established.

The standard for review of the denial of a motion for directed judgment of acquittal, firmly established by this Court, is

whether, taking the evidence most favorable to the Government, Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680, the jury might reasonably conclude that the evidence is inconsistent with the hypothesis of the accused’s innocence. United States v. Warner, 5 Cir. 1971, 441 F.2d 821, 825; United States v. Andrews, 5 Cir. 1970, 427 F.2d 539, 540; Surrett v. United States, 5 Cir. 1970, 421 F.2d 403, 405. If the evidence is such that a reasonable person may have a reasonable doubt as to the defendant’s guilt, the case should be submitted to the jury. On the other hand, a trial judge should not permit a case to go to the jury if the evidence is so scant as to allow the jury merely to speculate or to conjecture as to the defendant’s guilt. In other words, a motion of acquittal must be granted when the evidence, viewed in the light most favorable to the Government, is such that a reasonably minded jury must have a reasonable doubt as to the existence of any of the essential elements of the crime charged.

United States v. Stephenson, 5 Cir. 1973, 474 F.2d 1353, 1355. In the present ease the government asserts that the identification testimony of Ritsema and Agent Buchanan was sufficient to present the issue to the jury, and that Delise was an unresponsive witness, who drew admonishment from the court and whose testimony could not have been credible to the jury. Based upon our own review of the evidence, we can say only that “a reasonable person may have [had] a reasonable doubt as to the defendant’s guilt”; we cannot say that a reasonable person must have had such doubt. The district court properly submitted the evidence to the jury.

III.

Goodwin alleges that the government, in its closing argument, made at least three misstatements of fact, and at least one other highly prejudicial comment to the jury, and claims that the trial court erred in denying motions for mistrial on those grounds. We shall review the allegedly offensive statements seriatim.

First, appellant observes that the Assistant United States Attorney represented Agent Buchanan as testifying that he saw Goodwin “at the dock in the rear of the residence in Pompano Beach,” when Buchanan actually had testified only that appellant had arrived “in front of this residence.” Appellant made no objection at trial to the government’s misstatement. We are satisfied that this inadvertent mistake on the part of the prosecutor could not have so affected appellant’s substantial rights as to constitute plain error.

Second, Goodwin notes that the government incorrectly stated that “Mr. Ritsema positively identified the captain as John Goodwin, the defendant here in the courtroom.” In fact, Ritsema had testified that he was only “reasonably sure” that appellant was the John Goodwin who had captained the boat. The third misstatement of fact cited by appellant was the government’s incorrect representation of witness Delise’s description of “John Goodwin” as being “five foot, seven inches tall.” Actually Delise had testified that the John Goodwin he had known was only five feet tall, much less similar to appellant in height than his description as represented by the Assistant United States Attorney. Statements such as these by the government in closing argument are reprehensible, whether intentional or inadvertent; if uncorrected by the court or the prosecutor, they would raise serious doubt as to the fairness of the trial. Here, however, upon proper objection by defense counsel, the court on each occasion instructed the Assistant United States Attorney to correct her misstatement, which she did. Under the particular facts of this case, we believe that the net effect of the misstatements, the interruptions for objections, and the corrections by the government, was to emphasize the weaknesses in the government’s identification evidence and not to prejudice the rights of appellant.

Appellant further contends that the trial court erred in denying his motion for a mistrial when the government, in rebuttal closing argument, told the jury that appellant was a fugitive. The remark was made in response to closing argument for appellant in which defense counsel challenged the signature of “John Goodwin” on certain receipts from Nassau Yacht Haven that had been introduced as evidence by the government:

I am sure the Government could have gotten experts and they could have gotten specimens of signature . . . . They could have gotten this man’s signature. And they could have had an expert come in and say, “That signature is the same person that wrote this.” But did they tell you that? No. (Transcript, pp. 169-70)

The government objected to this line of argument, but the court overruled the objection. The Assistant United States Attorney responded on rebuttal:

Now, defense counsel made a big point about the fact that if we really wanted to build a good case we could have compared the signature that the defendant signed with the signature of John Goodwin on the receipt for the fuel on the boat MARIA. But from the time that this indictment was returned until the arrest warrant was issued, he was a fugitive and he was a fugitive out of this country and remained out of the country until he was arrested. We were unable to obtain the signature of the defendant. (Transcript, pp. 172-73)

Counsel for Goodwin objected to the reference to appellant as a “fugitive” on the grounds that no such showing had been made and that “the word ‘fugitive’ essentially to lay people has a bad meaning.” The objection was overruled.

We agree that the government’s rebuttal argument was inflammatory and excessive. Appellant’s fugitive status was neither relevant nor material to the issues being determined by the jury. More important, characterization of appellant as a fugitive was unsupported by any evidence in the record. The Third Circuit considered a similar characterization and observed that “the prosecutor’s representation in his closing argument, unsupported by any evidence in the record, that appellant had been a ‘fugitive for six weeks in California once he knew he was wanted for bank robbery’ was clearly error and was prejudicial to the defense.” United States v. Small, 3 Cir. 1971, 443 F.2d 497, 500. We find the Third Circuit’s conclusion compelling here.

The government’s rebuttal, of course, was not delivered in a vacuum or in an entirely gratuitous manner. It was made in response to a not totally unprovoca-tive argument by appellant, and it must be evaluated in that light.

As an advocate [a United States Attorney] is permitted to make a fair response to defense arguments. The doctrine does not, however, give him what the First Circuit has described as “a hunting license exempt from ethical constraints on advocacy.” Patriarca v. United States, 402 F.2d 314 (1st Cir., 1961). He is at liberty to strike hard blows, but not foul ones.

United States v. Bursten, 5 Cir. 1971, 453 F.2d 605, 610-611, cert. denied, 1972, 409 U.S. 843, 93 S.Ct. 44, 34 L.Ed.2d 83. We are convinced that in this case the government’s assertion was beyond the boundaries of permissibly “hard blows,” and that zeal was permitted to outrun fairness.

In Hall v. United States, 5 Cir. 1969, 419 F.2d 582, we held that the prosecutor’s description of the accused as a “hoodlum” was improper, and that even in the absence of objection from defense counsel, the trial court should have instructed the jury to ignore the remark. The rationale for that part of our decision in Hall would apply with at least as much force to the use of the term “fugitive” in the present ease:

This type of shorthand characterization of an accused, not based on evidence, is especially likely to stick in the minds of the jury and influence its deliberations. Out of the usual welter of grey facts it starkly rises —succinct, pithy, colorful, and expressed in a sharp break with the decorum which the citizen expects from the representative of his government.

419 F.2d at 587.

In certain cases we have declined to reverse convictions because of inflammatory prosecutorial statements when no objection was made at trial, United States v. Jenkins, 5 Cir. 1971, 442 F.2d 429, 435, or when the trial court promptly and specifically instructed the jury that the remarks were improper and not to be considered, United States v. Crane, 5 Cir. 1971, 445 F.2d 509, 520; United States v. Martinez, 5 Cir. 1972, 466 F.2d 679, 683. In the ease sub judice, however, defense counsel made timely objection, and the trial court gave no cautionary instruction. The government’s characterization of appellant as a fugitive was the last thing the jury heard before the court’s general charge. At the very least, upon counsel’s objection the court should have instructed the jury, forcefully and unequivocally, that no evidence had been introduced to establish that appellant was a fugitive and that the prosecutor’s comment should be disregarded.

IV.

Goodwin’s final contention is that the trial court erred in permitting government agents to testify regarding appellant’s arrest while apparently committing an offense similar to the one charged in the present case. As its last witnesses in the trial the government called Customs Agents George Thurman and Michael Brom. Both agents testified to their participation in the arrest of appellant on November 30, 1972, and over strenuous objection by defense counsel, described the seizure of approximately 3000 pounds of marijuana on that occasion. Agent Brom further testified that he had performed a field test on the seized substance and reported, again over defense objection, that the test yielded a positive reaction indicating marijuana. At the conclusion of Agent Brom’s testimony the court instructed the jury that it was to consider the testimony of the arresting agents “solely for the purpose of going to willfulness and intent.” At this point appellant moved for a mistrial, and the court denied the motion.

The federal courts have established as a “universal rule” the wise principle that “evidence of the commission of a wholly separate and independent crime is not admissible as a part of the case against the defendant.” 2 C. Wright, Federal Practice and Procedure, Criminal § 410, at 123. The reason for the rule is, of course, that an accused’s guilt or innocence as to a particular crime should be determined solely on the basis of evidence relevant to that crime; a jury should not be permitted to convict an accused because it believes him to be a person of bad character or because of a notion that, since he committed some other similar crime, he must also have committed the crime for which he is on trial. The wisdom and justice of the rule are unchallenged. Nevertheless, courts have proceeded to carve out a number of exceptions to the “universal rule,” admitting evidence of other crimes to prove some elements of the crime for which the defendant is being tried. For the purposes of our review of this case, three generally recognized exceptions to the rule are arguably relevant — intent, design or plan, and identity. We shall consider each of these exceptions in order.

Both the government, at trial and on appeal, and the district court placed primary reliance on “intent” as a basis for admitting evidence of the subsequent offense. The Assistant United States Attorney urged only the intent exception at trial, and the court, in its preliminary-charge to the jury following the testimony of Agents Thurman and Brom, purported to limit the jury’s consideration of the evidence to that issue. In this appeal, both in its brief and at oral argument, the government continued to rely solely on intent.

Undeniably, intent is an element of the crimes of importing marijuana into the United States and conspiring to import marijuana into the United States. It is equally clear that the Fifth Circuit has long recognized, as an exception to the rule against admitting evidence of other crimes, that, in some instances,

evidence of other offenses by the accused is admissible to show his criminal intent as to the offense charged, where the other offenses are similar to and not too remote from that charged, and where intent is in issue as an element of the offense charged.

Weiss v. United States, 5 Cir. 1941, 122 F.2d 675, 682, cert. denied, 314 U.S. 687, 62 S.Ct. 300, 86 L.Ed. 550. These facts do not terminate our inquiry, however, because we decline the government’s invitation to sanction the admissibility of testimony solely on the mechanical basis that, in name, it fits one of the certified categories.

We reject the government’s theory, not only out of respect for the law of this Circuit, but also out of a recognition of the danger, enunciated by Dean McCormick, that,

if the judges, trial and appellate, content themselves with merely determining whether the particular evidence of other crimes does or does not fit in one of the approved classes, they may lose sight of the underlying policy of protecting the accused against unfair' prejudice. The policy may evaporate through the interstices of the classification.

C. McCormick, Evidence § 190, at 453 (2d ed. 1954). Rather than undertake an exercise in “pigeonholing,” as Dean McCormick describes it, this Court has adopted a more difficult, but more enlightened, balancing approach. Assuming, of course, that the evidence of other crimes is clear and convincing, we must balance the actual need for that evidence in view of the contested issues and the other evidence available to the prosecution, and the strength of the evidence in proving the issue, against the danger that the jury will be inflamed by the evidence to decide that because the accused was the perpetrator of the other crimes, he probably committed the crime for which he is on trial as well.

We emphasize that the test we set forth today is by no means a novel one in this Circuit. In United States v. Boyd, 5 Cir. 1971, 446 F.2d 1267, 1270-1271, we stated:

The list of exceptions to the other crime evidence rule is extensive, and in most situations evidence of other crimes — if closely connected in time and nature to the offense charged— can fit within at least one of the exceptions. But the mere categorizing of the evidence should not overshadow the rationale of the rule. It has been stated that the admissibility of such evidence is not to be determined entirely by its relevancy and its categorization, but that there must also be a balancing of the need for the evidence against the possible prejudice to the accused.

More specifically, with regard to the question of the prosecution’s actual need for the evidence, this Court has held that

other crime evidence may be received only if the element of the offense which the evidence is introduced to establish is contested . . . and is not established by other uncontrovert-ed evidence relating to the principal offense ....

United States v. Broadway, 5 Cir. 1973, 477 F.2d 991, 994. Implicit in the Broadway language is the corollary principle that the other-crimes evidence may be received only if it has legitimate probative value in establishing the element of the offense for which it is offered. In United States v. Lawrance, 5 Cir. 1973, 480 F.2d 688, we gave our regards to Broadway in unmistakable language, and we do so again today. Earlier, in Hamilton v. United States, 5 Cir. 1969, 409 F.2d 928, we gave special emphasis to these principles as applied to the intent exception. We held that other-crimes evidence is admissible on the issue of intent only “where intent, as such, is a critical ingredient of the offense charged.” 409 F.2d at 930 (emphasis in original).

The decisions of this Circuit cited in the government’s brief do not lead us to a contrary result; rather they are entirely consistent with the law as stated in Hamilton, Boyd, Broadway, and Lawrance. The government relies heavily on Weiss v. United States, supra, the case in which the principle that evidence of similar offenses may be admissible to prove intent is believed to have had its genesis in the Fifth Circuit. This Court, however, went no further in Weiss than to say that such evidence is admissible “where intent is in issue as an element of the offense charged,” 122 F.2d at 682; the limited nature of that language is amply illustrated by the posture of the issues in the case:

With the issue thus sharply drawn as to Weiss’ guilty intent, the trial court permitted the district attorney to introduce evidence of Weiss’ participation in other frauds against the state in which he claimed to have been the innocent instrument of the true criminal.

122 F.2d at 681-682. In Roe v. United States, 5 Cir. 1963, 316 F.2d 617, another case relied upon by the government, the question of whether the acts constituting the crime were performed “willfully,” i. e., intentionally (see footnote 7, supra), was not only contested, but was probably the most vigorously disputed issue in the trial. Finally, in United States v. Johnson, 5 Cir. 1972, 453 F.2d 1195, this Court specifically rejected the notion that evidence was admissible simply because it could be made to fit in the “specific intent or knowledge” category. Rather, relying on our decision in United States v. Stallings, 5 Cir. 1971, 437 F.2d 1057, the Court balanced “the prejudicial effect of this evidence” against “any proper benefit the prosecution could derive therefrom,” and determined that the conviction must be reversed. 453 F.2d at 1199 (emphasis in original).

We turn now to an analysis of the issues in the trial of John Goodwin in light of the requirements set forth above. We have noted that, when appellant was apprehended on November 30, 1972, he was in the water in the immediate proximity of a vessel containing some 3000 pounds of marijuana; appellant does not dispute that the other-crime evidence was clear and convincing as to the conduct described. It is thus appropriate in this case to balance the prosecution’s actual need for this evidence to show intent and the strength of the evidence as proof of intent against the danger that the jury would conclude that, because appellant was caught on November 30th, apparently bringing 3000 pounds of marijuana into the United States, he must have been the one who captained the ship that brought marijuana into the country in February.

The facts of this case tip the scales heavily against the government. Although intent was an element of the crimes charged, that issue was never seriously disputed at trial. Appellant’s entire defense was based on the argument that he was not the John Goodwin whom government witnesses had implicated in the conspiracy. Moreover, undisputed evidence, introduced prior to the testimony of Agents Thurman and Brom regarding the November 30th arrest, indicated that one John Goodwin had participated in discussions about the importation of marijuana and had helped load the marijuana onto the MARIA. If appellant was the John Goodwin described by government witnesses, there could have been no reasonable doubt as to intent, willfulness, or knowledge. This is similar to the situation confronted by this Court in Fallen v. United States, 5 Cir. 1955, 220 F.2d 946, cert. denied, 350 U.S. 924, 76 S.Ct. 213, 100 L.Ed. 808, an automobile theft case, in which we stated:

We think that there could have been no real question of Trice’s criminal motive if, in fact, he changed the numbers on the stolen automobile. Proof of the commission of the act carried with it the evident implication of a criminal intent. In such instances, evidence of the perpetration of other like offenses is not needed to establish criminal motive or intent and is not admissible for such purpose.

220 F.2d at 948.

Balanced against the total absence of need for the evidence of appellant Goodwin’s subsequent conduct to show intent, this case poses a dramatic example of the kind of prejudice the rule against admitting other-crime evidence was designed to prevent. On the basis of the uncertain in-court identifications by witnesses Ritsema and Delise, the jurors may well have entertained a reasonable doubt as to whether appellant was the John Goodwin involved in the crimes charged in the March 16, 1972 indictment. The testimony linking appellant John Goodwin to 3000 pounds of marijuana on November 30, 1972, might well have removed — by impermissible inference — any such doubt. We conclude that the district court erred in admitting this evidence for the purpose of proving intent.

The second rationale arguably used by the district court for admitting the other-crime evidence was to prove a design or plan. The district court in its preliminary charge to the jury twice said that the evidence was admitted solely for consideration as to the issue of intent; on one occasion during the same instruction, however, the court told the jurors that they might also consider the evidence “to show that [appellant] had a design or scheme to commit crimes of the sort with which he is charged.” See footnote 4, supra. Even if this charge on “design or scheme” were correct, we would question its efficacy in view of the contradictory nature of the preliminary charge as a whole. The charge, however, was entirely incorrect. As an exception to the general rule against admitting other-crimes evidence courts have permitted the introduction of such evidence to show a design or scheme on the part of the accused to commit the specific crime with which he is charged, but never to show a design or scheme to commit “crimes of the sort with which he is charged.”

When the prosecution seeks to prove design or plan by the doing of similar acts, more is required than the mere similarity that may suffice for showing intent. As Professor Wigmore has explained:

The added element, then, must be, not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations. Thus, where the act of passing counterfeit money is conceded, and the intent alone is in issue, the fact of two previous utter-ings in the same month might well tend to negative intent; but where the very act of uttering is disputed— as, where the defendant claims that his identity has been mistaken — , and the object is to show that he had a general system or plan of working off a quantity of counterfeit money and did carry it out in this instance, the fact of two previous utterings may be in itself of trifling and inadequate significance.

The “design or scheme” exception is totally inappropriate in the case sub jud-ice. Though evidence of importation of marijuana in November 1972 might be of value in showing that the commission of such an act in February 1972 was not unintentional — if intent were in dispute —that evidence contributes nothing toward proving any plan or scheme to import marijuana in February 1972.

We turn finally to the exception to the exclusionary rule by which courts admit other-crimes evidence to prove identity. We note first that the trial court never instructed the jury that it could consider evidence of the subsequent offense to establish identity; we further observe that the government does not contend on this appeal that the evidence could properly have been admitted for this purpose. We discuss the issue here only because the transcript reveals a misunderstanding of the exception by the district court prior to the time the court issued its preliminary charge to the jury; such a misunderstanding should not serve as a justification for admitting evidence of appellant’s November 30th conduct once again if the government chooses to retry Goodwin for the crimes charged in the March 16, 1972 indictment.

Prior to the testimony of Agents Thurman and Brom, the Assistant United States Attorney made a proffer of the evidence she expected to adduce from those witnesses. The court overruled defense counsel’s objections to that evidence. The following exchange then took place, outside the presence of the jury, between defense counsel and the court:

MR. JONES [counsel for Goodwin] : Then, consistent with your ruling, it is for the willfulness and intent as to these next officers testifying?
THE COURT: No, sir. Willfulness and intent and, in my opinion, as to the question of identity. There seems to be some question as to the identity of this defendant, since Mr. Delise gave such an excellent description which was at odds with the actual appearance.
And since Mr. Ritsema said that at the time he knew him he had longer hair and a mustache and that he was reasonably sure that it was this defendant, I think it is relevant and material, also, with respect to the question of identity. (Transcript, p. 127).

The facts of this case, however, do not pose the proper situation for the identity exception. If the exception were used as the district court implied it could be, the effect would be to drain all remaining life from the general rule against admission of other-crimes evidence. The only value that evidence of appellant’s conduct on November 30th would have in establishing “identity” would be to plant in the minds of the jurors the notion that, because appellant is the kind of person who is associated with vessels containing large quantities of marijuana, he must have been involved in the importation and conspiracy with which he was charged in the March 16th indictment. This simply is not a permissible use of other-crimes evidence under the law.

The “identity” exception has a much more limited scope; it is used either in conjunction with some other basis for admissibility or synonymously with modus operandi. A prior or subsequent crime or other incident is not admissible for this purpose merely because it is similar, but only if it bears such a high degree of similarity as to mark it as the handiwork of the accused. For example, in United States v. Jackson, 5 Cir. 1971, 451 F.2d 259, this Court upheld the district court’s admission of evidence regarding another unlawful incident on the same day to prove identity, where both acts were committed by a man of similar description who presented an identification card bearing the same social security number and apparently valid pay orders originating from Fort Ord, California, and who represented himself to be Charles T. Jackson. The trial court in Jackson instructed the jury that the evidence was admitted for the specific limited purpose of showing modus operandi, which might “shed some light on the identity” of the defendant, and explained that,

sometimes in criminal offenses, one’s method of doing things, of painting a portrait or of laying fancy brickwork or of committing a crime, the methods and artistry involved are so similar that you can almost say from looking at two of them that the same hand did both of them.
In other words, similarity of method, similarity of mode of operation is sometimes almost like a trademark of its author.

451 F.2d at 263 n. 6 (quoting from Judge Edenfield’s statement to the jury at Jackson’s trial). In the case sub jud-ice appellant’s conduct on November 30, 1972, as described by Agents Thurman and Brom — standing in the water about 500 yards off the coast of Key Largo and about 40 yards from an unnamed boat containing 3000 pounds of marijuana — and the relevant conduct of February 1972, as charged at trial — bringing either 1000 pounds (as stated in the indictment) or 3000 pounds (as argued by the government) of marijuana into Pompano Beach aboard the ship MARIA — do not bear such peculiar, unique, or bizarre similarities as to mark them as the handiwork of the same individual. Thus, as with the “design or scheme” issue discussed above, even if the other-crime evidence had been introduced to establish identity, which it was not, and even if the trial court had so instructed the jury, which it did not, the evidence would not have been admissible because it would have had no legally-recognized strength in proving the matter for which it was introduced.

That courts must guard against improper incursions on the general rule against admitting other-crimes evidence is so critically important, of course, not because such evidence has no probative value, but for the very reason that such evidence may have very substantial strength — not cognizable in law — in establishing a defendant’s identity in the minds of the jurors. This Court has never hesitated to approve the admission of other-crimes evidence when that evidence has been relevant under one of the exceptions to the general rule. We have recognized, however, and we must continue to recognize, that the various categories of exceptions — intent, design or plan, identity, etc. — are not magic passwords whose mere incantation will open wide the courtroom doors to whatever evidence may be offered in their names. To the contrary, each exception has been carefully carved out of the general rule to serve a limited'judicial and prosecu-torial purpose. We believe that in the present case evidence of appellant’s apparent possession or importation of marijuana near Key Largo on November 30, 1972, could serve no proper judicial or prosecutorial function that would outweigh its prejudicial effect. The district court erred in permitting the jury to consider that evidence, whether for the instructed purpose of proving intent, for the partially instructed purpose of showing design or scheme, or for the uninstructed purpose of establishing identity.

Reversed and remanded.

      . We find the misstatement of Delise’s description of Goodwin’s height particularly objectionable in view of the Assistant U. S. Attorney’s comment immediately thereafter, that “[y]ou can change your beard and you can change your long hair, but you can’t change your height.”

      . See Handford v. United States, 5 Cir. 1957, 249 F.2d 295, 296, in which this Court succinctly stated the heavy obligation of fairness a United States Attorney bears in a criminal prosecution.

      . The term “fugitive” may be even more prejudicial than the term “hoodlum” because it is a more specific characterization and more likely to be interpreted as a legal conclusion based on particular facts. See McMillian v. United States, 5 Cir. 1966, 363 F.2d 165.

      . The full text of the court’s preliminary charge follows:
      THE COURT: Ladies and gentlemen of the jury, I want to give you a preliminary charge with respect to the testimony of the last two witnesses.
      Their testimony has been to the effect that Mr. Goodwin was engaged in substantially similar conduct to the one for which he is now on trial. That evidence was admitted by me solely for your consideration of whether it tends to show whether Mr. Goodwin willfully intended to commit the offense with which he is charged and is now being tried; or to show that he had a design or scheme to commit crimes of the sort with which he is charged.
      You are not required to consider this evidence — and whether you do or not is solely a matter within your exclusive province. You may not consider it as tending to show in any other respect Mr. Goodwin’s guilt of the offense with which he is now charged.
      I will charge you later, among other things, that willfulness or intent is an essential element of this offense. So this evidence was admitted solely for your consideration going to intent. It is not evidence of any kind whatsoever that Mr. Goodwin did commit the crime for which he is now being tried. It is admitted solely for the purpose of going to willfulness and intent.
      Does everybody understand that?
      [The jury indicates in the affirmative.]
      THE COURT: It is admitted solely for the purpose of going to willfulness and intent. (Transcript, pp. 138-39)

      . Professor Wigmore has described the most common avenues for entering evidence of other crimes as:

        Capacity (physical strength or the like) : on a charge of placing a large stone on a railroad track, the previous felonious placing of a rail on the track shows the defendant’s strength-capacity for the act;

        Habit or Custom: to show a habit of omitting a signal at a railroad-crossing, previous instances of its omission are relevant;

        Design or Plan: to show a plan to rob a safe, the stealing of the key would be relevant ; or to show a plan to murder a whole family and obtain their insurance-money, the killings of other insured members of the family would be admissible;

        Knowledge or Belief: to show knowledge of the conterfeit quality of a bank-bill, a former unsuccessful attempt to pass a similar one is relevant;

        Intent: to show intentional falsification of accounts, former incorrect entries of a similar sort tend to negative mistake;

        Motive: to show a probable desire in a husband to get rid of his wife, an adulterous relation with another woman is relevant;

        Identity: to assist in identifying a murderer, the commission of another murder by the defendant is relevant, if it appears that the same person committed both.
      1 J. Wigmore, Evidence § 217, at 718-19 (3d ed. 1940). Professor Wigmore described res gestae, including “other criminal acts which are an inseparable part of the whole deed,” as still another type of admissible evidence. Id. § 217, at 719. The exceptions have become so numerous that, as Professor Wright has observed, “the attitude of prosecuting attorneys may well be like that of the man who was asked what he thought of Prohibition and replied: ‘It sure beats not drinking at all.’ ” 2 C. Wright, supra, at 125 n. 75.

      . Each of these rationales was stated by the district court at some time during the trial. The court went further at a proceeding on a post-trial motion, asserting that “the evidence was admissible for the limited purpose it was admitted : for intent, motive, knowledge, common plan, or scheme.” (Supplemental Transcript, p. 5). Neither “motive” nor “knowledge,” however, was advanced at any point during the trial as justification for admitting the evidence, and the jury was never instructed that it could consider proof of the subsequent offense to establish either of those elements of the crime charged.

      . See footnote 4, supra. The court used the phrase “willfulness and intent,” but apparently considered the terms synonymous. We have found no cases supporting an exception to the exclusionary rule for “willfulness,” except as it is used to show intent. See Roe v. United States, 5 Cir. 1963, 316 F.2d 617, 621, n. 9.

      . As opposed to former 21 U.S.C. § 176a, the statute under which importation of marijuana was prosecuted prior to the effective date of the 1970 Drug Abuse Prevention and Control Act, the present 21 U.S.C. § 952(a) does not explicitly set forth an independent requirement of knowledge or intent. But § 952(a) must be read with the penalty provisions in 21 U.S.C. § 960 as requiring knowledge and intent before any punishment can be imposed. Courts have assumed, of course, that such a requirement does exist. See, e. g., United States v. LaFroscia, 2 Cir. 1973, 485 F.2d 457. In the present case, the indictment charged that the defendants “did knowingly and intentionally combine, conspire, confederate, and agree . . . ” and that Goodwin “did knowingly and intentionally import . ” (emphasis added). The district court instructed the jury that the essential elements of the importation offense were: “ (1) The act of knowingly or intentionally importing (2) a controlled substance in Schedule I (3) into the United States from any place outside thereof.” (Transcript, p. 191, emphasis added). As to the conspiracy offense, the court charged the jury that to find Goodwin guilty it must find'that he “willfully participated in the unlawful plan, with the intent to advance or further some object or purpose of the conspiracy.” (Transcript, p. 186).

      . Writing for the panel, Judge Godbold declared:
      Relevance alone is not the key to this prosecutorial Pandora’s box. If the evidence is relevant to an element of the offense which is in issue the trial court must then evaluate the evidence to determine whether it is “plain, clear, and conclusive” that the defendant did in fact commit the other crimes. United States v. Broadway, 477 F.2d 991 (CA5, 1973). Assuming the evidence of extrinsic crimes is convincing and relevant to a material fact in issue the trial court must then weigh the probative value of the evidence against its inherent prejudicial effect. On those scales the court must also weigh the need for such probative evidence, i. e., if the prosecution has a strong case without the evidence of similar criminal acts then there is no need for the probative value of the evidence and it should be excluded.
      480 F.2d at 691-692 n. 6. This Court has recently noted the limited nature of another of the Broadway principles, United States v. Bryant, 5 Cir. 1974, 490 F.2d 1372; we have not retreated a single step, however, from the important rule quoted in the text and reemphasized in Lawrance.

      . The remaining Fifth Circuit cases cited by the government, United States v. Alston, 5 Cir. 1972, 460 F.2d 48, cert. denied, 409 U.S. 871, 93 S.Ct. 200, 34 L.Ed.2d 122, and United States v. Apollo, 5 Cir. 1973, 476 F.2d 156, are inapposite to the question of admissibility of other-crimes evidence to prove intent. In Alston intent was a factor only to the extent that it added to the very substantial relevancy of tiie other-offense testimony to show “similarity of method.” The evidence there consisted of telephone calls between Alston and an undercover agent in which, as in the crime for which Alston was being tried, a previously arranged cipher and the same code words were used. In Apollo the government’s claim was that the evidence should be admitted to show a pattern or scheme; in any event, the Court relied on United Statues v. Johnson, supra, and held that the other-crime evidence was improperly admitted.

      . 2 J. Wigmore, Evidence § 304, at 202-03 (emphasis in original). Eor examples of appropriate evidence to prove design or plan, see the excerpt from Professor Wigmore’s treatise quoted in footnote 5, supra.

        . See United States v. Jackson, 5 Cir. 1971, 451 F.2d 259. According to Dean McCormick, “a need for proving identity is not ordinarily of itself a ticket of admission, but [such] evidence will usually follow, as an intermediate channel, some one or more of the other theories,” generally plan, modus operandi, or motive. C. McCormick, Evidence § 190, at 451 (2d ed. 1954).

      . Compare Drew v. United States, 1964, 118 U.S.App.D.C. 11, 331 F.2d 85 (evidence of other crime not admissible; both crimes committed against High’s neighborhood stores on summer afternoons, two and one-half weeks apart, by a Negro male wearing sunglasses; in each instance a sales clerk at the victimized store identified defendant Drew as the offender), with Parker v. United States, 9 Cir. 1968, 400 F.2d 248 (evidence of other crimes admissible; in each of the crimes the robber posed as a hitch-hiker, kidnapped the driver who offered him a ride, forced the hostage at gunpoint to drive him to and accompany him into a bank, and directed the hostage to fill a pillow case provided by the robber with money from the tellers’ cages).

      . This danger was eloquently illustrated by Judge Ladd of New Hampshire almost one hundred years ago:
      “But it is nevertheless argued on behalf of the State (if I have not wholly misapprehended the drift of the argument) that the evidence was admitted because, as a matter of fact, its natural tendency was to produce conviction in the mind that the prisoner committed rape upon his victim at the time he took her life. I shall not undertake to deny this. If I know a man has broken into my house and stolen my goods, I am for that reason more ready to believe him guilty of breaking into my neighbor’s house and committing the same crime there. We do not trust our property with a notorious thief. We cannot help suspecting a man of evil life and infamous character sooner than one who is known to be free from every taint of dishonesty or crime. We naturally recoil with fear and loathing from a known murderer, and watch his conduct as we would the motions of a beast of prey. When the community is startled by the commission of some great crime, our first search for the perpetrator is naturally directed, not among those who have hitherto lived blameless lives, but among those whose conduct has been such as to create the belief that they have the depravity of heart to do the deed. This is human nature — the teaching of human experience. If it were the law, that everything which has a natural tendency to lead the mind towards a conclusion that a person charged with crime is guilty must be admitted in evidence against him on the trial of that charge, the argument for the State would doubtless be hard to answer. If I know a man lias once been false, I cannot after that believe in his truth as I did before. If' I know he has committed the crime of perjury once, I more readily believe he will commit the same awful crime again, and I cannot accord the same trust and confidence to his statements under oath that I otherwise should. . . . Suppose the general character of one charged with crime is infamous and degraded to the last degree; that his life has been nothing but a succession of crimes of the most atrocious and revolting sort: does not the knowledge of all this inevitably carry the mind in the direction of a conclusion that he has added the particular crime for which he is being tried to the list of those who have gone before? Why, then, should not the prosecutor be permitted to show facts which tend so naturally to produce a conviction of his guilt? The answer to all these questions is plain and decisive: The law is otherwise.”
      State v. Lapage, 1876, 57 N.H. 245, 275, 299, quoted in 1 J. Wigmore, Evidence § 193, at 643-44 (3d ed. 1940).


source: Caselaw Access Project

license: Public Domain

text:
    Lewis TRAYLOR, Plaintiff-Appellant, v. CITY OF AMARILLO, TEXAS, et al., Defendants-Appellees. William R. CURTIS, Plaintiff-Appellant, v. CITY OF AMARILLO, TEXAS, et al., Plaintiffs-Appellees.
    No. 73-2047.
    United States Court of Appeals, Fifth Circuit.
    April 19, 1974.

      Larry Watts, Houston, Tex., for plaintiff-appellant.
    Bruce Aycock, City Atty., City of Amarillo, Harlow L. Sprouse, Joe Harlan, Amarillo, Tex., for City of Amarillo.
    Mac W. Hancock, III, Amarillo, Tex., for defendants-appellees.
    Before THORNBERRY, GOLDBERG and INGRAHAM, Circuit Judges.
   GOLDBERG, Circuit Judge:

Exercising its power to abate unrepaired nuisances, the City of Amarillo, Texas, demolished without compensation property belonging to each of the plaintiffs-appellants. They filed separate civil rights suits in federal court against the city, the mayor, the city manager, and four members of the City Commission, challenging the constitutionality of the city’s actions seeking monetary, injunctive, and declaratory relief. The suits were consolidated for trial and have remained so on this appeal. A jury was empanelled, but at the close of the evidence on liability the court granted plaintiffs’ motion to submit all issues except those of compensatory and punitive damages to the court without a jury. The court then granted defendants’ motion for directed verdict, based on plaintiffs’ “failure to prove facts constituting a deprivation of federally protected rights,” and denied all requested relief. From that adverse judgment plaintiffs appeal. Finding no substantial error in the proceedings below, we affirm.

On appeal appellants focus their attack on the district court’s conclusion that the demolition of their property under the procedures outlined in certain city ordinances did not violate the Fourteenth Amendment’s guarantee against deprivations of property without due process of law. This conclusion, they argue, was incorrect for three reasons, which we treat seriatim.

Appellants do not contest the basic constitutionality of the demolition remedy provided in the city ordinances for abating nuisances. Instead, they argue that this particular exercise of municipal power can be reconciled with the constitutional guarantee of due process only if a judicial determination that the property is indeed a nuisance or in violation of city regulations precedes its destruction. Appellants rely on Yates v. Milwaukee, 77 U.S. (10 Wall.) 497, 19 L.Ed. 984 (1871); Crossman v. City of Galveston, 1923, 112 Tex. 303, 247 S.W. 810, and Stockwell v. State, 1920, 110 Tex. 550, 221 S.W. 932. We do not think these decisions support the constitutional proposition appellants advance.

In Yates the Supreme Court held that a city could not' simply pass an ordinance declaring particular property to be a nuisance and ordering its abatement. The city had apparently made no specific findings that the property was a nuisance or injurious to the public, and the Court noted the absence of “any general laws either of the City or of the State, within which a given structure can be shown to be a nuisance . . . .” 77 U.S. at 505, 19 L.Ed. at 986. In the case at bar, on the other hand, the city proceeded under authority of state law and pursuant to local ordinances which not only explicitly define the procedures to be followed, but also outline with some specificity the conditions under which property is subject to demolition. This is a far cry from the ad hoc, summary action decried in Yates.

The two Texas cases cited by appellants are troubling, for together they appear to hold that property which is neither a nuisance per se nor a nuisance under the common law may be destroyed only after a judicial declaration that the property is in fact a nuisance. Whatever the status of these decisions as statements of the law of Texas, we do not believe that such a requirement is imposed by the federal constitutional guarantee of due process.

The two cases are old; and, as Professor Mandelker has noted, such cases “were decided at a time when the constitutional basis for public regulatory powers was more primitive, and take as their basic premise the origins of the demolition power in equity actions against public nuisances.” Man-delker, supra note 3, at 646. Moreover, both cases explicitly rely on the venerable proposition that legislation may not declare to be a nuisance any use or condition which was not a nuisance at common law. In Village of Euclid v. Amber Realty Co., 1926, 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, the Supreme Court partially abandoned this proposition in the context of zoning, holding that “[t]he ordinance now under review, and all similar lavjs and regulations, must find their justification in some aspect of the police power, asserted for the public welfare.” 272 U.S. at 387, 47 S.Ct. at 118, 71 L.Ed. at 310 (emphasis added). The Court emphasized that although the common law of nuisance might furnish the “helpful aid of its analogies in the process of ascertaining the scope of the police power,” it would not be control-ing. Id.

In Goldblatt v. Town of Hempstead, 1962, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130, the Court again relied on the police power analysis in testing the constitutional validity of property use regulations, this time in the context of an ordinance controlling dredging and pit excavating on property within the town limits. The Court explained the term “police power” as follows:

Except for the substitution of the familiar standard of “reasonableness,” this Court has generally refrained from announcing any specific criteria. The classic statement of the rule . is still valid today:
“To justify the State in interposing its authority in behalf of the public, it must appear- — - First, that the interests of the public . . . require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.”
Even this rule is not applied with strict precision, for this Court has often said that “debatable questions as to reasonableness are not for the courts but for the Legislature. . ."

369 U.S. at 594-595, 82 S.Ct. at 990, 8 L.Ed.2d at 134.

We think the instructions from the Supreme Court are clear. Even though it may be preserved intact in the amber of state law, for the purposes of marking the limits of federal constitutional due process the common law of nuisance must be considered a jurisprudential artifact, interesting but not controlling. The district court in the case sub judice concluded that the challenged ordinances are a legitimate and compelling exercise of the city’s police power, and we see no reason to question that conclusion. The court also found adequate procedural safeguards in the notices, hearing, and opportunity for compliance provided by the ordinances, and again we agree. Where the control is reasonable and the actions otherwise accord procedural fairness, we do not believe that the United States Constitution requires that a judicial determination precede demolition of property found to be a nuisance.

Appellants next argue that the operative words of the city ordinance defining property subject to the remedies of repair or demolition are so vague that men of common intelligence must necessarily guess at the statute’s meaning and differ as to its application. We find this argument unpersuasive. General descriptive words are practically unavoidable in view of the difficulty of anticipating every condition that might make a building liable to the remedies of repair or demolition. The Amarillo ordinances minimize the danger inherent in this type of regulation by specifically incorporating into the City Code portions of the Uniform Building Code, which outline in detail the requirements for maintaining structures in a safe and habitable condition. Moreover, any claim that appellants had to guess at the meaning of the ordinances is belied by the more than adequate notice they received of both the specific deficiencies in their properties and the repairs necessary to bring the properties into compliance with the law. Indeed, both appellants made at least preliminary efforts, later abandoned, to comply and make the ordered repairs.

Finally, appellants insist that the hearing granted to property owners before the City Commission is defective because the Commission -is not allowed to find in the property owner’s favor. They point to Section 5-6(f), which provides inter alia that the City Commission

may order the building official to proceed with the work specified in such notice or order such building or structure demolished or removed and may cause the cost of such work to be paid and levied as a special assessment against the property....

Appellants argue that this portion of the ordinance gives the Commission three alternatives, but not the fourth alternative of reversing the finding that the building is a nuisance. The city insists that the words of the ordinance do allow for the fourth alternative, though they concede that it is rarely used. We decline appellants’ invitation to apply the hoary maxim of statutory interpretation expressio unius est exclusio alterius (the express mention of specific things implies the exclusion of other things not mentioned). The permissive “may” followed by three alternatives does not, we think, mean that the Commission is denied the authority to find in favor of the property owner.

We have considered this case with some care, for the uncompensated demolition of a citizen’s property is a rather dramatic and drastic exercise of municipal power. The pathway the municipality must travel before it reaches this last step in its effort to protect the health, welfare, and safety of its citizens is hedged with constitutionally imposed restraints, and the city must tread with caution. Despite the efforts of appellants, however, we have been unable to detect any constitutional land mines in the road taken by the city of Amarillo.

Affirmed.

      . Traylor v. City of Amarillo, N.D.Tex.1973, 354 F.Supp. 1143.

      . The district court concluded that Monroe v. Pape, 1961, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492, barred plaintiffs’ claim for monetary relief against the city under 42 U.S.C. §§ 1983, 1985(3), and held that plaintiffs had failed to establish a constitutional wrong justifying equitable relief. Subsequent to the district court’s decision, the Supreme Court in City of Kenosha v. Bruno, 1973, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109, held that claims for equitable relief are also outside the ambit of § 1983, and presumably by analogy outside § 1985 as well. Since the court below denied equitable relief, the decision in City of Kenosha does not alter the result below.
      Plaintiffs also alleged jurisdiction under 28 U.S.C. § 1331. Although the district court did not mention this jurisdictional basis in its opinion, our review of the record convinces us that plaintiffs met the requirements necessary to invoke the general federal question jurisdiction. If the court had found any violation of plaintiffs’ constitutional rights, § 1331 would have supported a claim against the city. See Mosher v. City of Phoenix, 1932, 287 U.S. 29, 53 S.Ct. 67, 77 L.Ed. 148; Foster v. City of Detroit, 6 Cir. 1968, 405 F.2d 138.
      As to the individual defendants, the district court apparently concluded that they were not liable for two reasons. First, the ordinances under which they proceeded were constitutional, both facially and as applied. Second, even had there been constitutional defects in the ordinances, the individual defendants had acted in good faith in discharge of their official duties, within the scope of their authority under the ordinances and state law, and had neither conspired nor acted maliciously, ai'bitrarily, capriciously, or tortiously. These findings of fact are not disputed on appeal, and they are certainly not clearly erroneous. AVe have concluded that the reasons given are sufficient to support a denial of the requested relief. See generally Pierson v. Ray, 1967, 386 U.S. 547, 554-555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288, 295; Curry v. Gillette, 6 Cir. 1972, 461 F.2d 1003, cert. denied, 409 U.S. 1042, 93 S.Ct. 529, 34 L.Ed.2d 492; Whirl v. Kern, 5 Cir. 1968, 407 F.2d 781, cert. denied, 1969, 396 U.S. 901, 90 S.Ct. 210, 24 L.Ed.2d 177; Norton v. McShane, 5 Cir. 1964, 332 F.2d 855, cert. denied, 1965, 380 U.S. 981, 85 S.Ct. 1345, 14 L.Ed.2d 274; Nelson v. Knox, 6 Cir. 1958, 250 F.2d 312; Bennett v. Gravelle, D.Md., 323 F.Supp. 203, aff’d, 4 Cir. 1971, 451 F.2d 1011, cert. dism’d, 1972, 407 U.S. 917, 92 S.Ct. 2451, 32 L.Ed.2d 692.

      . See generally Mandelker, Housing Codes, Building Demolition, and Just Compensation: A Rationale for the Exercise of Public Powers Over Slum Housing, 67 Mich.L.Rev. 634 (1969).

      . We intend no reflection on the continuing validity under state law of the Texas decisions cited by appellants, nor do we mean to intimate any views on the merits of claims they might have under state law. See City of Houston v. Lurie, 1949, 148 Tex. 391, 224 S.W.2d 871; City of Carthage v. Allums, 398 S.W.2d 799 (Tex.Civ.App. — Tyler 1966, no writ); Newton v. Town of Highland Park, 282 S.W.2d 266 (Tex.Civ.App. — Dallas 1955, writ ref’d n. r. e.). The right to have state officials follow state law is usually and historically a right enforced in state courts, not in federal courts, and under the facts of the case we do not believe that any error that might have occurred in the administration of state law is cognizable under the Fourteenth Amendment’s due process clause. See Wallace v. City of Altus, 10 Cir. 1972, 465 F.2d 420; Bradford Twnshp. v. Illinois State Toll Highway Authority, 7 Cir. 1972, 463 F.2d 537, cert. denied, 409 U.S. 1047, 93 S.Ct. 518, 34 L.Ed.2d 499. Appellants have made no argument that the state courts were unavailable to them; nor have they argued, here or below, that the trial court should have exercised pendent jurisdiction in order to decide the question of whether defendants violated any rights guaranteed by state law. See Moor v. County of Alameda, 1973, 411 U.S. 693, 709-718, 93 S.Ct. 1785, 1796-1800, 36 L.Ed.2d 596, 610-614.

      . Appellants point especially to the terms “dangerous structure,” “structurally unsafe,” “fire hazard,” “inadequate maintenance,” “dilapidation,” “obsolescence,” and “abandonment,” contained in Section 5-5 (c) of the ordinances under attack.

      . At oral argument appellants contested the district court’s findings that Curtis did not dispute the conclusions regarding deficiencies in his property and that Traylor received notice of the hearing before the City Commission. However, they have pointed to nothing beyond mere allegations that would cause us to believe the contested findings were clearly erroneous.


author: AINSWORTH, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Roger D. WILSON and Daniel E. Stogdill, Defendants-Appellants.
    No. 73-3168.
    United States Court of Appeals, Fifth Circuit.
    April 17, 1974.

      Carl C. Chase, Corpus Christi, Tex. (court-appointed), for defendants-appellants.
    Anthony J. P. Farris, U. S. Atty., B. Stephen Rice, James R. Gough, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.
    Before WISDOM, AINSWORTH and GODBOLD, Circuit Judges.
   AINSWORTH, Circuit Judge:

Appellants, Roger D. Wilson and Daniel E. Stogdill, were convicted of possessing with intent to distribute approximately 67 pounds of marihuana, in violation of 21 U.S.C. § 841(a)(1). They contend on appeal that the trial court erred in failing to grant their motion to suppress the marihuana on the ground that the search and seizure were illegal under Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). We do not agree and therefore affirm.

On the morning of September 17, 1972, United States Border Patrol Agent Larry Jackson was on duty at an immigration inspection checkpoint situated on United States Highway 281, 16 miles south of Falfurrias, Texas, and between 59 and 70 miles from the border of Mexico. At approximately 7:15 a. m. a vehicle, which had been traveling in a northerly direction, pulled up and stopped. Appellant Wilson was driving and appellant Stogdill occupied the front passenger seat. They were told by Agent Jackson that they were at an immigration checkpoint. In response to Agent Jackson’s question, appellants said they had come from Fort Hood. They were asked to pull over to the side of the road for a routine immigration inspection, whereupon they immediately sped off in the vehicle, proceeding northward. Jackson followed them in a chase car. As he rounded a curve, he spotted defendants’ vehicle parked at the side of the road. The trunk was open and Stog-dill, standing next to it, was throwing out plastic bags on to the road, after which he reentered the car which again sped off in a northerly direction. Agent Jackson continued in pursuit and approximately 6 miles farther on again saw appellant’s car parked at a cafe on the road. Appellants were arrested, and subsequently six plastic bags containing marihuana, the subject of the indictment, were retrieved from the highway by Agent Jackson.

The bags of marihuana when recovered were no longer in possession of defendants but were in plain view on a public highway. Thus there was neither search nor seizure, illegal or otherwise. In Haerr v. United States, 5 Cir., 1957, 240 F.2d 533, a case directly in point, immigration patrol inspectors stopped a vehicle for an investigation to determine the citizenship of its occupants. During l’outine questioning one of the inspectors directed his flashlight into the back seat of the vehicle and noticed that defendant was attempting to conceal two boxes. The inspector asked, “What is in the boxes? Let’s pull over to the side, please”, at which point the automobile was driven away. The inspectors gave chase and in doing so observed two boxes being thrown from the automobile, which boxes were later retrieved and found to contain marihuana. We held under those circumstances that there was no search. We further said that since the boxes were thrown by appellants’ own design and choice there was no seizure in the legal sense when they were recovered by the Border Patrol inspectors. The facts in the present case parallel those of Haerr, with the exception that there was no use of a flashlight into the vehicle. The plastic bags were observed for the first time when they were being thrown from the vehicle. There is no reason in fact or law why they should not have been recovered.

Inasmuch as there was no search or seizure, discussion of the applicability of Almeida-Sanchez is unnecessary. Nevertheless, appellants’ reliance on that decision is misplaced. Almeida-Sanchez was decided on June 21, 1973. We have recently held that the ruling therein is to be given prospective application only, that the cutoff date is the date of the search and seizure, and therefore that it is applicable only to those searches and seizures which occurred after June 21, 1973. Miller v. United States, 5 Cir., 1974, 492 F.2d 37. The alleged “search and seizure” in the present case occurred on September 17, 1972, and therefore would not be judged by Almeida-Sanchez standards.

Affirmed.

      . Appellant relies on the oft-repeated and now familiar holding in Almeida-Sanchez, that a search of an automobile by a roving patrol approximately 20 miles north of the Mexican border, in the absence of probable cause or consent, violated petitioner’s Fourth Amendment right to be free of unreasonable searches and seizures. 413 U.S. at 273, 93 S.Ct. at 2540.

      . 240 F.2d at 534.

      . See also United States v. Williams, 6 Cir., 1963, 314 F.2d 795 — it is not a search to observe that which occurs openly and in a public place and which is fully disclosed to visual observation; United States v. Zimple, 7 Cir., 1963, 318 F.2d 676 — an envelope picked up by an official which had been discarded by defendant while the two were walking together is no seizure; Cutchlow v. United States, 9 Cir., 1962, 301 F.2d 295 — recovery of a jar containing heroin which had been thrown from a window was not an unlawful search or seizure; Trujillo v. United States, 10 Cir., 1961, 294 F.2d 583 — there is no search or seizure in the retrieval and examination of packages containing contraband dropped in public place.


author: PER CURIAM:

text:
    Ruben HARRISON, Individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. Frank DYSON, etc., et al., etc., Defendants-Appellees, Arthur Lee Smith, Intervenor-Appellant.
    No. 73-2967.
    United States Court of Appeals, Fifth Circuit.
    April 19, 1974.

      Dwight H. Moore, DeSoto, Tex., Edward Walter Dunbar, El Paso, Tex., for plaintiff-appellant.
    N. Alex Bickley, City Atty., Lois Bacon, T. Alex Eastus, Asst. City Attys., Dallas, Tex., for defendants-appellees.
    Before ALDRICH, Senior Circuit Judge, and BELL and GEE, Circuit Judges.

       Hon. Bailey Aldrich, Senior Circuit Judge of the First Circuit, sitting by designation.

   PER CURIAM:

Plaintiff-Appellants, habitual traffic offenders who claim to be indigent, challenged certain sentencing procedures of the Dallas municipal courts as violating Tate v. Short, 1971, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130, and Argersinger v. Hamlin, 1972, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530. Their objections were to the alleged automatic conversion of fines to terms in jail, and to the imposition of such jail terms without affording counsel to indigent defendants. Declaratory and injunctive relief was sought.

The complaint, insofar as it related to defendants’ future conduct, was dismissed on the authority of Becker v. Thompson, 5 Cir., 1972, 459 F.2d 919. That decision has now been reversed by the Supreme Court sub nom. Steffel v. Thompson,_ U.S. _, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). The judgment of the district court is vacated and remanded for reconsideration in light of Steffel, and for further proceedings not inconsistent therewith.

Vacated and remanded with direction.

      . In view of our remand, we do not reach any issue arising from the dismissal on the ground of mootness of that part of the case having to do with defendants’ past conduct.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. John Hillward FRUGE, Defendant-Appellant.
    No. 73-4024
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 19, 1974.

      Vernon McMannus, Eunice, La. (court-appointed), for defendant-appellant.
    Donald E. Walter, U. S. Atty., Shreveport, La., for plaintiff-appellee.
    Before BELL, SIMPSON and MORGAN, Circuit Judges.

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

   PER CURIAM:

Found guilty by a jury, adjudged guilty and committed to confinement in the Attorney-General’s custody for a period of 40 months, John Hillward Fruge appeals from his conviction under a one count indictment for violation of the White Slave Traffic Act, or Mann Act, assigning numerous claims of prejudicial error. We fail to find merit in any ground of the appeal and affirm.

Error by the trial judge is asserted in the following respects:

(a) Refusal to permit appellant’s counsel to conduct a separate voir dire examination of the prospective jurors;
(b) Failure to exclude the testimony of certain government witnesses, motel employees and others, as to prostitution activities of the “victim” and other alleged prostitutes as being unnecessarily redundant and prejudicial corroboration of the “victim’s” testimony regarding her activities and those of the appellant as a “pimp”;
(c) Rulings limiting cross-examination of the claimed “victim” as unduly restrictive, and violative of the Sixth Amendment Right of Confrontation;
(d) Permitting the rehabilitation of a government witness who was allowed to change his testimony on redirect examination to reflect that an event occurred in 1971 rather than 1970 as originally stated by the witness;
(e) The trial court’s unwarranted statement, in overruling defense objections to a question by the prosecuting attorney “We want the facts, the truth, that is what we are searching for,” and in explaining his ruling “I want to get to the truth”, as inferring that the defendant on trial was trying to hide the truth;
(f) Refusal to charge the jury that’ the defendant’s wife could testify against him, even though the wife was not present at the trial;
(g) Denials of motions to dismiss the indictment and for judgment of acquittal at the close of all the evidence, on the ground of lack of proof of motive and intent in causing the interstate transportation involved;
(h) Permitting certain rebuttal evidence to be received;
(i) Permitting a reference to the statute involved as the “Slavery Statute” by the prosecution’s opening statement;
(j) Permitting references to grand jury testimony by an F.B.I. witness;
(k) Permitting the investigating F.B.I. special agent to sit at counsel table during the trial;
(l) Variance between the allegation in the indictment of interstate transportation “from Alexandria, Louisiana to Longview, Texas” and the proof of a journey between the same places broken by intermediate stops at Eunice, Louisiana and at Midland and Wichita Falls, Texas;
(m) And finally, error by the jury in “rendering a verdict of guilty in that the verdict is not supported by the evidence.”

As to a number of the claimed errors, no objection was made when they occurred, so as to permit the trial judge to remedy the asserted prejudice, and further so as to permit our review. None rise to the level of “plain error”. F.R.Crim.P. Rule 52(b).

As to others, typically the conduct of the voir dire examination of potential jurors, the extent of cross-examination and the like, we think that they involve matters clearly within the trial court’s wide discretion in the conduct of a criminal trial.

As to the remaining assignments we make these brief comments. There was no variance. The trial was conducted in an atmosphere of patience, impartiality and strict fairness with any rare admonition to counsel that “We want the facts” or “We want the truth” and the like evoked by the nature and the tenor of defense counsel’s objections. The case was submitted to the jury under ample and fair instructions. Finally the evidence, viewed in the light most favorable to the government, Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, 704, amply supported the verdict.

The judgment appealed from is right.

Affirmed.

      . Directed by the sentencing trial judge to be served concurrently with a prior two year sentence imposed by another judge for a separate federal felony in the same district.

      . Title 18, U.S.C. Sec. 2421.


text:
    Carey M. HOROWITZ, LCIS 73622, Plaintiff-Appellee, v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, Defendant-Appellant.
    No. 73-3253.
    United States Court of Appeals, Fifth Circuit.
    April 19, 1974.

      Charles A. Marvin, Dist. Atty., 26th Judicial Dist., Henry N. Brown, Jr., First Asst. Dist. Atty., Benton, La., for defendant-appellant.
    James B. Wells, Bossier City, La., for plaintiff-appellee.
    Before GEWIN, GOLDBERG and CLARK, Circuit Judges.
   PER CURIAM:

Carey M. Horowitz pleaded guilty in state court to a charge of distributing a non-narcotic controlled dangerous substance, and was sentenced to ten years at hard labor. He sought a writ of ha-beas corpus in the state sentencing court, which denied relief after an evi-dentiary hearing. The Louisiana Supreme Court affirmed.

Pursuant to 28 U.S.C. § 2254, he then filed a petition for writ of habeas corpus in the United States District Court for the Western District of Louisiana, alleging the same errors previously presented to the state courts. Following a review of the transcript of the state evidentiary hearing but without conducting an independent hearing, the district court ordered the State of Louisiana to rearraign petitioner within thirty days or release him. The State has appealed.

The State argues that the district court’s holding that petitioner was denied effective assistance of counsel at his sentencing, even if correct, would require re-sentencing, not rearraignment or release. At oral argument counsel for Horowitz responded that the district court’s holding was that Horowitz received ineffective assistance of counsel at the time he entered his guilty plea, which would justify the rearraign or release order. While the record in the case might well support a finding that Horowitz was denied effective assistance of counsel at the pleading stage, he did make both arguments, and which was the ratio decidendi below is unclear from the district court’s opinion.

Accordingly, we remand the case with instructions that the district court clarify its holding.

Remanded.

      . See Gutierrez v. Estelle, 5 Cir. 1973, 474 F.2d 899.

      . Regarding Horowitz’ claim that lie was denied the effective assistance of counsel at the pleading stage, the district court should consider the Supreme Court decisions in Tollett v. Henderson, 1973, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235, and Dukes v. Warden, 1972, 400 U.S. 250, 92 S.Ct. 1551, 32 L.Ed.2d 45.