author: HEANEY, Circuit Judge.

text:
    Charles H. PARROTT, Appellant, v. STATE OF ARKANSAS, Appellee.
    No. 73-1836.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 16, 1974.
    Decided June 20, 1974.
    James L. Crabtree, Kansas City, Mo., for appellant.
    Walter A. Murray, Asst. Atty. Gen., Little Rock, Ark., for appellee.
    Before HEANEY and STEPHENSON, Circuit Judges, and SMITH, Senior District Judge.

       TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.

   HEANEY, Circuit Judge.

The issue on this appeal is whether the District Court erred in denying Charles H. Parrott’s petition for a writ of habeas corpus. The petition alleged that Parrott had been denied a fair and impartial trial in an Arkansas state court proceeding.

Parrott is currently serving a sentence in the United States Penitentiary at Leavenworth, Kansas, pursuant to a federal conviction. The State of Arkansas filed a detainer against the petitioner requesting that upon his release from federal custody, he be returned to the State of Arkansas to serve a twelve-year state sentence imposed pursuant to the conviction he challenged in the District Court.

Parrott was convicted on July 9, 1968, of armed bank robbery after a jury trial in the Circuit Court of Sebastian County, Arkansas (Greenwood District). The trial was conducted in the cafeteria of a Greenwood, Arkansas school building rather than in the Greenwood Courthouse, because the latter building had been destroyed by a tornado some time prior to the dates of trial. A motion for a new trial, based on allegations of jury misconduct, was filed by the petitioner on July 12, 1968. The motion alleged, in substance, that :

(1) the county prosecutor made arrangements for jurors to lunch at a community recreation center on the two days of the trial;

(2) two prosecution witnesses, Nina Dunn and Connie Ford, were observed talking to jurors during recesses;

(3) jurors were permitted to mingle freely with witnesses for the prosecution prior to trial and during recesses; and

(4) law enforcement officers mingled with jurors and discussed Parrott’s reputation in tones loud enough to be overheard by the jurors.

On July 28, 1968, the Arkansas trial court held a hearing on the motion. It denied the motion.

The petitioner’s conviction was affirmed by the Arkansas Supreme Court. It stated:

[Parrott] also asserts that he was prevented from having a fair trial because of “courtesies extended to the jury by the prosecuting attorney, which amounted to undue influence” upon the jury. This argument is directed to the fact that the prosecuting attorney arranged a place for the jurors to eat during the trial. We find no merit in this argument. The town of Greenwood had recently been almost destroyed by a tornado. There was no public eating place available. Nearby was the Greenwood Recreation Hall. These facilities were made available upon inquiry by the prosecuting attorney and the jurors were transported there for lunch on two separate days in the company of the bailiffs. This was done only after the trial court carefully inquired if there were any objections to this procedure and none were voiced. There is no showing whatsoever that the jurors, under these circumstances, were in any manner influenced by this procedure.
[Parrott] contends that he was prevented from having a fair trial because of the mingling of the witnesses and numerous law enforcement officials among the jurors during recesses of the trial proceedings. The courthouse had been totally destroyed by the tornado and the trial was held in an improvised courtroom in the cafeteria of a school building. The “band room” was used as a witness room since witnesses were placed under “the rule.” The trial court carefully considered the contention of jury misconduct contained in [Parrott’s] motion for a new trial. The testimony of the jurors was taken on this issue and we agree with the trial court that there was no evidence of any misconduct on the part of the jurors or any of the witnesses or other parties.

Parrott v. State, 246 Ark. 672, 439 S.W.2d 924, 928 (1969).

On April 3, 1973, Parrott filed his petition for a writ of habeas corpus in the District Court. He reiterated the claims of error asserted in the state courts, and additionally alleged that the trial was held in an inadequate facility and in a carnival atmosphere.

The District Court conducted an evidentiary hearing and denied relief to the petitioner. Parrott v. State of Arkansas, 365 F.Supp. 915 (W.D.Ark.1973).

On this appeal, Parrott again raises the issues raised in the state courts and those raised for the first time in the District Court. We affirm the denial of relief by the District Court.

The Supreme Court of Arkansas and the District Court properly held that the arrangements made by the county prosecutor for the jurors to lunch at the community recreation center were not prejudicial to Parrott. The reasons given by the Arkansas Supreme Court for so holding are sound and are adopted by this Court.

The Supreme Court of Arkansas and the District Court properly held that Parrott was not denied a fair trial by virtue of conversations between prosecution witnesses, Nina Dunn and Connie Ford, and one or more jurors. They also correctly held that contacts between other prosecution witnesses and jurors prior to trial and during recesses were not such as to deprive Parrott of a fair trial.

In a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant. Mattox v. United States, 146 U.S. 140, 148-150, 13 S.Ct. 50, 52-53, 36 L.Ed. 917, 920, 921; Wheaton v. United States (C.A.8th S.D.) 133 F.2d 522, 527

Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954).

Here, there is no showing that either Nina Dunn or Connie Ford talked to the jurors about the matter pending before the jury. The jurors were called as witnesses at the hearing on the motion for a new trial and all denied that they had discussed the case with either Nina Dunn or Connie Ford. The jurors further testified that the contacts were casual and involved nothing more than exchange of greetings. Dunn and Ford were present in the courtroom at the time of the hearing on the motion for a new trial, and neither was called by Parrott to contradict the statements of the jurors.

We are also convinced the state courts and the District Court properly held that Parrott is not entitled to a reversal of his conviction on the basis of his allegation that the jurors were permitted to mingle freely with witnesses for the prosecution prior to trial and during recesses. The record shows only that the jurors and the witnesses used the same restrooms, smoking areas and coffee room during the recesses. There is no evidence indicating that there was any discussion of the case by the jurors and the witnesses during these or any other periods. To the contrary, the jurors testified that they did not discuss the case with anyone outside the jury room, and that their verdict was based solely on the evidence presented at trial. While contacts between jurors and witnesses are always to be discouraged, the brief encounters which took place here were properly found not to have contravened due process principles:

[Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965)], of course, did not set down a rigid, per se rule automatically requiring the reversal of any conviction whenever any Government witness comes into any contact with the jury. The Court’s opinion specifically indicated that association with the jury by a witness whose testimony was “confined to some uncontroverted or merely formal aspect of the case for the prosecution” would hardly present a constitutional problem. Id., 379 U.S., at 473, 85 S.Ct., at 550, 13 L.Ed.2d 429. And it indicated that a mere “brief encounter,” by chance, with the jury would not generally contravene due process principles. Ibid. For, as pointed out in dissent today, certain chance contacts between witnesses and jury members, while passing in the hall or crowded together in an elevator, are often inevitable.

Gonzales v. Beto, 405 U.S. 1052, 1054-1055, 92 S.Ct. 1503, 1504, 31 L.Ed.2d 787 (1972) (Stewart, J., concurring).

Finally, we find no merit to Parrott’s allegation that comments by law enforcement officers about Parrott’s reputation in tones loud enough to be heard by the jurors constituted grounds for setting aside the conviction. A law enforcement officer’s comments about a case to a juror during the course of a trial are, of course, presumptively prejudicial and serve as the basis of overturning a conviction unless rebutted by the government. See, Remmer v. United States, supra at 229; Mee v. United States, 316 F.2d 467, 469 (8th Cir. 1963), cert. denied, 377 U.S. 997, 84 S. Ct. 1923, 12 L.Ed.2d 1049 (1964). See also, 5 Wharton’s Criminal Law and Procedure § 2121 (Anderson ed. 1957). But here, there was a question of fact as to whether or not the comments were overheard or even made, and the state court and District Court resolved the factual issue against Parrott. This was permissible under the record.

Affirmed.

      . No objection or motion for a mistrial was made to the trial court concerning these allegations either before or during trial. We choose, however, to dispose of the issues on their merits. For eases holding that such objections or mistrial motions must be made to permit reversal on appeal, see, Annot., 9 A.L.R.3d 1275, 1283-1284 (1966).

      . Parrott had not exhausted his state remedies with respect to the issues raised for the first time in the District Court. It would, therefore, have been inappropriate for the District Court to have expressed an opinion on those matters. We express none here. Tyler v. Swenson, 483 F.2d 611, 614 (8th Cir. 1973).


source: Caselaw Access Project

author: JAMESON, Senior District Judge.

license: Public Domain

text:
    STATE OF WISCONSIN ex rel. Thomas MONSOOR, Petitioner-Appellant, v. John GAGNON, Respondent-Appellee.
    No. 73-1937.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 21, 1974.
    Decided March 19, 1974.

      Patrick R. Doyle, La Crosse, Wis., for petitioner-appellant.
    Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, Wis., for respondent-appellee.
    Before CASTLE, Senior Circuit Judge, CAMPBELL, Senior District Judge, and JAMESON, Senior District Judge.

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

       Senior District Judge AVilliam J. Jameson of the District of Montana is sitting by designation.

   JAMESON, Senior District Judge.

Thomas Monsoor, an inmate of the Wisconsin Correctional Institution, has appealed from a dismissal of his petition for a writ of habeas corpus in which he claims that he is in custody in violation of the United States Constitution.

Following a jury trial in the circuit court of La Crosse County, Wisconsin, Monsoor was convicted of selling marijuana, in violation of Wis.Stats. 161.-30(2) and 161.30(12) (d), and was sentenced to two years imprisonment.

The facts are undisputed. The state’s case against Monsoor rested upon the testimony of Kim Kasabuske, an agent of the Wisconsin Department of Justice. Kasabuske testified that he worked as an undercover agent wearing a disguise and using an assumed name; that he tried to appear to be a member of the drug oriented community; that on March 16, 1971, while working with an informer named Bowman, he purchased a quantity of marijuana from Monsoor at Monsoor’s residence. Bowman did not testify at the trial. Over objection, Kasabuske testified that the purchase was initiated by a March 16 telephone call from Bowman to Monsoor. Kasabuske related Bowman’s side of the telephone conversation as follows:

“I can’t recall it word for word, but he said, ‘Hi, Tom’ and made some small talk, ‘What’s up,’ something like that and then he asked, ‘Do you have anything?’ and at this point he turned to me and said, ‘He’s got some grass.’ I said, ‘Fine.’ He turned back to the telephone and he said, ‘We’d like some. Can I bring a friend over?’ and he said, ‘Well, we’ll be right over’ and hung up.”

Monsoor’s defense was entrapment, based upon his claim that Bowman and Kasabuske had persuaded him to sell them marijuana by playing on his sympathetic instincts, that the marijuana which he sold actually belonged to someone else and that he never made any other sales, although persistently solicited by Bowman and Kasabuske to do so.

Monsoor took the stand on his own behalf, and also called as witnesses five of his friends. The defense witnesses testified that on numerous occasions Monsoor had refused to sell marijuana to Bowman, although Bowman had persistently pleaded with him to do so. In addition, defense witness Robert D. Lyons, Jr., a former roommate of Monsoor, testified that he was the person who received the telephone call from Bowman on March 16, 1971. Lyons related the telephone conversation as follows:

“[Bowman] just asked ‘Is Tommy home.’ I said no. He wanted to find a friend of Tom’s and he asked me if this friend had any grass. I said, T don’t know.’ He asked me for the phone number and I said, T don’t know the phone number.’ He asked me if I had any grass and I said no. He said, ‘Does Tommy have any grass,’ and I said, ‘Why ask me. If you want some ask him for yourself’ and that was the extent of it right there and I hung up.”

On cross-examination the prosecutor questioned Lyons extensively about his previous criminal record. At one point he asked Lyons whether he had ever smoked marijuana at Monsoor’s residence or whether he knew anyone else who had done so. Lyons refused to answer these questions, citing the Fifth Amendment. The prosecutor then moved that Lyons’ entire testimony be stricken, on the ground that Lyons was refusing to be cross-examined. The trial court granted the motion over the objection of Monsoor’s counsel.

Monsoor’s conviction was affirmed by the Supreme Court of Wisconsin, State v. Monsoor, 56 Wis.2d 689, 203 N.W.2d 20 (1973). The court held that “the trial court abused its discretion in striking the entire testimony of Robert Lyons”, but declined to reverse on the ground that the trial court’s error was not such as to have “probably affected the result of the trial”. Id. at 27.

Two questions are presented on this appeal: (1) whether the striking of Lyons’ testimony denied Monsoor his right to have compulsory process for obtaining witnesses in violation of the Sixth and Fourteenth Amendments, and (2) if so, whether the constitutional error was harmless beyond a reasonable doubt.

In Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) the Court held that a state law which prevented a defendant from calling an accused accomplice as a witness was in violation of the Sixth Amendment. The district court recognized that Washington held that the constitutional right to compulsory process is applicable to the states under the Fourteenth Amendment, but reasoned that this right does not extend to the testimony of a witness and merely affords a defendant the right to secure his attendance at the trial. We do not believe the decision in Washington can be so limited. The Court said in part:

“The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.” 388 U.S. at 19.

Moreover, in the concluding language of the opinion the Court observed that: “The Framers of the Constitution did not intend to commit the futile act of giving to a defendant the right to secure the attendance of witnesses whose testimony he had no right to use.” Id. at 23.

It is true, as appellee argues, that a state may adopt limitations on defense evidence in criminal trials; but consistent with the constitutional guarantees of compulsory process and a fair trial, these limitations may not be arbitrary. See Myers v. Frye, 401 F.2d 18, 21 (7 Cir. 1968). Under Washington a defendant may not, consistent with the Sixth and Fourteenth Amendments, be arbitrarily deprived of competent testimony which is relevant and material to the defense. We hold that it is constitutionally impermissible to strike relevant and competent direct examination testimony where a defense witness on cross-examination invokes the privilege against self incrimination with respect to collateral questions which relate only to his credibility and do not concern the subject matter of his direct examination.

As noted, supra, the Supreme Court of Wisconsin declined to reverse Monsoor’s conviction on the ground that the error in striking Lyons’ testimony would not have “probably affected the result of the trial”. 203 N.W.2d at 27. Before a federal constitutional error, however, can be held harmless, “the court must be able to declare a belief that it was harmless beyond a reasonable doubt” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). See also United States v. Scott, 494 F.2d 298 decided by this court on February 26, 1974.

The district court did not consider the question of harmless error, since it found no constitutional violation. However, in holding that appellant had been given a fair trial the district court stated that “Lyons’s testimony was, at best, collateral to the issue of the case which was whether petitioner did or did not sell marijuana to a state law enforcement officer.” The sale was admitted by Monsoor. The defense was entrapment, and the effect of striking Lyons’ testimony must be considered with respect to the entrapment defense.

Entrapment occurs “when the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute”. Sorrells v. United States, 287 U.S. 435, 442, 53 S.Ct. 210, 212, 77 L.Ed. 413 (1932). Appellant contends that Lyons’ testimony was relevant to his entrapment defense since it corroborated his testimony that (1) there was persistent solicitation by Bowman for the sale of marijuana; and (2) he received no telephone call from Bowman on March 16, the date of the marijuana sale to Kasabuske and Bowman.

In addition to Lyons, four other witnesses corroborated Monsoor’s testimony that on numerous occasions he had refused to sell marijuana to Bowman, although Bowman had persistently begged him to do so. On the issue of “persistent solicitation” Lyons’ testimony was cumulative, and we are satisfied that the striking of this portion of his testimony was harmless beyond a reasonable doubt.

The informer, Bowman, did not testify. Kasabuske testified regarding Bowman’s alleged conversation with Monsoor, stating that Bowman told him that Monsoor had said he had some “grass” and had agreed that Bowman could “bring a friend over”, presumably to purchase the marijuana. This testimony demonstrated a predisposed willingness on the part of Monsoor to commit a crime — a fact fatal to the defense of entrapment. Monsoor’s rebuttal was that he did not receive a phone call from Bowman. Lyons corroborated this, testifying that he was the one who talked with Bowman, and related the conversation. This testimony was then stricken. We cannot say that the striking of this testimony was harmless beyond a reasonable doubt and “did not contribute” to Monsoor’s conviction.

Reversed and remanded for further proceedings consistent with this opinion.

      . The parties filed a stipulation of facts and a copy of the transcript of the state court proceedings. The district court made findings of fact essentially as herein set forth.

      . Monsoor denied having received any telephone call from Bowman on March 16.

      . The court followed United States v. Cardillo, 316 F.2d 606, 611 (2 Cir. 1963), cert. denied, 375 U.S. 822, 84 S.Ct. 60, 11 L.Ed.2d 55 (1963), and Coil v. United States, 343 F.2d 573, 579-580 (8 Cir. 1965), cert. denied, 382 U.S. 821, 86 S.Ct. 48, 15 L.Ed.24 67 (1965), which hold that direct examination testimony should not be stricken where the privilege against self incrimination is invoked upon cross-examination with respect to collateral questions which relate solely to the credibility of the witness and are otherwise immaterial to the subject matter of the direct examination testimony. The cases present an exception to the general rule that the striking of direct testimony is permissible where a witness refuses to be cross-examined. See McCormick, Evidence § 19 (2d Ed. 1972).

      . The court stated :
      “I am not persuaded that the parameters of the right to compulsory process extend to the testimony offered by the witness. Once the witness’s attendance lias been secured, and he has taken the stand, the accused has been afforded his right to compulsory process. If the court subsequently strikes all or a portion of the witness’s testimony, the court’s action must be evaluated as any other evidentiary ruling made during the course of trial as to its effect upon the accused’s due process right to a fair trial.”

      . See also Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973) where the Court noted that “Few rights are more fundamental than that of an accused to present witnesses in his own defense.”

      . It is well settled that “when a state procedural rule comes into conflict with a fundamental constitutional right it is clear that tlie state rule must yield”. Braswell v. Wainwright, 463 F.2d 1148, 1154 (5 Cir. 1972).

      . The Court stated :
      “We hold that the petitioner in this case was denied his right to have compulsory process for obtaining witnesses in his favor because the State arbitrarily denied him the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense.” 388 U.S. at 23.

      . The Supreme Court of Wisconsin similarly concluded that “Whether Bowman’s phone conversation * * * was actually with Monsoor or Lyons is of no consequence. It did not have anything to do with the facts surrounding the actual sale.” 203 N.W.2d at 27.

      . As was stated in Braswell, supra at 1155-1156:
      "[The defendant 1 liad a right to at least present the testimony of his sole corroborating witness to the jury. That the jury might still have returned a guilty verdict is beside the point; judgment of the credibility of witnesses is for the trier of fact.”

      . Chapman v. California, supra at 26.


author: WILLIAM D. MURRAY, District Judge: ALFRED T. GOODWIN, Circuit Judge

text:
    UNITED STATES of America, Appellee, v. William Ross PHILLIPS, Appellant.
    No. 73-2078.
    United States Court of Appeals, Ninth Circuit.
    March 11, 1974.
    Rehearing Denied Aug. 5, 1974.

      David E. Kenner (argued), of Kenner & Stein, Los Angeles, Cal., for appellant.
    William D. Keller, U. S. Atty., Eric A. Nobles, Joel Levine, Asst. U. S. Attys. (argued), Los Angeles, Cal., for appellee.
    Before ELY and GOODWIN, Circuit Judges, and MURRAY, District Judge.

       The Honorable William D. Murray, Senior United States District Judge for the District of Montana, sitting by designation.

   OPINION

WILLIAM D. MURRAY, District Judge:

William Ross Phillips appeals his conviction for conspiring to distribute controlled substances in violation of 21 U.S.C. § 846 and for possessing, with intent to distribute, cocaine and heroin, in violation of 21 U.S.C. § 841(a)(1). He contends that evidence seized at the time of his arrest should have been suppressed both because the agents lacked probable cause to arrest him and because their entry into his building was illegal. We agree with his second contention and reverse his conviction.

On October 2, 1972, Special Agent Charles Stowell of the Bureau of Narcotics and Dangerous Drugs purchased heroin and marijuana from Jainne Degner and Daniel Carpenter in Long Beach, California. Stowell inquired whether he could obtain more narcotics that day. Degner, in Stowell’s presence, called Phillips’ office in Santa Monica and asked to speak to Phillips. Stowell heard Degner say, “Well, all right, I’ll talk to you,” and proceed to order additional quantities of heroin, cocaine, and marijuana from the person to whom she was speaking.

After placing the telephone order, Degner and Carpenter drove from Long Beach to 911 Pico Boulevard, Santa Monica, Phillips’ business address. They were followed by agents working under the direction of Stowell. Degner entered the building, remained inside for a short time, and then returned to Long Beach with Carpenter, still followed by agents.

While Degner and Carpenter were being followed to Long Beach, other agents, reinforced by Santa Monica city police, gathered near 911 Pico Boulevard, under the supervision of Special Agent William T. Fuller. All the agents remained in radio contact with each other.

Shortly before Degner and Carpenter reached Long Beach, Agent Fuller decided to enter the building to arrest Phillips, whom he believed to be inside. At this time, the agents of the Fuller team and the Stowell team knew: (1) that Degner and Carpenter had been in the vicinity of 911 Pico Boulevard under surveillance earlier in the day, prior to making the first delivery and sale to Stowell; (2) that Degner had placed a telephone call to Phillips, at a telephone number shown on Phillips’ business card, to order a second quantity of narcotics; (3) that, although the telephone number and the street address on the card pointed to Phillips, Degner probably did not speak to Phillips in her telephone call; and (4) that Degner and Carpenter made a second visit to 911 Pico Boulevard, remained a short time and returned to Long Beach. Because the officers entered the building a few minutes before Degner and Carpenter had reached Long Beach with the second delivery of narcotics for Stowell, the officers merely had some reason to believe, but did not know for a fact, that Degner and Carpenter had obtained narcotics from someone at 911 Pico Boulevard. For the purposes of testing probable cause in this case, we disregard the hearsay reports to various police officers to the effect that Phillips was a “dealer.”

The agents had traced one known sale and a second probable sale to Phillips’ business at 911 Pico Boulevard. They knew that Degner, from whom Stowell had purchased narcotics earlier in the day, had Phillips’ business card and had called the number on that card, asking for Phillips. Even though Degner apparently did not speak to Phillips at that time, she was able to arrange a sale by talking to someone at his office. The fact that Degner had Phillips’ card and asked for him, together with the recently observed, narcotics-related traffic in and out of his building, constituted sufficient probable cause to believe that Phillips was at least engaged in a conspiracy to distribute controlled substances.

Assuming that the agents had probable cause to arrest Phillips, the question then becomes: was the entry into the building a valid entry ?

To gain entry into the building Agent Fuller asked the Santa Monica police officers to help. Under the direction of Fuller, the uniformed officers knocked on the door and asked permission to enter to investigate a report of burglary in the building. (There was, of course, no such report). After some delay, the door was opened by an occupant and the uniformed policemen entered, followed immediately by the undercover narcotic agents, who had emerged from hiding.

Once inside, Fuller identified himself, and announced that he was securing the premises prior to obtaining a search warrant. Phillips was placed under arrest and voluntarily surrendered approximately 178.2 grams of heroin and 15.3 grams of cocaine. Later, approximately forty minutes after the agents had entered, Phillips gave them written permission to search the building. Finally, he surrendered a container containing white powder, which he described as procaine with a trace of cocaine.

The validity of an entry to execute an arrest, either with or without a warrant, is tested by criteria identical to those embodied in 18 U.S.C. § 3109. Miller v. United States, 357 U.S. 301, 306, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958). At least three separate purposes are said to underlie § 3109:

(1) It decreases the potential for violence. Particularly, the rule of announcement safeguards “officers, who might be mistaken, upon an unannounced intrusion into a home, for someone with no right to be there * * Sabbath v. United States, swpra.
(2) It prevents the physical destruction of property. See Kaplan, Search and Seizure: A NO-MAN’S LAND IN THE CRIMINAL LAW, 49 Calif.L.Rev. 474, 501 (1961).
(3) It protects the individual’s right of privacy. See Sabbath v. United States, supra at 589, 88 S.Ct. 1755.

Applying these principles to the entry at issue here, we hold that § 3109 should apply. An unannounced entry at midnight into an occupied and locked office building carries nearly as much potential for violence as an unannounced entry into a private residence. The potential for physical destruction of property is equal in either ease. Finally, though respect for individual privacy is probably at its highest when an individual is in his home, his right of privacy is not forfeited when he locks himself into his office instead of his dwelling. See Lanza v. New York, 370 U.S. 139, 143, 82 S.Ct. 1218, 8 L.Ed.2d 384 (1962). Hence, we conclude that a locked commercial establishment, at least at night, is á “house” as that word is used in § 3109.

Here, federal narcotics agents obtained entry into Phillips’ building by crowding in on the heels of uniformed police officers who had “knocked and announced.” However, the permission which they elicited to enter was to investigate a report of a burglary, later found to have been invented by the federal agents.

Before the 1968 decision by the Supreme Court in Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968), this circuit twice held that entry obtained by ruse or deception did not violate 18 U.S.C. § 3109, since no “breaking” was involved. Dickey v. United States, 332 F.2d 773, 777-778 9th Cir.), cert. denied, 379 U.S. 948, 85 S.Ct. 444, 13 L.Ed.2d 545 (1964) (narcotics agent falsely identified himself through a closed door as an informer known to the defendant); Leahy v. United States, 272 F.2d 487, 489-490 (9th Cir. 1959), cert. granted, 363 U.S. 810, 80 S.Ct. 1246, 4 L.Ed.2d 1152 (1960), dismissed by stipulation, 364 U.S. 945, 81 S.Ct. 465, 5 L.Ed.2d 459 (1961) (revenue agent gained admittance by stating that he was from the county assessor’s office).

In Sabbath v. United States, supra, the Supreme Court held that federal agents, in effecting entry into Sabbath’s apartment by opening its closed but unlocked door, did “break open” the door within the meaning of 18 U.S.C. § 3109. The court emphasized, 391 U.S. at 589, 78 S.Ct. at 1190, quoting from its earlier opinion in Miller v. United States:

“* * * The requirement of prior notice of authority and purpose before forcing entry into a home is deeply rooted in our heritage and should not be given grudging application. * * * 357 U.S. at 313, 78 S.Ct. at 1198.

However, the Sabbath court later noted:

“We do not deal here with entries obtained by ruse, which have been viewed as involving no ‘breaking’. See, e. g., Smith v. United States * * * (supra) ; Leahy v. United States * * * (supra).” 391 U.S. at 590 n. 7, 88 S.Ct. at 1758.

In Ponce v. Craven, 409 F.2d 621, 625-626 (9th Cir. 1969), cert. denied, 397 U.S. 1012, 90 S.Ct. 1241, 25 L.Ed.2d 424 (1970), we held that entry by deception and without force did not violate a state statute very similar to § 3109. There, police officers directed a motel manager to announce that there was a telephone call for a woman in the room with the petitioner. When the door was opened, the police entered and arrested her and the petitioner. Our holding, however, was limited to an interpretation of the state statute, and Sabbath was not mentioned. We now conclude that our earlier, pre-Sabbath decisions are still good law and should be followed in this case.

We must now, however, look further and determine whether or not use of a ruse entry was warranted under these circumstances.

The Ninth Circuit recently stated in United States v. Glassell, 488 F.2d 143, Dec. 7, 1973:

“Under the rule of Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966), an officer may legitimately obtain an invitation into a house by misrepresenting his identity as Mann did. If he is invited inside, he does not need probable cause to enter, he does not need a warrant, and, quite obviously, he does not need to announce his authority and purpose.”

Our case, however, is distinguishable from both Glassell and Lewis. In Glassell, the undercover agents were invited into the petitioner’s house with the understanding that they would complete a narcotics deal. In Lewis, the petitioner invited the undercover agent to his home for the specific purpose of executing a felonious sale of narcotics. The Supreme Court in Lewis stated:

“But when, as here, the home is converted into a commercial center to which outsiders are invited for purposes of transacting unlawful business, that business is entitled to no greater sanctity than if it were carried on in a store, a garage, a car, or on the street. A government agent, in the same manner as a private person, may accept an invitation to do business and may enter upon the premises for the very purposes contemplated by the occupant.” 385 U.S. 206 at 211, 87 S.Ct. at 427.

In this case, unlike Lewis and Glassell, it cannot be said that the agents entered for the “very purposes contemplated by the occupant.” The occupants were led to believe that they were admitting officers to investigate a burglary when, in fact, the officers and agents were entering to arrest Phillips.

An officer without an arrest warrant certainly has no more license than an officer with a warrant in seeking entry to effect an arrest. The constitutional safeguard that assures citizens the privacy and security of their homes unless a judicial officer determines that it must be overridden, is applicable not only in case of entry to search for property, but also in cases of entry to arrest a suspect. Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385, 390 (1970). The Circuit Court for the District of Columbia listed six elements that have to be considered in justifying a warrantless entry to make an arrest: (1) That a grave offense is involved, particularly one that is a crime of violence; (2) That the suspect is reasonably believed to be armed; (3) A clear showing of probable cause to believe that the suspect committed the-crime involved; (4) Strong reason to believe that the suspect is in the premises being entered; (5) A likelihood that the suspect will escape if not swiftly apprehended; and (6) The circumstance that the entry, though not consented, is made peaceably. The court went on to say that the fact that the entry is made at night raises particular concern over its reasonableness and “may elevate the degree of probable cause required, both as implicating the suspect, and as showing that he is in the place entered.” Dorman, supra at 393. The court concluded that, although there was no special knowledge that Dorman was home, concepts of probable cause and reasonableness prima facie justify looking for a man at home after 10:00 P.M. The same circuit has held that before an officer can execute an arrest warrant at the residence of a third party not named in the warrant, the officer must have reason to believe that the person named in the warrant is present in the third person’s residence. United States v. Brown, 151 U.S.App.D.C. 371, 467 F.2d 419, 423 (1972) citing United States v. Watson, 307 F.Supp. 173 (D.D.C.1969) in which the district court stated:

“An officer seeking entiy in order to effect an arrest cannot accomplish his task if the person he is looking for is not inside. Consequently, absent consent, the officer cannot enter by any means, breaking or otherwise, unless he has responsible cause to believe the defendant is within.” 307 F. Supp. at 175.

In the more recent Ninth Circuit cases involving ruse entries, the agents all knew or had probable cause to believe that the suspect was in the building in question. In Leahy v. United States, supra, the officer waited until he saw Leahy enter the house before he gained entry by stating that he was from the county assessor’s office. In Dickey v. United States, supra, the officers were told by an informant Lacey, that Dickey was in such and such a hotel room. An agent then gained entry by pretending to be Lacey. In Ponce v. Craven, supra, the officer actually observed the defendant in the motel room before he employed a ruse to gain entry.

This court cannot find that the telephone call placed by Degner to Phillips at his office in any way established probable cause to believe that Phillips was in his office. For some undisclosed reason, Degner did not speak to Phillips although she did arrange a sale with whomever answered the call. We do not know whether or not Phillips was there. The mere fact that Degner had Phillips’ card and asked first for him, establishes no inference as to Phillips’ presence in the office at that time. The fact that Degner arranged the sale with someone else suggests, if anything, that Phillips was not there.

An agent must have probable cause to believe that the person he is attempting to arrest, with or without a warrant, is in a particular building at the time in question before that agent can legitimately enter the building by ruse or any other means. To hold otherwise is to grant the agent a license to go from house to house employing ruse entries in violation of the right of privacy of the respective occupants.

In this case, the agents did not have probable cause to believe that Phillips was in the office building at the time of the raid and therefore the entry and subsequent arrest were invalid and thé conviction must be reversed.

ALFRED T. GOODWIN, Circuit Judge

(concurring in part and dissenting in part):

I concur in the first part of the majority’s opinion, which holds that an entry obtained by means of a ruse such as the one employed here does not violate 18 U.S.C. § 3109. However, I dissent from that portion of the majority’s opinion which holds that, because the agents lacked probable cause to believe that Phillips was in his own office building at the time of the raid, the entry and subsequent arrest must be invalidated.

I agree with the majority that before an officer can execute an arrest, with or without a warrant, at the residence of a third party, the officer must have reason to believe that the person named in the warrant is present in the third party’s residence. I do not, however, agree that when the police have probable cause or a warrant to arrest a person, they cannot enter the suspect’s own building to arrest him merely because they do not know, but only think, that he is inside.

Courts have properly denounced the police practice of searching from house to house until they find a suspect. Typically, it has been in the context of invasions of the property of those other than the arrestee that courts have spoken of the requirement that arresting officers must have probable cause to believe that the arrestee is on that property before they can enter to effect an arrest. See, e. g., United States v. Brown, 151 U.S.App.D.C. 365, 467 F.2d 419, 423 (D.C.Cir. 1972); United States v. McKinney, 379 F.2d 259, 262-263 (6th Cir. 1967); Lankford v. Gelston, 364 F.2d 197, 201-204 (4th Cir. 1966); Restatement (Second) of Torts § 204 (1965). Certainly, entering the property of a third party is quite different from entering the office building of the arrestee himself. The affront to the rights of an innocent party is far greater in the former case.

The majority relies heavily upon the opinion of the Court of Appeals for the District of Columbia Circuit in Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385 (1970). However, as the majority points out, the court there conceded that, though the police had no special knowledge that the suspect was at home, “concepts of probable cause and reasonableness prima facie justify looking for a man at home after 10 p. m.” 435 F.2d at 393. Looking at all the probabilities here, I should think that they would preponderate in favor of Phillips’ being in his building where the action was, rather than at home or somewhere else. all

The majority concludes by observing that a contrary result here would be “to grant the agent a license to go from house to house employing ruse entries in violation of the right of privacy of the respective occupants.” I do not understand how sustaining the arrest in this case could spawn such progeny. The agents were not going from house to house searching for Phillips; rather, they went directly to his own office building, which had been the focus of their investigation, and at which they knew narcotics transactions had recently taken place. No other person’s privacy was remotely endangered.

I would affirm the judgment of conviction.

      . 18 U.S.C. § 3109 “The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a j)erson aiding him in the execution of the warrant.”

      . For purposes of this decision, the court is focusing on the 4th consideration. However, it should be noted that this crime was not a crime of violence. Also there was no reason to believe Phillips was armed and no reason to believe that Phillips would escape if not swiftly apprehended.

      . Although Phillips’ place of business is considered a “home” for purposes of the protection afforded by the 4th Amendment, see text, supra, it is not his “home” for purposes of a presumption of his presence after 10 :00 P.M., particularly since Phillips failed to respond to a phone call placed for him at the business address not long before the entry and arrest in question.

      . To be valid, a consent must be intelligently and knowingly given. Before a person can be deemed to have “knowingly” consented, he must be aware of the purpose for which the agent is, seeking entry. See Lewis v. United States, supra. A ruse entry, by its very nature, runs contra to the concept of an intelligent consent or waiver.


author: STEPHENSON, Circuit Judge.

text:
    Charles W. GARTON, Appellant, v. Harold R. SWENSON, Appellee.
    No. 74-1041.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 18, 1974.
    Decided June 11, 1974.
    Rehearing and Rehearing En Banc Denied Aug. 21, 1974.
    Thomas M. Larson, Asst. Federal Public Defender, Kansas City, Mo., for appellant.
    Karen Harper, Asst. Atty. Gen., Jefferson City, Mo., for appellee.

      Before HEANEY and STEPHENSON, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.

   STEPHENSON, Circuit Judge.

In this state habeas corpus appeal appellant asks this court to depart from its standards for measuring ineffective assistance of counsel. We decline, but remand the case to the district court for an evidentiary hearing.

The underlying facts of this case can be gleaned from its long, reported history. The direct appeal from jury conviction is reported as State v. Garton, 371 S.W.2d 283 (Mo.1963). Garton’s subsequent post-conviction motion pursuant to Rule 27.26, V.A.M.S., was denied without hearing and affirmed. State v. Garton, 396 S.W.2d 581 (Mo.1965). In Garton’s initial federal habeas corpus proceeding the United States District Court for the Western District of Missouri, the Honorable John W. Oliver, found that an evidentiary hearing was warranted regarding Garton’s federal claims. The issuance of that writ was stayed to allow the state to provide Gar-ton with a proper Rule 27.26 hearing. Garton v. Swenson, 266 F.Supp. 726 (W.D.Mo.1967). A state hearing was held, relief was denied, and that denial was affirmed. Garton v. State, 454 S.W.2d 522 (Mo.1970). The instant action was then begun wherein Judge Oliver denied habeas corpus relief without an evidentiary hearing. Garton v. Swenson, 367 F.Supp. 1355 (W.D.Mo.1973). Garton then filed this appeal.

Briefly, the facts are that appellant Garton allegedly robbed the Farley State Bank in Farlev, Missouri. At extradition hearings held in Hobbs, New Mexico, four alibi witnesses testified that Garton was in Hobbs on or around the date of the robbery. At trial only one of the alibi witnesses was called. The jury convicted Garton of first degree bank robbery and he was sentenced to life imprisonment under the Missouri Habitual Criminal Act. On this appeal Garton primarily argues that because of the ineffective assistance he received from his retained counsel at the trial and during its preparation, he should be granted habeas corpus relief. At oral argument in this court Garton’s appointed counsel made clear that the primary ground upon which the ineffectiveness claim is based is that the proper procedures were not followed in seeking a continuance in which to seek the attendance at trial of certain alibi witnesses. Further, there is nothing in the record to show that counsel was familiar with the provisions of § 491.420, V.A.M.S., whereby out-of-state witnesses could have been subpoenaed. Appellant argues that failure to take the proper steps to procure these alibi witnesses amounts to inadequate investigation and preparation.

The trial court in denying an evidentiary hearing expressed its view that:

If we were free to apply any standard other than the “farce and mockery” rule, we would, as we have indicated, deem it necessary to conduct a further evidentiary hearing to ascertain whether defendant’s counsel or anyone else involved in the case, were familiar with the fact that all of the witnesses who testified at the two extradition hearings in New Mexico could have been compelled to testify in Missouri pursuant to V.A.M.S. § 491.420, Missouri’s version of the Uniform Law to Secure Attendance of Witnesses from Within or Without the State in Criminal Proceedings. Judicial notice requires recognition of the fact that New Mexico has also adopted the Uniform Act.

We would also make further inquiry into the circumstances surrounding the refusal of the trial court to grant a continuance. 367 F.Supp. at 1364-1365

The essence of the district court holding is that no matter what facts might be developed at an evidentiary hearing, an application of this court’s “mockery of justice” standard for the ineffectiveness of counsel would require a denial of the writ. We think the district court has read our decisions too narrowly.

The early statement of the standard applied by this circuit is most often quoted from Cardarella v. United States, 375 F.2d 222, 230 (CA8 1967). We said:

[A] charge of inadequate representation can prevail “only if it can be said that what was or was not done by the defendant’s attorney for his client made the proceedings a farce and a mockery of justice, shocking to the conscience of the Court.”

This court has not interpreted the “mockery of justice” words, of themselves, to be talismanic. Instead, we have employed them to encompass the principle that a petitioner or appellant bears the heavy burden of proving unfairness. McQueen v. Swenson, 498 F.2d 207, (CA8, filed June 4, 1974); see also Bruce v. United States, 126 U.S.App.D.C. 336, 379 F.2d 113, 116 (1967); Scott v. United States, 138 U.S.App.D.C. 339, 427 F.2d 609, 610 (1970). Indeed, we have expressed “the same thought in other words.” McQueen supra, at 214; e. g. Brown v. Swenson, 487 F.2d 1236, 1240 (CA8 1973); Redus v. Swenson, 468 F.2d 606, 607 (CA8 1972); Robinson v. United States, 448 F.2d 1255, 1256 (CA8 1971) (“circumstances which demonstrate that which amounts to a lawyer’s deliberate abdication of his ethical duty to his client”); e. g. Gerberding v. United States, 471 F.2d 55, 61 (CA8 1973); United States v. Cotton, 446 F.2d 865, 866 (CA8 1971) (“counsel who exercises that judgment which might be expected of one trained in the law’”. We have often combined the “mockery of justice” language with other words. E. g. Brown v. Swenson, supra at 1240; United States v. Cotton, supra at 866; Slawek v. United States, 413 F.2d 957, 959 (CA8 1969); Kress v. United States, 411 F.2d 16, 22 (CA8 1969); Cross v. United States, 392 F.2d 360, 366-367 (CA8 1968). We have based our decisions concerning effectiveness of counsel upon the particulars of each case. The standard for effectiveness is not easily reduced to precise words capable of rigid application.

In McQueen v. Swenson, supra, we dealt with a claim raised by 28 U.S.C. § 2254. We recognized the language and standards set forth by other circuits concerning ineffective assistance of counsel. We also acknowledged the logic of the American Bar Association “Standards Relating to the Prosecution Function and the Defense Function” (Approved Draft, 1971). We held that under the existing standards of this circuit the failure to make a reasonable investigation may amount to ineffective assistance of counsel.

In view of the district court’s opinion that the facts of this case need to be more fully explored and because we take a less stringent view of the existing precedents in this circuit concerning ineffective assistance of counsel, the proper procedure is to remand this record for consideration in light of our holdings in McQueen and in this case. See generally Townsend v. Sain, 372 U.S. 293, 312-322, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). We express no view on the merits of the ineffective assistance of counsel issue but remand for an evidentiary hearing wherein the district court shall determine whether Garton’s attorneys conducted an inadequate investigation which amounted to ineffective assistance of counsel; and if so, whether prejudice resulted. McQueen, supra.

Appellant’s second contention is that the prosecution knowingly and purposefully withheld evidence material to the defendant. The district court stated:

We have carefully studied the various transcripts and find and conclude that the courts of Missouri properly found the relevant facts and properly applied applicable federal standards in denying petitioner relief in regard to these claims. 367 F.Supp. at 1357

We, too, have examined the applicable record, the cases and appellant’s contentions. We affirm this issue upon the properly reasoned trial court discussion. Garton v. Swenson, 367 F.Supp. 1355, 1357 (W.D.Mo.1973).

Affirmed in part, reversed in part and remanded.

      . The alleged grounds of ineptitude as set out in appellant’s brief are as follows:
      i. Petitioner’s counsel failed to make an application in writing and in the form required under Supreme Court Bule 25.08, although counsel knew or should have known of the requirements for such an application. Through the failure of counsel to make such application, a continuance was denied and appellant was deprived of important defense witnesses.
      ii. Counsel failed to make any objection or request discharge of the jury when a state’s witness referred to the defendant as a well known criminal who had spent 20 or 30 years in the penitentiary. Counsel knew, or should have known, that such testimony was highly prejudicial.
      iii. Counsel failed to request any instruction on the credibility of the testimony of an accomplice. Counsel knew, or should have known, this was a matter of extreme importance to his case.
      iv. Counsel failed to investigate the background of the trial judge to determine whether such judge was biased and prejudiced toward the defendant, when in fact the trial judge was a depositor in the Farley State Bank.
      v. Counsel failed to file a motion for acquittal at the close of the State’s evidence or at the close of all the evidence.
      vi. Counsel failed to move to quash the Information as void under State law when it was filed by a prosecuting attorney who was counsel for the bank robbed, a depositor therein and a personal and political friend of the Executive Vice-President of the bank; such information being known or available to counsel through proper investigation.

      . Missouri Supreme Court Bule 25.08 provides essentially that motions for continuance are to set out specifics regarding the proposed witnesses and their anticipated testimony. If the application is on the part of the defendant it is to be supported by oath or affidavit. The record of the trial does not show that this was done. (Tr. 4-6)

      . § 491.420, V.A.M.S., provides for the compulsory attendance of out-of-state witnesses.

      . The instant case presents a situation wherein the effectiveness of retained counsel is questioned in a collateral proceeding. This court has made no distinction in the standard to be applied as between retained and appointed counsel or as between a claim raised on direct appeal from a criminal conviction and one raised in a collateral proceeding. Compare, e. g., Brown v. Swenson, 487 F.2d 1236 (CA8 1973); Cross v. United States, 392 F.2d 360 (CA8 1968); Cardarella v. United States, 375 F.2d 222 (CA8 1967); Shaw v. United States, 403 F.2d 528 (CAS 1968); Scalf v. Bennett, 408 F.2d 325 (CA8 1969); Kress v. United States, 411 F.2d 16 (CA8 1969); Gerberding v. United States, 471 F.2d 55 (CA8 1973); Blanchard v. Brewer, 429 F.2d 89, 90 (CA8 1970).
      Some courts have distinguished the ineffectiveness of retained counsel on the theory that when counsel is retained no state action is involved and, therefore, no due process violation can be claimed. McGriff v. Wainwright, 431 F.2d 897, 899 (CA5 1970); United States v. Handy, 203 F.2d 407, 425-427 (CA3 1953); see Craig, “The Bight to Adequate Representation in the Criminal Process: Some Observations,” 22 S.W.L.J. 260, 272 (1968). That theory has met with disfavor in recent cases. United States v. Marshall, 488 F.2d 1169, 1192-1193 (CA9 1973); West v. Louisiana, 478 F.2d 1026 (CA5 1973), rehearing en banc granted, September 5, 1973; Goodwin v. Cardwell, 432 F.2d 521, 522 (CA6 1970); see also Bines, “Remedying Ineffective Representation in Criminal Cases: Departures from Habeas Corpus,” 59 Va.L.Rev. 927 (1973). While the constitutional standards for retained and appointed counsel may well be the same, other practical factors need be considered. We are not unmindful that the layman has little expertise in choosing a lawyer and should not be held completely responsible for the professional competency of his retained attorney. On the other hand, the trial court prior to or during trial is in a difficult position if it chooses to question the competency of a defendant’s retained attorney. The defendant might well claim that the court was prejudiced or unduly interfering with trial strategy.
      Regarding claims raised on collateral attack as opposed to direct appeal, this case presents an example of the inherent differences. On the record before us and because the parties have not briefed the issue, we do not now determine whether the constitutional standarils for counsel’s effectiveness are the same in these different types of proceedings. However, the very nature of a post-conviction proceeding requires that the petitioner make a more powerful showing. Much time has passed, witnesses have become unavailable by reason of death or otherwise, memories have dulled. For these reasons alone, petitioner has a heavier burden in demonstrating inadequacy of counsel in a collateral proceeding than he does on direct appeal. See Bruce v. United States, 126 U.S.App.D.C. 336, 379 F.2d 113 (1967); United States v. DeCoster, 159 U.S.App.D.C. 326, 487 F.2d 1197, 1201-1202 (1973).


author: IRVING R. KAUFMAN, Chief Judge:

text:
    George BIDERMAN et al., Plaintiffs-Appellants, v. Rogers C. B. MORTON, Secretary of Interior, et al., Defendants-Appellees.
    No. 976, Docket 73-2842.
    United States Court of Appeals, Second Circuit.
    Argued May 15, 1974.
    Decided May 30, 1974.

      Donald J. Cohn, New York City (Angus MacBeth, New York City, Thomas H. Jackson, of counsel), for plaintiff s-appellants.
    Harold J. Friedman, Asst. U. S. Atty. E. D. N. Y. (Edward John Boyd V, Acting U. S. Atty. E. D. N. Y., on the brief; Raymond J. Dearie, Asst. U. S. Atty. E. D. N. Y., of counsel), for Federal defendants-appellees.
    Edward S. Raskin, Asst. Islip Town Atty., Islip, N. Y. (Francis G. Caldevia, Islip Town Atty., Islip, N. Y., on the brief), for Islip defendants-appellees.
    C. Francis Giaccone, Lake Ronkonkoma, N. Y., on the brief, for Brookhaven defendants-appellees.
    J. Stewart McLaughlin, Bay Shore, N. Y., for Ocean Beach defendants-appellees.
    Before KAUFMAN, Chief Judge, and HAYS and OAKES, Circuit Judges.
   IRVING R. KAUFMAN, Chief Judge:

Efforts by environmentalists to preserve our natural habitat — in this instance, Fire Island — cannot help but strike a sympathetic chord. Indeed, this is particularly true where, as here, this laudable purpose appears frustrated by a federal statutory scheme which, despite its lofty terms, provides a mere chimera of environmental protection. Although appellants evoke our empathy and full understanding of their justifiable frustrations, we can find nothing in the law to justify reversal of the district court’s denial of the preliminary injunctive relief they sought principally to restrain the municipalities located on Fire Island from issuing various construction permits and granting zoning variances pending preparation of an environmental impact statement [EIS] by the federal appellees. We, like the court below, cannot bend- well-settled principles of federal jurisdiction even to staunch what the appellants allege to be overdevelopment of Fire Island. Accordingly, we affirm.

I.

Fire Island, as described by Judge Dooling below,

is 32 miles long, a slender barrier sand-bar between the Atlantic Ocean and the South Shore of Long Island, dividing the Great South Bay and the westerly end of Moriches Bay from the Atlantic Ocean and extending from a point roughly opposite Babylon to a point roughly opposite East Moriches. It varies in width from as little as 550 feet to not more than about 1,760 feet. At its westerly extremity, and covering some five miles, is the Robert Moses State Park, and at that point, Fire Island is connected across Great South Bay and intervening islands to the West Islip-Brightwaters area by the Robert Moses Causeway. . About six miles or so from the east end of Fire Island a second connection to Long Island in the Mastic Beach area is furnished by a bridge from Smith Point County Park on Fire Island to William Floyd Parkway. . . .

The beauty of the island, the western portion of which lies within a mere 50 miles of New York City, is well captured in a report prepared by the Department of the Interior in 1963 for the Senate Committee on Interior and Insular Affairs. That report, in the form of a letter addressed to the Committee Chairman, Senator Jackson, states, in pertinent part:

Fire Island contains an impressive array of seashore resources. The beaches are wide, clean, and gently sloping. The dunes are imposing and usually well stabilized by beach grass, bayberry, other vegetation, and some low-lying pitch pine. The sunken forest, in the western half of the island, is a gem of its kind, dominated by American holly trees — some several hundred years old — with an accompaniment of sassafras, red-cedar, and pitch pine.

1964 U.S.Code Cong. & Adm.News, p. 3714.

That Fire Island would be attractive to the vast urban population residing in such close proximity is hardly surprising. Indeed, we are told, for example, that the Village of Ocean Beach, which covers approximately 1800 feet of sand from bay to ocean, experiences a virtual population explosion in the summer months, with its winter population of 100 increasing hundredfold to in excess of 10,000.

With the potential for despoliation no doubt in mind, Congress, on September 11, 1964, passed the Fire Island National Seashore Act, 16 U.S.C. § 459e et seq., thereby establishing the “Fire Island National Seashore” [Seashore]. The purpose of the statute, in the words of the Act, is:

[To conserve and preserve] for the use of future generations certain relatively unspoiled and undeveloped beaches, dunes, and other natural features within Suffolk County, New York, which possess high values to the Nation as examples of unspoiled areas of great natural beauty in close proximity to large concentrations of urban population ....

§ 459e(a). To effectuate this commendable goal, however, Congress provided the Secretary of the Interior with but a single weapon — condemnation. That power, moreover, was further limited in application to unimproved, privately-owned property, with the exception that the Secretary was empowered to condemn “improved property,” zoned in a manner not “satisfactory to the Secretary,” or which had been “subject to any variance, exception, or use that fails to conform to any applicable standard contained in regulations of the Secretary issued pursuant to this section and in effect at the time of passage of such ordinance . . . . ”

Thus, Congress carefully avoided interfering with the power of the municipalities on the Seashore to enact zoning ordinances or grant zoning variances. Federal oversight was restricted to condemnation upon the Secretary’s post-implementation disapproval of a “duly adopted, valid, zoning ordinance,” or variance. The Act, furthermore, requires the Secretary to issue regulations “specifying standards that are consistent with the purposes of sections 459e to 459e-9 of this title for zoning ordinances which must meet his approval,” and, quite reasonably, prohibits him from approving any

ordinance or amendment thereof . which (1) contains any provisions that he considers adverse to. the protection and development, in accordance with the purposes of sections 459e to 459e-9 of this title, of the area comprising the national seashore; or (2) fails to have the effect of providing that the Secretary shall receive notice of any variance granted under, or any exception made to, the application of such ordinance or amendment.

The Act, finally, authorizes an appropriation of “not more than $16,000,000 for the acquisition of lands” consistent with the statute’s limitations, and establishes a fifteen-member Fire Island National Seashore Advisory Commission to advise the Secretary on the development of the Seashore and on his exercise of condemnation power.

Soon after the Act’s passage, according to an affidavit by James Godbolt, presently Superintendent of Fire Island National Seashore and formerly Chief, Operations Evaluation, for the Northeast Region of the National Park Service [NPS], a Master Plan for the Seashore was developed by NPS. This plan, however, was considered deficient in certain respects and was not approved by the Director of NPS. Indeed, Godbolt’s affidavit further relates that work on the Master Plan did not begin anew until June 1971 when funds for that purpose once again became available. By this time, moreover, Congress had enacted the National Environmental Policy Act [NEPA], which requires all federal agencies to prepare an EIS for any “major Federal action significantly affecting the quality of the human environment . . . ' 42 U.S.C. §4332(2) (C). Determining that a Master Plan constitutes a “major Federal action,” NPS also undertook preparation of an EIS in conjunction with the development of the Master Plan. Neither document, however, has been completed to date, and at argument we were informed that completion is not expected before January, 1975.

Expenditures for acquisition of property pursuant to the Seashore Act have not been held in abeyance pending completion of the Master Plan and the EIS. In fact, the initial $16,000,000 appropriation has been virtually exhausted. Lawrence Hadley, Assistant Director, Park Management, of the NPS, reports by affidavit that, as of June 30, 1972, $15,723,439 had been spent for Seashore property, while the remaining $276,561 of appropriated funds is reserved against awards in excess of the Government’s estimate in any of the eleven condemnation cases still pending in the district court. The NPS, according to the Government’s brief on appeal, is awaiting completion of the Master Plan and EIS before asking Congress for a new appropriation.

On August 9, 1972, with almost eight years having elapsed since passage of the Seashore Act and no Master Plan or EIS in the offing, George Biderman, the first Chairman of the Seashore Advisory Commission, Charles Lowry, then Chairman of that Commission, and twelve other property owners on Fire Island, commenced this action in the Eastern District of New York against the Secretary of the Interior, various officials of the NPS, officials of the Towns of Islip and Brookhaven, and the Villages of Ocean Beach and Saltaire. The complaint sought relief, in the nature of mandamus, requiring the Secretary of the Interior to prepare an EIS “as soon as practicable,” and declaratory relief, not here relevant, concerning motor vehicle traffic on the Seashore and the acquisition of ocean beaches. As to the municipal defendants, plaintiffs requested a prohibitory injunction, restraining those defendants from issuing any permits for building construction or swimming pools, granting zoning variances, or amending zoning ordinances,

with regard to real property located within the Seashore until the Secretary of the Interior prepares a proper and adequate environmental impact statement and any required changes, amendments or additions to the Regulations governing local zoning ordinances are promulgated and in effect.

Further injunctive relief against the municipalities, not relevant to this appeal, was sought in connection with the operation and use of motor vehicles on the Seashore.

Before joining issue on the merits, the federal and Brookhaven defendants moved to dismiss the complaint primarily on the ground that, in alleging only federal inaction, the complaint failed to state a claim under NEPA. Judge Dooling, in an unreported opinion, denied the motions to dismiss, holding:

Plaintiffs are entitled to present their case that federal inaction has proceeded to the point at which a court must be asked to determine whether or not the Secretary is liable to an order of mandamus requiring him forthwith to embark upon the performance of his duties imposed upon him by law, and whether plaintiffs are entitled to such incidental and preliminary relief as is necessary to preserve the subject matter of the action from further dissipation.

Moreover, with respect to the further contention of the Brookhaven defendants that they had not been charged with acting in an unlawful manner, the district judge commented only:

It will be seen that the Town officials’ points are presented very much in the same context as those of the federal defendants, and, for the same reason, in this most unusual case, it is concluded that their motion to dismiss must be denied.

On August 22, 1973, upon numerous affidavits and exhibits supporting the claim that the Seashore had already been irreparably harmed through overdevelopment, plaintiffs moved for a preliminary injunction restraining “defendants” from approving, issuing, granting or authorizing, with respect to the Seashore: (a) permits for commercial or industrial construction, or swimming pools, (b) zoning variances, (c) zoning amendments, (d) permits for construction of any sort forward of a line 100 feet behind the dune line, (e) permits for construction on or dredging of the wetlands, (f) permits for other than essential motor vehicle use. Judge Dooling, in another unreported opinion, denied the motion for injunctive relief as to items (a) through (e) and held decision as to item (f), concerning motor vehicle use, “in abeyance.” He concluded, in essence, that the court was powerless to enjoin the municipalities from implementing their zoning ordinances or any modifications thereto because the municipal action in no sense contravened federal law. Thus, Judge Dooling stated:

The difficulty, if it be one, is plainly that no governmental action or controlling law has arrested the course of a lawful and continuing evolution of land use.

We are constrained to agree.

II.

Although plaintiffs phrased their request for injunctive relief to apply to all “defendants” without distinction, it is clear that such relief is sought primarily against the municipal defendants, the local officials, who, after all, effectively “approve, grant, issue or authorize” the various permits, variances and amendments which appellants oppose. Indeed, with congressional funding essentially exhausted, it would appear rather meaningless to enjoin the federal defendants from exercising their limited, post-enactment approval authority for in no event could condemnation now result from that decision. Moreover, Godbolt, in his affidavit in support of the Government’s opposition to preliminary injunctive relief, stated:

[T]he Superintendent [of Fire Island National Seashore] on behalf of the NPS, will refrain from approving any building permit applications, zoning variance applications or amendments to zoning regulations, provided that if special circumstances warrant, on 30 days written notice to plaintiffs, the Superintendent may take such action.

Accordingly, to the extent that plaintiffs seek preliminary injunctive relief against federal defendants, we agree with the court below that such relief is not appropriate under the circumstances here.

Turning to the relief sought against the municipal defendants, we find an insurmountable, threshold barrier in appellants’ failure to identify a discernible basis for the exercise of federal injunctive power over these non-federal defendants. Appellants do not suggest that the Seashore Act, alone, provides a cause of action against the municipal defendants under the facts of this case. That Act, quite simply, does not prohibit any zoning action by the various local governments located on the Seashore. As we have noted, the Secretary of the Interior is authorized only to condemn property zoned in a manner of which he disapproves — an action which cannot possibly be interpreted as a retroactive declaration of municipal illegality. And, we might add, appellants do not contend that NEPA itself imposes a duty directly upon non-federal entities, such as the Seashore municipalities, to perform or cease to perform any particular activity. This route has already been foreclosed by a number of appellate decisions. See e. g. Proetta v. Dent, 484 F.2d 1146 (2d Cir. 1973); Bradford Township v. Illinois State Toll Highway Auth., 463 F.2d 537, 540 (7th Cir.), cert. denied, 409 U.S. 1047, 93 S.Ct. 518, 34 L.Ed.2d 499 (1972); Ely v. Velde, 451 F.2d 1130, 1139 (4th Cir. 1971).

To be sure, it is well settled that non-federal parties may be enjoined, pending completion of an EIS, where those non-federal entities have entered into a partnership or joint venture with the Federal Government, and are thus recipients of federal funding. See e. g. Ivanhoe Irrigation District v. McCracken, 357 U.S. 275, 295, 78 S.Ct. 1174, 2 L.Ed.2d 1313 (1958); Proetta v. Dent, supra, 484 F.2d at 1148; Silva v. Romney, 473 F.2d 287, 289-290 (1st Cir. 1973); Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323, 1329 (4th Cir.), cert. denied, 409 U.S. 1000, 93 S.Ct. 312, 34 L.Ed.2d 261 (1972); Named Individual Members of San Antonio Conservation Society v. Texas Highway Dept., 446 F.2d 1013, 1027 (5th Cir. 1971), cert. denied, 406 U.S. 933, 92 S.Ct. 1775, 32 L.Ed.2d 136 (1972). But cf. Ely v. Velde, supra, 451 F.2d at 1139. The rationale behind this extension of federal power appears to be grounded in notions of consent. Thus, the Fifth Circuit stated:

No one forced the State to seek federal funding, to accept federal participation, or to commence construction of a federal aid highway. The State, by entering into this venture, voluntarily submitted itself to federal law. It entered with its eyes open, having more than adequate warning of the controversial nature of the project and of the applicable law. And while this marriage between the federal and state defendants seems to have been an unhappy one, it has produced an already huge concrete offspring whose existence it is impossible for us to ignore.

Individual Members of San Antonio Conservation Society v. Texas Highway Dept., supra, 446 F.2d at 1028 (footnote omitted). In this case, however, there is no contention that the municipal defendants solicited federal aid in any way and, indeed, it is the very lack of cooperative effort between the federal and municipal defendants which has so rankled appellants.

Nor is this a case in which non-federal action cannot lawfully begin or continue without the prior approval of a federal agency. See e. g. Greene County Planning Board v. Federal Power Commission, 455 F.2d 412 (2d Cir.), cert. denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed. 2d 90 (1972) (transmission lines could not be strung without Federal Power Commission license); West Virginia Highlands Conservancy v. Island Creek Coal Co., 441 F.2d 232 (4th Cir. 1971) (timber-cutting and mining activity in Monongahela National Forest could not proceed without NPS permission). In such instances, if NEPA is construed to mandate that the requisite agency decision be enlightened by and grounded on an EIS, it is beyond cavil that the court may then enjoin the non-federal actors pending completion of that impact statement. Indeed, were such non-federal entities to act without the necessary federal approval, they obviously would be acting unlawfully and subject to injunction. Cf. West Virginia Highlands Conservancy v. Island Creek Coal Co., supra; Citizens for Clean Air, Inc. v. Corps of Engineers, U. S. Army, 349 F.Supp. 696, 706 (S.D.N.Y.1972).

But, as we have attempted to make clear, the federal government does not have what we characterize as “go-ahead” power over the zoning decisions of the Seashore municipalities. The validity — the operative effect — -of the local zoning ordinances, variances and amendments does not depend on the prior approval of the Secretary of the Interior. He is authorized merely to acquire by condemnation “improved property” not zoned in an approved manner. At the present time, moreover, even this circumscribed option is not available to the Secretary because, as we have indicated, the $16,000,000 appropriated by Congress has been spent or earmarked for committed expenditure.

Accordingly, we need not reach the issue of the celerity with which the Secretary must prepare an EIS, for assuming arguendo he were required to complete one forthwith, the municipal defendants would still remain outside the ambit of federal injunctive relief. Absent funds for condemnation, the statutory scheme devised by Congress leaves the Secretary absolutely powerless to arrest the allegedly destructive development of Fire Island. We simply cannot, by granting injunctive relief, arm the Secretary with “go-ahead” power when Congress, in the Seashore Act, saw fit not to do so.

On the basis of the affidavits and interrogatories in the record before us, there is little doubt in our minds that environmentalists — and indeed courts— have been and will continue to be frustrated in their commendable efforts to safeguard the natural beauty of Fire Island. In their justifiable frustration, plaintiffs have sought relief from the courts, but it is clear that only Congress can provide the remedy. Denial of the preliminary injunctive relief sought by plaintiffs must, therefore, be affirmed and the case remanded for further proceedings not inconsistent with this opinion. Nevertheless, precatory though our words must necessarily be, we cannot help but urge those with the power and authority to preserve this gem of an island to halt their procrastination and get on with the urgent business of saving this charming and fragile outpost of nature before the encroachments of haphazard development irrevocably despoil it.

      . Plaintiffs-appellants, fourteen Fire Island property owners, are suing individually and as representatives of a number of property owners associations.

      . The municipal defendants-appellees are the governing officials of the Towns of Islip and Brookhaven, and the Villages of Ocean Beach and Saltaire.

      . The federal defendants-appellees are the Secretary of the Interior and various officials of the National Park Service. To the extent that appellants sought preliminary injunctive relief against these defendants, we find no grounds for such relief.

      . Judge Dooling’s memorandum opinion, dated February 6, 1973, denying motions to dismiss tbe complaint by the federal and Brookhaven appellees, is unreported.

      . Tbe municipal appellees vigorously argue that Congress could do no more, constitutionally, than authorize condemnation of non-federally owned land on Fire Island; that it has no jurisdictional basis for exercising regulatory police powers over the area. We need not decide whether Congress has the power to do more, for it clearly chose only the condemnation route to protect the Fire Island landscape.

      . Section 459e-l(a) provides that “[a]ny property or interest therein [on the Seashore] owned by the State of New York, by Suffolk County, or by any other political subdivision of said State may be acquired only with the concurrence of such owner.”

      . In addition to the exception discussed in the text, the Secretary is authorized to condemn improved property, without regard to applicable, local zoning ordinances, “in the approximately eight-mile area from the easterly boundary of the Brook-haven town park at Davis Park, in the town of Brookhaven, to the westerly boundary of the Smith Point County Park.” § 459e-l(e).

      . § 459e-l(f).

      . § 459e-l(e).

      . § 459e-2(e).

      . § 459e-l(e).

      . § 459e-2(e).

      . § 459e-2.

      . § 459e-2(d).

      . § 459e-9.

      . § 459e-8.

      . See 37 Fed.Reg. 4373 (1972).

      . It is undisputed that plaintiffs, in their motion for a preliminary injunction, did not repeat — and thus, of course, Judge Dooling did not consider — their request that the Secretary of the Interior be ordered to prepare an EIS “as soon as practicable.” For the first time in their reply brief, however, appellants suggest the possibility that such relief may now be appropriate. They state:
      If Federal defendants are now saying that an impact statement is voluntary on their part, we would ask this Court to issue a mandatory injunction requiring the Federal defendants to prepare a proper Environmental Impact Statement as soon as practicable ....
      Reply Brief of Appellants at 7. Suffice to say in response that we do not understand the federal defendants to be saying that an EIS is “voluntary on their part.” As we noted, the NPS has announced its determination that a Master Plan is a “major Federal action” requiring preparation of an EIS. See note 17 supra.

      . Appellants urge that McLean Gardens Residents Association v. National Capital Planning Commission, 2 ELR 20659 (D.D.C.1972), in which the “local” D.C. Zoning Commission was preliminarily enjoined from granting a zoning variance pending completion of an EIS by the “federal” National Capital Planning Commission [NCPC], is precedent for enjoining the conduct of an entity not directly controlled by NEPA, although the federal agency so governed has something less than the “go-ahead” power discussed in the text. Regrettably, we find the reasoning in McLean somewhat obscure. In any event, the case is factually distinguishable from the one before us.
      Although it is true that the “[D.C.] Zoning Commission [is not] bound to follow the recommendation of the NCPC,” Citizens Ass’n of Georgetown, Inc. v. Zoning Com’n of D. C., 155 U.S.App.D.C. 233, 477 F.2d 402, 407 (1973), the McLean court did not seem to focus on the NCPC’s less than “go-ahead” role. Indeed, the court’s finding of fact #24 suggests a contrary view:
      The D.C. Zoning Regulations call for the review and approval of the National Capital Planning Commission before the D.C. Zoning Commission disposes of a preliminary application for a planned unit development. (emphasis added)
      McLean Gardens Residents Association v. National Capital Planning Commission, supra, 2 ELR at 20661. In addition to this possible confusion over the power of the NCPC, which at the very least beclouds the premise upon which the court based its conclusion, it is important to note that the NCPC’s role in the D.C. zoning process is preliminary to action by the “local” Zoning Commission and not, as here, subsequent to the implementation of local zoning ordinances. Accordingly, an argument might be made that since Congress intended the “local” Zoning Commission to be informed by the NCPC before it enacted a zoning ordinance or variance, Congress also intended the Zoning Commission to await preparation of the EIS required of the NCPC before making that zoning decision. Yet, even this minimal degree of federal agency influence is not reflected in the posi-implementation, federal review procedure embodied in the Seashore Act.

      . Were funds still avaialble for condemnation, the Secretary would at least have some control over land use on the Seashore, although we note parenthetically that appellants never sought to restrain the Secretary or his delegates from spending these funds pending completion of an EIS. Whether such federal power, in light of the apparent effort by Congress to preserve “home rule,” would suffice to justify injunctive relief against these municipalities predicated on a theory of ancillary jurisdiction, is to be sure a thorny question, but one we need not resolve here.

      . Although we find no ascertainable basis for subject matter jurisdiction over the municipal defendants with respect to the injunctive relief denied below, we note that plaintiffs have requested injunctive relief, in addition, to restrain the issuance by the municipalities of motor vehicle permits for nonessential vehicle use on the Seashore. As we have indicated, decision as to this portion of the preliminary injunctive relief sought by plaintiffs was held in abeyance by the district court, and thus, was not a part of this appeal. Accordingly, we express no view on whether jurisdiction over the municipal defendants might lie for this purpose.


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James H. THOMAS, Jr., Defendant-Appellant.
    No. 73-1665.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 7, 1974.
    Decided June 5, 1974.
    Miles J. Purcell, Saginaw, Mich. (Court-appointed), on brief, for defendant-appellant.
    Ralph B. Guy, U. S. Atty., James W. Russell, Asst. U. S. Atty., Bay City, Mich., on brief, for plaintiff-appellee.
    Before PHILLIPS, Chief Judge, PECK, Circuit Judge, and MCALLISTER, Senior Circuit Judge.
   PER CURIAM.

Appellant was convicted on two counts involving illegal possession of a sawed-off shotgun, in violation of Sections 5861(c) and (i), Title 26, United States Code. His chief argument here is that there was insufficient evidence to justify a jury in finding that he possessed the weapon.

The facts as found by the jury were as follows. Appellant’s sister had lived in her apartment for about a month when she moved out on April 30, 1971. While she lived there, appellant had access to her apartment, and had in fact visited a few times. On the day mentioned, Thomas came to her house with “a couple boys,” to help her move. Later that day, after she had moved out, the manager of the apartment complex found, in the course of inspecting the apartment, a sawed-off shotgun in a cupboard. The apartment had been locked when the manager entered.

A few days later, appellant returned to the complex and declared that he had left something in his sister’s house. When admitted to the apartment, he looked into the cupboard where the gun had been found (and from which it had already been removed and given to the sheriff). He said that he was looking for his gun.

Appellant’s sister was the first occupant of that apartment, and it had been inspected before she moved in. She testified that she had never seen the gun in question.

Citing the facts that he was never seen with the weapon, and that others were also in the apartment on April 30, 1971, Thomas argues that the verdict should be overturned as contrary to the great weight of the evidence. He is contending, in essence, that a rational jury could not find beyond a reasonable doubt, on the facts outlined, that the shotgun was his, that he brought it to the house and placed it (or caused another to bring it to the house and/or place it) in the cupboard. We cannot so hold.

On a criminal appeal, the evidence is to be viewed in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680, and furthermore, every inference from the evidence presented that can reasonably be drawn in favor of the government must be so drawn. United States v. Wolfenbarger, 426 F.2d 992, 994 (C.A.6), United States v. Ayotte, 385 F.2d 988 (C.A.6), vacated on other grounds, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297. Certainly it is not unreasonable to infer Thomas’ possession of the gun from the facts that he had been in the house on the day it was found, that he returned later to claim it (calling it “my gun”), and that it was not put there by the house’s occupant, his sister.

Appellant’s story at trial was that he had first seen the gun when it was in the cupboard on April 30, and later decided to get it in order to sell it. Such an inference may be a plausible one to draw from the testimony, but it is not for an appellate court to weigh it against the one drawn by the jury, or to decide whether or not the government’s explanation is the only reasonable one beyond a reasonable doubt. All we need find to affirm the result below, and all we do find, is that a jury could reasonably come to that conclusion.

Possession can be constructive as well as actual. United States v. Burch, 313 F.2d 628 (C.A.6); United States v. Holt, 427 F.2d 1114 (C.A.8). “[A] person who, although not in actual possession, knowingly has the power and the intention at a given time to exercise dominion and control over a thing * * * is then in constructive possession of it.” United States v. Burch, supra, at 629. Certainly “on or about April 30, 1971” (the words of the indictment) , appellant knew the weapon’s location, and until it was removed or at least until the apartment door was locked, had the power to exercise dominion over it. The jury also found that he had the requisite intention as of that time, and we hold that there was enough evidence to justify that finding. But these subtleties need not detain us, because the jury also necessarily found that the gun was appellant’s, or at least that he was responsible for its being placed in the cupboard — in other words, that at some time on or before April 30, Thomas was in actual possession.

As for appellant’s other argument, that the gun should not have been admitted into evidence since, its original finders not having initialed it before turning it over to the sheriff, it was incompletely identified, we find it to be manifestly without merit.

Affirmed.