text:
    UNITED STATES of America, Plaintiff-Appellee, v. Dennis Mark MITCHELL, Defendant-Appellant.
    No. 73-3340
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 25, 1974.
    Rehearing Denied May 22, 1974.

      Michael L. Russo, Atlanta, Ga. ('Court-appointed), for defendant-appellant.
    John W. Stokes, Jr., U. S. Atty., J. Owen Forrester, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

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

   PER CURIAM:

This appeal is taken from a judgment of conviction entered against Dennis Mark Mitchell for violation of 21 U.S.C. § 841(a) (1970). The jury found him guilty on each count of a three-count indictment, the first two charging him with unlawful distribution of cocaine on two separate occasions, and the third count charging him with possession with intent to distribute marijuana. We affirm.

Mitchell contends that since the evidence established entrapment as a matter of law, the court should have granted his motion to direct a judgment of acquittal ; and that it erred in denying his motion for a new trial and in refusing to suppress evidence which he claims was the product of the alleged entrapment. He further contends that the court erred in denying his requested instructions concerning his defense that he was a “procuring agent.” We reject the argument that the evidence established extrapment as a matter of law, and we find no error in the court’s refusal to grant the requested instructions.

In United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), the Supreme Court held that a jury finding based on evidence of an accused’s predisposition to commit an offense is fatal to an entrapment defense. Mitchell’s testimony, that the narcotics transactions which formed the basis for his conviction were induced and procured by an informant, Robert W. Isenhour, was diametrically opposed to the testimony of Isenhour. Since no other evidence was adduced as to Mitchell’s predisposition vel non to commit the crime with which he was charged, it is apparent that the jury resolved a credibility issue against Mitchell and in favor of Isenhour. We have held that “ ‘the resolution of conflicting testimony and the inferences to be drawn from it in assessing the defense of entrapment must be left to the jury.’ ” United States v. Stills, 476 F.2d 592, 593 (5th Cir. 1973) quoting, United States v. Villafana, 455 F.2d 478, 479 (5th Cir.). Moreover, contrary to Mitchell’s argument, this principle cannot be disregarded merely because of the allegedly unique circumstances in which the transaction between him and Isenhour took place or the alleged heightened interest of Isenhour in insuring that the narcotics transaction would materialize.

Mitchell also maintains that the trial court erred in refusing, over counsel’s objection, to instruct the jury on his defense that he was only a procuring agent. Citing Adams v. United States, 220 F.2d 297 (5th Cir. 1955) where, based on the evidence before it, this court deemed the district court in error for failing to give a procuring agent in-striiction in a prosecution for the sale of heroin, he claims that such an instruction should have been given here. His contention, however, is foreclosed by United States v. Johnson, 481 F.2d 645, 647 (5th Cir. 1973.) where this court confronted and rejected the same argument in a prosecution for unlawful distribution of narcotics in violation of § 841(a)(1).

Finding each of Mitchell’s contentions to be devoid of merit, we affirm.

Affirmed.


source: Caselaw Access Project

author: ALDRICH, Senior Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Carlos Dean HODGES, Defendant-Appellant.
    No. 73-3520.
    United States Court of Appeals, Fifth Circuit.
    April 26, 1974.
    Rehearing Denied May 21, 1974.
    Raymond W. Russell, Fort Lauderdale, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Miami, Fla., Karen L. Atkinson, Atty., Crim. Div., Justice Dept., Mark S. Geraghty, Narcotic and Dangerous Drug Section, Washington, D. C., for plaintiff-appellee.
    Before ALDRICH, Senior Circuit Judge, and BELL and GEE, Circuit Judges.

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

   ALDRICH, Senior Circuit Judge:

Defendant appeals from a conviction for violation of 21 U.S.C. § 846 (conspiracy) and § 841(a)(1) (possession with intent to distribute and the distribution of cocaine). The appeal presents only one matter of substance. Defendant complains of the fact that the court refused to require disclosure of the identity of an informer, alleging that it failed to follow the delineations of Rovi-aro v. United States, 1957, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, as applied in Gilmore v. United States, 5 Cir., 1958, 256 F.2d 565. We find no error.

In Roviaro the Court recognized that a defendant might have a legitimate interest in the identity of an informer, but held that the government had an interest, quite apart from the case, in maintaining informer secrecy. It therefore held that the court should weigh the government interest in secrecy against the defendant’s need for the information in light of the particular facts of each case. In Gilmore the informer, on the government’s evidence, not only acted “in creating the atmosphere of confidence beforehand,” but “in continuing it by his close presence during the moments of [a] conversation of critical importance. If what Morris [the under-cover agent] said was said was said, it authorized the inference of possession which set in motion the whole train of statutory presumptions. 21 U. S.C.A. § 174. If no such conversation took place, or if it was substantially different, the inferences warranted might likewise be different ....

“Here was a person affirmatively shown to have been within hearing distance who was an actual witness to the crucial part of this transaction. The conversation, both what was said, how it was said, and what was not said, presented matters of great materiality. . As the inferences from it covered the full spectrum from innocence to guilt, the process of truthfinding, which should be the aim of every trial, compelled its disclosure.” 256 F.2d at 567.

In the case at bar the government’s evidence was considerably less helpful to the defendant. The informer was undoubtedly active “in creating the atmosphere of confidence beforehand.” However, he had disappeared by the time the relevant transactions occurred. In the affidavit submitted by defendant in support of his claim of lack of sufficient knowledge to enable him to find the informant, there was no contrary showing; nor was there a showing of anything else the witness could be expected to testify to. In these circumstances we asked counsel at oral argument to suggest as a matter of theory, in the full exercise of his imagination, in what way the informer could be of possible assistance. He replied that the informer might be able to supply evidence showing that defendant’s apparent willingness to deal, so far as his relations with the government agent were concerned, was due to some form of earlier entrapment by the informer.

Quite aside from the question whether a defendant’s need for a witness can ever be supplied by speculations of counsel unsupported by anything in the record, it would be particularly inappropriate so to find in the case at bar. Entrapment is an affirmative defense, in the sense that there is an initial burden of going forward upon the defendant. United States v. Costello, 5 Cir., 1973, 483 F.2d 1366, 1367-1368; United States v. Groessel, 5 Cir., 1971, 440 F.2d 602, 606, cert. denied 403 U.S. 933, 91 S.Ct. 2263, 29 L.Ed.2d 713; Kadis v. United States, 1 Cir., 1967, 373 F.2d 370. Since defendant, by hypothesis, knew whatever, if anything, the informer had said or done to entrap him, he cannot plead ignorance or inability to supply the missing substantiation. We see no infirmity, constitutional or otherwise, in requiring him to do so. It may be that he could not make a sufficient proffer as to entrapment without, at least indirectly, admitting the commission of the offense. Of this, however, he cannot complain. It is settled law that a defendant who wishes to claim entrapment ordinarily cannot, in the same breath, testify that he did not commit the acts charged. United States v. Groessel, ante, 440 F.2d at 605; Sylvia v. United States, 1 Cir., 1963, 312 F.2d 145, cert. denied 374 U.S. 809, 83 S.Ct. 1694, 10 L.Ed.2d 1032; Rodriguez v. United States, 5 Cir., 1955, 227 F.2d 912, 914. Even if a defendant who does not take the stand, but introduces independent evidence of entrapment, may keep his options open in the hope that the jury will acquit him either on the ground that the government has not proved the offense, or has not rebutted the evidence of entrapment, cf. Gorin v. United States, 1 Cir., 1963, 313 F.2d 641, 654 n. 10, such possibility cannot outweigh the government’s interest in preserving the informer’s anonymity. Indeed, it would seem, as a broad proposition, that to hold that need for an informer as a witness can be met purely by speculations of counsel would be to defenestrate Roviaro.

Affirmed.

      . Defendant’s objection based on a claim that some of his telephone conversations were monitored or taped by the government without his knowledge requires little comment. There are three answers to this, not the least significant being that none of the substance of the conversations was used by the government, testimonially or otherwise.


author: GODBOLD, Circuit Judge:

text:
    In the Matter of Jewell L. SIMMONS and Janice A. Simmons, Bankrupts. J. Lynn PONDER, Appellant, v. Richard F. KNIGHT, Trustee, Appellee.
    No. 74-1139
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 26, 1974.

      J. Lynn Ponder, Amite, La., for appellant.
    Richard F. Knight, pro se.
    Before GEWIN, GODBOLD AND CLARK, Circuit Judges.

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

   GODBOLD, Circuit Judge:

Appellant, an attorney, represented the bankrupts in a bankruptcy proceeding in which appellee was Trustee. Appellant submitted to the Referee in Bankruptcy an application for $10,000 compensation. Notice of the application was mailed to the Trustee and the creditors, and a hearing was held August 21, 1973, attended by appellant, appellee, and an attorney for one creditor. At the end of the hearing the Referee orally ordered that appellant be paid not $10,000 but $1,250, subject to a credit of $250 already paid. Later that day the Referee’s written order to the same effect was filed on the bankruptcy docket of the U. S. District Court for the Eastern District of Louisiana. On September 17, 1973, appellant filed a petition for review of the Referee’s order, and shortly thereafter appellee filed a motion to dismiss the petition. Believing § 39c of the Bankruptcy Act applicable, the Referee granted the motion to dismiss on the ground that the petition for review was untimely. The District Court agreed with the Referee.

On this appeal appellant denies the applicability of the § 39e time bar, arguing that under the authority of several circuit court cases from the 1930’s, an allowance to an attorney is not a § 39c order at all but an “administrative order” subject to reconsideration and review as long as the estate pends. We conclude that the better view is to the contrary and we affirm.

The eases appellant cites make clear that the essential qualities distinguishing an “administrative order” from an order subject to § 39c are the informality and nonadversariness of the proceeding that led to its issuance. See Fazakerly v. E. Kahn’s Sons Co., 75 F.2d 110, 112 (CA5, 1935). It appears that at the time those cases were decided, attorneys’ applications for compensation were normally handled in an informal manner. See id. at 113. ****But in 1938 Congress amended the Bankruptcy Act, injecting an increased formality and adversariness into such proceedings by ordaining that creditors be given notice of applications for compensation. See § 58a(8) of the Act, 11 U.S.C. § 94(a)(8) (1970); 3 Collier on Bankruptcy ¶ 58.01 [2.2] at 479 (1971). The proceeding in the present case took place just as Congress intended. Notice went out to creditors and one of them responded by appearing. The Trustee was present, and most importantly, appellant himself was present to look out for his own interests. A formal hearing ensued, at the end of which the Referee announced a formal decision. We regard that decision as a § 39c order, which became final and irrevocable when appellant allowed ten days to elapse without filing either a petition for review or a petition for extension of time in which to file a petition for review.

Our decision is contrary to Flaxman, Coleman, Gorman & Rosoff v. Cheek, 355 F.2d 672 (CA9, 1966) (compensation order deemed administrative despite Congress’ enactment in 1938 of § 58a(8)). We would not follow that decision in any event, but also note that the 9th Circuit has retreated significantly from it in the very recent case of N. Pfeffer Jewellers, Inc. v. Winard, 486 F.2d 610 (CA9,1973).

Affirmed.

      . A person aggrieved by an order of a referee may, within ten days after the entry thereof or within such extended time as the court . . . may for cause shown allow, file with the referee a petition for review of such order by a judge. . . . Unless the person aggrieved shall petition for review of such order within such ten-day period, or any extension thereof, the order of the referee shall become final.
      Bankruptcy Act § 39c, 11 U.S.C. § 67(c) (1870).

      . See generally 2 Collier on Bankruptcy If 39.18 (1971). Appellant makes an alternative argument that his not receiving written notice of the entry of the Referee’s compensation order relieved him of the duty to petition for review within ten days after the August 21 oral announcement of the order. Noting that this case arose before the effective date of the new Rules of Bankruptcy Procedure, we reject this argument on the basis of St. Regis Paper Co. v. Jackson, 369 F.2d 136 (CA5, 1966).

      . Fazakerly involved the referee’s release of a piece of property (a Sherman Act cause of action) to the bankrupt upon informal agreement of the trustee without notice to creditors. We held that district court review of the order was available throughout the pendency of the estate because the proceeding before the referee had been informal and nonadver-sary. We stated in dictum that “[t]ypieal instances of [informal orders] are allowances to attorneys. . . . ” 75 F.2d at 113.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Wayne Gilbert MARVEL, Defendant-Appellant.
    No. 73-3293
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 26, 1974.
    Rehearing Denied July 5, 1974.
    See 496 F.2d 1170.

      Lester L. McIntyre, Mobile, Ala. (Court-appointed), for defendant-appellant.
    Charles S. White-Spunner, U. S. Atty., Irwin W. Coleman, Asst. U. S. Atty., Mobile, Ala., for plaintiff-appellee.
    Before COLEMAN, DYER and RO-NEY, Circuit Judges.

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

   PER CURIAM:

Appellant was indicted for Dyer Act violations. Count One of the indictment charged interstate transportation of a stolen automobile in violation of 18 U.S. C.A. § 2312. Count Two alleged receiving and concealing the same vehicle in violation of 18 U.S.C.A. § 2313. Appellant was convicted on both counts by a jury. His appeal raises four issues.

(1) Appellant contends that the District Court erred in conducting an in camera hearing on the voluntariness of his confession after he had withdrawn his motion to suppress. He contends that withdrawal of .his motion removed any issue of voluntariness from the case, rendering the district judge powerless under 18 U.S.C.A. § 3501(a) to hold an in camera hearing. Withdrawal of the motion did not per se eliminate the question. Although appellant was willing to stipulate that the statement was freely given after proper Miranda warnings, he claimed, at various times, to have been ill, to have felt the futility of convincing F.B.I. agents of his innocence, and to have been threatened by a city policeman with a greater sentence on state charges if the F.B.I. declined to pursue the case. Under the circumstances, the district judge did not abuse his discretion in holding an in camera hearing, even though this did result in the Government’s learning something of appellant’s planned defense at the suppression hearing.

(2) Appellant argues that the District Court committed plain error in failing to clearly instruct the jury as to the weight to be given to the confession as required by 18 U.S.C.A. § 3501(a). The statute, however, does not specify any particular wording to be used. The Court charged the jury on its responsibility to judge the credibility of witnesses and to weigh their testimony and the testimony of the defendant, who had taken the stand and had testified on the material in the confession. And the Court charged:

You are likewise instructed that evidence of admissions on the part of the defendant, if any, ought to be received by you with caution.

Appellant did not object to these portions of the charge. Error, if any, is not plain. See United States v. Williams, 484 F.2d 176, 178 (8th Cir.), cert. denied, 414 U.S. 1070, 94 S.Ct. 581, 38 L. Ed.2d 475 (1973).

(3) Appellant contends his conviction and sentence for violation of both 18 U.S.C.A. §§ 2312 and 2313 constitute multiple punishment for a single act in violation of the constitutional ban on cruel and unusual punishment. This Circuit has already decided this issue against appellant. United States v. Stone, 411 F.2d 597 (5th Cir. 1969), Strother v. United States, 387 F.2d 385 (5th Cir. 1967), cert. denied, 391 U.S. 971, 88 S.Ct. 2038, 20 L.Ed.2d 886 (1968).

(4) Appellant alleges error in the District Court’s failure to instruct the jury on the meaning of “concealing” in Count Two. The Court did charge that appellant could be convicted if the jury found that he “received,” that he “concealed,” or that he “received and concealed.” The Court defined “receiving.” The jury sent a communication to the trial judge stating:

Count two, we feel Mr. Marvel did receive but we have no evidence he concealed the automobile. Could we have a better explanation on this, please?

The Court then repeated the essence of its earlier instruction, but attempted to clarify its use of “conjunctive” and “disjunctive,” fearing that these terms had confused the jury. Appellant did not request an instruction on “concealing” and did not object to either of the Court’s oral charges. In the circumstances of this case, the District Court’s failure to define “concealing” does not rise to the level of plain error.

Affirmed.


author: PER CURIAM.

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GROENDYKE TRANSPORT, INC. and Ann Myers Bell d/b/a Bell Transport Company, Respondents.
    No. 73-3327
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 26, 1974.
    Rehearing Denied June 19, 1974.

      Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D. C., Elmer P. Davis, Director, Region 16, N.L. R.B., Ft. Worth, Tex., for petitioner.
    G. William Baab, Dallas, Tex., for in-tervenor Southern Conference of Teamsters.
    Cliff W. Ratner, R. R. Barnes, Wichita, Kan., Hugh E. Hackney, Houston, Tex., for respondents.
    Before COLEMAN, DYER and RO-NEY, Circuit Judges.

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

   PER CURIAM.

In this enforcement proceeding, the respondent companies challenge the National Labor Relations Board’s findings of unfair labor practices, its order setting aside the election, and its order to bargain with the intervening union upon request. 204 N.L.R.B. No. 27 (1973). We grant enforcement in full.

The Board, which adopted the opinion of the Administrative Law Judge, found the following section 8(a)(1) and (3) violations: threats to discharge union adherents, illegal interrogation of employees as to union support, offers of improved working conditions, threats of more unpleasant working conditions and withholding of benefits, and the discriminatory discharge of one leading union adherent and the demotion of another. The Board found that the union once held a clear majority of authorization cards, but that its strength had been dissipated by respondents’ conduct, so that the election resulted in a tie vote. Finally, the Board found that its traditional remedies would probably not restore the laboratory conditions necessary for a free and fair election and that a bargaining order was required to protect the employees’ statutory rights.

We are convinced that the Board’s findings of 8(a)(1) and (3) violations are supported by “substantial evidence on the record considered as a whole.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 491, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1951). The main thrust of the companies’ attack challenges the Administrative Law Judge’s explicit findings as to witness credibility. Credibility determinations, however, are for the administrative trier of facts and not for this Court. NLRB v. B. F. Diamond Construction Co., 410 F.2d 462 (5th Cir.), cert. denied, 396 U.S. 835, 90 S.Ct. 94, 24 L.Ed.2d 86 (1969); NLRB v. May Aluminum, Inc., 398 F.2d 47 (5th Cir. 1968).

The acts themselves are clearly unfair labor practices. See, e. g., Chevron Oil Co. v. NLRB, 442 F.2d 1067 (5th Cir. 1971); NLRB v. Texas Industries, Inc., 426 F.2d 812 (5th Cir. 1970) ; NLRB v. Varo, Inc., 425 F.2d 293 (5th Cir. 1970). Respondents, however, contend that the Board was not warranted in setting aside the election, pointing out that the discriminatory discharge occurred after the election. The rest of the unfair labor practices, with the exception of one threat, occurred before the election and the Board was within its discretion in setting aside the election on the basis of that conduct.

Finally, the companies’ challenge to the propriety of the bargaining order under NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), must also fail. The unfair labor practices that occurred both before and after the election fall within the scope of the second category of cases for which Gissel authorized the issuance of bargaining orders. See, e. g., NLRB v. Orlando Paper Co., 480 F.2d 1200 (5th Cir. 1973); NLRB v. Kaiser Agricultural Chemicals, 473 F.2d 374 (5th Cir. 1973); NLRB v. WKRG-TV, Inc., 470 F.2d 1302 (5th Cir. 1973).

Enforced.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Henry Nelson WYNN, Defendant-Appellant.
    No. 73-2976.
    United States Court of Appeals, Fifth Circuit.
    April 26, 1974.
    Louis Regenstein, Emmet J. Bondur-ant II, Atlanta, Ga., for defendant-appellant.
    John W. Stokes, Jr., U. S. Atty., Atlanta, Ga., Scott P. Crampton, Asst. Atty. Gen., Tax Div., Meyer Rothwacks, Richard Buhrman, John P. Burke, Attys., Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    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:

Appellant was convicted on twenty-four counts of a twenty-five count indictment charging crimes against the revenue. Counts One through Ten charged the filing of false and fraudulent personal income tax returns for the years 1965 through 1969, and the making and subscribing of the same returns. 26 U.S.C.A. §§ 7201, 7206(1). Counts Twelve through Twenty-five charged appellant with having willfully failed to file corporate income tax returns for various years for three corporations of which he was president and principal shareholder. 26 U.S.C.A. § 7203. Appellant was acquitted on Count Eleven which charged the filing of a false corporate income tax return. We affirm.

Appellant mounts a vigorous attack on the government’s contentions as to additional income. We have carefully examined the evidentiary basis for the extra income attributed to him, in the form of both unreported income and improper deductions. The basis in each instance was ample to make a jury question. It is undisputed that no corporate income tax returns were filed and the only issue with respect to them is whether the proof of willfulness was sufficient. We conclude that it was, as to both the corporate and the individual income counts.

The real issue in the case gets down to whether appellant was denied a fair trial, and this question must be answered in light of a number of trial events which are asserted as being prejudicial, at least if considered cumulatively.

In an imaginative effort to show something akin to unfairness, it is urged that the particular events must be viewed in the background of (1) appellant, a black man, being tried before an all white jury, and (2) the trial technique of the government in using a witness who employed a twenty-eight page exhibit summarizing the government’s proof as to the amount and source of appellant’s adjusted gross income for the years in question, as well as the gross receipts of the three corporations.

Actual prejudice is claimed in the prosecution’s introduction of evidence involving business matters of appellant in an unsuccessful effort to show them as sources of additional income. This evidence, as well as the mass of evidence actually showing additional income, is said to have overwhelmed the jury. The jury returned its verdict in one hour and ten minutes and this is suggested as proof of bias and disinterest on the part of the jury. At one point counsel for the government asked a witness about appellant wearing suits costing $350 (objection sustained); at other points, whether witnesses had heard that appellant was arrested on a lottery charge in 1968 (cross-examination of character witnesses). Complaint is also made of an argument, based on the testimony of appellant, that he drove a new Cadillac which was purchased by one of the corporations.

We do not find prejudicial error in these matters whether considered separately or on a cumulative basis.

The sum of the matter is that appellant owned three corporations and four proprietorships during the years in question. In round figures, he reported an average annual income of $5,600 individually while the jury could have believed that his taxable income averaged $28,000 annually. Despite substantial gross receipts, no corporate tax returns whatever were filed on behalf of the corporations.

We find an abundance of evidence for submission of the issue made on each count to the jury. Appellant received a strong defense in a fair trial and has had full consideration on appeal.

Affirmed.


text:
    Christine ADAMS, Individually and on behalf of minor son, Randell Adams, Plaintiff-Appellant, v. Richard HARDEN, Defendant-Appellee.
    No. 73-1932.
    United States Court of Appeals, Fifth Circuit.
    April 26, 1974.
    William J. Brennan, Jr., Jay E. Loeb, Michael H. Terry, David A. Webster, Atlanta, Ga., for plaintiff-appellant.
    Arthur K. Bolton, Atty. Gen. of Ga., Timothy J. Sweeney, Dorothy Y. Kirk-ley, Asst. Attys. Gen., Atlanta, Ga., for defendant-appellee.
    Before COLEMAN, AINSWORTH and GEE, Circuit Judges.
   PER CURIAM:

This was an action brought by plaintiff on December 30, 1972 under 42 U. S.C., § 1983 seeking to redress a claimed deprivation of federal rights under the Fourteenth Amendment and under 28 U.S.C., § 2201 seeking a declaration of rights. Jurisdiction was claimed under 28 U.S.C., §§ 1343(3) and (4). The injury claimed was the result of a deviation under the State’s plan for Aid to Family with Dependent Children (AFDC) from the standards of the Social Security Act, 42 U.S.C., § 601 et seq., in the enforcement of portions of the Georgia statute, Ga.Laws 1937, p. 630, as amended, particularly by Ga. Laws 1964, p. 125, Ga.Code Ann., § 99-902, and the corresponding state regulation, which limited eligibility of sixteen-seventeen year olds under the State’s plan to those who attend school or who are physically unable to attend school. See Townsend v. Swank, 404 U. S. 282, 92 S.Ct. 502, 30 L.Ed.2d 448 (1971).

On February 16, 1972, the State regulations were amended to conform to Townsend v. Swank. Thereafter, no school attendance requirement was enforced.

The litigation continued in an effort to require the defendant to pay retroactively to the members of the class the sums which should have been paid between December 20, 1971 and February 16, 1972 had it not been for the offending regulation. The defense, among other things, pled the Eleventh Amendment. The District Court denied the claim and this appeal followed.

We heard oral argument at New Orleans, December 12, 1973 and deferred decision awaiting the outcome in the Supreme Court of Edelman v. Jordan [No. 72-6476].

On March 25, 1974, the Supreme Court decided that case-U.S.-, 94 S.Ct. 1347, 39 L.Ed.2d 662. It was there held that the Eleventh Amendment bars a federal district court from awarding retroactive benefits under a federal-state public aid program that are ultimately payable from state’s general revenues.

The judgment of the District Court is Affirmed.


author: DUNIWAY, Circuit Judge:

text:
    Gary Julius PAIGE, Plaintiff-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-2469.
    United States Court of Appeals, Ninth Circuit.
    Feb. 11, 1974.
    Certiorari Denied June 3,1974.
    See 94 S.Ct. 2649.
    Gary Julius Paige, in pro. per.
    William D. Keller, U. S. Atty., Eric A. Nobles, Vincent J. Marella, Asst. U. S. Attys., Los Angeles, Cal., for respondent-appellee.
    Before BROWNING, DUNIWAY and HUFSTEDLER, Circuit Judges.
   OPINION

DUNIWAY, Circuit Judge:

Paige appeals from an order denying his motion under 28 U.S.C. § 2255 to set aside his conviction. He was convicted of bank robbery on June 5, 1969, and on appeal we affirmed in an unreported decision on February 5, 1971 (cert. denied, Paige v. United States, 1971, 402 U.S. 977, 91 S.Ct. 1681, 29 L.Ed.2d 142). On June 16, 1971, Paige filed his first § 2255 motion, which was denied. On appeal, we affirmed. Paige v. United States, 9 Cir., 1972, 456 F.2d 1278. He filed a second § 2255 motion on March 9, 1972. This, too, was denied, and we again affirmed, in an unreported decision, on December 11, 1972. Neither of these motions raised the question now sought to be raised.

The motion now before us was filed on May 2, 1973, almost four years after Paige was tried and convicted. The grounds for the motion, asserted for the first time, are that both the grand jury that indicted him and the petit jury that tried him were selected “in violation of the petitioner’s rights under the Fifth Amendment to the Constitution . in that: The . . . selection process arbitrarily discriminates against the following classes of people: (1) the poor; (2) the nonwhite; (3) the uneducated; (4) and the young.” Paige says that he does not claim that the Jury Selection and Tenure Act of 1968, 28 U.S.C. §§ 1861-1874 was not complied with. He concedes that, if he were making such an attack, his motion would be untimely under 28 U.S.C. § 1867(a).

Paige’s argument is that the use of voter lists to obtain the names of prospective jurors, as the Act provides, necessarily discriminates against the four classes of persons that he names, and that therefore the Act is unconstitutional. Therefore, he says § 1867(a) does not apply. This does not necessarily follow. If using voter lists does what Paige says it does, this might violate both the Act and the Constitution. Section 1863(b)(1) provides for the use of supplementary sources of names if that is necessary to carry out the mandate of Section 1862.

At least two types of discrimination to which Paige refers are expressly prohibited by the Act, 28 U.S.C. § 1862, which prohibits excluding any cifeen from jury service “on account of race, color, religion, sex, national origin or economic status.” (Emphasis added.) We think that, as to “the poor” and “the nonwhite,” § 1867(a) does apply. We have heretofore disposed of a similar claim relating to “the young.” United States v. Ross, 9 Cir., 1972, 468 F.2d 1213.

We do not here pass on the merits of Paige’s claims. If any of them are not barred by § 1867(a), there is another, and we think an insurmountable, barrier to Paige’s motion, namely Rule 12(b)(2) of the Federal Rules of Criminal Procedure as construed in Davis v. United States, 1973, 411 U.S. 233, 93 S. Ct. 1577, 36 L.Ed.2d 216. In Davis, the Court squarely held that the Rule applies to a claim that the grand jury was selected in an unconstitutional manner. Paige’s claim, insofar as it relates to the grand jury, is barred by Davis.

Rule 12(b)(2) does not mention the petit jury, but the rationale in Davis does. We think that the Court would apply the same rationale to the petit jury. It cites with approval Shotwell Mfg. Co. v. United States, 1963, 371 U.S. 341, 83 S.Ct. 448, 9 L.Ed.2d 357, a case in which there was a belated attack upon the selection of both the grand and the petit juries. There, the Court held that “an objection to the petit jury array is not timely if it is first raised after verdict.” (p. 362, 83 S.Ct. p. 461)

In both Davis and Shotwell, the Court also held that the lower courts did not abuse their discretion in refusing to consider the belated claims that were presented to them because no specific prejudice to the defendant was shown. That is equally the case here. Paige says nothing at all about the manner in which the names placed in the master jury wheel were selected (28 U.S.C. § 1863(b)(4)), or about the composition of that list of names. He says nothing at all about the composition of the list of jurors drawn from that wheel (28 U.S.C. § 1864(a)). He says nothing at all about the actual composition of the grand jury that indicted him or of the petit jury that tried him. For all that appears, in his particular case, there may have been no discrimination at all.

It is true that the courts have often said that a challenge to the array should be based on the method of selection, not the makeup of a particular jury. Thiel v. Southern Pacific Co., 1946, 328 U.S. 217, 225, 66 S.Ct. 984, 90 L.Ed. 1181; Ballard v. United States, 1946, 329 U.S. 187, 195, 67 S.Ct. 261, 91 L.Ed. 181. But, as the decisions in Davis and Shotwell show, it is proper to consider actual prejudice to the defendant when the question is whether the court abused its discretion by declining to entertain a late attack upon the array.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. James Howard SMITH, Defendant-Appellant.
    No. 73-3629
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 24, 1974.

      J. V. Eskenazi, Federal Public Defender, Edward B. Greene, Asst. Public Defender, Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Kerry J. Nahoom, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before WISDOM, GOLDBERG and GEE, Circuit Judges.

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

   PER CURIAM:

This is an appeal from a conviction for transporting a stolen automobile in interstate commerce (Dyer Act). The jury found Smith guilty in October, 1973, and the court sentenced him to four years’ imprisonment. The question for us is the sufficiency of the evidence to permit the jury’s inference that the automobile which the defendant possessed was the same automobile which was stolen. We affirm.

On December 9, 1972, Mrs. Sylvia Humphrey of Akron, Ohio, awoke to discover that her automobile had disappeared without her knowledge or permission from the front of her home. She described the car as a “1965 Ford, blue, four-door, Galaxie 500.” Additionally, she supplied the serial and registration numbers of the car.

On December 17, 1972, Officer Barker of the Miami Police Department arrested Smith and two other persons, all standing by the car in question, in Miami. Smith stated that it was his car. Officer Barker described the car as a 1965 Ford, four-door, dark blue, with a 1972 Ohio tag. Additionally, he noted that the trunk lock had been punched out and the ignition had been punched out and rewired. He failed to ascertain the automobile’s serial number. Although Officer Barker did not testify that the car was in fact taken to the Miami City Pound, he did state that he arranged to have that action taken.

Two days later, Agent Bartlett of the FBI visited the Miami auto pound where he examined an automobile which corresponded exactly with the description of Mrs. Humphrey’s automobile. In addition, Agent Bartlett testified that the trunk lock was punched out and the ignition had been stripped from the dash and rewired. Agent Bartlett, of course, had no personal knowledge that Smith was ever in possession of the automobile which he examined at the pound.

No doubt exists that Mrs. Humphrey’s car was the same car that Agent Bartlett inspected at the Miami pound. The only issue is whether the car which Agent Bartlett inspected at the pound was the same car which Officer Barker found in Smith’s possession.The prosecution’s proof in this case left much to be desired, but we conclude that it was sufficient. Smith relies on our decisions in Watkins v. United States, 409 F.2d 1382 (5th Cir. 1969), and Thompson v. United States, 334 F.2d 207 (5th Cir. 1964). In essence, those cases stand for the proposition that the disappearance of an automobile in one state and the apprehension of the defendant in another state while in control of a car similar in color, make and model to that which initially disappeared is not sufficient for a Dyer Act conviction. At least where “standard” automobiles are concerned, some identifying circumstance or evidence in addition to common color, make and model is necessary to support the fact finder’s conclusion that the car found in defendant’s possession is that which was stolen and transported in interstate commerce. In this case, the car found in Smith's possession not only matched that inspected at the pound in color, make, model and state of registration, but additionally the automobiles were identical in that the trunk lock was punched out and the ignition was stripped and rewired. Moreover, Mrs. Humphrey’s automobile was, in fact, at the pound.

As we said recently in United States v. Edwards, 488 F.2d 1154, 1157 (5th Cir.):

On a motion for a judgment of acquittal .... in criminal cases based on circumstantial evidence, our task is to determine whether reasonable minds could conclude that the evidence is inconsistent with the hypothesis of the accused’s innocence.

Additionally, the test is not whether the trial judge or the appellate judge concludes that the evidence fails to exclude every reasonable hypothesis but that of guilt, but rather whether the jury might reasonably so conclude. Here the jury could so do.

Affirmed.

      . 18 U.S.C.A. § 2312.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Eladio CIPRIANO, Defendant-Appellant.
    No. 73-3498
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 26, 1974.
    William Porter, Miami, Fla. (Court-appointed), for defendant-appellant.
    Robert W. Rust, U. S. Atty., Miami, Fla., Karen L. Atkinson, Atty., Crim. Div., Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before COLEMAN, DYER and RO-NEY, Circuit Judges.

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

   PER CURIAM:

As a single point on appeal from this cocaine conviction, defendant claims prejudicial error in allowing a Spanish speaking rebuttal witness, who used an interpreter, to testify to English conversations between defendant and a Government agent. All parties to the conversations testified, including the defendant. The evidence reveals that the witness understood some English and testified that he could understand a little of the conversations. He does not appear to have testified to any more than he understood. We perceive no error in the ruling that the witness’ language difficulties went to the weight to be accorded his testimony and did not render his testimony incompetent as a matter of law. The matter was properly submitted for jury determination.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Leola Studdert GISSEL, Executrix of the Estate of Julius Schutze Gissel, et al., Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. C. J. THIBODEAUX AND COMPANY and the Travelers Indemnity Company, Defendants-Appellants.
    No. 73-2829.
    United States Court of Appeals, Fifth Circuit.
    April 26, 1974.

      Robert M. Julian, Houston, Tex., for C. J. Thibodeaux & Co., et al.
    Alan S. Dale, Houston, Tex., for Leola S. Gissel.
    Jack Shepherd, Asst. U. S. Atty., Anthony J. P. Farris, U. S. Atty., Houston, Tex., Morton Hollander, Chief, Appellate Sec., Civ. Div., Lawrence F. Ledebur, Chief, Admiralty & Shipping Section, Robert E. Kopp, Dept, of Justice, Washington, D. C., Charles B. Wolfe, Asst. U. S. Atty., Houston, Tex., for plaintiff-ap-pellee.
    Before ALDRICH, Senior Circuit Judge, and BELL and GEE, Circuit Judges.

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

   ALDRICH, Senior Circuit Judge:

These are two consolidated actions arising out of the bankruptcy and the consequent failure of the owners of an American vessel, the S. S. SEA PIONEER, to pay customs duties imposed by virtue of 19 U.S.C. § 257 on entry following repairs made in a foreign country. Defendants Gissel and Thibodeaux, are so-called berthing agents whose business it is to make arrangements for entry, docking, attend-anee of customs agents, etc. and clearance, on behalf of vessels entering United States ports where they offer their services. In connection therewith each defendant annually files a blanket bond specified to apply to all vessels entered and cleared by them in the course of the year. The government is the obligee. In May 1964, the S. S. SEA PIONEER docked at Port Arthur, Texas, using Gissel’s services. Having been repaired while abroad, she incurred a duty obligation finally liquidated in 1967 at $14,217. In October 1965, the vessel docked at Galveston, Texas, using Thibo-deaux’s services, and having again been repaired abroad, incurred a duty obligation finally liquidated in 1968 at $57,674. The owners having become bankrupt without hawing paid, and the wessel having been sold abroad without satisfying these claims, the government sued defendants on their bonds. The district court found for the government for the penal sum ($10,000) of each bond, and defendants appeal. In a nutshell, it is defendants’ position that their bond covers only obligations for routine services rendered while the vessel was in port, and which they specifically requisitioned by executing Customs Form 3171, while the government claims that it covers the whole spectrum of the vessel’s liability.

At least at first blush the government appears correct. The bonds, executed on Customs' Form 7569, provided,

“(1) If the above-bounden principal shall pay to the collector of customs of said port(s) promptly on demand such penalties as may be incurred by the vessels, vehicles, or aircraft, together with the sums chargeable under law and regulations for such services as may be performed for said vessels, vehicles, or aircraft by customs officers or employees, and shall promptly pay any duties, charges, exactions, penalties, or other sums found legally due the United States from any master or other proper officer or owner of said vessels, vehicles, or aircraft on account of said vessels, vehicles, or aircraft.” (Emphasis suppl.)

Defendants contend, (a) that the bond does not in terms cover the duty imposed on account of foreign repairs; (b) that even if the form of the bond does in terms purport to cover such duties, in the context of its execution they were not covered when a berthing agent, rather than the vessel, was the party executing it; and (c) that in any event, although executing the bonds as principals, as between themselves and the vessel the agents were only sureties, and affording an extension to the vessel effected their discharge. Consideration of these defenses requires examination of the total circumstances.

Pursuant to statutory authority, 19 U.S.C. §§ 1623, 1624, the Treasury Department adopted regulations under which an entering vessel itself, or by its agent, must apply for customhouse and attendant services and give bond for payment. It is further provided that if a vessel wishes to clear without payment of duty resulting from foreign repairs it must make a deposit or give bond for such. 19 C.F.R. § 4.14. Defendants’ contention that the bonds which they signed did not in terms cover such duties, based on a construction they seek to give the prefatory “whereas” clauses, is not only unpersuasive in itself in view of the breadth of language, including the fact that there are four paragraphs in the bond referring to duties, but is firmly rebutted by the fact that the bond form which defendants signed, No. 7569, is particularly specified in 19 C.F. R. § 4.14 as suitable for covering the duty due on account of repairs. Defendants’ point, accordingly, must be that for some reason, although they signed such a broad bond, the intent was for their liability to be limited to only some, and not this portion, of the bond’s apparent undertakings.

Nothing in the language of the bond suggests a limitation. Nor did defendants’ later applications for permits to unlade the S. S. SEA PIONEER requesting only certain services, modify the bonds, which on their face applied in toto to any vessel “entered and cleared” by defendants. It is true, as defendants assert, that there is no statutory liability imposed upon a berthing agent for customs duties. Correspondingly, the statute provides that for such services as, concededly, are normally ordered by an agent, a bond shall be given by the “master, owner, or agent of such vessel,” 19 U.S.C. § 1451, whereas a duty bond is merely required to be “given,” with no mention made of agents. 19 C.F.R. § 4.-14. It does not follow, however, that if an agent voluntarily gives a bond which in terms covers obligations of his principal, it should be unenforcible. We see no reason why an agent may not furnish credit as a service to his principal if he wishes to. Cf. Caldwell Shipping Co. v. United States, 53 Cust.Ct. 311 (1964) (payment of duty by agent).

It must equally follow that since the very purpose of furnishing a duty bond is to permit the vessel to clear without paying the duty, the agent cannot claim that permitting the vessel to depart was an unconsented-to release of the security, or extension of credit to the principal, which discharged the surety. Nor are we persuaded by the argument that the government should have proceeded with more dispatch against the vessel. It may be, as defendants suggest, that berthing agents were never charged for uncollectible duty before, but, as the district court held, this does not mean that the liability was not clearly undertaken. We find no ambiguity in the instrument itself, or in the surrounding circumstances.

Affirmed.

      . Now 19 U.S.C. § 1466.

      . Strictly, Gissel, formerly d/b/a Collin & Gissel, is now deceased and is represented by bis executrix, and Thibodeaux is O. J. Thibodeaux & Co. Also named defendants, but not embraced in that term as used herein, are two indemnity companies that signed Gis-sel’s and Thibodeaux’s bonds as sureties.

      . For doubtless good and sufficient reason, Gissel and Thibodeaux do not claim that, as they were agents of a disclosed principal (the vessel or its owners), under agency princi-pies the principal was the party chargeable and they were not. We do not, accordingly, pursue this question.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Richard Webster MOTON, Defendant-Appellant.
    No. 73-2456
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 26, 1974.

      Harry B. Adams, III, San Antonio, Tex. (Court-appointed), for White.
    Walter F. Rudeloff, San Antonio, Tex. (Court-appointed) for Williams.
    James R. Gillespie, San Antonio, Tex. (Court-appointed) for Moton.
    William S. Sessions, U. S. Atty., Wayne F. Speck, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

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

   PER CURIAM:

Defendant Moton was charged in a two count indictment with conspiracy to maliciously firebomb government property, under 18 U.S.C. § 371 (1970), and with the substantive offense under 18 U.S.C. § 844(f) (Supp.1973). At the close of the Government’s case, the court sua sponte dismissed as defective the count charging him with the substantive offense. The jury found him guilty on the conspiracy charge. On appeal, he claims that two infirmities inhered in his jury trial. We affirm.

Moon’s first contention is that the trial court denied him effective assistance of counsel guaranteed by the Sixth Amendment when it instructed defense counsel to cross-examine Willard English, Jr., a Government witness, in a certain fashion. The following colloquy illustrates the substance of Moton’s grievance:

“THE COURT: Counsel, I think it would help if you would take this matter chronologically and develop it, it would help you, and would help the witness, it would help the Court understand the facts, the interrogation, but you are jumping from one matter to another without identification as to time and place, it is out of context, so to speak, so, I am going to ask you to try to establish your timing on each question, and place, and then possibly —and arrange it, if possible, in a chronological sequence, and if it is inconsistent, why, then, you can bring it out by subsequent questions as to whether previously the witness has testified to a different time and place.

MR. IDAR: Your Honor, I will do the best I can to be fair with the witness. It is my position that if the witness has rehearsed a story—

THE COURT: Now, counsel, I don’t want any comments about — any argument to me or to the jury about a witness rehearsing a story. Now, you ask your questions and get your answers. The jury will hear you in argument later on as to whether that amounts to a rehearsing of the story or not, but those are sidebar remarks that I do not permit counsel on either side to make. That is comments on your questions and the answers in the course of your questioning, and that can come later, those arguments, but right now confine yourself to questions and answers as to the facts and avoid any sidebar remarks for whoever’s benefit they may be.

MR. IDAR: All right, Your Honor, let the record reflect my exception.

THE COURT: Yes, I understand your objection to it and it is overruled. Now, go ahead, do as I direct, please.”

Upon review of the record, we are convinced that the trial court’s attempts to insure that evidence would be elicited in an orderly and intelligible manner did not so shackle defense counsel as to deny Moton effective assistance of counsel.

Moton’s second contention is that the trial court committed prejudicial error when it permitted the Government, over defense counsel’s objection, to introduce a photograph of a child who was burned by the explosive device allegedly employed by Moton and his confederates. Since it was uncontroverted that the child had sustained bodily injuries, Mo-ton claims that introduction of the photograph was intended solely to inflame the jury and hence jeopardized his right to a fair and impartial trial.

That the photograph was relevant to the substantive offense with which Mo-ton was charged is manifest from an examination of the punishment authorized by 18 U.S.C. § 844(f) (Supp.1973). Where bodily harm is inflicted as a result of the malicious destruction of government property by means of an explosive, section 844(f) countenances an enhancement of the maximum term of imprisonment from 10 to 20 years and of the maximum fine from $10,000 to $20,000. With the dismissal of count two of the indictment — the count charging the substantive offense — Moton and his confederates became amenable to substantially less punishment. Although after count II was dismissed by the court sua sponte, the picture was of diminished relevance, neither Moton nor any of his confederates made any attempt to revive their objection to the admissibility of the photograph and no motion was made to exclude it. Nor did they request that any cautionary instruction be submitted to the jury concerning the materiality of the photograph. It is in this posture that we review Moton’s second contention.

The admission or rejection of a photograph lies largely in the discretion of the trial judge. United States v. Hurt, 155 U.S.App.D.C. 217, 476 F.2d 1164, 1170 (1973); United States v. Leach, 429 F.2d 956, 962 (8th Cir. 1970), cert. denied, 402 U.S. 986, 91 S. Ct. 1675, 29 L.Ed.2d 151 (1971); Talbot v. Nelson, 390 F.2d 801, 803 (9th Cir.), cert. denied, 393 U.S. 868, 89 S.Ct. 153, 21 L.Ed.2d 136 (1968); Rivers v. United States, 270 F.2d 435, 438 (9th Cir. 1959). That bodily injury or dismemberment is admitted by the defense will not preclude the admission of a photograph. See, e. g., Walle v. Sigler, 456 F.2d 1153, 1154 (9th Cir. 1972); Rivers v. United States, supra at 437 of 270 F. 2d.

In the instant case, Lieutenant Howard, whose son was victimized by the firebombing, gave a graphic description of the extent of the burns. He testified without objection from defense counsel that:

“The burns was [sic] all over on his left side, on the left side of his face, to incorporate the hairline, the ear, all over the face, and down, extending down the neck, all across the abdomen, all across the abdomen (indicating) on the interior portions of both legs, to go around in the back, some spots in the back of both upper thighs, and then it proceeded around to the side of the upper part of the body across both feet. Both feet were burned, and they were burned real bad, across both feet.”

Hence, the photograph merely pictorial-ized the gruesome description of burns Lieutenant Howard had related. In view of this fact, the force behind Mo-ton’s assertion that the photograph was highly inflammatory and prejudiced the jury is attenuated. Moreover, we would note that the evidence of Moton’s complicity in the conspiracy charged is overwhelming. Indeed, one of the confederates, testifying at the behest of the Government, confessed that he, along with Moton and a third conspirator committed the crime. Consequently, we conclude that whatever error, if any, occurred by permitting the photograph to be admitted into evidence was harmless.

Affirmed.

      . Moton was sentenced under the Federal Youth Correction Act, 18 U.S.C. §§ 5005-5024.


author: SIMPSON, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Michael BOVA, Defendant-Appellant.
    No. 73-1340.
    United States Court of Appeals, Fifth Circuit.
    April 26, 1974.
    Alvin Goodman, Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Carol M. Anderson, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.
   SIMPSON, Circuit Judge:

We review appellant’s conviction on two counts of violation of federal narcotics laws. We determine that Bova was improperly joined in the indictment with a codefendant as to offenses unrelated to appellant, in violation of F.R. Crim.P. 8(b). We reverse his conviction and remand for a new trial.

I. The Facts

The appellant, Bova, and a codefend-ant, John Coccuzza, were charged in a four count indictment with unlawful possession and distribution of heroin, a Schedule I narcotic controlled substance, in violation of Title 21 U.S.C. Sec. 841(a)(1) and Title 18 U.S.C. Sec. 2. Bova and Coccuzza were charged jointly in Count I with possession of 8.3 grams of heroin on or about August 31, 1972, and in Count II with distribution of that heroin on the same date. Counts III and IV charged Coccuzza alone with possession and distribution of 25.7 grams of heroin on or about September 8, 1972.

The case against the appellant and his . codefendant arose from the purchase by Agent Perez of the Bureau of Narcotics and Dangerous Drugs (BNDD) of 8.3 grams of heroin from them on August 31, 1972. Agent Perez had been contacted by confidential informants, and proceeded to their home in Hollywood, Florida. There, he met with the informants and awaited the arrival of Bova and Coccuzza. The two arrived, and Agent Perez and Coccuzza engaged in a conversation concerning the sale of heroin. Coccuzza indicated that he was interested in selling one-half ounce of heroin for $500. Agent Perez responded that he was interested at that time in a smaller quantity, perhaps $200 worth. Thereupon, Coccuzza, Bova, and one of the confidential informants left in the automobile in which Bova and Coccuzza had arrived. The three returned some five minutes later, and, with Agent Perez, retreated to one of the bedrooms in the house in which the informants lived. There, Coc-cuzza produced a plastic bag containing heroin, indicated that it contained one-quarter of an ounce, and offered it to Agent Perez for $300. Agent Perez accepted this offer and Coccuzza handed the heroin over to him.

Perez testified that at this time Bova inquired whether Perez had any scales with him. Upon receiving a negative reply, Bova produced a small set of scales from the pocket of his jeans, took the bag of heroin, and weighed it for Perez. Agent Perez then paid Coccuzza the agreed price of $300. According to Perez, Coccuzza turned the money over to Bova as the group was leaving the bedroom where the transaction had taken place.

The sale of September 8, 1972, on which Counts III and IV of the indictment were based, apparently involved only Coccuzza. The only testimony concerning this sale was elicited from a government agent during the scope of the Rule 11, F.R.Crim.P. inquiry occasioned by Coccuzza’s motion to withdraw his plea of not guilty and to enter a plea of guilty at the close of Agent Perez’ testimony at trial.

II. Proceedings Below

The appellant and his codefendant Coccuzza were arraigned on November 16, 1972, both entering not guilty pleas. Trial was set for November 27, 1972, but was later continued to December 11, 1972, on motion of Bova’s counsel filed November 20 At the same time that he moved for a continuance, Bova’s attorney also moved for severance of his trial from that of Coccuzza. As grounds for his motion, Bova urged, inter alia, that the indictment against him and his codefendant contained charges totally unrelated to Bova himself. In support of this contention, Bova’s counsel submitted a brief memorandum stating that the joinder of the unrelated offenses charged against Coccuzza was in violation of Rule 8, F.R.Crim.P.

The district court denied Bova’s motion for severance by its order of November 22, 1972. Thereafter, on November 27, the case was transferred from the docket of the judge to whom the case had originally been assigned to that of another district judge. Simultaneously, the original judge modified his order of November 22 by an amended order which added that the denial of the motion to sever was without prejudice to the defendant’s right to renew the motion during trial. The issue of severance was not, however, thereafter raised by Bova’s counsel until the filing of his motion for new trial on December 19, 1972.

Early in the trial at the close of the testimony of the first government witness, Agent Perez, as to the transactions of both August 31 and September 8, Coccuzza was allowed to withdraw his pleas of not guilty and plead guilty to all four counts of the indictment. The trial proceeded as to Bova alone, and he was found guilty by a jury on Counts I and II of the indictment, the only counts in which he was mentioned. After denial of the new trial motion, judgment and concurrent sentences of Bova to five years confinement on each count, this appeal timely followed.

III. The Issue: Joinder Under Rule 8(b), Federal Rules of Criminal Procedure

On this appeal, Bova urges that join-der of the codefendant Coccuzza in Counts III and IV of the indictment— counts alleging offenses committed by Coccuzza alone — was impermissible under Rule 8(b), F.R.Crim.P., and that failure of the trial judge to grant his motion for a severance of his trial from that of Coccuzza was prejudicial error entitling him to a new trial. Since no reported case of this court reaches this precise issue, we are guided by cases from other circuits.

We note initially that whether there has been misjoinder in a trial involving multiple defendants is governed by Rule 8(b) only; Rule 8(a) has no application in such instances. Cupo v. United States, 1966, 123 U.S.App.D.C. 324, 359 F.2d 990, 992; King v. United States, 1 Cir. 1966, 355 F.2d 700, 704; Wright, Federal Practice and Procedure, Criminal Sec. 144 (1969). As Professor Wright notes, “[i]t may well be doubted if this was the intention of the draftsmen. * * * It is a good thing, however, that Rule 8(b) has been read as independent and exclusive of Rule 8(a). The significant difference between the two subsections is that Rule 8(a) allows joinder of offenses of ‘the same or similar character’ and Rule 8(b) does not.” Wright, supra at 318-19. Professor Wright, quoting the rule, points out that joinder of offenses under Rule 8(b) requires a showing that the offenses were part of “the same act or transaction or the same series of acts or transactions.....” Id. at 325. The purpose is to prevent the “cumulation of prejudice [from] charging several defendants with similar but unrelated offenses.” Cupo v. United States, supra, 359 F.2d at 993.

In applying Rule 8(b), the courts agree almost uniformly that improper joinder is inherently prejudicial and that granting of a motion for severance, where there has been misjoinder, is mandatory and not discretionary with the district courts. This per se rule originated in McElroy v. United States, 1896, 164 U.S. 76, 17 S.Ct. 31, 41 L.Ed. 355. In that case, involving counts against several defendants for, inter alia, assault with intent to murder and arson, the Court stated the issue thus: “. . . whether counts against five defendants can be coupled with a count against part of them, or offenses charged to have been committed by all at one time can be joined with another and distinct offense committed by part of them at a different time.” 164 U.S. at 77, 17 S.Ct. at 31, 41 L.Ed. at 356. The Court formulated its answer as follows: “. . . joinder cannot be sustained where the parties are not the same, and where the offenses are in no wise parts of the same transaction, and must depend upon evidence of a different state of facts as to each or some of them.” Id. at 81, 17 S.Ct. at 33, 41 L.Ed. at 357. The Court went on to state the rationale underlying the per se rule regarding prejudice: “It cannot be said in such case that all the defendants may not have been embarrased and prejudiced in their defense, or that the attention of the jury may not have been distracted to their injury in passing upon distinct and independent transactions.” Id. This per se rule regarding prejudice has been followed without notable exception by the courts of appeal in considering allegations of misjoinder under 8(b). See e. g., United States v. Eagleston, 10 Cir. 1969, 417 F.2d 11; Chubet v. United States, 8 Cir. 1969, 414 F.2d 1018; Metheany v. United States, 9 Cir. 1966, 365 F.2d 90; King v. United States, 1 Cir. 1966, 355 F.2d 700; United States v. Spector, 7 Cir. 1963, 326 F. 2d 345; Ward v. United States, 1961, 110 U.S.App.D.C. 136, 289 F.2d 877; Ingram v. United States, 4 Cir. 1959, 272 F.2d 567.

In King v. United States, supra,, a ease of first impression in the First Circuit, Chief Judge Aldrich, as the organ of that court, analyzed the principles underlying Rule 8(b) and applied them to facts not dissimilar to those below. King was a transfer of narcotics case. King and one McKinney were jointly indicted in one indictment for two counts of transferring narcotics in violation of Title 26 U.S.C. Sec. 4705(a), each count alleging a separate transaction on July 14, 1964. By separate indictment, McKinney alone was charged with two other violations of Sec. 4705(a), one occurring on June 18, 1964, and one on August 10, 1964. All transactions allegedly took place in Boston, Massachusetts. The two indictments were consolidated for a trial which resulted in King’s conviction.

Noting that joinder of indictments for trial is permitted by Rule 13, F.R.Crim. P., the court recognized that the propriety of joinder must be determined according to the test of Rule 8. Judge Aldrich analyzed the competing considerations brought into play when there is a joinder of offenses or defendants — on the one hand the possibility of prejudice to the defendant(s), on the other the possibility of benefit to the court and the public, and stated: “Although the two matters are disparate and difficult to compare, the prejudice may be relatively small, compared to the benefit, and hence tolerable. Rule 8 is an attempt to set the limits of tolerance, and any joinder which does not fall within it is per se impermissible. [Citations omitted].” 355 F.2d at 703. Elaborating on this principle, Judge Aldrich went on to say:

It may be . prejudicial to try two defendants together. Because of the natural tendency to infer guilt by association, a defendant may suffer by being joined with another allegedly “bad man.” Here no special prejudice may in fact arise from the joinder for trial, because the proof, even if the defendant were tried alone, might properly show his association with the other individuals. * * * But to offset the prejudice where multiple defendants are being joined even though they did not engage in a joint act, such as conspiracy [citation omitted], this possibility of benefit should explicitly appear from the indictment or from other representations by the government before trial. Classic examples of such a benefit are when there is an overlapping of issues ... or when defendants are charged with conspiracy to conceal a crime that part of their number are charged with committing [citations omitted]. Where, however, there are no presumptive benefits from joint proof of facts relevant to all the acts or transactions, there is no “series,” Rule 8(b) comes to an end, and joinder is impermissible [citations omitted]. Id. at 704.

The application of this test to the facts in King resulted in a determination that since King was not involved in the transactions with which McKinney alone was charged, he was improperly required to be tried with McKinney as to those charges. King’s conviction was reversed and the case remanded for further proceedings.

Judge Aldrich’s analysis in King is applicable to the facts in the instant case. Here, there was no allegation, either in the indictment or, so far as appears from the record, in pretrial proceedings indicating any involvement in or relationship to the September 8th sale of heroin by Bova. There was no “series” of transactions as to Bova. The first and second counts should not have been joined for trial with the third and fourth counts of the indictment involving Coceuzza alone. Bova’s counsel prior to trial timely sought a severance from Coceuzza citing Rule 8(b). It was error to deny severance. We think that there is no substance in the government’s contention that failure to renew the motion constituted a waiver of Bova’s right to object on appeal to the joinder. While motions for severance for improper joinder may indeed be and often are renewed during trial, such motions are properly filed prior to the beginning of trial. United States v. Parson, 9 Cir. 1971, 452 F.2d 1007. Renewal is not necessary to preserve the adverse ruling for appellate review.

The judgment of guilty as to Bova on Counts I and II of the indictment is reversed and this cause is remanded to the district court for further proceedings consistent herewith.

Reversed and remanded.

      . At trial, Bova denied having had any scales, having weighed the heroin for Perez, or having received the $300 from Coccuzza.

      . Both Bova and Coccuzza were initially represented by the same attorney. The possibility of a conflict of interests between the two defendants caused Bova to retain separate counsel. Bova’s first meeting with his new attorney was on November 15, 1972.

      . Criminal Rule 8 provides :
      (a) Joinder of offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
      (b) Joinder of defendants. Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.

      . In his motion for new trial, Bova’s trial counsel, who did not, incidentally, represent Bova on appeal, alleged as error, the trial court’s denial of “ . . . the Motion for Severance and its renewal immediately prior to trial” (emphasis supplied). Aside from this bare reference, the record fails to show that the motion to sever was in fact renewed as asserted. The brief filed on behalf of the Government merely indicates that the motion was not renewed during trial. The answer to the question of renewal is unnecessary to our decision. We pursue the matter no further. See United States v. Parson, 9 Cir. 1971, 452 F.2d 1007.


text:
    Jimmy HALL, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Respondent-Appellant.
    No. 73-2208.
    United States Court of Appeals, Fifth Circuit.
    April 26, 1974.

      Joel D. Rosenblatt, Asst. Atty. Gen., Miami, Fla., for respondent-appellant.
    Rudy Hernandez, Jacksonville, Fla. (Court-appointed), for petitioner-appel-lee.
    Before BROWN, Chief Judge, and GODBOLD and SIMPSON, Circuit Judges.
   SIMPSON, Circuit Judge:

Jimmy Hall was charged in a Florida court with four counts of robbery arising from a hold-up of an A & P grocery store. Trial by jury resulted in a verdict of guilty of the lesser included offense of grand larceny as to two of the counts and acquittal as to the other two. The guilty verdicts were for the theft of money in possession (a) of the store manager, John Schwartz, and (b)- of a customer, Mrs. Anthony Sotelo, present in the store at the time. The trial court imposed consecutive sentences of five years on each count.

Hall appealed to the Florida District Court of Appeals, alleging, inter alia, that he had been convicted and sentenced for committing two crimes, whereas he had in fact only committed one, thus the consecutive sentences violated the constitutional proscription against double jeopardy. His conviction was affirmed by that court, Hall v. State, D.C.A.Fla.1972, 261 So.2d 521, and certiorari was denied by the Florida Supreme Court, Hall v. State, Fla.1972, 265 So.2d 370.

Petitioner then sought habeas corpus relief under Title 28, U.S.C. Sec. 2254, in the court below. Hall reasserted his double jeopardy argument in his pro se petition, and the district court ordered that the writ issue absent the state court’s resentencing of the petitioner within a reasonable time for a single offense of grand larceny. The district judge did not base his order upon a constitutional violation. Instead he decided that Hall had been unlawfully sentenced to consecutive sentences for what constituted a single offense under Florida law. The State appealed that order, and counsel was appointed to represent the petitioner.

The State’s appeal argues that the district court had no power to grant relief except upon a finding that a right guaranteed to Hall under the United States Constitution was violated by the consecutive sentences imposed. Relief was in fact predicated upon the district court’s own interpretation of Florida law, contrary to that State’s interpretation of its own laws. We reverse.

The district court relied upon Ladner v. United States, 1958, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199. There it was held that habeas relief was available to a petitioner arguing that he had been sentenced for multiple offenses, but had only committed one. The issue in Ladner was not constitutional. Instead the decision dealt with conviction under a federal statute covering assault upon federal officers, raised by a Sec. 2255 post-conviction motion. Title 28, U.S.C., Sec. 2255, provides a post-conviction remedy for persons in custody, under a conviction by a court of the United States. By its express provision a prisoner may claim release on the ground that his sentence “was in excess of the maximum authorized by law, or is otherwise subject to collateral attack”. The petitioner in Ladner could therefore raise the issue of the construction of the federal statute under which he was sentenced by his motion to set aside under Sec. 2255. State prisoners proceed in federal courts under Title 28, U.S.C., Sec. 2254, which contains no such provision. 2254(a) permits attack in a federal court “[by] a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.”

Counsel for petitioner implicitly recognizes this distinction, by conceding on brief that the district court which ordered the resentencing of his client was in error to the extent that it failed to find that petitioner’s constitutional right against double jeopardy had been violated. Thus the predicate for relief advanced by petitioner’s counsel is not Ladner v. United States, supra, relied on by the district court, but eases construing the double jeopardy clause of the United States Constitution. *****8 From there, reliance is placed upon the “single larceny doctrine”, which basically holds that the taking of several things at the same time and from the same place constitutes but a single crime of larceny. This was also the rationale employed by the district court below when it held that the Florida appellate court misconstrued Florida law by failing to follow that state’s adoption of the single larceny doctrine in Hearn v. State, Fla.1951, 55 So.2d 559. But the very premise of that argument demonstrates the fundamental error of the district court, as well as the flow in petitioner’s position on appeal. The adoption of the single larceney doctrine is strictly a matter of state law. The doctrine has not received universal acceptance by the states which have considered it. See Annot., 37 A.L.R.3d 1407, 1410.

Equally, the application of that doctrine, or the refusal to apply it to a given set of facts is a matter to be resolved by state courts, in this instance by Florida courts. It does not involve a federal constitutional question. Both the Florida court of appeal and the Supreme Court of Florida, by its denial of certiorari, found the facts in Hall’s ease to be outside the doctrine as declared by Florida courts. There the matter ends. Determination of state law by courts of that state is binding upon federal courts, and consequently the district court below was bound by Florida’s interpretation of Florida law. See, e. g., United States v. Phillips, 5 Cir. 1973, 477 F.2d 913; Franey v. State, 5 Cir. 1954, 211 F.2d 447; Davis v. Wainwright, M.D.Fla.1971, 342 F.Supp. 39, aff’d without opinion, 5 Cir. 1971, 469 F.2d 1405. It was error to hold otherwise. The order appealed from is

Reversed.

      . “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . . .” U.S.Const. Amend. V.

      . The district court disposed of Hall’s double jeopardy claim in his pro se petition by distinguishing his consecutive sentence situation from cases in which the double jeopardy clause has been held to be a bar to successive prosecution, typified by the leading case of Ashe v. Swenson, 1970, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469. However, there is ground to believe that the Supreme Court has intimated that a claim of multiple punishment for a single offense may be equally violative of double jeopardy. See Comment, Twice in Jeopardy, 75 Yale L.J. 262, 266 n. 13 (1965) and eases cited therein.