author: SOBELOFF, Senior Circuit Judge:

text:
    DEUTSCHE LUFTHANSA AKTIENGE-SELLSCHAFT, Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent.
    No. 72-1052.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Nov. 7, 1972.
    Decided April 18, 1973.

      G. Nathan Calkins, Washington, D. C., with whom Arthur D. Bernstein, Washington, D. C., was on the brief, for petitioner.
    Alan R. Demby, Atty., C. A. B., with whom R. Tenney Johnson, Gen. Counsel, O. D. Ozment, Deputy Gen. Counsel, Warren L. Sharfman, Associate Gen. Counsel, C. A. B., and Howard E. Shapiro, Atty., Dept, of Justice, were on the brief, for respondent.
    Before SIMON E. SOBELOFF, Senior Circuit Judge for the Fourth Circuit, and TAMM and LEVENTHAL, Circuit Judges.

       Sitting by designation pursuant to 28 U.S.C. § 294(d) (1970).

   SOBELOFF, Senior Circuit Judge:

This is a direct appeal by the petitioner, Deutsche Lufthansa Aktienge-sellsehaft, from a regulation promulgated by the Civil Aeronautics Board (the Board), requiring all domestic and foreign air carriers to include on their passenger tickets a notice of the limitation the carrier imposes on liability for baggage loss or damage.

Lufthansa claims that the Board’s regulation conflicts with the provisions of the Warsaw Convention and exceeds the Board’s statutory authority. For the reasons set forth below we disagree with both contentions and affirm the Board’s regulation.

I. FACTS

Lufthansa, a citizen of West Germany, is a foreign air carrier and holds a foreign air carrier permit issued by the Board under § 402 of the Federal Aviation Act of 1958, as amended, 49 U.S.C. § 1372. All foreign and domestic carriers holding such permits are allowed to limit their liability for loss, delay, or damage to baggage to a specified dollar amount unless the customer declares a higher value and pays an additional charge in advance of the trip. These limitations must be included in the carriers’ tariffs.

Most international flights are governed by the terms of the Warsaw Convention, which limits a carrier’s liability to approximately $7.50 per pound for checked baggage and $330 per passenger for unchecked baggage. Although carriers are permitted to establish higher limitations than those contained in the Warsaw Convention, few have actually done so. Since passengers often carry baggage containing items of great value, the liability sections of the Warsaw Convention provide inadequate protection. To be adequately insured, passengers must supplement the carriers’ liability with private insurance.

Prior to promulgation of the instant regulation, the Board had required certificated foreign and domestic carriers to include in their tariffs, filed under § 403(a) of the Act, any conditions limiting liability for damage to passenger baggage. It is questionable whether this constructive notice provided passengers with effective notice of the liability limitations.

In 1963 the Board adopted Part 221.-175 of its Economic Regulations requiring carriers to furnish to passengers written notice of the liability limitation for death or personal injury or baggage loss claimed by the carrier under the Warsaw Convention. The notice was to be in writing, on or with the ticket. As for the question of the adequacy of notice of limitation of liability for baggage damage, the Board gave the carriers time to develop a voluntary method of notification. Subsequently the Board found that the voluntary notification procedures of the carriers were not doing the job. It was found that

* * * the only explicit notice given by some carriers is that appearing in fine print “Conditions of Contract” on the back of the ticket and expressed in terms of “French gold francs (consisting of 65% milligrams of gold with a fineness of nine hundred thousandths) or its equivalent.” Even this fine print notice is no longer required by IATA [International Air Transport Association] in its recently amended conditions of contract.

Economic Regulations Docket # 20853 dated May 7,1970, at p. 4.

As a result the Board adopted the instant regulation, § 221.176(b) of the Board’s Economic Regulations, on August 24, 1971. The Regulation states in part:

(b) Effective March 1, 1972, each air carrier and foreign air carrier which, to any extent, avails itself of limitations of liability for loss of, damage to, or delay in delivery of baggage shall include on each ticket issued in the United States or in a foreign country by it or its authorized agent, the following notice printed in at least 10-point type:
NOTICE OF BAGGAGE LIABILITY LIMITATIONS
Liability for loss, delay, or damage to baggage is limited as follows unless a higher value is declared in advance and additional charges are paid: (1) for most international travel (including domestic portions of international journeys) to approximately $7.50 per pound for checked baggage and $330 per passenger for unchecked baggage; (2) for travel wholly between U.S. points, to $500 per passenger on most carriers (a few have lower limits). Excess valuation may not be declared on certain types of valuable articles. Carriers assume no liability for fragile or perishable articles. Further information may be obtained from the carrier.
Provided, however, That carriers may include in their ticket notice the parenthetical phrase, “($16.58 per kilo)” after the phrase, “$7.50 per pound,” in referring to the baggage liability limitation for most international travel.

Before the regulation was promulgated, all affected carriers were given opportunity to submit their views concerning the proposed regulation. Not a single carrier denied the need for adequate notice to passengers of limitations on liability; most of the comments merely questioned how effective the instant regulation would be. Only Lufthansa challenged the legality of the regulation. Lufthansa asked the Board to stay its order pending the outcome of this petition for review. The Board declined to do so and this court too denied a petition for stay on February 29, 1972. Thus the regulation took effect on March 1,1972.

II. JURISDICTION

Cl] A most difficult preliminary question that must be answered is whether this court has jurisdiction over the instant case. Section 1006(a) of the Act, 49 U.S.C. § 1486(a), confers jurisdiction on this appellate court to hear appeals from any final order issued by the Civil Aeronautics Board. But under an early and often cited decision, this court held that it had no jurisdiction over direct appeals from the promulgation of agency regulations where there had not been an evidentiary record established in a quasi judicial proceeding before the agency, United Gas Pipe Line Co. v. Federal Power Comm’n, 86 U.S. App.D.C. 314, 181 F.2d 796, cert. denied, 340 U.S. 827, 71 S.Ct. 63, 95 L.Ed. 607 (1950) (concerning regulatory authority under Natural Gas Act, 15 U.S.C. § 717r(b)); see also Arrow Airways v. Civil Aeronautics Board, 87 U.S.App.D.C. 71, 182 F.2d 705 (1950), cert. denied, 340 U.S. 828, 71 S.Ct. 65, 95 L.Ed. 608 (1951). The United Gas decision was followed in many subsequent cases, it being held that agency regulations promulgated without a prior evidentiary hearing by the agency are directly reviewable only in a district court. But the continuing vitality of United Gas has recently been called into question by this court, and has not been followed in situations where evidence has been assembled before the agency and is not challenged, and where the issues presented are legal and not factual. City of Chicago v. Federal Power Comm’n, 147 U.S.App.D.C. 312, 458 F.2d 731, 740-741 (1971), cert. denied, 405 U.S. 1074, 92 S.Ct. 1495, 31 L.Ed.2d 808 (1972); see also Mobil Oil Corp. v. Federal Power Comm’n, 152 U.S.App.D.C. 119, 469 F.2d 130 (1972). In such cases there is no need to have the matter adjudicated at the district court level in order to have an appropriate record compiled. It is the availability of a record for review and not the holding of a quasi judicial hearing which is now the jurisdictional touchstone.

(a) Any order, affirmative or negative, issued by the Board or Administrator under this chapter, except any order in respect of any foreign air carrier subject to the approval of the President as provided in section 1461 of this title, shall be subject to review by the courts of appeals of the United States or the United States Court of Appeals for the District of Columbia upon petition, filed within sixty days after the entry of such order, by any person disclosing a substantial interest in such order. After the expiration of said sixty days a petition may be filed only by leave of court upon a showing of reasonable grounds for failure to file the petition theretofore.

In the instant case an evidentiary record does exist, as it did in City of Chicago, supra at 740-741. This record is unchallenged, so that the issues presented to us are legal and not factual. Notice was given the parties and Lufthansa was given ample opportunity to present its views before the rule was promulgated. See also Public Service Comm’n for State of New York v. Federal Power Comm’n, 150 U.S.App.D.C. 47, 463 F.2d 883 (1972).

Under these circumstances the petitioner should not be required to go first to the district court.

III. WARSAW CONVENTION

Most modern day international air travel is governed by the rules established under the “Convention for the Unification of Certain Rules Relating to International Transportation by Air,” commonly referred to as the Warsaw Convention.

Crucial to our disposition of this case is the meaning of Article 3 of the Convention, namely:

(1) For the transportation of passengers the carrier must deliver a passenger ticket which shall contain the following particulars:
(a) The place and date of issue;
(b) The place of departure and of destination;
(c) The agreed stopping places, provided that the carrier may reserve the right to alter the stopping places in case of necessity, and that if he exercises that right, the alteration shall not have the effect of depriving the transportation of its international character;
(d) The name and address of the carrier or carriers ;
(e) A statement that the transportation is subject to the rules relating to liability established by this convention.
(2) The absence, irregularity, or loss of the passenger ticket shall not affect the existence or the validity of the contract of transportation, which shall nonetheless be subject to the rules of this convention. Nevertheless, if the carrier accepts a passenger without a passenger ticket having been delivered he shall not be entitled to avail himself of those provisions of this convention which exclude or limit his liability.

We must determine whether the instant regulation is consistent with Article 3 and with the Convention in general. First, we reject the argument that the terms of Article 3, including § 3(1)(e), are exclusive. Rather, the provisions of Article 3 may be supplemented by additional regulations. Indeed, many aspects of the passenger ticket are already governed by regulations not specifically contained in Article 3, but which were added by IATA agreements and approved by the Board. The terms of the instant regulation do not therefore, by their mere existence, violate the terms of the Convention since Article 3 may be supplemented.

Next, we reject Lufthansa’s argument that the regulation is improperly broad — intended to apply to all passenger tickets issued anywhere in the world. In fact, the regulation is to apply only to flights within the jurisdiction of the Act. This jurisdiction is circumscribed by the words “Air Transportation,” which are defined by the Act as common carriage to, from, or within the United States, 49 U.S.C. §§ 1301(10), 1301(21).

The recent trend of appellate court decisions has been to accord substance to the protections that Article 3 of the Convention intended to provide airline passengers. The carriers are not to be permitted to use the article as a protective shelter to shield themselves from their responsibilities to the public. Thus in Mertens v. Flying Tiger Line, Inc., 341 F.2d 851 (2d Cir. 1965), cert. denied, 382 U.S. 816, 86 S.Ct. 38, 15 L.Ed.2d 64 (1965), the airline was not allowed to claim the Convention’s limited liability for a passenger’s death since the passenger did not receive the ticket, with its complicated notice of liability limitation, until he was already' on the plane. Such a sequence of events violated Article 3 since it could not be said that the ticket was “ * ’ * * delivered to the passenger in such a manner as to afford him a reasonable opportunity to take measures to protect himself against the limitations of liability * * * ” Id. at 856. See also, Warren v. Flying Tiger Line, Inc., 352 F.2d 494 (9th Cir. 1965).

In Lisi v. Alitalia-Linee Aeree Italiane, S. P. A., 370 F.2d 508 (2d Cir. 1966), aff’d, 390 U.S. 455, 88 S.Ct. 1193, 20 L.Ed.2d 27 (1968), the Court disallowed the airline’s reliance on the limitation of liability provisions contained on a ticket because the notice was

* * * ineffectively positioned, diminutively sized and unemphasized by bold face type, contrasting color or anything else. The simple truth is that they are so artfully camouflaged that their presence is concealed. 370 F.2d at 514 (quoting language of trial court, D.C., 253 F.Supp. 237 at 243).

We read these cases broadly as requiring that passengers be afforded ample opportunity to comprehend the limitations of liability to which they are subjected, and that they be given a chance to purchase alternative, private insurance. Passengers are not to be required to traverse an obstacle course created by the carriers in order to successfully discover the nature of their rights and substance of the carriers’ limitations on liability. The passenger is to receive full and effective notice of any limitations of liability so that alternative protection may be obtained.

Under the foregoing rationale, it may be stated that the instant regulation not only does not contradict the provisions of the Warsaw Convention but actually gives § 3(1) (e) substantive effect. Compliance with the regulation will not only provide passengers with adequate notice of the limitations on liability imposed on them but will later enable the carrier to invoke the protection of § 3(1) (e), for unless adequate notice is accorded its passengers, the carrier will later be precluded from using the Convention to limit liability.

This holding also disposes of another of petitioner’s contentions, that § 1102 of the Act, which requires the Board to act consistently with all United States treaties, precludes the enforcement of the instant regulation. Since we hold the regulation is consistent with the Warsaw Convention, it cannot therefore conflict with § 1102 of the Act.

IV. STATUTORY AUTHORITY

Finally, we reject Lufthansa’s argument that the Board’s regulation exceeds the agency’s statutory authority under the Act. We find ample authority for the regulation in § 204(a) and § 403(a) of the Act.

Section 204(a) confers broad regulatory authority upon the Board, and while the section is basically procedural, it may constitute part of the basis of substantive rule-making authority, when combined with another provision of the Act. Cf. National Airlines, Inc. v. Civil Aeronautics Board, 113 U.S.App.D.C. 146, 306 F.2d 753 (1952). Section 403(a) of the Act regulates the Board’s authority to order the filing, posting and publication of tariffs and regulates the information to be contained in the tariff. We believe the reason Congress requires that the tariffs be published is to provide the public with the information the tariffs contain and to insure that the public receives adequate notice of the tariff’s contents. Although the instant regulation controls passenger tickets, not tariffs, we do not think § 403(a) precludes its adoption, for taken with § 204(a), § 403(a) permits the Board to regulate and control the notice the public is to receive from carriers concerning conditions the carriers impose on the public. The instant regulation requires adequate publication of the limitation pn liability which carriers impose on the public through the passenger ticket. We find nothing in the regulation that either exceeds the Board’s statutory authority or contradicts the terms of the Warsaw Convention. Accordingly, the action of the Board is

Affirmed.

      . Adhered to by the United States in 1934, 49 Stat. 3000-26; No. 876.

      . 49 U.S.C. § 1373(a).

      . 49 U.S.C. § 1486(a) provides:

      . See, e. g., Alaska Airlines, Inc. v. Civil Aeronautics Board, 257 F.2d 229 (1958), cert. denied, 358 U.S. 881, 79 S.Ct. 120, 3 L.Ed.2d 111 (1958); C.A.B. v. American Air Transport, Inc., 91 U.S.App.D.C. 318, 201 F.2d 189, certificate dismissed, 344 U.S. 4, 73 S.Ct. 2, 97 L.Ed. 4 (1952); The Flying Tiger Line v. C. S. Murphy, et al., 244 F.Supp. 889 (D.C.D.C.1965), aff’d per curiam (D.C.Cir. #119,869, June 2, 1966), cert. denied, 385 U.S. 945, 87 S.Ct. 316, 17 L.Ed.2d 224 (1966).

      . Environmental Defense Fund, Inc. v. Hardin, 138 U.S.App.D.C. 391, 428 F.2d 1093, 1099 and n. 27 (1970); City of Chicago v. Federal Power Comm’n, 147 U.S.App.D.C. 312, 458 F.2d 730, 740-741 (D.C.Cir.1971); Mobil Oil Corp. v. Federal Power Comm’n, 152 U.S.App.D.C. 119, 469 F.2d 130 (D.C.Cir.1972).

      . Supra n. 1.

      . The Convention itself is self-executing, having been ratified by the United States Senate, U. S. Constitution Art. III, see Indemnity Insurance Co. of No. America v. Pan American Airways, 58 F.Supp. 338 (S.D.N.Y.1944).

      . They include provisions concerning the physical format of the ticket as well as various conditions that are to be printed on the ticket. IATA Resolution 275, first approved by the Board in Order E-3230, Sept. 1, 1949. Additional conditions were imposed in amendments subsequently adopted. Order 69-2-65, Feb. 13, 1969; Order E-21116, July 24, 1964; Order E-20146, Nov. 1, 1963; Order E-11701, August 16, 1957.

      . Congress may regulate conduct of non-citizens, even if that conduct takes place in a foreign country, if the consequences of the conduct are felt within the United States, United States v. Aluminum Co. of America, 148 F.2d 416, 443 (2d Cir. 1945); United States v. Pacific Arctic Co., 228 U.S. 87, 105-106, 33 S.Ct. 443, 57 L.Ed. 742 (1913); cf. Timkin Roller Bearing Co. v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199 (1951) (antitrust cases).

      . The Warsaw Convention’s provisions permitting limitations on liability have been criticized by commentators, Kreindler, The Denunciation of the Warsaw Convention, 31 J.Air L. & Com. 291 (1965); Sand, Air Carriers’ Limitations of Liability & Air Passengers’ Accident Compensation Under the Warsaw Convention, 28 J.Air L. & Com. 260 (1961-62).

      . 49 U.S.C. § 1502 :
      In exercising and performing their powers and duties under this Act, the Board and the Secretary of Transportation shall do so consistently with any obligation assumed by the United States in any treaty, convention, or agreement that may be in force between the United States and any foreign country or foreign countries, and shall take into consideration any applicable laws and requirements of foreign countries and the Board shall not, in exercising and performing its powers and duties with respect to certificates of convenience and necessity, restrict comjiliance by any air carrier with any obligation, duty, or liability imposed by any foreign country : Provided, That this section shall not apply to any obligation, duty, or liability arising out of a contract or other agreement, heretofore or hereafter entered into between an air carrier, or any officer or representative thereof, and any foreign country, if such contract or agreement is disapproved by the Board as being contrary to the public interest.

      . 49 U.S.C. § 1324(a) :
      General powers ‘and duties of the Board —Performance of acts; conduct of investigations ; orders, rules, regulations, and procedure.
      (a) The Board is empowered to perform such acts, to conduct such investigations, to issue and amend such orders, and to make and amend such general or special rules, regulations, and procedure, pursuant to and consistent with the provisions of this chapter, as it shall deem necessary to carry out the provisions of, and to exercise and perform its powers and duties under, this chapter.

      . 49 U.S.C. § 1373(a) :
      Tariffs of air carriers — Filing, posting, and publication ; rejection of tariffs.
      (a) Every air carrier and every foreign air carrier shall file with the Board, and print, and keep open to public inspection, tariffs showing all rates, fares, and charges for air transportation between points served by it, and between points served by it and points served by any other air carrier or foreign air carrier when through service and through rates shall have been established, and showing to the extent required by regulations of the Board, all classifications, rules, regulations, practices, and services in connection with such air transportation. Tariffs shall be filed, posted, and published in such form and manner, and shall contain such information as the Board shall by regulation prescribe; and the Board is empowered to reject any tariff so filed which is not consistent with this section and such regulations. Any tariff so rejected shall be void. The rates, fares, and charges shown in any tariff shall be stated in terms of lawful money of the United States, but such tariffs may also state rates, fares, and charges in terms of currencies other than lawful money of the United States, and may, in the case of foreign air transportation, contain such information as may be required under the laws of any country in or to which an air carrier or foreign air carrier is authorized to operate.


source: Caselaw Access Project

author: ROBERT P. ANDERSON, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Murray Bernard WEINER, Appellant.
    No. 572, Docket 72-2284.
    United States Court of Appeals, Second Circuit.
    Argued Feb. 1, 1973.
    Decided April 30, 1973.

      Milton S. Gould, New York City (Shea, Gould, Climenko & Kramer, Michael Lesch, New York City, and Frank C. Razzano, Yonkers, N. Y., on the brief), for appellant.
    David M. Brodsky, Asst. U. S. Atty., S. D. New York (Whitney North Seymour, Jr., U. S. Atty., and John W. Nields, Jr., Asst. U. S. Atty., S. D. New York, on the brief), for appellee.
    Before ANDERSON, FEINBERG and MULLIGAN, Circuit Judges.
   ROBERT P. ANDERSON, Circuit Judge:

Murray Weiner, then a branch chief for the Securities and Exchange Commission in Washington, D. C., was called to testify on August 3, 1966, before the Grand Jury for the United States District Court for the Southern District of New York pursuant to its investigation of possible violations of 18 U.S.C. §§ 201, 371, specifically whether confidential, non-public information of the SEC concerning the Georgia Pacific Corporation had been improperly disclosed by a public official. During the course of his Grand Jury testimony, Weiner was examined concerning his relationship with a New York attorney, Philip Peltz, who was later convicted of four counts of violations of the securities laws arising out of the activities then under investigation by the Grand Jury, see, United States v. Peltz, 433 F.2d 48 (2 Cir. 1970), cert. denied, 401 U.S. 955, 91 S. Ct. 974, 28 L.Ed.2d 238 (1971). In response to questions, Weiner said that he had met Peltz once, in February or March, 1966, at the Manhattan apartment of a mutual friend, Seymour Katz, but that otherwise he had never met or written to Peltz and, as far as he could remember, he had never talked with him on the telephone. He did, however, mention a late night telephone call on April 15, 1966, that awakened him out of his sleep, but he said that he never knew who the party was who had called. Weiner was subsequently indicted and convicted of perjury, 18 U.S.C. § 1621, on the basis of this Grand Jury testimony.

On appeal, he asserts certain errors in the failure of the trial court to strike certain testimony and in its failure to instruct the jury that some of the allegedly false statements were not proven. Finding no reversible error, we affirm.

At the trial of Weiner on a single count of perjury, Peltz was the Government’s chief witness and he testified extensively concerning meetings and telephone conversations with Weiner, as well as letters received from him. As to the meetings, Peltz said that he had met Weiner five or six times, beginning with a social gathering sometime in 1963. Thereafter he saw him at one or two other social gatherings between 1963 and early 1966. The next occasion when they met was at Katz’ apartment in February, 1966, which was the incident acknowledged by Weiner in his Grand Jury testimony.

Peltz also testified that he met Weiner again at Katz’ apartment on a Sunday morning either March 13 or 20, 1966, (hereinafter referred to as the March 20 meeting). At that time, according to Peltz, Weiner had a plaid suitcase and he showed Peltz some sheets of paper printed with “purplish” ink. In support of Peltz’ testimony concerning this meeting, the Government offered the testimony of two SEC employees that Weiner had received in March, 1966, a confidential memorandum concerning the Georgia Pacific Corporation which had been printed with purple ink, although it was also acknowledged that the use of purple ink was not particularly distinctive or unique with SEC documents. Another Government witness, a member of Weiner’s ear pool in March, 1966, testified that Weiner sometimes carried a plaid suitcase to work on Fridays, if he were going traveling. The Government also introduced evidence that Weiner had purchased an Eastern Airlines ticket on March 18, 1966, which might have been for a flight from Washington to New York.

Peltz testified to a final meeting with Weiner on either April 17 or 24, 1966, for Sunday breakfast at a Second Avenue restaurant (hereinafter referred to as the April 17 meeting). In support of this testimony, the Government introduced into evidence an Esso credit card charge record slip showing that Weiner had purchased gasoline on April 17, 1966, at a station in New Jersey just outside the Holland Tunnel.

With regard to telephone calls, Peltz testified that he had made four or five to Weiner and had received two or three from him. On some of these calls, Peltz gave no details and on others he was no more specific than to say it was a call which he made from a coinbox outside the Bronx County Court House, or from his girl friend’s apartment. There were two calls, however, the substance of which he more fully related.

The first was from Peltz to Weiner on April 9, 1966, and concerned Peltz’ efforts to arrange a date for Weiner with a certain girl and Weiner’s suggestion to Peltz that he contact one Irwin Deutsch who could recommend a stockbroker for Peltz. Peltz admitted that he had no independent recollection of the date of that call, but his memory had been refreshed by a notation in his personal diary. In substantiation of this testimony, Deutsch testified that Weiner telephoned him on April 9 or 10 and asked if Deutsch could recommend a stockbroker for a friend, and Deutsch said to have the friend call him. Deutsch also testified that Peltz called him on April 11th for the name of a stockbroker; Deutsch was certain that Peltz was the friend to whom Wiener had been referring.

The second was a long distance telephone call by Peltz from a New York office to Weiner at his Maryland home at about 1:30 a. m. on April 15, 1966; that he, Peltz, had billed the call to his home telephone number and that he talked about five minutes with Weiner concerning the current status of the Georgia Pacific investigations. In confirmation of this call, telephone company records were introduced which showed that a five and one-half minute call from the New York office to Weiner’s home number, billed to Peltz’ home number, had in fact been made on April 15th.

Peltz also testified to receiving three letters from Weiner. The first, dated September 26, 1963, recited that Weiner and Peltz had met some months previously, and, on the strength of this, Weiner was seeking some information from Peltz concerning a friend of Wei-ner’s who wanted to sell a car in South America.

The second letter, dated March 30, 1966, was a request for Peltz to arrange a date for Weiner with a girl. It also included some references to the freeing-up of lettered stock. The third letter, dated May 5, 1966, was another request for Peltz to arrange a similar date. Both of the 1966 letters were signed “Mel,” and Peltz testified that Weiner was using the pseudonym “Mel Fine” at 1;hat time.

To show that Weiner was the author of the May letter, the Government introduced testimony from an F.B.I. expert to the effect that it was only an extremely remote possibility that the letter was not typed on a certain IBM typewriter which, in May, 1966, was located some seventy-five feet from Weiner’s office in the SEC building.

In his defense, Weiner admitted writing the 1963 letter and acknowledged that he must have met Peltz sometime prior to that, as was indicated in the letter ; however, he claimed that he had no independent recollection of the letter or meeting and that he did not knowingly lie to the Grand Jury concerning these items.

As to the remaining meetings, telephone calls, and letters, Weiner denied all of them except the February, 1966, meeting which he had divulged to the Grand Jury. He also testified that he had traveled to New York often in the spring of 1966 to visit an ill father.

Weiner explained the April 15 telephone call by saying that. he had received a call sometime after midnight on that date, but that he was so sleepy that he terminated the call without knowing who was on the other end. He claimed that the five and one-half minute length of the call, as recorded by the telephone company, was a result of his rather unusual Eroica phone and its failure to disconnect properly.

Weiner also vigorously disputed, with expert testimony, the opinion that the May letter was very likely typed on the SEC typewriter. Furthermore, he introduced testimony to show that in any event it would have been unlikely for him to have used that particular machine.

Although this was a one count indictment, by its Bill of Particulars, the Government had specified three instances of perjury in Weiner’s Grand Jury testimony: (1) that he had only met once with Peltz; (2) that he could not recall talking on the telephone with him; and (3) that he had never written him. Without the so-called two-witness rule, there would be little need for discussion on the issues in this case, as Peltz’ testimony alone would be sufficient to convict Weiner on any one of the three perjurious statements. In prosecutions for perjury, however, it has long been the rule that a conviction may not be obtained solely on the uncorroborated oath of one witness, Weiler v. United States, 323 U.S. 606, 607, 65 S. Ct. 548, 89 L.Ed. 495 (1945); Hammer v. United States, 271 U.S. 620, 626, 46 S.Ct. 603, 70 L.Ed. 1118 (1926). The rule is satisfied by the- direct testimony of a second witness or by other evidence of independent probative value, circumstantial or direct, which is “of a quality to assure that a guilty verdict is solidly founded.” United States v. Collins, 272 F.2d 650, 652 (2 Cir. 1959), cert. denied, 362 U.S. 911, 80 S.Ct. 681, 4 L.Ed.2d 619 (1960).

The precise formulation of the quality of the corroborating evidence, however, has resulted in what appears, on its face, to be a division among the Circuits. This Circuit'has held that the independent evidence must, by itself, be “inconsistent with the innocence of the [defendant],” United States v. Hiss, 185 F.2d 822, 824 (2 Cir. 1950), cert. denied, 340 U.S. 948, 71 S.Ct. 532, 95 L.Ed. 683 (1951); United States v. Buckner, 118 F.2d 468, 469 (2 Cir. 1941); United State v. Isaacson, 59 F.2d 966, 968 (2 Cir. 1932); see also, United States v. Freedman, 445 F.2d 1220, 1225-1226 (2 Cir. 1971). This test is also applied in the Third Circuit, United States v. Neff, 212 F.2d 297, 307 (3 Cir. 1954), the Fifth Circuit, McWhorter v. United States, 193 F.2d 982, 983 (5 Cir. 1952), and the Sixth Circuit, United States v. Thompson, 379 F.2d 625, 628 (6 Cir. 1967), but the Ninth Circuit, Arena v. United States, 226 F.2d 227, 236 (9 Cir. 1955), cert. denied, 350 U.S. 954, 76 S. Ct. 342, 100 L.Ed. 830 (1956), and First Circuit, Brightman v. United States, 386 F.2d 695, 697 (1 Cir. 1967), have expressly rejected this exact wording and have held that the corroborating evidence is sufficient if it, together with the direct evidence, is inconsistent with the innocence of the defendant.

As the Ninth Circuit has expressed it,

“One requested instruction contains the statement that the corroborating evidence must be ‘inconsistent with the innocence of the defendant’. We have already seen that the weight of authority is opposed to so severe a standard for the corroborating evidence. It is sufficient if the corroborating evidence tends to establish the defendant’s guilt, and if such evidence together with the direct evidence is ‘inconsistent with the innocence of the defendant’.” Arena v. United States, supra, 226 F.2d at 236.

Nevertheless, an examination of the facts and circumstances of the cases with a view to discovering the differences which result from the actual application of the two formulations of standards for the corroborative evidence discloses that if they differ at all, the divergencies are very few and very narrow. In Brightman v. United States, supra, 386 F.2d at 697 the court cited with approval United States v. Thompson, supra, which was decided under the stricter standard, comparable to that used in the Second Circuit, and by so doing the First Circuit implied it would also have held the claimed corroboration inadequate. In the Thompson case the defendant testified he had asked a particular police officer to call a lawyer. The policeman testified he had but one conversation with the defendant who had made no mention of a lawyer. Two F. B.I. agents corroborated this one conversation. They could not testify in support of the policeman that there was no other conversation between him and the accused. The First Circuit account of this case in Brightman went on to say, “For the proposition that there had been only one conversation between them on that day there was only the testimony of the police officer. Therefore, the FBI testimony was not substantial evidence that the defendant had perjured himself no matter which standard of corroboration was applied.” The division in the Circuits, judged by its results, appears to be a matter of semantics and a slight difference in emphasis.

No Circuit has held that the corroborative evidence must, in itself, be sufficient, if believed, to support a conviction. In other words the two-witness rule has not been construed to require the Government, in effect, to prove its case twice over. At the other edge of the spectrum the corroboration of a casual or incidental bit of testimony given by the main witness for the prosecution on a matter which did not tend to show that the accused’s statements under oath were false, could not be accepted as complying with the two-witness rule. In Arena, supra, the Ninth Circuit said it would not recognize trivia; and the First Circuit indicates that it would not treat, as qualifying corroboration, anything less than substantial evidence tending to support the charge.

We construe the Second Circuit rule requiring that the independent corroborating evidence be “inconsistent with the innocence of the defendant” to mean no more than that such evidence must tend to substantiate that part of the testimony of the principal prosecution witness which is material in showing that the statement made by the accused under oath was false. This is to say that the two-witness rule is satisfied by corroborative evidence of sufficient content and quality to persuade the trier that what the principal prosecution witness testified to about the falsity of the accused’s statement under oath was correct. In United States v. Goldberg, 290 F.2d 729, 734 (2 Cir. 1961), we said, “The policy underlying the rule against a conviction simply by ‘oath against oath’ is met when the [single or principal witness’] oath is supported by testimony of a second witness sufficient to ‘confirm the single witness’ testimony and to induce the belief of it,’ 7 Wigmore Evidence, p. 277 . . . ” This also means that the evidence is "of a quality to assure that a guilty verdict is solidly founded.” United States v. Freedman, supra, citing United States v. Collins, supra.

The Supreme Court has said:

“Two elements must enter into a determination that corroborative evidence is sufficient: (1) that the evidence, if true, substantiates the testimony of a single witness who has sworn to the falsity of the alleged per-jurious statement; (2) that the corroborative evidence is trustworthy.” Weiler v. United States, supra, 323 U. S. at 610, 65 S.Ct. at 550.

This standard for the sufficiency of corroborative evidence can only be interpreted to mean that it must be evidence which bears directly on and substantiates the testimony of the principal witness for the prosecution who has testified under oath that the statement made by the accused under oath was false; it therefore cannot escape being “inconsistent with the innocence of the defendant.” Of course, it is for the jury to decide the trustworthiness of the evidence, what weight should be accorded it and the credibility of the witnesses.

After the foregoing discussion of what is and what is not corroborative evidence for the purpose of the two-witness rule in perjury cases, sight must not be lost of those cases in which the second witness has given independent testimony of another, separate and distinct incident or transaction, which if believed, would prove that what the accused said under oath was false. This is, of course, a primary compliance with the two-witness rule, and it is of no consequence whether his testimony is corroborative of the first witness' story in whole, in part or not at all. For example, if in the present ease the Government had produced a second witness who testified that he knew both Peltz and Weiner and that he had seen them together on a street in New York City on the morning of April 30, 1966, though Peltz had not testified to meeting Weiner on that day, this testimony by the second witness would have satisfied the two-witness rule because it was independent evidence of a separate and distinct instance of a meeting of Peltz and Weiner which showed that Weiner had testified falsely under oath in telling the Grand Jury that he had never met Peltz except once in February or March 1966. Of course, there was no such second witness or testimony about any such meeting in the present case and it is only mentioned as an illustration of the kind of second witness testimony which fulfills the requirement of the rule and yet does not literally corroborate the first witness’ testimony about a particular meeting, telephone call or letter but instead, provides evidence of a separate and distinct instance or transaction to prove that Weiner lied when he testified that he had no meetings, calls or correspondence with Peltz. United States v. Hiss, supra, (implied by dictum); United States v. Seavey, 180 F.2d 837 (3 Cir.), cert. denied, 339 U.S. 979, 70 S.Ct. 1023, 94 L.Ed. 1383 (1950); United States v. Palese, 133 F.2d 600, 602-604 (3 Cir. 1943).

Turning to the evidence in the present case it is abundantly clear that there was sufficient to support the jury’s finding of guilt regarding all three instances of alleged perjurious testimony to the Grand Jury. The case has been briefed and argued to a large extent on the basis of the testimony of Peltz as the primary and principal witness and on the issue of whether or not there was sufficient corroboration to satisfy the two-witness rule. Regarded from this point of view, there is no doubt that there was sufficient evidence in quantity and quality to comply with the two-witness rule and to convict.

As to the allegations that Weiner, in spite of his sworn testimony that he had not written to Peltz and had not met with him other than in February, 1966, had in fact done both of these things, the extensive consideration of Peltz’ testimony on these points and the adequacy of the corroborating evidence need not have been gone into, because Weiner’s admissions at trial that he wrote the 1963 letter which recited that he had previously met Peltz were sufficient to establish the charge that he testified falsely before the Grand Jury. In fact the letter alone, as documentary evidence, was sufficient, as authenticated by Peltz and Weiner, to show that Weiner had both written to and met with Peltz prior to 1966. The letter superseded the necessity of other proof to establish these facts. It was up to the jury to decide whether or not the letter was sufficient evidence that Weiner testified falsely when he said he had never met or written to Peltz. United States v. Wood, 39 (14 Pet.) U.S. 430, 441, 10 L.Ed. 527 (1840); United States v. Goldberg, 290 F.2d 729, 735 (2 Cir. 1961); United States v. Collins, supra; Fraser v. United States, 145 F.2d 145, 151 (6 Cir. 1944), cert. denied 324 U.S. 842, 65 S.Ct. 586, 89 L.Ed. 1403 (1945). As pointed out in Hammer v. United States, supra, 271 U.S. at 627, 46 S.Ct. at 604, the two-witness rule applies only to “the unsupported testimony of one witness as to falsity of the matter alleged as perjury,” and “does not relate to the kind or amount of other evidence required to establish that fact.”

The remaining instances charged as perjurious statements by Weiner before the Grand Jury had to do with telephone calls. Deutseh’s testimony that Peltz called him on April 11, 1966, for the recommendation of a stockbroker after Weiner told Deutsch on April 9 or 10 that a friend of his would be calling Deutsch on that very matter, confirmed Peltz’ testimony that Weiner called him; moreover the telephone company record of the New York to Maryland call on April 15, 1966, corroborated Peltz’ account of that call. The evidence provided the sufficiently independent support, inconsistent with the innocence of the defendant, which is necessary to satisfy the two-witness rule.

There was, however, other evidence in the case which was somewhat corroborative of parts of Peltz’ testimony but which, in spite of the Government’s claims, did not satisfy the two-witness rule because it was not independent and not inconsistent with the innocence of the accused. In support of the March 20th meeting, the Government showed that Weiner owned a plaid suitcase, as Peltz had said, and that Weiner had been given some papers printed with purple ink, which Peltz claimed to have seen, and that Weiner had purchased an airline ticket that he might have used to go to New York. But these are not sufficient corroboration, as apart from Peltz’ testimony, the mere fact that Wei-ner had a plaid suitcase, papers with purple ink, and an airline ticket is not probative of the fact that he met with Peltz. Likewise, as to the April 17th meeting, the mere fact that Weiner purchased gasoline in New Jersey was no independent corroboration of a meeting with Peltz on that day. Also the notation in Peltz’ diary of his April 9, 1966, call to Weiner was not independent corroboration of that call, United States v. Rose, 215 F.2d 617, 626 (3 Cir. 1954).

These items of evidence, although insufficient for the two-witness rule, gave general support to Peltz’ testimony and were, therefore, relevant evidence for the jury, see, e. g., Hiss, supra, 185 F.2d at 831, n. 3.

There was only one count of perjury charged against the appellant, though three incidents of false statements made to the Grand Jury under oath were alleged and proved either by documentary evidence in writing or by testimonial evidence, duly corroborated where required. The remaining points raised on appeal in the light of well settled law did not constitute reversible error and do not call for any discussion.

Although not mentioned on the appeal, it may be noted that the trial court’s charge, in dealing with the quality required for the corroborative evidence, used the language of the Goldberg case but coupled it with the clause, “and if the corroborative evidence together with the direct testimony of the one witness is inconsistent with the answers by the defendant which the Government claims to be false.” [Emphasis supplied.] While from its context, it was probably not intended as such, this is almost the exact language of the Ninth Circuit rule set out in the Arena case, which slightly differs from the rule of this Circuit. For this reason it is preferable that it not be used. Of course, there was no objection to the charge and the use of the clause did not even approach plain error.

The judgment of conviction is affirmed.

“The law with regard to this element of the crime of perjury has a particular rule for the amount of proof required to show that a defendant’s testimony was false. In order to convict a defendant of prejury, the falsity of his testimony must be established by the direct testimony of two witnesses whose testimony you, the jury, believe to be true, or by the direct testimony of one such witness corroborated by other evidence independent of and in addition to the testimony of the one witness which is believed by you and which is found by you to substantiate the testimony of that one witness.
In other words, the law does not allow a person to be convicted of perjury solely on the basis of the testimony of one person against that of another.
Where one witness testifies to the fact of perjury, independent corroborative evidence suffices under the rules if it tends to confirm the truth of the witness’ testimony in material respects and thereby induces belief in his testimony, and if the corroborative evidence together with the direct testimony of the one witness is inconsistent with the answers by the defendant which the Government claims to be false. Written or other documentary evidence which you find originated from the defendant may qualify for your consideration as corroborative evidence.”

      . Effective October 15, 1970, the two-witness rule has been eliminated for grand jury perjury prosecutions, 18 U.S.C. § 1623(e), but the Government quite properly does not contend that the rule was eliminated in this case where the alleged perjury took place in 1966 and the defendant was indicted in 1969, of. United States v. Clizer, 464 F.2d 121 (9 Cir. 1972).

      . McWhorter, however, differs from the holding in the Second Circuit as to an extra-judicial admission by the defendant and the corroboration of such an admission. See United States v. Goldberg, 290 F.2d 729, 734 n. 1 (2 Cir. 1961); United States v. Kahn, 472 F.2d 272 (2 Cir. 1973).

      . It could be argued that United States v. Freedman, 445 F.2d 1220, 1226 (2 Cir. 1971), bolds that supporting evidence, insufficient to be corroborative for purposes of the two-witness rule, must be withdrawn from the jury’s consideration. We read Freedman, however, to say only that a jury must be properly charged that there is insufficient corroboration of a particular alleged perjurious statement, if such is, in fact, the case.

      . The charge on the two-witness rule was as follows:


author: ALFRED T. GOODWIN, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. John James CONNOLLY, Appellant. UNITED STATES of America, Appellee, v. William Carl JEPPESEN, Appellant.
    Nos. 72-2229, 72-2230.
    United States Court of Appeals, Ninth Circuit.
    April 27, 1973.
    Rehearing Denied in No. 72-2229 May 25, 1973.

      Victor Sherman (argued), Nasatir, Sherman & Hirsch, Beverly Hills, Cal., for appellants.
    John Newman, Asst. U. S. Atty. (argued), William D. Keller, U. S. Atty., Eric A. Nobles, Asst. U. S. Atty., Crim. Div., Los Angeles, Cal., for appellee.
    Before HUFSTEDLER and GOODWIN, Circuit Judges, and EAST, District Judge.

       The Honorable William G. East, United States District Judge for the District of Oregon, sitting by designation.

   ALFRED T. GOODWIN, Circuit Judge:

John Connolly and William Jeppesen appeal their convictions for distribution and possession of cocaine. The principal issues concern the search of Connolly’s automobile and of Jeppesen’s home.

With the help of a confidential informant, Agent George Marvosh of the Bureau of Narcotics and Dangerous Drugs met one James Scardino. Scardino took Marvosh to Connolly and was present on February 16, 1972, when Connolly sold Marvosh two ounces of cocaine at a house in Los Angeles. The anonymous informer remained outside, in an automobile, and did not participate in the transaction. The sale on February 16 was the basis of one of the two counts on which Connolly was convicted.

On February 24, 1972, after Agent Marvosh had been negotiating with Connolly to purchase more cocaine, Marvosh obtained a warrant to search the Connolly house. Marvosh hoped to make the second purchase the evening of the twenty-fourth, although it was never established that Connolly was willing to sell to him at that time. Marvosh deployed fellow agents and Los Angeles police officers to keep the Connolly house under surveillance, and coordinated further activities by telephone and radio.

Connolly appeared at his house after midnight. Shortly thereafter, another individual, not known to the agents, drove up to the house, and the two went inside. After about ten minutes, they departed in their separate cars.

A police officer named Charles Sears followed Connolly to a house six or seven miles away. Connolly had previously told Marvosh that the “stash pad” for the cocaine was some two minutes away from his house. Sears saw Connolly start up and come down a flight of stairs, but he did not actually see Connolly enter the house. He later testified that he saw Connolly carrying a paper bag down the stairs.

Agents waiting at the first house arrested Connolly as soon as he returned, parked, and got out of his automobile. He was empty-handed. The agents immediately entered his car and found a paper bag containing four ounces of cocaine under the front seat. This evidence survived a motion to suppress and formed the basis for the second count on which Connolly was convicted.

After his arrest, Connolly agreed to lead the agents to the house from which he had obtained the cocaine. He took them to what proved to be the Jeppesen house. It was the same house that Officer Sears had seen Connolly visit earlier that evening. At two in the morning, four plainclothes officers “knocked and announced” at the Jeppesen door. After a short delay, Jeppesen looked out a window and asked what was going on. Officer Sears yelled “Police Officers” and flashed his badge, but Jeppesen had already left the window. As Sears approached with his revolver drawn, Jep-pesen again put his head outside, but withdrew quickly as Sears yelled, “Police Officers, Freeze, Don’t Move!” Meanwhile, the other officers kicked down the front door and entered the house.

The officers arrested Jeppesen and his wife, and made a brief inspection of the premises. They found a non-commercial quantity of marijuana in a bowl on a living-room table. One of the officers requested Jeppesen’s permission to search the premises. When Jeppesen’s assent was not immediately forthcoming, the officer told Jeppesen that it would be some six to eight hours before the officers could obtain a search warrant and that the Jeppesens would be kept in custody at the house during that time. The Jeppesens finally agreed that the officers could search their home, but when an officer suggested that it would be “better for all concerned” if Jeppesen would tell them where the drugs were, Jeppesen went to a freezer and handed the officers, among other things, a bag containing about 10 ounces of cocaine.

This evidence also survived the motion to suppress, and was the basis of Jeppe-sen’s conviction for possession with intent to distribute. Felony charges against Mrs. Jeppesen were dismissed, and she was found not guilty of possession of marijuana.

We affirm Connolly’s convictions, and reverse Jeppesen’s.

I

Connolly’s sole claim of error on the distribution count relates to the government’s refusal to disclose the identity of the informant who led Agent Marvosh to Scardino and waited outside while Connolly sold Marvosh the cocaine on February 16. The government represented that unmasking its informer at that time would have exposed him to serious risk from suspects in other narcotics investigations.

To establish the claimed error, Connolly must show that knowledge of the informer’s name would have been helpful to his defense or essential to a fair determination of his case. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); United States v. Kelly, 449 F.2d 329, 330 (9th Cir. 1971). Connolly defended the distribution count by denying that he sold cocaine to Agent Marvosh. He now suggests that the anonymous informer might have supported his story and contradicted that of Marvosh. But Connolly made no timely effort to locate or interview Scardino, who, unlike the informer, had been a witness to the entire transaction and was a major participant in it. Just before trial, Connolly learned that Scardino was a fugitive, and for the first time indicated an interest in having Scardino produced. Connolly’s failure to exploit his knowledge of Scardino’s identity strongly suggests that he would not have made better use of the informer’s name.

In contrast to cases like United States v. Miramon, 443 F.2d 361 (9th Cir. 1971), and Lopez-Hernandez v. United States, 394 F.2d 820 (9th Cir. 1968), the informer’s role here was peripheral. As in United States v. Kelly, 449 F.2d at 330, “[t]he informant neither witnessed the crime nor transacted business with the defendant.” Connolly’s speculation that the informer might contradict Mar-vosh falls short of showing that disclosure of the informer’s identity was necessary. There was no error in refusing to force the government to disclose the informer’s identity.

II

The second count on which Connolly was convicted was founded on the evidence taken from Connolly’s automobile after his arrest. This seizure can survive constitutional' scrutiny only if (1) the agents had probable cause before the search to believe that Connolly’s automobile contained contraband; and (2) the search falls within one of the “specifically established and well-defined exceptions” to the rule that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable * * Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967).

When the agents entered Connolly’s automobile, they knew: Connolly probably anticipated selling cocaine to Marvosh that night; Connolly had driven to a house several miles from where he conducted his last sale to Marvosh, and had promptly returned with a paper bag; Connolly kept his supply of cocaine at a place apart from his sales location.

Seeing a narcotics suspect go to a nearby residence and leave with a paper bag of unknown contents should make law enforcement officers curious, but curiosity does not equal probable cause to believe that narcotics are in transit. Cf. Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). Here, however, the negotiations between Connolly and Marvosh for a sale, plus a recent sale by Connolly to Marvosh, gave the conduct observed by the officers significance amounting to probable cause. Although the perennial problem of line drawing is not easily solved, a reasonable officer on the facts of this case would have probable cause to believe that Connolly had narcotics with him when he drove back to the house from which he conducted his narcotics sales.

The second question generated by the search of Connolly’s automobile is whether the agents, with probable cause to believe that the automobile contained cocaine, should have procured a warrant before entering the automobile. The arrest did not take place until after Connolly had shut the ear door and stepped away from it. Once arrested, Connolly had no opportunity to gain possession of a weapon or to destroy any evidence that might be in the car. Thus, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), precludes a claim that the search was incident to the arrest, and the government does not argue otherwise.

Rather, the government contends that the warrantless search was justified either under the “automobile exception” established in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), and extended in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), or under the federal forfeiture statutes, 49 U.S.C. §§ 781-782. The Carroll exception, as explained in Chambers, applies when an automobile is stopped on the highway and there is probable cause to search for contraband. A warrant need not be obtained then because “the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained.” 399 U.S. at 51, 90 S.Ct. at 1981. Thus, Carroll justifies a contraband search only “where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” Carroll v. United States, 267 U.S. at 153, 45 S.Ct. at 285.

In short, the “automobile exception” must be applied realistically. Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L.Ed.2d 564 (1971), illustrates the factors which must be examined before the “automobile exception” label can be affixed. In Coolidge, the state attempted to invoke the exception to justify a search made with probable cause but without a valid warrant shortly after a valid arrest. A plurality of the Court held that the “automobile exception” was “simply irrelevant,” 403 U.S. at 462, 91 S.Ct. 2022, and emphasized the following facts: the suspect had known he was under investigation for murder and had had ample opportunity to destroy evidence before the search; during his arrest, the suspect could not gain access to the automobile; the vehicle was parked in a driveway and not in such a place or manner as to attract undue attention; the search did not involve contraband, stolen goods, or weapons; and there were no known confederates likely to remove the evidence.

Recent decisions in this circuit have looked to similar considerations. In United States v. Ellison, 469 F.2d 413 (9th Cir. 1972), we held a car search valid under Coolidge and Chambers where other persons remaining with the automobile could have removed stolen property hidden in the car. In United States v. Cohn, 472 F.2d 290 (9th Cir. 1973), a brick of marijuana in plain view was further identifiable by a strong odor coming through the car’s half-open window. In United States v. Beasley, 476 F.2d 164 (9th Cir. 1973), the car was stopped on a busy highway. On the other hand, in United States v. Payne, 429 F.2d 169 (9th Cir. 1970), we held that a warrantless search of an automobile parked in a park campsite violated the Fourth Amendment where there was no indication that the persons using the car were preparing to leave.

However, the reasonableness of the search of Connolly’s automobile is not clearly defined by any of these precedents. Unlike Coolidge, Connolly was observed driving his car immediately prior to his arrest; he did not realize that he was under investigation; and he was believed to be transporting contraband. These facts, however, have little relation to the practicality of seeking a warrant after the suspect is safely arrested. For the automobile exception to apply, the government must show that at the time of the warrantless search the officers had reason to believe that the mobility or exposure of the car made it impracticable to seek a warrant. With this principle in mind, it matters little that Connolly parked on a public street rather than in a private driveway as was the case in Coolidge, Instead, the decisive difference between Connolly’s search and those in Coolidge and Payne is that the agents here had specific reason to believe that someone who might move the car or take the contraband was awaiting Connolly’s return. As Connolly left to obtain the cocaine from the Jep-pesen property, he was heard to tell the person who had entered the house with him a few minutes earlier that he would be back in about twenty minutes. The agents attempted to follow this individual, but lost sight of him on the freeway. Not knowing where this person might be, but concerned that he might attempt to contact Connolly at any minute, the agents were justified in searching the car then and there. (Coolidge forbids such intrusions if founded merely on a generalized fear that an unknown person will move the vehicle or destroy evidence in it; but where the police have and can articulate specific grounds for believing that a known accomplice, acquaintance, or, in unusual eases such as United States v. Cohn, supra, an unknown person passing by is likely to move the vehicle or destroy evidence within it before a warrant could be secured, a war-rantless probable-cause search is permissible. Under Chambers, the police are not required to post a guard around the car in such circumstances. See 399 U.S. at 52, 90 S.Ct. 1975.

In view of our conclusion that the search of Connolly’s automobile is sustainable under the Carroll line of cases, we need not consider in detail the government’s alternate justification. We do not decide whether the search can be supported by the federal forfeiture statutes alone. The serious constitutional question inherent in the proposition that Congress may dispense with the warrant requirement of the Fourth Amendment merely because the object of the search is contraband should await a case in which the decision is necessary.

Ill

The last question is whether the evidence against Jeppesen should have been excluded. This question has two main parts: first, whether the agents had probable cause to enter Jeppesen’s home to arrest him or search the premises; and, second, whether, if there was such probable cause, an arrest or search warrant should have been obtained. Peripheral questions relate to the forcible entry and the consent to search said to have been given by the Jeppesens.

At the outset, the agents lacked probable cause to arrest the Jeppesens when they forced entry. The agents knew that cocaine had been taken from the Jeppesen premises not long before they arrived, but they did not know who might be inside the house, how long such persons might have been there, or what relationship these individuals might have to Connolly. All the agents knew was that some contraband probably remained on the premises

Even certain knowledge that contraband is within a dwelling does not constitute probable cause to arrest whoever happens to be inside. See Johnson v. United States, 333 U.S. 10, 15-17, 68 S.Ct. 367, 92 L.Ed. 436 (1948).

The intrusion into the Jeppesen house fares no better if it is seen as an entry to search rather than to arrest. “Belief, however well founded, that an article sought is concealed in a dwelling house, furnishes no justification for a search of that place without a warrant.” Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 6, 70 L.Ed. 145 (1925). To hold otherwise would be to say, paradoxically, that when police have probable cause for a warrant they need not obtain a warrant. The agents violated the Fourth Amendment by entering the dwelling. See Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L. Ed.2d 828 (1961) (knowledge of “whis-ky mash” within house); McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948) (knowledge of gambling within rooming house), questioned on other grounds, United States v. Conrad, 448 F.2d 271, 276 (9th Cir. 1971); Johnson v. United States, supra (knowledge of narcotics in hotel room); Eng Fung Jem v. United States, 281 F. 2d 803 (9th Cir. 1960) (knowledge of narcotics in hotel room).

Since the warrantless entry into the Jeppesen home was illegal for the reasons stated, it is unnecessary to consider whether the manner in which the early morning raid was conducted was constitutionally repugnant and whether Jeppesen freely and voluntarily led the agents to the cocaine in the freezer. The evidence against him was the fruit of an illegal arrest and was inadmissible under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Case No. 72-2229 is affirmed, and case No. 72-2230 is reversed.


author: PELL, Circuit Judge. KILEY, Circuit Judge, with whom DUFFY, Senior Circuit Judge, DUFFY, Senior Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Thurlester WILSON, Defendant-Appellant.
    No. 71-1764.
    United States Court of Appeals, Seventh Circuit.
    Reargued Jan. 23, 1973.
    Decided May 23, 1973.

      Kiley, Circuit Judge, filed dissenting opinion in which Duffy, Senior Circuit Judge, joined. Duffy, Senior Circuit Judge, filed dissenting opinion.
    Joseph Cohn, E. St. Louis, 111., for defendant-appellant.
    Henry A. Schwarz, U. S. Atty., Jack A. Strellis, Asst. U. S. Atty., E. St. Louis, 111., Michael L. Levinson, Asst. U. S. Atty., Danville, 111., for plaintiff-ap-pellee.

      Before SWYGERT, Chief Judge, DUFFY, Senior Circuit Judge, and KIL-EY, FAIRCHILD, CUMMINGS, PELL, STEVENS and SPRECHER, Circuit Judges.
   PELL, Circuit Judge.

Thurlester Wilson appeals from his conviction for violating 26 U.S.C. §§ 5861(d), 5871, possession of an unregistered firearm. The principal issue raised in this appeal is “whether the sawed-off shotgun which was the basis for the indictment and which was found by police officers during a search for which a warrant had been procured, was tainted by previous police action and conduct which uncovered evidence forming the probable cause basis for the issuance of the search warrant.” A panel of this court reversed the conviction by a 2 to 1 vote, holding that the police officer did not have probable cause to make the initial arrest of Wilson. 465 F.2d 1290. On rehearing, we have reached the conclusion that the police did have sufficient probable cause to stop Wilson, and we, therefore, affirm the conviction.

On January 21, 1971, Wilson stopped at a service station near Effingham, Illinois, on Interstate Highway 57. While there he charged a purchase of less than $25.00 to an American Express card issued to William Kotinas. Because the purchase was less than $25.00, no authorization was needed from American Express. He then asked to charge purchases amounting to approximately $100.00. A woman cashier called “American Express to get verification from the number.” However, Wilson asked to speak to the American Express people and after a short conversation indicated to the cashier that he no longer wished to make the purchases. When the assistant station manager, Robert Mayhaus, was informed of this he in turn called American Express via a Texaco company number and was informed that the credit card Wilson had sought to use was listed as stolen.

Mayhaus then called the highway patrol and informed them “that a man had made a purchase of gasoline at our station and had used a credit card, and that we didn’t check on it, you know, because it was for an amount under twenty-five dollars; and then he attempted to make purchases in the store for over twenty-five; and we called; and at this time I was informed that it was a stolen card.” A police bulletin was issued: “a red Ford Torino, 1970, with license plates HC [8196] . . . one colored male, had in his possession an American Express credit card which was stolen; and he had asked the direction to St. Louis; and it was passed at the Roadway Truck Stop in Effingham, Illinois, where he had purchased gas.” Wilson was stopped by three officers. He was “patted-down” by Trooper James Williams, who, during the course thereof, reached in Wilson’s pocket and withdrew the American Express card. Subsequently, another officer, on the basis of the fact that Wilson had in his possession a stolen credit card, applied to a state court judge for a warrant to search Wilson’s automobile for other credit cards and papers which might have been stolen from Kotinas. The search warrant was issued. During the course of the search of the car the sawed-off shotgun was found.

Prior to trial, Wilson moved to quash the search warrant and suppress the evidence deriving from the warrant. Several of the grounds advanced to support the motion are not relevant here. However, one of the grounds was that “[t]he issuing Judge incorrectly found probable cause for the issuance of the warrant in the affidavit(s).” This, of course, is not the same as alleging that the police did not have probable cause to stop Wilson initially. The two contentions are, nonetheless, interrelated since what Wilson was apparently attempting to show was that the fact alleged in Trooper Weems’ complaint for a search warrant was based purely on the radio bulletin and that in turn was based only on the call from Mayhaus. Thus, we are led back to the question of whether Mayhaus’ call standing alone constituted probable cause to believe that Wilson had a stolen credit card in his possession. It is unfortunate that Wilson’s motion was not clear on this point. Because of the lack of specificity in Wilson’s challenge in the pre-trial hearing, the Government did not question May-haus closely as to the total content of the call to the police. Indeed, when the Government attempted at the suppression hearing to develop specific information from Mayhaus which would have reflected upon the basis of his information that the card was stolen, the effort was thwarted by the sustaining of Wilson’s objections that the evidence was hearsay. The testimony of Trooper Williams indicates that Mayhaus conveyed far more information to the state police than the answers he gave in the pretrial hearing would reflect. Because Wilson did not clearly raise in the trial court the ground which he now claims requires reversal of his conviction, we hold that he is not in a position to challenge any reasonable inferences from or any claimed lack of greater specificity in Mayhaus’ testimony.

The warrantless search of Wilson at the time of his arrest, during which search the credit card was found, was valid only if it was a search incident to a lawful arrest. Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Even if such a “pat-down” could have been justified by fear that one who allegedly tried to use a stolen credit card might be armed, Trooper Williams’ reaching into Wilson’s pockets and extracting the credit card went beyond the permissible scope of a non-arrest “pat-down” for weapons. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The fact that the arrest was made pursuant to a police bulletin does not add or detract from the necessity of probable cause as an underlying requirement for an arrest. Whiteley v. Warden, 401 U.S. 560, 568, 91 S. Ct. 1031, 28 L.Ed.2d 306 (1971). For this arrest to be valid, the officer who caused the radio bulletin to be issued must have had sufficient information to establish probable cause to believe that the person driving the specified car had committed a crime. Further, if the police had probable cause, the facts of this case — particularly that the appellant was driving away from the scene of the alleged crime — provide sufficient exigent circumstances to relieve the police of the requirement of obtaining a search or arrest warrant before stopping him. Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

The test for determining whether probable cause exists for the issuance of a search warrant, being the same standard applicable to a warrantless arrest, is set out in Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964): “Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant . . . was ‘credible’ or his information ‘reliable.’ ” The Aguilar two-pronged test was applied in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), in which the Supreme Court emphasized that the affiant must make more than a conclusionary assertion concerning the informant’s reliability and that the tip must contain supporting facts to show why the informer concluded that the defendant was committing illegal acts.

We turn then to the question of whether, at the time the police bulletin was issued, the police had sufficient information to establish probable cause under the Aguilar-Spinelli test. From the record before us, which, because the suppression hearing was only tangentially related to this issue, is not as complete as might be desired, the only evidence that the police had at that crucial time was the call from Robert Mayhaus. The case, therefore, hinges on the narrow factual question of whether that call was sufficient under the two-pronged probable cause test.

As to the first prong of the test, the reliability of the informant, we know that Mayhaus informed the police as to where he worked since it was part of the radio bulletin received by Trooper Williams. The fact that Mayhaus was not a paid informer is significant. A citizen in the position of Mayhaus would ordinarily not have had the opportunity to establish a prior history of reliability for tips to the police. On the other hand, as then Circuit Judge Burger stated in Brown v. United States, 125 U.S. App.D.C. 43, 365 F.2d 976, 979 (1966), “[although the police could not here judge the reliability of the information on the basis of past experience with the informant, . . . the victim’s report has the virtue of being based on personal observation . . . and is less likely to be colored by self-interest than is that of an informant.” A serious charge, such as that made by Mayhaus, when volunteered by an identified party in the circumstances before us, carries with it indicia of reliability of the informant. See, e. g., Adams v. Williams, 407 U.S. 143, 146-147, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). That reliability was reinforced by the “internal content” of the call which “intrinsically proves the truth of the ‘responsible’ citizen’s word.” United States v. Roman, 451 F.2d 579, 581 (4th Cir. 1971), cert. denied, 405 U.S. 963, 92 S.Ct. 1171, 31 L.Ed.2d 239 (1972). In United States v. Unger, 469 F.2d 1283 (7th Cir. 1972), this court adopted the above language in upholding a search warrant the affidavit for which omitted completely any allegation as to the reliability of the informant. We need not go so far in the present case. Cf. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971).

Aguilar also requires some knowledge of the underlying facts to support the conclusion that a crime has been committed. Although Mayhaus’ testimony is sparse, we think it sufficient in light of contemporary business dealings of which every citizen is aware. As noted above, Mayhaus testified that “we called; and at this time I was informed that it was a stolen card.” Very few individuals today are not familiar with the ritual associated with credit card purchases. A book of numbers is consulted, and if the purchase is over a moderate sum, a call is made to confirm credit. Thus, although Mayhaus’ explanation of how he knew the card tendered by Wilson was stolen may have been truncated, it was sufficient in its business context to show the police “the underlying circumstances from which the informer concluded that” Wilson had a stolen credit card. Spinelli v. United States, supra, 393 U.S. at 416, 89 S.Ct. at 589.

Wilson makes a further attack on the sufficiency of the information available to the police in that he contends that Mayhaus did not tell the police whom he called. As noted above, Mayhaus’ testimony was abbreviated, in part because of Wilson’s objections to questions put to Mayhaus and in part because of lack of emphasis on the particular point now under consideration. The police bulletin, however, reflects the fact that May-haús specified that it was a stolen American Express card. The only logical inference that can be drawn from the statement “we called” in light of modern credit practices is that Mayhaus called American Express or some agent of American Express which was authorized to approve substantial credit purchases.

Finally, Wilson attacks the reliability of the information furnished by American Express. Initially we are confronted with the fact that the information imparted to the police was hearsay based on hearsay. If hearsay information is acceptable in arriving at probable cause, and it is, Jones v. United States, 362 U.S. 257, 269, 80 S.Ct. 725, 4 L.Ed. 2d 697 (1960), then hearsay based on hearsay should be acceptable as long as the police officer has sufficient information so that both levels of hearsay meet the two-pronged test spelled out in Aguilar. Since we have held that the hearsay information involved in Mayhaus calling the state police was sufficient under Aguilar, assuming that he gave the police an accurate summary of the telephone call to American Express (and we make this assumption because Mayhaus had been determined credible under Aguilar), we need only determine whether the American Express report was itself sufficiently credible under Aguilar.

There is no indication that Mayhaus had any idea of the identity of the person to whom he was speaking at American Express. He, in a routine manner following ordinary business procedures applicable to this particular type of transaction, had called Texaco, which had referred the call to American Express. The call was placed to a number provided for this very purpose. While it is required that “if the informant came by the information indirectly,” he must explain “why his sources were reliable,” Spinelli v. United States, supra, 393 U.S. at 416, 89 S.Ct. at 589, we have no difficulty finding reliability, not in the fact that the person to whom Mayhaus talked had personal knowledge of the theft, but rather in the fact that such person was one functioning part of a large business mechanism established for the very purpose of collating and disseminating this type of information to customers who regulated their daily business affairs in reliance thereon.

“In dealing with probable cause, . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 1310, 93 L.Ed. 1879 (1949). The Government argues that the hearsay of the American Express operator meets the Aguilar test because it is comparable to the business records exception to the hearsay rule. There is merit in the comparison. For many years we have recognized the reliability of records made in the regular course of business and have accepted such records into evidence for their truth. 28 U.S.C. § 1732. Furthermore, Rule 406 of the Proposed Federal Rules of Evidence makes “[ejvidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses . . relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.”

In sum, we are of the opinion that the mechanism of today’s system of credit confirmation is sufficient to support the type of reliability and credibility required by Aguilar. When the police were told that Mayhaus checked with American Express and was told the card was stolen, they knew that there was a very high degree of reliability in the fact that the card was actually reported as stolen. Furthermore, that a card was reported as stolen supports the conclusion that the use of the card was either use of a stolen credit card or else, at least, use without the permission of the owner, which would also be' a crime. Thus, the second requirement of Aguilar is met by the information conveyed to Mayhaus by American Express.

In his original brief, Wilson also argued that this conviction should be reversed because the Assistant United States Attorney who tried the case purposefully introduced at trial evidence concerning other crimes allegedly perpetrated by Wilson for which he was not then being tried, e. g., armed robbery of Kotinas and fraud in using Kotinas’ stolen credit card. Wilson argued in the district court that such evidence was irrelevant and highly prejudicial since the Supreme Court in United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971), held that 26 U.S.C. § 5861 does not require proof of specific intent or knowledge that the firearm was unregistered.

As the Government pointed out, Freed did not eliminate the need to prove possession. Since the car Wilson was driving was not his but was rented, the Government argued that proof that Wilson had rented the car (by showing that he had done it with a credit card stolen from Kotinas) was essential to establish that he had in fact possessed the illegal firearm. Since the evidence was relevant to show knowing possession, we find no reversible error in its admission. Nor did Wilson ask for any partial limitation of the Government’s inquiry into this area- — a request which might have met with more favor from the district court. Finally, we note that the district court, in instructing the jury, did state that Wilson was on trial only for the crime charged and that the jury should not consider whether he was guilty of any other crime. As to two other incidents in which objectionable answers were made by witnesses, we note that the testimony was immediately objected to and those objections were sustained with the material ordered stricken from the record. Moreover, as to all of "the alleged prejudicial statements, we observe that they would qualify as harmless error under the rule of Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), in light of the overwhelming evidence against the defendant on all material issues.

For the reasons given hereinbefore, the judgment of the district court is affirmed.

Affirmed.

KILEY, Circuit Judge, with whom DUFFY, Senior Circuit Judge,

joins (dissenting).

I respectfully dissent.

The focus in determining probable cause for arrest of Wilson is upon the information Mayhaus actually gave Sergeant Williams. Whiteley v. Warden, 401 U.S. 560, 568, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971).

I agree that a reasonable inference from Trooper Williams’ testimony at the suppression hearing is that Sergeant Williams was told by Mayhaus that the American Express Company was called. Otherwise the trooper could not have known that fact at the time of Wilson’s arrest. I agree also that if Sergeant Williams had sufficient information upon which to make the judgment that Wilson probably possessed a stolen credit card, the rule of Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed. 2d 419 (1970), applies to justify the war-rantless arrest. And finally I agree that the question of Sergeant Williams’ information of the theft of the card is the vital point in determining whether probable cause existed.

The majority opinion applies the two-prong Aguilar test — underlying circumstances and credibility and reliability' — in determining that the admitted hearsay-upon-hearsay information given to Sergeant Williams by Mayhaus was sufficient to render valid the otherwise per se unreasonable arrest. I think the opinion establishes that there is sufficient showing of underlying circumstances upon which Sergeant Williams could in part base his judgment of probability. My question is with respect to the opinion’s decision under the test of credibility and reliability.

The majority bases its finding of reliability, first, on the basis of Brown v. United States, 125 U.S.App.D.C. 43, 365 F.2d 976, 979 (1966), since “the victim’s report has the virtue of being based on personal observation. . . . ” In Brown the court apparently assumed, for the purpose of decision, that the informant was the victim of the armed robbery and that the informant personally observed the robbery and the criminal. Here Mayhaus testified at the hearing that he could not identify Wilson, did not serve him at the gas station or prepare a sales slip for the attempted purchase of merchandise exceeding $25.00. Nor was Mayhaus sure that he observed Wilson making a telephone call.

The second basis for the court’s finding of reliability is the authority of United States v. Roman, 451 F.2d 579, 581 (4th Cir. 1971), cert. denied, 405 U.S. 963, 92 S.Ct. 1171, 31 L.Ed.2d 239 (1972). The majority states that the “internal content” of Mayhaus’ call to Sergeant Williams “intrinsically prove [d] the truth of the ‘responsible’ citizen’s word.” In Roman, however, the statements of the affiant so clearly connected Roman with the stolen Chevrolet that it was not necessary that the affidavit state the experiential basis upon which the affiant established the reliability of the informant. Here there was of course no affidavit and no claim, at the suppression hearing, that the “internal content” of Mayhaus’ call to Sergeant Williams “intrinsically prove [d] the truth” of Mayhaus’ statement. I cannot find that the majority opinion meets the Aguilar test of reliability.

The majority opinion rejects Wilson’s attack upon the reliability of the information furnished by American Express to Mayhaus. This is the admitted hearsay-upon-hearsay. The opinion considers first whether the American Express report was itself sufficiently credible under Aguilar, finding under the Spinelli rule “no difficulty” in rejecting the attack, because the unnamed, unidentified person to whom Mayhaus talked at American Express was “one functioning part of a large business mechanism,” the very purpose of which is gathering, processing and disseminating this type of information to business customers who regulate their affairs in reliance on the mechanism. I think at best this notion supports the value of the mechanism as reliable for business purposes. I am not persuaded it suffices for the purpose of overcoming the per se unreasonableness of a warrantless arrest of a human being. “[W]hen a search is based on a magistrate’s rather than a police officer’s determination of probable cause, the reviewing courts will accept evidence of a less ‘judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant.’ ” Aguilar supra at 111, citing Jones v. United States, 362 U.S. 257, 270, 80 S.Ct. 725, 735, 4 L.Ed.2d 697 (1960).

The majority accepts the government’s argument that the hearsay of the American Express information meets the Aguilar test because it is comparable to the business records exception to the hearsay rule. I question the validity of the comparison.

It is true that 28 U.S.C. § 1732 and Proposed Federal Rule of Evidence 406 both provide for the admissibility of certain kinds of business records. The records are admissible into evidence under either the statute or the rule, however, only if they meet certain prerequisites.

One prerequisite of the rule for admissibility is that the information on which the records are based be supplied by a person acting routinely, under a duty of accuracy, with employer reliance on the result, or in short “in the regular course of any business.” See Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517 (1930); Palmer v. Hoffman, 318 U.S. 109, 111-115, 63 S.Ct. 477, 87 L.Ed. 645 (1943), rehearing denied, 318 U.S. 800, 63 S.Ct. 757, 87 L.Ed. 1163; Annot., 8 A.L.R. Fed. 919 (1971). The information compiled in whatever manner by American Express is not supplied by such persons as described above.

Moreover, there is no evidence in this record that the information compiled by American Express has proved accurate or reliable in the past, but only that the information exists for whatever business purpose it may be desired. Neither is there anything to show that the information it gathers as to “stolen” credit cards is reliable.

I recognize that after the Aguilar and Spinelli decisions the requirements for probable cause in the Supreme Court decisions in United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), and Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) , appear less stringent than those in Aguilar and Spinelli. In Adams, however, the Court dealt with the question of reasonable cause for an officer to pat down a suspect, and did not deal with the question of probable cause. In Harris the Court found that the informant’s reliability was adequately established where the police knew the informant’s reputation and said so. Mayhaus, however, admitted that this was the first call he had ever made to the police headquarters.

If we place upon personal privacy the value that we say we do, it is important that decisions with respect to warrant-less arrests and searches use great care in weighing the private interests of innocent persons at true value in determining probable cause questions. In retrospect, of course, Wilson was not a good man. Before his arrest, however, he was legally innocent. In my view, Wilson’s privacy interests are not adequately considered in the majority opinion.

I conclude that there was not sufficient showing of reliability of the information that the credit card here was stolen, and for that reason I cannot join the majority. I would reverse.

DUFFY, Senior Circuit Judge

(dissenting).

I agree with and concur in Judge Kil-ey’s dissenting opinion. For the reasons stated therein and also for the reasons set forth in my original opinion in this cáse, I would reverse the judgment of conviction.

      . United States v. Wilson, 465 F.2d 1290, 1292 (7th Cir. 1972).

      . Although not specified in the search warrant, the shotgun was contraband and was properly seized if taken in the course of a legal search. See discussion in dissenting opinion, United States v. Wilson, supra at 1295-1296.

      . As Wilson’s counsel stated at reargument: “What I do contend is that the telephone conversation Mr. Mayhaus had with the police dispatcher by analogy must be comparable to the information given by a complainant to a magistrate to obtain either a warrant for search or a warrant for arrest.”

      . McCray v. Illinois, 386 U.S. 300, 304, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967).

      . When the case was reargued, counsel for Wilson conceded that Mayhaus must have identified himself to the police.

      . We note that the district court’s jury instructions erroneously, in light of Freed, required the Government to prove specific intent and that even that heavier burden was met.

      . Sergeant Williams did not testify at the hearing.

      . We are not talking of American Express Company’s records being introduced into evidence. We are talking of what someone at the Company’s office told Mayliaus was on a record.