author: McWILLIAMS, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Charles Larue KING, Defendant-Appellant.
    No. 72-1425.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Nov. 14, 1972.
    Decided Aug. 29, 1973.
    Rehearings Denied Nov. 15, 1973.

      Don J. Svet, Asst. U. S. Atty. (Victor R. Ortega, U. S. Atty., and Richard J. Smith, Asst. U. S. Atty., on the brief), for plaintiff-appellee.
    Julius Lucius Echeles, Chicago, Ill., (Carolyn Jaffee, Chicago, Ill., and Thomas L. Marek, Albuquerque, N. M., on the brief), for defendant-appellant.
    Before LEWIS, Chief Judge, MC-WILLIAMS, Circuit Judge, and CHRISTENSEN, District Judge.
   McWILLIAMS, Circuit Judge.

Charles LaRue King was convicted by a jury of knowingly possessing with an intent to distribute approximately 602 pounds of marijuana, a Schedule I controlled substance under 21 U.S.C. § 812(c), (c) (10), in violation of 21 U.S.C. § 841(a)(1). King now appeals and his various grounds of assigned error will be grouped as follows: (1) The statute under which King was prosecuted, namely, 21 U.S.C. § 841(a)(1), is unconstitutional; (2) the search of his car and the seizure therefrom of 300 bricks of marijuana was in violation of his Fourth Amendment rights; (3) his Fifth Amendment privilege against self-incrimination was violated; and (4) the evidence in several particulars is legally insufficient to support the verdict. Brief reference to the facts and circumstances surrounding King’s arrest will put these several matters in context.

A border patrol agent stopped an automobile driven by King at a so-called checkpoint station located about three miles north of Truth or Consequences, New Mexico, the agent testifying that he was stopping all vehicular traffic to look for “illegal aliens.” After stopping King, the agent inquired as to his citizenship, with King responding that he was an “American.” The agent then directed King to pull over to the side and open his trunk, the agent testifying that he wanted to ascertain whether there were any aliens hiding in the trunk. King complied with these directions, and as he was in the process of opening the trunk he volunteered a statement to the effect that “Yes, you made a good catch this time.”

The agent’s testimony was that as he looked into the opened trunk he saw no person hiding therein, but that he did see what appeared to him to be “bricks of marijuana across the shelf, the back shelf in the car, and a tarp covering something and a tire laying on top of the tarp.” The agent outlined his past experience with bricked marijuana and testified that based thereon he concluded that the bricks in King’s trunk were bricks of marijuana. Accordingly, the agent arrested King and the 300 bricks of marijuana taken from King’s trunk form the basis for the present prosecution. Further background material will only be developed as necessary to an understanding of King’s various grounds of alleged error.

I.

King initially contends that the statute under which he was convicted is unconstitutional. It is argued that Congress had no power to enact 21 U.S.C. § 841(a)(1) under which one could be convicted for purely intrastate activity, and that since there is no specific grant of power to enact a statute of the broad scope of § 841(a)(1), the matter is one reserved to the several states under the Tenth Amendment. It is clear from a reading of the statute under which King was convicted that there indeed need be no connection, as such, between the facts of a particular case and interstate commerce. However, in this general regard, mention should be made of Congressional findings and declaration of legislative intent as set forth in 21 U.S.C. § 801(3), which read as follows:

“(3) A major portion of the traffic in controlled substances flows through interstate and foreign commerce. Incidents of the traffic which are not an integral part of the interstate or foreign flow, such as manufacture, local distribution, and possession, nonetheless have a substantial and direct effect upon interstate commerce because—
“(A) after manufacture, many controlled substances are transported in interstate commerce,
“(B) controlled substances distributed locally usually have been transported in interstate commerce immediately before their distribution, and
“(C) controlled substances possessed commonly flow through interstate commerce immediately prior to such possession.”

Quite obviously, then, it was the intent of Congress to enact a statute which would cover the facts of the instant case. There remains the issue as to whether Congress has the power to thus enact. We are advised that two other Courts of Appeals have been presented with this same issue and that each has held § 841(a) to be a valid exercise by Congress of the power granted it under the commerce clause. United States v. Scales, 464 F.2d 371 (6th Cir. 1972), and United States v. Lopez, 459 F.2d 949 (5th Cir. 1972). Without detailing the reasoning of those two cases, we subscribe thereto and hold that § 841(a) is a valid exercise by Congress of a power vested in it by the Constitution.

King also challenges the constitutionality of § 841(a) on a different ground. One essential ingredient of § 841(a) is that the possession of the controlled substance must be with an “intent to distribute.” The “intent” with which a controlled substance is possessed is generally established through circumstantial evidence and in this regard we have held that the quantity of the drug possessed is a circumstance which may permit the inference that the possessor had an intent to sell, deliver or otherwise distribute. United States v. Ortiz, 445 F.2d 1100 (10th Cir. 1971), cert. denied, 404 U.S. 993, 92 S.Ct. 541, 30 L.Ed.2d 545 (1971). King argues that § 841(a) is constitutionally deficient because it fails to state “how much” of the controlled substance is necessary to permit the inference that the possessor had an intent to distribute. We deem this argument of the alleged vagueness of the statute to be without merit. The statute clearly, and without vagueness, makes unlawful the possession of any controlled substance with an intent to distribute. The question as to the quantity which would permit the inference that the possessor had an intent to distribute is evidentiary in nature and necessarily depends upon all the facts and circumstances of the case at hand, and mention thereof in the statute is entirely unnecessary.

Brief mention is also made concerning the provisions of § 841(b)(4) which provides that one who violates § 841(a) “by distributing a small amount of marijuana for no remuneration” shall be treated as provided for in another section of the statute, i. e., § 844(a) and (b). In this regard, King suggests that the phrase “small amount of marijuana” is unconstitutionally vague. King, however, was indicted and convicted for violating § 841(a) and the evidence showed he possessed over 600 pounds of marijuana, and the quantity thus possessed clearly supported the inference that he intended to distribute the controlled substance. Hence, under such circumstances the provisions of § 841(b)(4) are not brought into play, and accordingly we need not here concern ourselves with the argument that the language used in this particular section of the statute is vague.

II.

Complaint is next made by King that the search of his car and the seizure therefrom of the 300 bricks of marijuana was an unlawful search and seizure. In this regard, King filed a motion to suppress which, after an evidentiary hearing, was denied. King now assigns this ruling as error.

This search is sought to be upheld under 8 U.S.C. § 1357(a)(3), which allows Immigration Officers to stop and search any vehicle for aliens “within a reasonable distance from any external boundary of the United States.” The term “reasonable distance” is defined at 8 C. F.R. § 287.1 as being one hundred air miles. King contends that the search and seizure was improper because: (a) There was insufficient evidence that the checkpoint at Truth or Consequences is within one hundred air miles from the Mexican border; (b) the provisions of 8 U.S.C. § 1357(a)(3) which purported to empower the Attorney General to determine what is a “reasonable distance” from an external boundary are violative of the Fourth Amendment under the reasoning of Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); and (c) the aforesaid statute and the regulation promulgated thereunder purporting to authorize warrantless searches of automobiles without probable cause for aliens at a fixed checkpoint some ninety-eight miles from an external boundary violates the Fourth Amendment under the reasoning of the recent case of Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). Although we are of the view that Almeida-Sanchez does have application to the instant case, and requires a remand for further hearing, in view of the remand each of these several contentions should be considered now.

King initially argues in this court that there is no competent evidence that the checkpoint near Truth or Consequences, New Mexico, is within one hundred air miles of the Mexican border. This particular matter in our view was not really raised in the trial court, and for that reason will not be considered by us. It is true that in the hearing on the motion to suppress, counsel for King in his examination of the border patrol agent inquired as to how far the checkpoint at Truth or Consequences was from the Mexican border. The agent testified it was ninety-eight air miles, whereupon counsel established that the agent himself had never flown from the border to the checkpoint and that his testimony was hearsay in nature.

At this point, the Government attorney objected. In so doing, the Government attorney stated that he had not intended to prove mileage distance through the agent, but would do so through another witness, who apparently was not immediately available, the motion to suppress having come on for hearing some six hours after he had been served with a copy. In this setting, counsel for King indicated that he had no desire to take the Government by surprise, but stated that distance was one of the issues and “when we establish distance, if and when we do, there will be further arguments, legal arguments that I propose to present to the court.”

Thereafter, the issue of distance from the border was dropped and never again raised in the trial court, be it during the balance of the hearing on the motion to suppress, or at the trial proper. Apparently it was thereafter assumed by all that the checkpoint was within the one hundred mile limitation. In this setting we are disinclined to seriously consider on appeal the belated contention that the checkpoint in question was more than one hundred miles from the Mexican border. In so doing, we are fortified by United States v. Anderson, 468 F.2d 1280 (10th Cir. 1972), and United States v. McCormick, 468 F.2d 68 (10th Cir. 1972), both of which concerned the same checkpoint as the one involved in the instant case, and in each of those cases the checkpoint with which we are here concerned was found to be ninety-eight miles from the border.

King next argues that the statute which purports to empower the Attorney General to define what is a “reasonable distance” from an external boundary is violative of the Fourth Amendment under the reasoning of Coolidge v. New Hampshire, supra. In Coolidge, it was held that the Fourth Amendment requires that a search warrant be issued by a “neutral and detached magistrate,” and not by, for example, a state’s attorney general. Analogizing, it is asserted that any determination as to what is a “reasonable distance” from an external boundary of the United States should be by a “neutral,” and not by a law enforcement official such as the Attorney General of the United States.

We do not read Coolidge as requiring a holding that 8 U.S.C. § 1357(a)(3) and 8 C.F.R. § 287.1 violate the Fourth Amendment. Though there may be some similarities between Coolidge and the instant case, there are important dissimilarities too.

In Coolidge, the Supreme Court was concerned with the delicate question as to who should determine the existence of “probable cause,” which under the Fourth Amendment is a prerequisite to the issuance of a search warrant. It was in this setting that the Supreme Court held that the determination of the existence of probable cause should be by a neutral, and not by, as it was in Coolidge, the state’s attorney general.

In the instant ease, we are not concerned with any aspect of probable cause. Border searches are a separate category of searches, and are not dependent upon probable cause for their validity. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1924); Murgia v. United States, 285 F.2d 14 (9th Cir. 1960), cert. denied, 366 U.S. 977, 81 S.Ct. 1946, 6 L.Ed.2d 1265 (1961); Mansfield v. United States, 308 F.2d 221 (5th Cir. 1962). So, the determination by the Attorney General under 8 U.S.C. § 1357(a) is not one relating in anywise to probable cause, but is simply an administrative determination authorized by statute as to what is a reasonable distance from the external boundary of the United States, within which, under AlmeidaSanchez, as will be developed in a moment, the “functional equivalent” of a border search may be conducted without probable cause, and without the sanction of a warrant. It is on this line of reasoning that we deem Coolidge to be inapplicable to the present controversy.

King next argues that the statute and regulation, which was the purported basis for the search of his car and seizure therefrom of the bricks of marijuana, is, when applied to the facts of his case, violative of the Fourth Amendment under Almeida-Sanchez, supra. We note parenthetically that the opinion in the instant case has been held in abeyance awaiting the decision by the Supreme Court in Almeida-Sanchez. Subsequent to the announcement of that decision on June 21, 1973, the parties to the instant proceedings have filed supplemental briefs setting forth their respective views as to how Almeida-Sanchez affects the disposition of the present controversy.

As we understand the majority opinion in Almeida-Sanchez, the holding was that the statute and regulation here under attack were unconstitutional in their application where such formed the basis for a “roving search” of an automobile for illegal aliens without warrant and without probable cause, twenty-five air miles from the Mexican border. In like fashion, it would seem to us, the reasoning of the majority dictates the same result when applied to a search of an automobile for illegal aliens made without warrant and without probable cause at the fixed checkpoint outside Truth or Consequences, New Mexico, unless such search be deemed the functional equivalent of a border search. In this latter regard, the majority opinion clearly indicates that a border search is not limited to searches at the actual border itself, and that a border search may take place at “its functional equivalents as well.” From the record before us, however, we cannot tell whether it is or is not the functional equivalent of a border search, and accordingly, as we will elaborate upon, infra, we propose to remand this case to the trial court for an evidentiary hearing on this particular matter.

As concerns Almeida-Sanchez, we do not propose to analyze, sentence-by-sentence, the majority opinion, authored by Mr. Justice Stewart, and concurred in by Justices Douglas, Brennan, Marshall, and Powell, nor the separate concurring opinion of Mr. Justice Powell, nor the dissenting opinion of Mr. Justice White, concurred in by the Chief Justice and Justices Blaekmun and Behnquist. Sentences therein when read in isolation might indicate that the present search is constitutional, regardless of whether the checkpoint search was the functional equivalent of a border search. Notwithstanding, as indicated, as we read and understand the majority opinion, as applied to the instant case, a search at a fixed checkpoint of an automobile for aliens without warrant and without probable cause, ninety-eight miles away from the external boundary, is unlawful, unless the particular fixed checkpoint be in fact a functional equivalent of a border search.

The Government makes some argument that even if Almeida-Sanchez renders unlawful the warrantless search without probable cause of an automobile at the Truth or Consequences checkpoint, the rule should not be given retroactive effect to the benefit of King. In our view, that argument has no application to one in King’s position. King, like Almeida-Sanchez, challenged on constitutional grounds the validity of the statute and regulation throughout the trial court proceedings and has pursued his challenge in this court as well. And King now asks that he be given the same relief as has been afforded in Almeida-Sanchez. We agree.

It is for these reasons that we propose to vacate the judgment and sentenee heretofore entered and remand the case to the trial court for a determination, after hearing, and upon notice, as to whether the checkpoint at Truth or Consequences is the “functional equivalent” of a border search as that phrase is used in Almeida-Sanchez. If the trial court finds that it is, the judgment and sentence should be reinstated. However, if the trial court should determine that the checkpoint here involved • is not • the functional equivalent of a border search, then the case should be dismissed, as, under Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), the 300 bricks of marijuana should not have been admitted as evidence, and without the marijuana the Government’s entire case falls.

III.

A special agent in the Bureau of Customs arrived at the checkpoint station in question some three hours after King had been placed under arrest by the border patrol agent. This special agent testified at trial in front of the jury that he advised King of his Miranda rights and that in response thereto King stated he wanted to cooperate, but still wanted “to talk to my lawyer.” Objection was made to this testimony and counsel for King requested a mistrial. The trial court refused to declare a mistrial, although he did stop further questioning along this line. Counsel now argues that the trial court erred in refusing to declare a mistrial. We disagree.

We do agree that it is error for the Government to introduce as part of its case evidence that a defendant at the time of his arrest, exercised his Fifth Amendment right and declined to make any statement to the arresting officer or, in like vein, only indicated a desire to consult counsel. United States v. Arnold, 425 F.2d 204 (10th Cir. 1970), and United States v. Nolan, 416 F.2d 588 (10th Cir. 1969), cert. denied, 396 U.S. 912, 90 S.Ct. 227, 24 L.Ed.2d 187 (1969). However, under the circumstances we deem such error in the instant case to be harmless beyond a reasonable doubt, and accordingly we should not reverse. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

In support of our determination that the error in the instant case was harmless, we note that the only objectionable evidence is the statement attributed to King that though he would like to cooperate, he still wanted to first talk to an attorney. The matter was dropped at that point and never thereafter alluded to in any manner. In both Arnold and Nolan it was the comment by Government counsel in closing argument that apparently required a reversal. Indeed, in Arnold we stated that the objectionable testimony, “standing alone, might well be considered harmless.” And here, the objectionable testimony is in fact standing quite alone. Additionally, King’s statement that he wanted to talk to an attorney was not nearly as damning as his earlier volunteered utterance while opening the trunk lid: “Yes, you made a good catch this time.” Suffice it to say, the violation of King’s Fifth Amendment rights under such circumstances was indeed harmless.

IV.

King’s final assignment of error relates to the legal sufficiency of the evidence. In this connection, King initially contends that the Government’s evidence failed to establish that the substance found in his car was marijuana within the statutory definition of that term. A chemist for the United States Customs Laboratory testified that the substance taken from King’s car was marijuana and went on at great length to outline his testing process and the results thereof. His testimony in our view was amply sufficient to make out a prima facie case that the substance in King’s possession was marijuana as such is defined by the statute.

Counsel attempts to make much of the fact that the chemist described the substance as “cannabis sativa” and not as “cannabis sativa L.” as described in the statute. The omission of the suffix “L” is not fatal. We are advised that the “L” in “cannabis sativa L.” refers only to Carl von Linne (Linnaeus), the Swedish taxonomist who developed the classification system through which plants have been identified and distinguished. The “L” simply denotes that the Linnaean system of classification has been followed; the “L” itself does not qualify the identification of “cannabis sativa” in any way. Cf. United States v. Moore, 446 F.2d 448 (3d Cir. 1971), cert. denied, 406 U.S. 909, 92 S.Ct. 1617, 31 L.Ed.2d 820 (1972); Shurman v. United States, 233 F.2d 272 (5th Cir. 1956); and State v. Romero, 74 N.M. 642, 397 P.2d 26 (N.M.1964). In Moore appears the following pertinent comment 446 F.2d at 450:

“Marihuana, a term of Mexican origin, is the dried leaves and flowering tops of a plant species commonly known as hemp. Botanically, the hemp plant is called Cannabis sativa L. There is only one species of this plant. Leary v. United States, 395 U.S. 6, 50, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1959). However, because of the difference in soil content and climatic conditions, the plant grown in various parts of the world is not physically the same. For example, Mexican marihuana is more potent than domestic and is consequently preferred by smokers. Leary v. United States, supra, at 49, 89 S.Ct. 1532. Cannabis indica is the name given to Cannabis sativa L. grown in India. 12 C.J.S. Cannabis pp. 1111, 1112. We agree with the District Court that ‘Congress intended the inclusion of the indica variety within the definition of marihuana as set forth in 26 U.S.C. § 4761(a).’ * *

Counsel also argues that the Government’s evidence failed to negate the exception contained in 21 U.S.C. § 828(a) which provides that it is unlawful to actually distribute a controlled substance, except pursuant to a written order form provided by the Attorney General. In this regard, it is sufficient to say that King was not prosecuted under 21 U.S.C. § 828(a), but under 21 U. S.C. § 841(a). Additionally, the Government need not in its case negate an exception of the type alluded to above. See United States v. Peterson, 424 F.2d 1357 (7th Cir. 1970), cert. denied, 400 U.S. 958, 91 S.Ct. 357, 27 L.Ed.2d 266 (1970); Daniels v. United States, 402 F.2d 30 (9th Cir. 1968); and United States v. Palmiotto, 347 F.2d 223 (2d Cir. 1965).

Accordingly, the judgment is vacated and the matter is remanded to the trial court with direction that it make a determination, after hearing and upon notice, as to whether the checkpoint with which we are here concerned is the “functional equivalent” of a border search under Almeida-Swnchez. If the trial court shall find that the checkpoint is the functional equivalent of a border search, then the judgment and sentence shall be reinstated. However, should the trial court determine that the checkpoint herein involved is not the functional equivalent of a border search, then the trial court shall dismiss the case.


source: Caselaw Access Project

author: McWILLIAMS, Circuit Judge. BARRETT, Circuit Judge

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Carl Richard MADDOX, Defendant-Appellant.
    No. 72-1684.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Feb. 20, 1973.
    Decided Aug. 29, 1973.
    Rehearing Denied Nov. 15, 1973.

      Don J. Svet, Asst. U. S. Atty. (Victor R. Ortega, U. S. Atty., on the brief), for plaintiff-appellee.
    Jack L. Love, Federal Public Defender, for defendant-appellant.
    Before SETH, McWILLIAMS and BARRETT, Circuit Judges.
   McWILLIAMS, Circuit Judge.

Carl Richard Maddox was convicted on a charge of possession of marijuana with an intent to distribute in violation of 21 U.S.C. § 841(a)(1). The only point raised on appeal is the legality of the search of Maddox’ automobile and the seizure therefrom of the fifty-two pounds of marijuana which formed the basis for his prosecution.

The marijuana in the instant case was recovered from Maddox’ automobile during a search conducted at the so-called checkpoint located just out of Truth or Consequences, New Mexico, some ninety-eight air miles north of the Mexican border. The testimony was that Maddox’ vehicle was initially stopped at the checkpoint for the purpose of determining whether any aliens were hidden in his vehicle. The border patrol agent who stopped the vehicle testified that he noticed the odor of marijuana as he first conversed with the two occupants of the car. He then directed Maddox to open the trunk of the ear, the agent testifying upon trial that, notwithstanding the fact that he had detected the odor of marijuana, he was at the time only searching for aliens, and not marijuana. The agent then went on to testify that as Maddox opened the trunk he looked therein, and though he saw no human being, he did at once espy “a burlap bag * * * partly pulled apart and I' could see that it contained what I believed to be marijuana.” The agent thereupon arrested Maddox and removed fifty-two pounds of marijuana from the trunk of Maddox’ vehicle.

Again we are faced with a constitutional attack on 8 U.S.C. § 1357(a)(3) and 8 C.F.R. § 287.1, which statute and regulation purport to permit searches of vehicle for aliens without warrant and without probable cause by immigration officers within one hundred miles of an external boundary of the United States. The one hundred mile limitation was set by the Attorney General pursuant to the aforesaid statute as being a “reasonable distance from the external boundary of the United States.”

The attack on the statute and regulation, under which the Government contends the search and seizure in the instant case is lawful, is predicated on two grounds: (1) The statute and regulation violate the Fourth Amendment under the reasoning of Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); and (2) the statute and regulation when applied to the present factual situation violate the Fourth Amendment under the reasoning of the recent ease of Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). In the latter regard, we would note that resolution of the instant case was held in abeyance awaiting the decision by the Supreme Court in Almeida-Sanchez. Subsequent to the announcement of that decision on June 2.1, 1973, the parties to the instant proceeding filed supplemental briefs as to the effect of AlmeidaSanchez on the disposition of the present controversy. Accordingly, the matter now awaits our resolution.

Each of the two arguments advanced in the instant case has been considered by us in United States v. King, 485 F.2d 353 (10th Cir., filed August 29, 1973). We shall not repeat here that which has been commented upon in some detail in King. It is sufficient to state here that in our view Coolidge does not dictate that we declare 8 U.S.C. § 1357(a)(3) and 8 C.F.R. 287.1 unconstitutional. Coolidge held that the Fourth Amendment requires that a search warrant be issued by a “neutral and detached magistrate,” and not by, for example, a state’s attorney general. From Coolidge, counsel argues that it is equally improper for the Attorney General to determine what is a “reasonable distance” from an external boundary, and that such determination should be by a neutral body. As indicated in King, we are disinclined to lift the rule of Coolidge out of its factual context and transplant it to a factual setting which is dissimilar in important particulars.

However, as we said in King, in our view the holding of the majority in Almeida-Sanchez dictates that a warrant-less search, without probable cause, of an automobile for illegal aliens at the checkpoint at Truth or Consequences be held violative of the Fourth Amendment unless the checkpoint search be deemed the “functional equivalent” of a border search, as that phrase is used in Almeida-Sanchez. From the record before us, we cannot tell whether the checkpoint at Truth or Consequences is, or is not, the functional equivalent of a border search, and this is a matter which should in the first instance be passed on by the trial court. If the search is not the functional equivalent of a border search, then, under Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), the marijuana should not have been received as evidence, and, without the marijuana, the Government’s case falls.

As in King, the Government argues here that the rule of Almeida-Sanchez should not be given retroactive effect to the end that Maddox may benefit by it. This argument in our view does not apply to one in Maddox’ position. Maddox, like Almeida-Sanchez, challenged on constitutional grounds the validity of the statute and regulation throughout the trial court proceedings and has continued to press his challenge on this court as well. And Maddox now asks that he be afforded the same relief as has been afforded in Almeida-Sanchez. We agree.

Accordingly, the judgment is vacated and the matter is remanded to the trial court with direction that it make determination after hearing, and upon notice, as to whether the checkpoint at Truth or Consequences is the functional equivalent of a border search. If the trial court shall find that it is, then the judgment and sentence shall be reinstated. However, if the trial court shall determine that the checkpoint at Truth or Consequences is not. the functional equivalent of a border search, then the trial court shall.dismiss the case.

BARRETT, Circuit Judge

(dissenting):

I respectfully dissent. The essence of the majority opinion, it seems to me, is that Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), dictates: (a), vacation of the judgment and remand to the trial court with direction, following notice and hearing, that a determination be made as to whether the permanent Immigration and Naturalization Service check point near Truth or Consequences, New Mexico, is the “functional equivalent” of a border search, and (b) if the determination is that the check point is not the “functional equivalent” of a border search that the rule of Almeida-Sanchez shall apply retroactively to the end that Maddox and those similarly situated shall benefit by it. I do not agree with either conclusion.

Almeida-Sanchez was a 5-4 decision. The majority, with Mr. Justice Powell specially concurring, simply ruled that “roving patrols” of Immigration and .Naturalization Service vehicles on a variety of roadways away from the Mexican-United States border within a 100 mile limit without the benefit of search warrants were violative of the commands of the Fourth Amendment. Mr. Justice Powell indicated that the “roving patrols” would be constitutionally permissible under a broad search warrant which he opined would be justified and feasible as “. . . incidental to the protection of the border and draw a large measure of justification from the Government’s extraordinary responsibilities and powers with respect to the border.” He pointedly observed that the case did not involve the constitutional propriety of searches at permanent or temporary check points removed from the border or its functional equivalent.. This language leads me to conclude that Mr. Justice Powell would align with the four dissenters in Almeida-Sanchez in upholding the reasonableness of the permanent check point warrantless searches within the 100 mile regulatory limit from the border. This, I feel, is buttressed by the dissenting opinion authored by Mr. Justice White who observed: (a) “The judgment of Congress obviously was that there are circumstances in which it is reasonably necessary, in the enforcement of the immigration laws, to search vehicles and other private property for aliens, without warrant or probable cause, and at locations other than at the border.”; (b) United States v. Anderson, 468 F.2d 1280 (10th Cir. 1972) and United States v. McCormick, 468 F.2d 68 (10th Cir. 1972), cert. denied 410 U.S. 927, 93 S.Ct. 1361, 35 L.Ed.2d 588 (1973), are correct in their rulings that conveyances may be stopped and examined for aliens without warrant or probable cause when in all of the circumstances it is reasonable to do so; (c) that the search for marihuana conducted upon “discovery”, i. e., the detection of the odor from within the vehicle by an officer at the check point, is not violative of the Fourth Amendment by reason of favorable reference to United States v. Anderson, supra, and United States v. McCormick, supra; and (d) that in the 20 Court of Appeals cases noted dealing with the subject, including Almeida-Sanchez, 35 different judges of three Courts of Appeals have found inspection of vehicles for illegal aliens without warrant or probable cause to be constitutional.

Nothing contained in Almeida-Sanchez justifies any reference to retroactive application of the rule there applied. Even should it be ultimately determined that the warrantless stops and searches conducted at temporary or permanent check points established by the Immigration and Naturalization Service (whose officers are also designated as U. S. Customs Inspectors) under and by authority of 8 U.S.C.A. § 1357(a)(3) and 8 CFR 287.1 are constitutionally defective by virtue of the Fourth Amendment, which I submit would impede the clear congressional intent to protect all persons legally residing in the United. States against the illegal entrance of aliens and the illegal importation of narcotics or other contraband, there is nothing whatsoever, in my opinion, justifying retroactive application of the Almeida-Sanchez rule under the guidelines and standards set forth in Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969):

In deciding whether to apply newly adopted constitutional rulings retroactively, we have considered three criteria: (1) the purpose of the new rule; (2) the extent of reliance upon the old rule; and (3) the effect retroactive application would have upon the administration of justice. E. g., Desist v. United States, ante [394 U.S.] p. 244 [89 S.Ct. 1030, 22 L.Ed.2d 248]; Stovall v. Denno, 388 U.S. 293 [87 S.Ct. 1967, 18 L.Ed.2d 1199] (1967); Johnson v. New Jersey, 384 U.S. 719 [86 S.Ct. 1772, 16 L.Ed.2d 882] (1966). 394 U.S. at 832, 89 S.Ct. at 1499.


author: FRIENDLY, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Gilberto SANTANA, Defendant-Appellant.
    No. 89, Docket 73-1702.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 11, 1973.
    Decided Oct. 1, 1973.

      Bobby C. Lawyer, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty. S. D. N. Y., and John D. Gordan, III, Asst. U. S. Atty., of counsel), for appellee.
    Gerald L. Shargel, New York City, for defendant-appellant.
    Before LUMBARD, FRIENDLY and FEINBERG, Circuit Judges.
   FRIENDLY, Circuit Judge:

Gilberto Santana appeals from a judgment of the District Court for the Southern District of New York convicting him, after a verdict, of possession of approximately 34 grams of cocaine with intent to distribute and of simple possession of the same, in violation of 21 U.S. C. §§ 812, 841(a)(1), 841(b)(1)(A), and 844.

I.

The most serious point raised on appeal is the correctness of the court’s ruling, at the conclusion of a pre-trial suppression hearing, which upheld the legality of the seizure of the cocaine. The circumstances, briefly stated, were as follows:

On the night of June 8, 1973, Patrolman John DeRosa, a narcotics investigator assigned to the New York Joint Task Force, had under surveillance the La Concha restaurant on Manhattan’s Upper West Side. The restaurant was known to the police to be a meeting place for persons engaged in narcotics activities. Accompanying DeRosa in a government car was Detective Patrick Campbell of the New York City Police Department.

Late in the evening, the officers saw Santana and a companion, who later turned out to be Alfredo Aviles, drive up to the restaurant and illegally double park in front. Santana and Aviles entered the restaurant and returned to the car half an hour later, with Santana carrying a brown paper bag. DeRosa testified that he recognized Santana as being among the 100 major narcotics violators in New York City, according to police files, and that an anonymous informant had told him Santana was “heavily engaged in narcotic activities.” Santana and his companion then drove to a nearby apartment building at 331 West End Avenue, with the police following in their vehicle. After again double-parking the car, Santana entered the building and emerged about ten minutes later carrying a second brown paper bag.

Meanwhile the officers left their vehicle and continued the surveillance on foot. Santana reentered his car on the driver’s side and prepared to drive off. DeRosa then walked up to the car and tapped at the window on Santana’s side. When Santana lowered the window, DeRosa asked him to produce his driver’s license and registration. Santana voluntarily opened the door, stepped out of the car, and reached for his wallet, leaving the door about two feet open. DeRosa then pushed the door the rest of the way open — about another foot — and stepped between the door and the car. He testified that from that position he could see a clear plastic bag filled with a white powdery substance that had been secreted between the door and the front seat. DeRosa seized the bag, which he correctly assumed to contain narcotics, and the officers immediately arrested Santana and Aviles for drug violations.

Santana contends that, both because of DeRosa’s admitted pushing of the door and because, as he alleges, the evidence shows that DeRosa stuck his head inside the car before observing the clear plastic bag, the seizure violated the Fourth Amendment. The Government concedes that the officers did not have probable cause to search the car but argues that the seizure should be upheld under the “plain view” doctrine.

Although Santana has not questioned the legality of the officer’s request for the production of identification, this point should be considered since it bears on the permissible limits of the subsequent conduct. While the Government relies in part on the double-parking violation, we are by no means convinced that the stop and subsequent seizure could be justified on that ground alone. To be sure, a number of cases have sustained seizures where the police have stopped traffic violators and have subsequently seen narcotics or other evidence of crime in the stopped car. See, e. g., Busby v. United States, 296 F.2d 328 (9 Cir. 1961); Jefferson v. United States, 121 U.S.App.D.C. 279, 349 F.2d 714 (1965); United States v. Bourassa, 411 F.2d 69 (10 Cir.), cert. denied, 396 U.S. 915, 90 S.Ct. 235, 24 L.Ed.2d 192 (1969); Stotts v. Perini, 427 F.2d 1296 (6 Cir. 1970); United States v. Drew, 451 F.2d 230 (5 Cir. 1971); United States v. Mahanna, 461 F.2d 1110 (8 Cir. 1972). But in those cases the traffic violation was the reason for the stop. Here the officers were interested in narcotics violations, not in traffic offenses, as is evidenced by their failure to question Santana at all when he double-parked in front of the restaurant or when he first double-parked at 331 West End Avenue. The demand for identification was made not when he engaged in the double-parking but when he was about to cease it. In their testimony the officers made no pretense that their demand for identification was based on the double-parking. Amador-Gonzalez v. United States, 391 F.2d 308 (5 Cir. 1968), held that a pretextual arrest for a traffic violation would not support an incidental search of a car. See also Taglavore v. United States, 291 F.2d 262, 265 (9 Cir. 1961); State of Montana v. Tomich, 332 F.2d 987, 989 (9 Cir. 1964); United States v. Harris, 321 F.2d 739, 741 (6 Cir. 1963); Hill v. United States, 135 U.S.App.D.C. 233, 418 F.2d 449, 452 (1968). It may well be that the same view should prevail with respect to a “plain view” of the inside of a car resulting from a pretextual stop for such a minor offense.

However, we need not decide that point since the “stop” and the request for identification in this case were justified under the principles of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). The officers were surveilling a restaurant known to be a headquarters for the narcotics trade. They saw a prominent figure in the trade emerge with the brown paper bag which has long been a sort of hallmark of the narcotics business, cf. United States v. Montalvo, 271 F.2d 922, 924-925 (2 Cir. 1959), although, of course, such bags are used to carry many other things as proved to be the case here. The stop at the apartment building at 331 West End Avenue and Santana’s emergence with another brown paper bag heightened the officers’ suspicion that Santana and Aviles were preparing to make a sale. The officers had left their car and it might well have been impossible for them to resume the surveillance in time to catch up with Santana and Aviles and see what they were about. The combination of these circumstances sufficed to meet the rather lenient test for a stop ^yhich the Supreme Court, reversing this court, applied in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

It is not clear from the Court’s stop and frisk decisions how far a permissible stop of a car authorizes a quick glance at its interior for reasons unrelated to the officer’s safety. None of the cases in the Terry trilogy involved a car; so far as concerns a person not in a car, Sibron v. New York, 392 U.S. 40, 65, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), held that a stop merely authorizes police to take reasonable precautions for their own safety while interrogating the person who has been stopped. Adams v. Williams did involve a car, but the search was justified as incident to an arrest for which the policeman’s observations, in the interest of self-protection, had afforded probable cause, 407 U.S. at 148-149, 92 S.Ct. 1921.

However, on the facts here DeRosa’s observation of the interior of the car was justified even on a strict reading of the Court’s decisions. While DeRosa had received no specific information that Santana or Aviles was armed, it would not be unreasonable for a policeman to assume that a man believed to be one of the top narcotic violators in the New York area would be carrying arms or would be otherwise violent. DeRosa’s only intrusions consisted of pushing the door open a foot further than Santana had left it and then stepping inside the door to get on the same side as Santana. The Government contends these were proper precautions to prevent Santana’s shoving the open door against the officer and cites DeRosa’s testimony “That’s the training we received in the New York City Police Department.” While the officer’s remark does not make it entirely plain whether the objective of the “training” was to enhance safety, as could well be true, or to provide an opportunity for looking into stopped cars, we must take the inference more favorable to the Government. Having gone that far, we see no basis for discrediting DeRosa’s testimony that once he assumed his position inside the door he immediately saw the plastic bag and then leaned into the car to pick it up. Officer Campbell’s testimony was not truly in conflict, as appellant urges it to be. Campbell testified that DeRosa bent into the car and then told Santana he was under arrest. Since Campbell would have no way of knowing precisely when DeRosa spotted the narcotics, his testimony is not inconsistent with DeRosa’s claim that he saw the bag before leaning into the car. Beyond this, we see no reason why Officer DeRosa would not be entitled to make a cursory inspection of the car to see whether it contained a weapon readily available to Aviles, who remained seated on the passenger side. See Bell v. United States, 102 U.S.App.D.C. 383, 254 F.2d 82, 83-84 (1958); United States v. Kim, 430 F.2d 58, 61 (9 Cir. 1970); cf. United States v. Booker, 461 F.2d 990, 992, 993 (6 Cir. 1972).

A more satisfying basis for upholding the seizure would.be furnished by analysis similar to that employed in Dorsey v. United States, 125 U.S.App.D.C. 355, 372 F.2d 928 (1967). That case likewise involved known narcotics violators seated at night in a parked car. There had not been the suspicious comings and goings that existed here, but an officer, upon approaching the car, saw two of them looking at something on the seat. Directing his flashlight into the ear, he saw Dorsey holding a cellophane bag filled with white-powdered gelatine capsules. Another agent who was summoned reached through the open car window, seized the bag and placed Dorsey under arrest. The court sustained the seizure on the ground, 372 F.2d at 930-931, Judge McGowan said, that:

When the officers suddenly saw them situated as they were at the time and place in question, the former were entitled to extend their preventative patrolling mission to the extent of approaching the car and observing what was going on inside. ... If policemen are to serve any purpose of detecting and preventing crime by being out on the streets at all, they must be able to take a closer look at challenging situations as they encounter them.

We read this to mean that officers are entitled to seize articles that are permissible subjects of search and seizure, see ALI, Model Code of Pre-Arraignment Procedure Section SS 210.3, if these articles come into plain view while the officers are pursuing their lawful duties and can be seized without a search. The instant case fits the Dorsey analysis comfortably, because here the officer gained his view of the narcotics as the direct result of a lawful stop.

While we would adopt the principle of Dorsey if free to do so, that course presents difficulties we prefer to avoid. The decision antedated the Terry trilogy and, as indicated above, the dimensions of the authority recognized in Terry are uncertain. More important, upholding the seizure on the basis stated in Dorsey would require consideration of the meaning and the viability of the much-discussed “inadvertence” qualification of the plain view doctrine in Mr. Justice Stewart’s plurality opinion in Coolidge v. New Hampshire, 403 U.S. 443, 469-473, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), see Note, The Supreme Court, 1970 Term, 85 Harv.L.Rev. 3, 237-50 (1971) — subjects which will almost certainly receive further attention from the Court. We therefore think it best to sustain the seizure on-a basis consistent with Mr. Justice Stewart’s opinion, namely, that Officer DeRosa “inadvertently” saw the plastic bag while taking steps to ensure his safety in the course of a valid stop for interrogation with regard to a suspected narcotics offense.

II.

Santana claims that, in three respects, the prosecutor’s summation deprived him of a fair trial. We disagree.

Defense counsel argued at length in his summation that Aviles had “framed” Santana. He did not suggest that the United States Attorney’s office was involved in the frame-up, but during cross-examination of DeRosa he called attention to the fact that Aviles was not on trial with Santana, implying that Aviles, who did not testify, received preferential treatment for his cooperation in “getting” Santana. And in his summation, while discussing the alleged “frame-up”, Santana’s counsel said: “Aviles framed him. Aviles is named in this indictment but Santana is on trial.” The obvious implication of that statement was, once again, that Aviles had received preferential treatment — and perhaps even amnesty — from the prosecutor for his part in trapping Santana. The Assistant United States Attorney answered this charge by saying:

He [Aviles] was indicted. So, if all that is a big setup, it means the United States Attorney’s office is also participating in it. We are going around indicting people who we know didn’t have anything to do with it, to put up a front for you, which, of course, would be unethical and illegal. We don’t know about that.

While unduly rhetorical, this comment was not soi unfair an answer as to call for reversal, particularly in the absence of objection. See United States v. LaSorsa, 480 F.2d 522, 525 (2 Cir. 1973).

The second claim is that the prosecutor revealed Santana’s unsuccessful attempt to secure suppression. The short answer is that he did not. Defense counsel had repeatedly suggested to the jury that the police officers had unlawfully arrested Santana and had seized the cocaine pursuant to an unlawful intrusion into his car. To this the prosecutor responded:

It was claimed that the police officers unlawfully seized this stuff, perhaps they even unlawfully searched the car. There is, of course, a difference between searching something and seizing it.
Put yourself in the position of a policeman, the middle of the night, out on the street, he is working narcotics cases. He makes an approach, ladies and gentlemen, on people who he thinks are engaged in narcotics traffic. What’s the guy supposed to do? Let them go? Let them walk away with this garbage? What would you have done? I mean the police officers would have been damned if they didn’t stop them, they are being damned because they did. What are you going to do?

We see nothing wrong in this.

A somewhat more serious point, and the only one to which objection was made, was the prosecution’s allegedly improper characterization of the police officers. In answer to defense counsel’s persistent suggestions that the police officers were lying about critical facts, the prosecutor said that Officer DeRosa “knows the underworld of narcotics. He knows what illegal trafficking in narcotics is.” Referring to both officers, the prosecutor later added, “They arrest people all the time, they do dangerous undercover work, they are in and out of courts a lot. Couldn’t they come up with a better lie if they were lying? They were telling the truth, ladies and gentlemen. You heard it, just what happened.” While the Government concedes that it would have been better if the reference to “the underworld of narcotics” had not been made, these remarks did not rise to the level of prejudice required for reversal, especially in a case like this where the physical evidence we have summarized was bolstered by two volunteered admissions and a written statement given after full Miranda warnings.

In this, as in many other cases where a defendant’s guilt is plain, counsel for a defendant who insists on standing trial has little to offer except attack on law enforcement officers. While prosecutors would be wiser not to take such attacks too seriously, they can hardly be censured for responding sharply to criticisms they believe to be wholly unjustified, and courts should not be overly nice in such cases in scrutinizing the give-and-take of summation. Save in extreme instances, the judge’s charge and the jury’s good sense can be counted on to set things right. See United States v. DeAlesandro, 361 F.2d 694, 697 (2 Cir.), cert. denied, 385 U.S. 842, 87 S.Ct. 94, 17 L.Ed.2d 74 (1966); United States v. Briggs, 457 F.2d 908, 911-912 (2 Cir.), cert. denied, 409 U.S. 986, 93 S.Ct. 337, 34 L.Ed.2d 251 (1972). We are confident that was the case here.

III.

Santana’s final point relates to the court’s having given, without objection, what apparently was a “boilerplate” charge as follows:

If you find the presumption of truthfulness to be outweighed as to any witness, you can do one of two things —you can reject all of that witness’ testimony on the ground that it was all tainted by falsehood and that none of it is worthy of belief or you can accept that part which you believe' to be credible and reject only that part which you believe to be tainted by falsehood.

It would seem indeed that six years after United States v. Bilotti, 380 F.2d 649, 655-656 (2 Cir.), cert. denied, 389 U.S. 944, 88 S.Ct. 308, 19 L.Ed.2d 300 (1967), and eight years after the objectionable form had been changed, see Mathes and Devitt, Federal Jury Practice and Instructions No. 72.01 (1965), references to a “presumption” of truthfulness would have disappeared from charges in this circuit. Here, however, the judge did not repeat the most objectionable part of the charge condemned in Bilotti, namely, the affirmative statement, “In our law there is a presumption that unless and until determined by you to be outweighed by the evidence to the contrary, a witness speaks the truth.” He simply made a backhanded reference to such a presumption and told the jury what it might do if it found this to be outweighed. Moreover, the judge had given another entirely correct instruction on how the jury should go about determining credibility. Under such circumstances the charge was surely not plain error; it is absurd to suppose the jury was misled simply by the judge’s having said “presumption” rather than “assumption.” See Knapp v. United States, 316 F.2d 794 (5 Cir. 1963). However, we again remind trial judges of Judge Anderson’s admonition with respect to this instruction in United States v. Bilotti, supra, 380 F.2d at 656, that it “may in some cases be very misleading and the trial courts would best refrain from using it.” In addition, we find it difficult to visualize a case where even the remodeled instruction serves any purpose not met by the general instruction on credibility determination. Indeed, it would be wise for judges to examine their charges generally with a view to removing barnacles which do not promote the jury’s understanding but increase length and augment the possibility of claims of error.

Affirmed.

      . Aviles was indicted along with Santana but liis trial was severed.

      . The bag was later found to contain paella.

      . The second bag was later found to contain a can of frozen orange juice.

      . On cross-examination, Officer DeRosa testified that lie stopped Santana to check his license and registration and to identify Aviles, who was unknown to the officers.

      . At the suppression hearing, DeRosa testified that he had participated in “at least two dozen” narcotics investigations or arrests in which drugs were concealed in brown paper bags.

      . In fact, after the arrest the officers discovered that Aviles was carrying a gun. He was subsequently indicted for carrying a firearm during the commission of a federal felony, in violation of 18 U.S.C. § 924(c) (2).

      . Our review of this ease has been made more difficult by the trial judge’s failure to make findings of fact in support of his conclusion that the evidence should not be suppressed.

      . Four Justices dissented in Ooolidge, and Mr. Justice Harlan’s concurrence did not embrace Mr. Justice Stewart’s “inadvertence” theory. In view of the plethora of opinions, it is hard to see how (save for the point discussed in Part III of Mr. Justice Stewart’s opinion) this frequently cited ease stands for anything except that Coolidge’s conviction was reversed.


author: LEVIN H. CAMPBELL, Circuit Judge.

text:
    John DeCECCO, Sr., Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
    No. 73-1197.
    United States Court of Appeals, First Circuit.
    Argued Sept. 10, 1973.
    Decided Oct. 12, 1973.
    Robert L. Gammell, Asst. U. S. Atty., with whom Lincoln C. Almond, U. S. Atty., was on brief, for defendant-appellant.
    J. Joseph Nugent, Jr., Providence, R. I., with whom Nugent & Nugent, Providence, R. I., was on brief, for plaintiff-appellee.
    Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
   LEVIN H. CAMPBELL, Circuit Judge.

This appeal presents the question whether DeCecco, whose criminal conviction has been set aside by writ of error coram nobis, is entitled, incident to the writ, to recover a $1,000 fine that he had paid pursuant to the vacated criminal judgment.

• DeCecco was convicted upon his plea of guilty entered September 27, 1965, to two counts of a criminal information. Count 1 charged him with wilfully and knowingly failing to file a return required by the Internal Revenue Code disclosing the gross amount of wagers accepted, and the net amount of wagering excise tax due thereon, in violation of 26 U.S.C. § 7203. Count 2 charged him with wilful failure to pay the special occupational wagering tax as required by 26 U.S.C. § 4411, in violation of 26 U.S.C. § 7203. DeCecco was sentenced under Count 1 to a $1,000 fine and thirty days’ imprisonment, and under Count 2 to a year’s probation.

After the fine had been paid and the periods of imprisonment and probation served the Supreme Court held that the Fifth Amendment privilege against self-incrimination provided a complete defense against criminal prosecution under the wagering tax statutes. Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968); Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968). In Grosso, supra, 390 U.S. at 71, 88 S.Ct. at 715, the Court held that Grosso’s failure to claim the privilege was not “an effective waiver of the constitutional privilege”: accordingly, his conviction was summarily reversed even on counts as to which he had not initially asserted the claim. Later, in United States v. United States Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971), the Court held that the rule of Marehetti and Grosso was retroactive: those dealt “with the kind of conduct that cannot constitutionally be punished in the first instance. ... In the absence of a waiver . . . such persons could not properly be prosecuted at all.” Id. at 723, 91 S.Ct. at 1046.

DeCecco brought the present coram nobis proceeding in 1972 requesting that the conviction be vacated and the fine be refunded. The petition was treated, after some initial uncertainty, as a civil action separate from the earlier criminal case. A show cause order was issued and served by the Marshal upon the U. S. Attorney. A hearing was held attended by counsel for DeCecco and the United States. The government did not oppose vacating applicant’s conviction, but did oppose refund of the fine. The district court issued the writ, setting aside the convictions and ordering restitution of the fine with interest from the date of entry of the judgment.

The government now presents two lines of argument: that the criminal fine is simply not recoverable; and that, in any event, such a money judgment may not be recovered as part of an application for writ of error coram nobis. We agree with the district court that neither position has merit.

The Tucker Act, 28 U.S.C. § 1346, provides authority to order repayment. Pasha v. United States, 484 F.2d 630 (7th Cir. 1973); United States v. Lewis, 478 F.2d 835 (5th Cir. 1973). See also United States v. Summa, 362 F.Supp. 1177 (D.Conn.1972). DeCecco was fined for an internal revenue offense. The fine fits the Tucker Act definition of a “penalty claimed to have been collected without authority under the internal-revenue laws”. § 1346(a)(1). The Tucker Act is not to be “construed strictly and read with an adverse eye.” United States v. Emery, Bird, Thayer Realty Co., 237 U.S. 28, 32, 35 S.Ct. 499, 500, 59 L.Ed. 825 (1915). DeCecco has paid the penalty in full. Cf. Flora v. United States, 362 U.S. 145, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960). Quite possibly, although we need not decide the question, DeCecco might also recover under § 1346(a)(2), which gives the district court jurisdiction over any civil claim of less than $10,000 “founded . ■ . . upon the Constitution”. See United States v. Rothstein, 187 F. 268 (7th Cir. 1911).

Authorities cited by the government do not bar recovery. United States v. Gettinger, 272 U.S. 734, 47 S.Ct. 276, 71 L.Ed. 499 (1927), construed only that portion of the Tucker Act dealing with “express or implied contract [s] with the United States.” § 1346(a)(2). The Court did not discuss the clauses relevant here. See United States v. Lewis, 342 F.Supp. 833, 836 (E.D.La.1972), aff’d, 478 F.2d 835 (5th Cir. 1973). Deppe v. Lufkin, 116 F.2d 483 (1st Cir. 1940) and The A/S Glittre v. Dill, 152 F.Supp. 934 (S.D.N.Y.1957), holding that certain fines paid by vessel owners may not be recovered though paid under mistake of law or through faulty procedure, did not involve comparable statutes nor consideration of a fine incident to an unconstitutional and void criminal conviction. And while there is undoubtedly authority that sovereign immunity would prevent recovery absent Congressional consent, we find such consent in the Tucker Act.

The government’s second contention is that even if DeCecco has a Tucker Act claim, he may not assert it in the coram nobis proceeding. But the Tucker Act requires no particular form of pleading: modern procedure does not encourage undue concern with labels. The government was fully notified of De-Cecco’s claim to recover the fine. We would burden the parties and the district court with a second proceeding only were we to perceive unfairness. The government asserts that it will be deprived of the benefits of the statute of limitations and of opportunities for set-off and counterclaim which are expressly provided by the Tucker Act. But the statute has yet to run, and no matters in set-off or counterclaim have been called to our attention. Had the latter existed, they could have been presented adjunct to DeCecco’s claim in the coram nobis proceeding.

Affirmed.

      . A conviction for the same offenses had earlier been set aside on grounds not here material. DeCecco v. United States, 338 F.2d 797 (1st Cir. 1964).

      . The Court noted that wagering and its ancillary activities were prohibited, with minor exceptions, in every state except Nevada, and were also extensively regulated and prohibited under federal law. Without holding the “wagering tax provisions as such constitutionally impermissible,” the Court nonetheless held that those who properly assert the constitutional privilege “may not be criminally punished for failure to comply” — at least absent “different circumstances” where a taxpayer is not confronted “by substantial hazards of self-incrimination”. Marchetti v. United States, supra, 390 U.S. at 61, 88 S.Ct. at 709.

      . But cf. Gaxiola v. United States, 481 F.2d 383 (9th Cir. 1973).

      . There is no dispute that coram nobis (or, more properly, a writ of that nature) is the appropriate remedy for vacating the unconstitutional conviction. See United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954).


author: GIBSON, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Carl E. KOONCE, Jr., Appellant.
    No. 72-1726.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 11, 1973.
    Decided Oct. 3, 1973.
    Rehearing Denied Nov. 12, 1973.

      Robert G. Duncan, Kansas City, Mo., for appellant.
    Anthony P. Nugent, Jr., Asst. U. S. Atty., Kansas City, Mo., for appellee.
    Before GIBSON, LAY and ROSS, Circuit Judges.
   GIBSON, Circuit Judge.

Defendant Carl E. Koonce, Jr. appeals from his conviction of making a false material declaration before a grand jury of the United States in violation of 18 U.S.C. § 1623.

Defendant Koonce, a captain in the North Kansas City Police Department, was charged in a four-count indictment May 10, 1972, with having made false material declarations before a duly impaneled grand jury of the Western District of Missouri on December 7, 1971. A jury acquitted defendant on three counts and found him guilty on count II of the indictment. He was sentenced to three years’ imprisonment.

On appeal defendant raises four issues: (1) the constitutionality of 18 U. S.C. § 1623; (2) error in not giving his requested instruction on credibility; (3) illegal search and seizure of the allegedly stolen boat; and (4) the Government failed to prove that the declarations made were material to any matter that was properly under investigation by the grand jury. The facts necessary to a resolution of the issues presented will be set out in the course of the opinion.

I. Constitutionality of 18 U.S.C. § 1628. Defendant, relying upon Weiler v. United States, 323 U.S. 606, 65 S.Ct. 548, 89 L.Ed. 495 (1945), argues that 18 U.S.C. § 1623 is unconstitutional because it modifies the traditional “two-witness” rule for perjury convictions; which rule the defendant would have us find is constitutionally mandated. While we would agree with defendant that the “two-witness” rule has a long tradition in common law jurisdictions, see 7 Wigmore, Evidence, § 2040-43, we are unable to find it has been elevated to a constitutional principle and that Congress may not pass a statute in derogation of the rule. This conclusion is in accord with the principles enunciated in the cases relied upon by the defendant.

In Wood v. United States, 39 U.S. (14 Pet.) 429, 439 (1840) the Supreme Court said regarding the traditional rule:

“It is said to be an inflexible rule of the common law, applicable to every charge of perjury; that it cannot be changed but by the legislative power; that until some statutory change is made, courts must enforce it . . . . ” (emphasis supplied).

And, almost a century later in Hammer v. United States, 271 U.S. 620, 626, 46 S.Ct. 603, 604, 70 L.Ed. 1118 (1926), the Court noted:

“The general rule in prosecutions for perjury is that the uncorroborated oath of one witness is not enough to establish the falsity of the testimony of the accused set forth in the indictment as perjury. The application of that rule in federal and state courts is well nigh universal. The rule has long prevailed, and no enactment in derogation of it has come to our attention.” (footnote omitted).

In Weiler v. United States, supra, relied upon by the defendant the Court refused the government’s request to abandon the rule, commenting, “we cannot reject as wholly unreasonable the notion that a conviction for perjury ought not to rest entirely upon ‘an oath against an oath’ ” and then went on to say, “[wjhether it logically fits into our testimonial pattern or not, the government has not advanced sufficiently cogent reasons to cause us to reject the rule.” Weiler at 609, 65 S.Ct. at 550.

A study of these decisions leads us to the conclusion that the “two-witness” rule in perjury cases is not constitutionally mandated. Where the framers of the Constitution felt a rule of evidence should have constitutional protection they specifically provided that protection in unambiguous terms. We, therefore, find that elimination of the rule by 18 U.S.C. § 1623(e) was within the power of Congress. This conclusion is in accord with the other courts that have considered the question. United States v. Ceccerelli, 350 F.Supp. 475 (W.D.Pa. 1972); United States v. McGinnis, 344 F.Supp. 89 (S.D.Tex.1972).

Defendant also argues that § 1623 is unconstitutional as a denial of equal protection. He contends that because a defendant may be punished under 18 U.S.C. § 1621 for perjury for any sworn testimony, which could include those situations covered by § 1623, there is an equal protection violation, since all persons who commit the same crime must be subject to the same range of punishment, citing Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964).

We think the defendant’s argument is not well taken and that § 1623 does not deprive defendant of the equal protection of the laws. “[Wjhile the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is ‘so unjustifiable as to be violative of due process.’ Bolling v. Sharpe, 347 U.S. 497, 499 [74 S.Ct. 693, 694, 98 L.Ed. 884].” Schneider v. Rusk, 377 U.S. 163, 168, 84 S.Ct. 1187, 1190, 12 L.Ed.2d 218 (1964). Applying the equal protection standard, that all persons standing in the same relationship to the governmental action challenged be treated uniformly, Eisenstadt v. Baird, 405 U.S. 438, 446-447, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), we can find no unjustifiable discrimination here. Section 1623 applies only to cases where false declarations are made before a court or grand jury of the United States; § 1621 applies in all cases where testimony is given under oath. Congress could rationally conclude that cases involving false testimony before a court or grand jury are different in specie from and more detrimental to the common cause than other instances of false testimony and decide to punish them differently, as well as provide for a different standard of proof to apply in such a prosecution. Defendant has not here made out a case approaching the discrimination held violative of the equal protection clause in Skinner v. Oklahoma, supra, or McLaughlin v. Florida, supra.

II. The Refused Instruction. Defendant claims that the trial judge committed reversible error when he refused to give defendant’s proffered “falsus in uno, falsus in omnibus” instruction.

Kane v. United States, 431 F.2d 172 (8th Cir. 1970), which defendant cites as support for his claim of error, does not support the proposition that such an instruction should be given whenever requested by the defendant. There we found that the giving of such an instruction, challenged by the defendant Kane was at most harmless error. As was stated in Shelton v. United States, 83 U.S.App.D.C. 257, 169 F.2d 665, 667 (D.C. Cir. 1946), cert. denied, 335 U.S. 834, 69 S.Ct. 24, 93 L.Ed. 387 (1948):

“The maxim, ‘Falsus in uno, falsus in omnibus,’ as applied to witnesses, is not an inflexible rule of evidence, nor is it mandatory; the trial court need not require the jury to disregard a witness’ testimony altogether even if it is proved or conceded to be false in part. As Professor Wigmore has pointed out, the maxim has to do solely with the weight of the testimony, not with its admissibility.” (footnote omitted).

Nor do the other eases cited by defendant support his claim of error. The trial judge gave an instruction respecting credibility which conveyed materially the same impression to the jury as that requested by the defendant. The judge also carefully charged the jury as to the weight to be given the testimony of an informer and an accomplice. We fail to see how the refusal to give the requested charge could have prejudiced any substantial right of the defendant. Rule 52(a), Fed.R.Crim.P.

III. Search and Seizure Issue, Defendant further contends that the failure of the trial judge to grant his motion to suppress evidence relating to the allegedly stolen boat and in allowing evidence obtained by execution of a search warrant admitted at trial was a violation of his Fourth Amendment right to be free from any unreasonable searches and seizures.

The factual background is basically uncontested. On July 5, 1971, Trooper William Bell of the Missouri Highway Patrol was engaged in investigation of a report that defendant was in possession of a stolen boat. The boat was stored by defendant in a rented shed at the Rock Harbor Resort, a private area at the Lake of the Ozarks. After receiving the resort owner’s permission, Bell proceeded to the shed, took various photographs of the boat from positions both inside and outside the shed, and climbed upon the boat in order to secure various identification numbers from it. This was done without defendant’s consent and without a warrant.

On July 28, 1971, Trooper Bell, relying on information gathered on July 5, made a second trip to the resort with two employees of Sears, Roebuck & Co., the purpose of this trip being to see whether they could identify the boat as one stolen from a Sears warehouse in North Kansas City in May 1965. The two employees identified the boat as a Sears boat, one of them specifically indicating that it was this particular boat that had been stolen, he having done some repair work on it before the theft and noticing a part missing at present that was missing then. This second visit was also without the defendant’s consent and without a warrant. No further action was taken upon the information gathered by Trooper Bell at this time.

Defendant Koonce testified before the federal grand jury December 7, 1971, at which time he was questioned about his ownership of the boat. On December 13, 1971, application was made for a search warrant to the Camden County magistrate to seize the defendant’s boat. This application was supported by two affidavits, one by Trooper Bell alleging facts and incorporating photographs taken of the boat in the above-mentioned searches. The second affidavit was by Sergeant Fisher of the Missouri Highway Patrol and was based upon information obtained from an informant that the defendant was in possession of a stolen motorboat, this information being corroborated as well by a second informant. Fisher’s affidavit also set forth the location where the boat might be found, obtained from defendant’s grand jury testimony as communicated to him by the Assistant United Attorney.

The defendant argues that there was insufficient probable cause to support the issuance of a search warrant. He challenges Trooper Bell’s affidavit upon the illegality of the searches conducted in July 1971; and challenges Sergeant Fisher’s because of the “completely and utterly false” information contained therein regarding his grand jury testimony. A reading of the grand jury testimony wherein defendant gives the location of the boat as that alleged by Sergeant Fisher, shows this contention to be frivolous. Further, if Sergeant Fisher’s affidavit, standing alone, would be enough to support a magistrate’s finding of probable cause, we need not reach the question raised by Trooper Bell’s actions. James v. United States, 135 U.S.App.D.C. 314, 418 F.2d 1150, 1151 (D.C. Cir. 1969); cf. Howell v. Cupp, 427 F.2d 36, 38 (9th Cir. 1970).

No serious challenge has been made by defendant to the credibility or reliability of the informants mentioned in Sergeant Fisher’s affidavit. At the hearing on defendant’s motion to suppress it was shown that certain factual information provided by one of the informants was subsequently found to be incorrect, i. e. from whom the defendant obtained the boat and the present color of the boat. However, we are convinced that the affidavit of Sergeant Fisher, based upon the information from the two informants, created sufficient probable cause to support the issuance of the search warrant.

The information before the magistrate indicated that one of the informants was a police officer well acquainted with the defendant, and was one who was able to provide enough factual information regarding the stolen boat, as was set forth in the affidavit, for the magistrate to assure himself that the information was not based, upon a rumor circulating in the underworld or merely upon the defendant’s reputation. Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). These allegations had also been corroborated by a second informant. Thus, there was sufficient credible information before the magistrate to satisfy himself that the issuance of the warrant would satisfy the standards of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 223 (1964); that (1) the informant was reliable, and (2) that the circumstances by which the informant came by his information demonstrate a sufficient probability of credibility. As we havé stated in dealing with the sufficiency of affidavits:

“(1) only a probability of criminal conduct need be shown, (2) standards less rigorous than rules of evidence determine sufficiency, (3) common sense controls and (4) ‘great deference’ should be shown by the courts to a magistrate’s determination of probable cause.” McCreary v. Sigler, 406 F.2d 1264, 1268 (8th Cir. 1969).

We, therefore, find that the trial judge committed no error in denying the defendant’s motion to suppress and in allowing introduction of the evidence obtained from the execution of the warrant at trial.

1Y. Materiality of Defendant’s Testimony. This contention of the defendant merits extended discussion and, we feel, is dispositive of this appeal. His position is that the government failed to establish that his testimony, upon which the perjury charge was based, related to any material matter properly before the grand jury.

It is established that a perjury conviction may not be based upon testimony not material to any proper inquiry of a grand jury. See, e. g., Masinia v. United States, 296 F.2d 871, 874 (8th Cir. 1961). And the question of materiality is one of law for the courts to decide. Sinclair v. United States, 279 U.S. 263, 298, 49 S.Ct. 268, 73 L.Ed. 692 (1929); Masinia v. United States, supra; Dolan v. United States, 218 F.2d 454 (8th Cir.), cert. denied, 349 U.S. 923, 75 S.Ct. 665, 99 L.Ed. 1255 (1955). The proper determination of the question, however, is essentially a factual matter for the trial judge to determine, United States v. Ceeeerelli, supra 350 F.Supp. at 479, bearing in mind the broad investigatory powers of-a grand jury to uncover offenses against federal law. Masinia v. United States, supra; Brown v. United States, 245 F.2d 549 (8th Cir. 1957).

The standard for determining materiality has been formulated in this circuit as “ [deliberate false swearing before a grand jury, tending to influence, mislead or hamper its investigation of a matter which it has authority to investigate . . . . ” Dolan v. United States, supra 218 F.2d at 458. See also LaRocca v. United States, 337 F.2d 39, 43 (8th Cir. 1964).

The defendant, in essence, makes two arguments directed towards materiality. First, that there was insufficient evidence at trial to support a finding of materiality, in other words a failure of proof on the part of the government; and secondly, that even if sufficient evidence had been introduced, the statements of the defendant were not material as a matter of law.

The government contends that since materiality is a question of law for the court to decide, the necessity of proof at trial is obviated. As we have noted, a proper resolution of the question depends upon the factual situation in which the testimony was given; how the trial judge is to resolve the question without benefit of evidence being introduced upon the point, the government does not make clear. We find this argument unpersuasive.

Materiality is an essential element of the crime charged under 18 U.S.C. § 1623(a). The statute itself explicitly requires the false declaration to be material ; and the cases construing § 1621, which contains the same requirement of “materiality,” so hold.

It thus was incumbent upon the government at trial to prove the materiality of defendant’s statements before the grand jury. United States v. Freedman, 445 F.2d 1220, 1227 (2d Cir. 1971). Viewing the evidence in the light most favorable to the verdict, we are left with the conclusion that the government failed to prove the materiality of the statements in question.

The transcript of Koonce’s grand jury testimony was introduced at trial, apparently for the purpose of showing that he had made the statements in question under oath, and it is available to assist in determining the materiality of his responses. See United States v. Edwards, 443 F.2d 1286, 1294 (8th Cir. 1971). Other witnesses at trial gave testimony which indicated that defendant was involved with or had knowledge of a widespread burglary ring within the Noi’th Kansas City Police Department. This evidence, however, falls short of the “clear, convincing and direct evidence” required by Brown v. United States, 245 F.2d 549, 556 (8th Cir. 1957) to sustain a conviction, as the testimony does not bear upon the question of whether the statements had the tendency to influence, mislead, or hamper the grand jury’s investigation; and there was no evidence before the trial court on the scope of the investigation that would on its face establish the materiality of an inquiry into a boat stolen in 1965 (ostensibly a state offense, barred by the statute of limitations).

The minutes of the grand jury introduced in evidence only pertain to the interrogation and testimony of the defendant. A reading of this testimony as well as the entire record of the trial fails to disclose the materiality of the responses relied upon for the criminal charge contained in the indictment. It may well be that other minutes of the grand jury would be explanatory of the scope of the investigation. In any event, we think it incumbent on the government to prove the materiality of the testimony given.

Essentially, we are left with the allegations of the indictment, unsupported by proof at the trial. “[A] general allegation of materiality is sufficient and it is not necessary to encumber the indictment with, what would amount to be, the Government’s argument why it believes the statements were material. The Government, if it wishes to sustain its case, must prove upon the trial of the case, why and how these particular statements were material.” United States v. Kennefick, 144 F.Supp. 596, 598 (N.D.Ill.1956) (citation omitted). Without proof of how defendant’s statements regarding a boat stolen in 1965 were material, the evidence was insufficient to support a conviction. United States v. Freedman, supra; United States v. Stone, 429 F.2d 138, 140 (2d Cir. 1970). The defendant, therefore, was entitled to a directed verdict of acquittal under Rule 29, Fed.R.Crim.P., motions for which were properly made and preserved below.

Because the defendant was entitled to a directed verdict of acquittal in the District Court does not mean that we must direct acquittal, but may if the ends of justice so require direct a new trial. Bryan v. United States, 338 U.S. 552, 560, 70 S.Ct. 317, 94 L.Ed. 335 (1950). Although this holding has been modified by Sapir v. United States, 348 U.S. 373, 75 S.Ct. 422, 99 L.Ed. 426 (1955) and Forman v. United States, 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d 412 (1960), apparently to require that the defendant have moved for a new trial in the District Court before a new trial can be ordered by an appellate court, see 2 Wright, Federal Practice and Procedure, Criminal § 470 (2d ed. 1969), here such a motion was made and, thus, the disposition of a new trial is open to us. Sapir v. United States, supra 348 U.S. at 374, 75 S.Ct. 422 (Douglas, J., concurring) .

This Circuit has both ordered a new trial, Sentner v. United States, 253 F.2d 310 (8th Cir. 1958), and directed a judgment of acquittal, Tri-Angle Club, Inc. v. United States, 265 F.2d 829 (8th Cir. 1959), depending upon the circumstances of the ease. The consideration that motivates the decision as to whether to order a new trial seems to be that the court should remand for a new trial when there appears a substantial likelihood that the defect in proof may be supplied upon a second trial, and the defendant has requested a new trial as part of his relief. However, when it appears from the record that the defect cannot be remedied then the court should direct entry of a judgment of acquittal.

Were we to find that the allegations in the indictment were insufficient as a matter of law to establish materiality, direction of a judgment of acquittal would be appropriate. However, if the government were able to prove the materiality of the testimony regarding the boat, and there is no indication that it could not, but had proceeded upon an erroneous view of the law, the proper course here would be a remand for a new trial.

The defendant argues that his testimony before the grand jury could not be material because it dealt with whether he had participated in any burglaries, a state crime and thus outside the jurisdiction of a federal grand jury, relying upon Brown v. United States, supra-, and further, since any prosecution of the crime was barred by the statute of limitations, his testimony cannot be considered material. The government points out that the alleged theft occurred within the statute of limitations for tax liabilities which are within the power of the grand jury to investigate. Irrefragably, the grand jury has wide powers to investigate any possible federal offense within its jurisdiction. Masinia v. United States, 296 F.2d at 875. We think the government’s position is correct.

Defendant was convicted upon count II of the indictment which dealt with his ownership of a 17-foot speedboat. That portion of the indictment alleging materiality is set out below.

The indictment referred to in defendant’s indictment dealt with a fraudulent boat transaction between a North Kansas City patrolman and a boat dealer who was also a member of the police reserves. It had come to the grand jury’s attention that the defendant might be in possession of a stolen boat. This information was received in the context of other information which the grand jury possessed, i. e., fraudulent boat transactions, thefts from interstate shipments of freight, and widespread burglaries in North Kansas City, from which it appeared that certain individuals, many of them connected with the police force, had reaped large financial benefits. A showing that the grand jury was investigating possible tax liabilities would establish the materiality of defendant’s testimony regarding the stolen boat. Although the government has not proved this on the record, there is no indication it could not.

Viewed in the light of the foregoing, we believe that this fact, if proved, distinguishes this case from Brown in important respects. In Brown a grand jury empaneled in Nebraska was investigating events which had transpired in the Eastern District of Missouri. The Court, in dismissing a perjury conviction, found that the grand jury lacked competence to inquire about such matters in Missouri since it could only find a true bill for an offense committed in whole or' part in Nebraska. There was also in Brown the added factor that the Court found manifest beyond all reasonable doubt a sole purpose to indict the defendant for perjury. Here the acts under investigation took place within the geographical confines of the Western District of Missouri, there had been an indictment returned against two acquaintances of the defendant, and there was reason to believe that the defendant may have been involved in the matters under investigation.

We are thus unable to say that defendant’s statements were not material as a matter of law although the government has not proved its materiality on this record.

Judgment reversed and case remanded for a new trial.

      . Section 1623 provides in pertinent part:
      “(a) Whoever under oath in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration . . . shall be fined not more than $10,000 or imprisoned not more than five years, or both.”

      . U.S.Const. Art. III, § 3:
      “No person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

      . § 1623(e) provides:
      “(e) Proof beyond a reasonable doubt under this section is sufficient for conviction. It shall not be necessary that such proof be made by any particular number of witnesses or by documentary or other type of evidence.”

      . A conviction under 18 U.S.C. § 1623 was upheld in United States v. Clizer, 464 F.2d 121 (9th Cir. 1972). There was no constitutional challenge to the statute made in that case.

      . Persons convicted under § 1623 may be fined a maximum of $10,000 while a conviction under § 1621 carries a maximum $2,000 fine. The maximum term of imprisonment, five years, is the same under both sections.

      . There are indications that Congress was not satisfied with the success of prosecutions under § 1621 and wished to adopt the standard applied to other criminal prosecutions to improve their success. See H.R.Rep. No. 91-1549, U.S.Code Cong. & Admin.News, 1970, 91st Cong.2d Sess., p. 4024.
      “Section 1623(e) makes proof beyond a reasonable doubt under this section sufficient for conviction. . . . This provision permits proof of the false declaration offense to be made by the same beyond a reasonable doubt standard required for conviction in prosecutions for all other criminal offenses.” And also at U.S.Code Cong. & Admin.News 1970, p. 4008, “This title is intended to facilitate Federal perjury prosecutions. ...”

      . The proffered instruction was as follows:
      “The testimony of a witness may be discredited or impeached by showing that he previously made statements which are inconsistent with his present testimony. The earlier contradictory statements are admissible only to impeach the credibility of the witness, and not to establish the truth of these statements. It is the province of the jury to determine the credibility, if any, to be given the testimony of a witness who has been impeached.
      “If a witness is shown knowingly to have testified falsely concerning any material matter, you have a right to distrust such witness’s testimony in other particulars; and you may reject all the testimony of that witness or give it such credibility as you may think it deserves.”

      . In a portion of his charge to the jury, the trial judge said:
      “If you conclude that any witness has wilfully sworn falsely to any material fact in issue, you may disregard the whole or any part of such witness’ testimony.”

      . United States v. Hvass, 355 U.S. 570, 574, 78 S.Ct. 501, 2 L.Ed.2d 496 (1958); Williams v. United States, 239 F.2d 748 (5th Cir.), cert. denied, 353 U.S. 975, 77 S.Ct. 1061, 1 L.Ed.2d 1138 (1957); Cooper v. United States, 233 F.2d 821 (8th Cir.), cert. denied, 352 U.S. 837, 77 S.Ct. 58, 1 L.Ed.2d 55 (1956).

      . 26 U.S.C. § 6531 provides for a six-year statute of limitations for criminal prosecutions arising out of fraudulent returns or a willful attempt to evade taxes.

      . “The grand jury charges that:
      i|: * s¡:
      “2. The Grand Jury was then conducting an inquiry into the subject matter of the then pending indictment in the United States District Court in said district in the criminal case entitled . . ., and an inquiry into possible additional violations of the laws of the United States, . . . by . Carl E. Koonce, Jr., and other persons.
      “3. It was material to said inquiry to determine whether Carl E. ICoonee, Jr. knew of any criminal activity of any kind of Louis J. Verderber and Leo K. Rhoden and . . . whether [he] knew of the allegedly false transaction mentioned in and the subject matter of said indictment and knew of the fraudulent nature of said transaction. ... It was also material to said inquiry to determine whether [he] knew of, had participated in, or received any stolen merchandise from any burglary, whether he knew of the actions of any person in receiving, possessing, concealing, storing, bartering, selling, disposing of, or transporting in inter-state commerce of any stolen motor vehicles or property stolen from an inter-state shipment of freight, and whether he had received any financial or other taxable henefit from any transactions or knew of any other persons who had received anything of value which might result in a tax liability to the United States . . . . ”