author: MANSFIELD, Circuit Judge:

text:
    INMATES OF ATTICA CORRECTIONAL FACILITY et al., Plaintiffs-Appellants, v. Nelson A. ROCKEFELLER et al., Defendants-Appellees.
    No. 596, Docket 72-1450.
    United States Court of Appeals, Second Circuit.
    Argued March 21, 1973.
    Decided April 18, 1973.

      Robert L. Boehm, New York City (Morton Stavis, William M. Kunstler, Center for Constitutional Rights, Michael Rattner, David Scribner, New York City, of counsel), for plaintiff s-appellants.
    Joel Lewittes, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen., State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, of counsel), for the State defendants-appellees.
    T. Gorman Reilly, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., for S. D. New York, Michael D. Hess, Asst. U. S. Atty., New York City, of counsel), for defendant-appellee, H. Kenneth Schroeder, Jr.
    Before SMITH, FEINBERG and MANSFIELD, Circuit Judges.
   MANSFIELD, Circuit Judge:

This appeal raises the question of whether the federal judiciary should, at the instance of victims, compel federal and state officials to investigate and prosecute persons who allegedly have violated certain federal and state criminal statutes. Plaintiffs in the purported class suit, which was commenced in the Southern District of New York against various state and federal officers, are certain present and former inmates of New York State’s Attica Correctional Facility (“Attica”), the mother of an inmate who was killed when Attica was retaken after the inmate uprising in September 1971, and Arthur 0. Eve, a New York State Assemblyman and member of the Subcommittee on Prisons. They appeal from an order of the district court, Lloyd F. MacMahon, Judge, dismissing their complaint. We affirm.

The complaint alleges that before, during, and after the prisoner revolt at and subsequent recapture of Attica in September 1971, which resulted in the killing of 32 inmates and the wounding of many others, the defendants, including the Governor of New York, the State Commissioner of Correctional Services, the Executive Deputy Commissioner of the State Department of Correctional Services, the Superintendent at Attica, and certain State Police, Corrections Officers, and other officials, either committed, conspired to commit, or aided and abetted in the commission of various crimes against the complaining inmates and members of the class they seek to represent. It is charged that the inmates were intentionally subjected to cruel and inhuman treatment prior to the inmate riot, that State Police, Troopers, and Correction Officers (one of whom is named) intentionally killed some of the inmate victims without provocation during the recovery of Attica, that state officers (several of whom are named and whom the inmates claim they can identify) assaulted and beat prisoners after the prison had been successfully retaken and the prisoners had surrendered, see Inmates of Attica Correctional Facility v. Rockefeller, 453 F.2d 12 (2d Cir. 1971), that personal property of the inmates was thereafter stolen or destroyed, and that medical assistance was maliciously denied to over 400 inmates wounded during the recovery of the prison.

The complaint further alleges that Robert E. Fischer, a Deputy State Attorney General specially appointed by the Governor to supersede the District Attorney of Wyoming County and, with a specially convened grand jury, to investigate crimes relating to the inmates’ takeover of Attica and the resumption of control by the state authorities, see Inmates, supra at 16 and n. 3, “has not investigated, nor does he intend to investigate, any crimes committed by state officers.” Plaintiffs claim, moreover, that because Fischer was appointed by the Governor he cannot neutrally investigate the responsibility of the Governor and other state officers said to have conspired to commit the crimes alleged. It is also asserted that since Fischer is the sole state official currently authorized under state law to prosecute the offenses allegedly committed by the state officers, no one in the State of New York is investigating or prosecuting them.

With respect to the sole federal defendant, the United States Attorney for the Western District of New York, the complaint simply alleges that he has not arrested, investigated, or instituted prosecutions against any of the state officers accused of criminal violation of plaintiffs’ federal civil rights, 18 U.S.C. §§ 241, 242, and he has thereby failed to carry out the duty placed upon him by 42 U.S.C. § 1987, discussed below.

As a remedy for the asserted failure of the defendants to prosecute violations of state and federal criminal laws, plaintiffs request relief in the nature of mandamus (1) against state officials, requiring the State of New York to submit a plan for the independent and impartial investigation and prosecution of the offenses charged against the named and unknown state officers, and insuring the appointment of an impartial state prosecutor and state judge to “prosecute the defendants forthwith,” and (2) against the United States Attorney, requiring him to investigate, arrest and prosecute the same state officers for having committed the federal offenses defined by 18 U.S.C. §§ 241 and 242. The latter statutes punish, respectively, conspiracies against a citizen’s free exercise or enjoyment of rights secured by the Constitution and laws of the United States, see United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966), and the willful subjection of any inhabitant, under color of law, to the deprivation of such rights or to different punishment or penalties on account of alienage, color, or race than are prescribed for the punishment of citizens, see Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941).

Federal jurisdiction over the claim against the state defendants was based on 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) and over the claim against the United States Attorney on the mandamus statute. 28 U.S.C. § 1361. Venue in the Southern District of New York was predicated on 28 U.S.C. §§ 1391(b), 1392(a). The motions of the federal and state defendants to dismiss the complaint for failure to state claims upon which relief can be granted, Rule 12(b)(6), F.R.Civ.P., were granted by Judge MacMahon without opinion. We agree that the extraordinary relief sought cannot be granted in the situation here presented.

Standing

At the outset, we must note that the Supreme Court’s recent decision in Linda R.S. v. Richard D., 410 U.S. 614, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973), to which the attention of the parties in this case was not drawn prior to argument, raises the preliminary question of whether plaintiffs have a sufficient “personal stake in the outcome of the controversy,” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), to confer standing upon them to invoke the judicial process. In Linda R.S. the mother of an illegitimate child sought to attack as unconstitutionally discriminatory the application of a Texas criminal statute prohibiting the willful refusal of “any parent” to support his or her child on the ground that it was enforced by the state, as a result of state court interpretation of the statute, against married but not unmarried fathers. Holding that she lacked standing, the Supreme Court, in a majority opinion by Justice Marshall, observed:

“The Court’s prior decisions consistently hold that a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution. See Younger v. Harris, 401 U.S. 37, 42, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Bailey v. Patterson, 369 U.S. 31, 33, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962); Poe v. Ullman, 367 U.S. 497, 501, 81 S.Ct. 752, 6 L.Ed.2d 989 (1961). Although these cases arose in a somewhat different context, they demonstrate that, in American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another." 410 U.S. at 619, 93 S.Ct. at 1149.

The broad reach of this language would, at first blush, appear to preclude the plaintiffs here from seeking to contest the nonprosecution of third parties they accuse of criminal conduct. However, the present case is in some respects distinguishable from Linda R.S. Unlike the mother there the inmates here might be said to have sustained or be immediately in danger of sustaining direct personal injury as the result of nonenforcement of the criminal laws against the accused state officers. See 410 U.S. at 619, 93 S.Ct. 1146; Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 67 L.Ed. 1078 (1923). They allege that at least some of them suffered direct physical injury at the hands of those they seek to have prosecuted and that if the state officers accused of criminal conduct are not prosecuted, such conduct will continue.

Thus a more immediate and direct danger of injury resulting from nonenforeement is presented here than in Linda R.S., where the Court stressed that the only result of the relief sought by the illegitimate child’s mother would be the jailing of the child’s father, not the support of the child. Where a successful prosecution, however, would serve to deter the accused from harming the complainant rather than merely supply a penal inducement to perform a duty to'provide assistance, the complaining person does show a more direct nexus between his personal interest in protection from harm and the prosecution. But in the present case this rationale in support of standing assumes that injunctive relief, which we conditionally authorized in Inmates of Attica Correctional Facility v. Rockefeller, supra, 453 F.2d at 22-25, restraining physical-abuse, torture, beatings or other forms of brutality, or threats of such conduct, is ineffective to protect the plaintiffs from harm.

It may also be argued that since 37 inmates have been indicted for crimes relating to the events at Attica in September 1971, without any indictment having been filed against any of the accused state officials, the complaint alleges a sufficient threat of selective and discriminatory prosecution of the plaintiff inmates to meet the standing requirements discussed in Linda R.S. v. Richard D., supra. On the other hand, the challenge in the present case is not to any criminal statute, as construed, but to the failure of the prosecuting authorities to enforce the criminal laws against a particular group of individuals.

Thus in order to determine whether plaintiffs have standing to sue we would be required to resolve troublesome questions. However, we need not decide the issue of standing because we believe that even if they may properly present their claims for judicial resolution, they seek relief which cannot, in this case at least, be granted either against the state or federal prosecuting authorities.

The Insufficiency of the Complaint

(1) Claim Against the United States Attorney

With respect to the defendant United States Attorney, plaintiffs seek mandamus to compel him to investigate and institute prosecutions against state officers, most of whom are not identified, for alleged violations of 18 U.S.C. §§ 241 and 242. Federal mandamus is, of course, available only “to compel an officer or employee of the United States . . . to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. And the legislative history of § 1361 makes it clear that ordinarily the courts are “ ‘not to direct or influence the exercise of discretion of the officer or agency in the making of the decision,’ ” United States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371, 374 (2d Cir. 1968), cert. denied, 394 U.S. 929, 89 S.Ct. 1195, 22 L.Ed.2d 460 (1969). More particularly, federal courts have traditionally and, to our knowledge, uniformly refrained from overturning, at the instance of a private person, discretionary decisions of federal prosecuting authorities not to prosecute persons regarding whom a complaint of criminal conduct is made. E. g., Milliken v. Stone, 16 F.2d 981 (2d Cir.), cert. denied, 274 U.S. 748, 47 S.Ct. 764, 71 L.Ed. 1331 (1927); Pugach v. Klein, 193 F.Supp. 630 (S.D.N.Y.1961); Powell v. Katzenbach, 123 U.S.App.D.C. 250, 359 F.2d 234 (1965), cert. denied, 384 U.S. 906, 86 S.Ct. 1341, 16 L.Ed.2d 359, rehearing denied, 384 U.S. 967, 86 S.Ct. 1584, 16 L.Ed.2d 679 (1966); Smith v. United States, 375 F.2d 243 (5th Cir.), cert. denied, 389 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106 (1967). See also Confiscation Cases, 74 U.S. (7 Wall.) 454, 19 L.Ed. 196 (1868); Goldberg v. Hoffman, 225 F.2d 463 (7th Cir. 1955); United States v. Cox, 342 F.2d 167 (5th Cir.), cert. denied sub nom., Cox v. Hauberg, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965); Newman v. United States, 127 U.S.App.D.C. 263, 382 F.2d 479 (1967).

This judicial reluctance to direct federal prosecutions at the instance of a private party asserting the failure of United States officials to prosecute alleged criminal violations has been applied even in cases such as the present one where, according to the allegations of the complaint, which we must accept as true for purposes of this appeal, see Inmates of Attica Correctional Facility v. Rockefeller, supra, 453 F.2d at 24 (and cases there cited), serious questions are raised as to the protection of the civil rights and physical security of a definable class of victims of crime and as to the fair administration of the criminal justice system. Moses v. Kennedy, 219 F.Supp. 762 (D.D.C.1963), affd. sub nom., Moses v. Katzenbach, 119 U.S.App.D.C. 352, 342 F.2d 931 (1965); Peek v. Mitchell, 419 F.2d 575 (6th Cir. 1970).

The primary ground upon which this traditional judicial aversion to compelling prosecutions has been based is the separation of powers doctrine.

“Although as a member of the bar, the attorney for the United States is an officer of the court, he is nevertheless an executive official of the Government, and it is as an officer of the executive department that he exercises a discretion as to whether or not there shall be a prosecution in a particular case. It follows, as an incident of the constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions.” United States v. Cox, supra 342 F.2d at 171.

Accord, Pugach v. Klein, supra 193 F.Supp. at 634; Moses v. Kennedy, 219 F.Supp. at 764-765; Peek v. Mitchell, supra 419 F.2d at 577-578.

Although a leading commentator has criticized this broad view as unsound and incompatible with the normal function of the judiciary in reviewing for abuse or arbitrariness administrative acts that fall within the discretion of executive officers, K. C. Davis, Administrative Law Treatise § 28.16(4) at 982-990 (1970 Supp.), he has also recognized, as have most of the cases cited above, that the manifold imponderables which enter into the prosecutor’s decision to prosecute or not to prosecute make the choice not readily amenable to judicial supervision.

In the absence of statutorily defined standards governing reviewability, or regulatory or statutory policies of prosecution, the problems inherent in the task of supervising prosecutorial decisions do not lend themselves to resolution by the judiciary. The reviewing courts would be placed in the undesirable and injudicious posture of becoming “superprosecutors.” In the normal case of review of executive acts of discretion, the administrative record is open, public and reviewable on the basis of what it contains. The decision not to prosecute, on the other hand, may be based upon the insufficiency of the available evidence, in which event the secrecy of the grand jury and of the prosecutor’s file may serve to protect the accused’s reputation from public damage based upon insufficient, improper, or even malicious charges. In camera review would not be meaningful without access by the complaining party to the evidence before the grand jury or U.S. Attorney. Such interference with the normal operations of criminal investigations, in turn, based solely upon allegations of criminal conduct, raises serious questions of potential abuse by persons seeking to have other persons prosecuted. Any person, merely by filing a complaint containing allegations in general terms (permitted by the Federal Rules) of unlawful failure to prosecute, could gain access to the prosecutor’s file and the grand jury’s minutes, notwithstanding the secrecy normally attaching to the latter by law. See Rule 6(e), F.R.Cr.P.

Nor is it clear what the judiciary’s role of supervision should be were it to undertake such a review. At what point would the prosecutor be entitled to call a halt to further investigation as unlikely to be productive ? What evidentiary standard would be used to decide whether prosecution should be compelled ? How much judgment would the United States Attorney be allowed? Would he be permitted to limit himself to a strong “test” case rather than pursue weaker cases ? What collateral factors would be permissible bases for a decision not to prosecute, e. g., the pendency of another criminal proceeding elsewhere against the same parties? What sort of review should be available in cases like the present one where the conduct complained of allegedly violates state as well as federal laws ? See generally, Schwartz, Federal Criminal Jurisdiction and Prosecutors’ Discretion, 13 Law & Contemp.Prob. 64 (1948). With limited personnel and facilities at his disposal, what priority would the prosecutor be required to give to cases in which investigation or prosecution was directed by the court?

These difficult questions engender serious doubts as to the judiciary’s capacity to review and as to the problem of arbitrariness inherent in any judicial decision to order prosecution. On balance, we believe that substitution of a court’s decision to compel prosecution for the U.S. Attorney’s decision not to prosecute, even upon an abuse of discretion standard of review and even if limited to directing that a prosecution be undertaken in good faith, see Note, Discretion to Prosecute Federal Civil Rights Crimes, 74 Yale L.J. 1297, 1310-12 (1965), would be unwise.

Plaintiffs urge, however, that Congress withdrew the normal prosecutorial discretion for the kind of conduct alleged here by providing in 42 U.S.C. § 1987 that the United States Attorneys are “authorized and, required to institute prosecutions against all persons violating any of the provisions of [18 U.S.C. §§ 241, 242]” (emphasis supplied), and, therefore, that no barrier to a judicial directive to institute prosecutions remains. This contention must be rejected. The mandatory nature of the word “required” as it appears in § 1987 is insufficient to evince a broad Congressional purpose to bar the exercise of executive discretion in the prosecution of federal civil rights crimes. Similar mandatory language is contained in the general direction in 28 U.S.C. § 547(1) (“each United States attorney, . shall — (1) prosecute for all offenses against the United States; . . . ” (emphasis supplied)) and in other statutes in particular areas of concern, e. g., 33 U.S.C. § 413 (“it shall be the duty of United States attorneys to vigorously prosecute all offenders” of certain provisions of the Rivers and Harbors Act when requested to do so by the appropriate officials). See also 45 U.S.C. § 152 (Tenth).

Such language has never been thought to preclude the exercise of prosecutorial discretion. See Bass Angler’s Sportsman’s Society v. Scholze Tannery, Inc., 329 F.Supp. 339, 345-346 (E.D.Tenn. 1971). Indeed the same contention made here was specifically rejected in Moses v. Kennedy, 219 F.Supp. 762, 765 (D.D.C.1963), aff’d. 119 U.S.App.D.C. 352, 342 F.2d 931 (1965), where seven black residents and one white resident of Mississippi sought mandamus to compel the Attorney General of the United States and the Director of the F.B.I. to investigate, arrest, and prosecute certain individuals, including state and local law enforcement officers, for willfully depriving the plaintiffs of their civil rights. There the Court noted that “considerations of judgment and discretion apply with special strength to the area of civil rights, where the Executive Department must be largely free to exercise its considered judgment on questions of whether to proceed by means of prosecution, injunction, varying forms of persuasion, or other types of action.” See also Peek v. Mitchell, supra.

Nor do we find the legislative history of § 1987 persuasive of an intent by Congress to depart so significantly from the normal assumption of executive discretion. In re Upchurch, 38 F. 25, 27 (C.C.N.C.1889), relied upon by plaintiffs, held only that a United States commissioner had the power under § 1987 to appoint a person other than the marshal, or one of his deputies, to execute process. It may well be that the legislative background of § 1987 would compel a reading that Congress intended that federal marshals have no choice but to execute warrants issued pursuant to that section, since it also provided for criminal penalties for those who refused to do so and for the appointment of other persons to execute warrants and make arrests. No such conclusion can persuasively be drawn with respect to the exercise by United States Attorneys of prosecutorial discretion, especially in the absence of any similar statutory deterrent against their failure or refusal to prosecute. See Note, Discretion to Prosecute Federal Civil Rights Crimes, 74 Yale L. J. 1297, 1306-07 and n. 46 (1965). Thus, we do not read § 1987 as stripping the United States Attorneys of their normal prosecutorial discretion for the civil rights crimes specified.

It therefore becomes unnecessary to decide whether, if Congress were by explicit direction and guidelines to remove all prosecutorial discretion with respect to certain crimes or in certain circumstances we would properly direct that a prosecution be undertaken. Cf. Powell v. Katzenbach, supra, 359 F.2d at 235; Note, supra at 1305.

(2) Claims Against the State Officials

With respect to the state defendants, plaintiffs also seek prosecution of named and unknown persons for the violation of state crimes. However, they have pointed to no statutory language even arguably creating any mandatory duty upon the state officials to bring such prosecutions. To the contrary, New York law reposes in its prosecutors a discretion to decide whether or not to prosecute in a given case, which is not subject to review in the state courts. Hassan v. Magistrates Court, 20 Misc.2d 509, 191 N.Y.S.2d 238 (1959), appeal dismissed, 10 A.D.2d 908, 202 N.Y.S.2d 1002 (2d Dept.), leave to appeal denied, 8 N.Y.2d 750, 201 N.Y.S.2d 765, cert. denied, 364 U.S. 844, 81 S.Ct. 86, 5 L.Ed. 2d 68 (1960). Yet the federal district court is asked to compel state prosecutions and appoint an “impartial” state prosecutor and state judge to conduct them, as well as to require the submission of a plan for impartial investigation and prosecution of the alleged offenses, on the basis of 42 U.S.C. § 1983, in the context of a continuing grand jury investigation into criminal conduct connected with the Attica uprising, supra n. 1, and where the state itself on September 30, 1971, appointed a Special Commission on Attica which has now published its findings. The very elaborateness of the relief believed by plaintiffs to be required indicates the difficulties inherent in judicial supervision of prosecutions, federal or state, which render such a course inadvisable.

Plaintiffs point to language in our earlier opinion, Inmates of Attica Correctional Facility v. Rockefeller, 453 F.2d 12, 20 (2d Cir. 1971), to the effect that “the State has the duty to investigate and prosecute all persons, including inmates, who may have engaged in criminal conduct before, during and after the uprising.” But the statement does not support their present demands. The existence of such a duty does not define its dimensions or imply that an alleged failure to perform the duty completely or equally, as between inmates and state officials, will support federal judicial supervision of state criminal prosecutions. The serious charge that the state’s investigation is proceeding against inmates but not against state officers, if shown to be accurate, might lead the Governor to supplement or replace those presently in charge of the investigation or the state legislature to act. But the gravity of the allegation does not reduce the inherent judicial incapacity to supervise.

The only authority supporting the extraordinary relief requested here is the Seventh Circuit’s recent decision in Littleton v. Berbling, 468 F.2d 389 (1972), cert. granted, 411 U.S. 915, 93 S.Ct. 1544, 36 L.Ed.2d 306 (1973). There a class of black citizens of Cairo, Illinois, brought suit for damages and injunctive relief against a state prosecutor, an investigator for him, a magistrate and a state judge, charging that the defendants had “systematically applied the state criminal laws so as to discriminate against plaintiffs and their class on the basis of race, interfering thereby with the free exercise of their constitutional rights.” Id. at 392. They alleged a long history indicating a concerted pattern of officially sponsored racial discrimination. In reversing the district court’s dismissal of the complaint, a divided panel concluded that a state judge, while not subject to suit for damages under § 1983, Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), may be enjoined from unconstitutionally fixing bails and imposing sentences that discriminated sharply against black persons, and that the State Attorney’s quasi-judicial immunity from suit for damages when performing his prosecutorial function, id. 468 F.2d at 410, “does not extend to complete freedom from injunction,” id. at 411. Finding other possible remedies either unavailable or ineffective, the Court approved the possibility of some type of injunctive relief, not fully specified, but which might include a requirement of “periodic reports of various types of aggregate data on actions on bail and sentencing and dispositions of complaints.” Id. at 415.

However, the decision in Littleton is clearly distinguishable. There the claim, unlike that here, alleged a systematic and lengthy course of egregious racial discrimination in which black persons were denied equal access to and treatment by the state criminal justice system. Furthermore, the Court’s decision does not appear to have compelled the institution of criminal prosecutions, which is the principal relief sought here. In short, we believe that Littleton should be strictly limited to its peculiar facts, as apparently did the Court itself. See id. at 415. To the extent that it may be construed as approving federal judicial review and supervision of the exercise of prosecutorial discretion and as compelling the institution of criminal proceedings, we do not share such an extension of its views.

The order of the district court is affirmed.

      . The State has pointed out that the special Wyoming County grand jury has already handed down 37 sealed indictments and has not yet completed its investigation. On oral argument, however, the Assistant Attorney General observed that none of the indictments handed down thus far concerns any state officer and, of course, that there is no assurance that further indictments will be forthcoming.

      . See note 3 infra.

      . As originally filed, the complaint also . sought a declaratory judgment against defendants Rockefeller, Oswald, Dunbar, Maneusi, and other defendants named in the complaint, declaring them to be “unfit to administer Attica Correctional Facility and the prison system of New York,” and an order permanently enjoining these state officials from further administration of the prison system and placing the entire system, including the facility at Attica, into federal receivership. The United States Magistrate for the Western District of New York, Edmund Maxwell, was also named as a defendant in the complaint. Prior to the hearing on the motions to dismiss, however, plaintiffs consented to the dismissal of that portion of the complaint which requested such relief and to the dismissal of Maxwell as a defendant.

      . “§ 1987. Prosecution of violation of certain laws

      “The United States attorneys, marshals, and deputy marshals, the commissioners appointed by the district and territorial courts, with power to arrest, imprison, or bail offenders, and every other officer who is especially empowered by the President, are authorized and required, at the expense of the United States, to institute prosecutions against all persons violating any of the provisions of section 1990 of this title or of sections 5506 to 5516 and 5518 to 5532 of the Revised Statutes, and to cause such persons to be arrested, and imprisoned or bailed, for trial before the court of the United States or the territorial court having cognizance of the offense.”

      . Attica: The Official Keport of the New York State Special Commission on Attica (1972).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Paul Louis HARRELSON, Defendant-Appellant.
    No. 72-3630
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 4, 1973.

      David C. McCord, Dallas, Tex., Selwyn S. Webber, Odessa, Tex., court appointed, for defendant-appellant.
    Frank D. McCown, U. S. Atty., Fort Worth, Tex., Charles D. Cabaniss, Asst. U. S. Atty., Dallas, Tex., for plaintiffappellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

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

   PER CURIAM:

Appellant, Paul Louis Harrelson, brings this appeal from his conviction on two counts of conspiring in violation of 18 U.S.C. § 371 to violate 18 U.S.C. § 2314 by causing stolen goods and forged securities to be transported in interstate commerce. Although the briefs filed on appellant’s behalf purport to raise at least eight separate points of error, when the repetitive, redundant, and rephrased points are combined, we have before us only four distinct issues. . We find each of these to be without legal merit, and we affirm.

First, appellant argues that the trial judge committed reversible error when she denied his motion for continuance, which was filed only three days before the trial was set to begin. We cannot agree. Although we are mindful that continuances must, in the interests of justice and fair play, be granted in many circumstances the general test on appellate review is whether the trial judge committed an abuse of discretion in granting or denying the motion for continuance. See, e. g., United States v. Vicars, 5 Cir. 1972, 467 F.2d 452, 455; United States v. Gower, 5 Cir. 1971, 447 F.2d 187, 190, cert. denied, 404 U.S. 850, 92 S.Ct. 84, 30 L.Ed.2d 88. We find that no such abuse occurred here. Appellant alleged as grounds to support his motion the hospitalization of his “lead counsel,” the refusal of the prosecution to cooperate in discovery, and the general unpreparedness of his other retained attorneys. The District Judge conducted a lengthy hearing on these matters, specifically found that “most of the statements made in this Motion are completely untrue,” and concluded that (1) the hospitalized attorney had in fact never accepted employment by appellant, (2) appellant’s “other” retained attorneys provided adequate counsel, and (3) the prosecution was not obstructing discovery. We have studied the transcript of that hearing and we find plenteous evidence from which the trial judge could permissibly have made these findings. We note, for example, that one of appellant’s attorneys had been retained eight weeks before trial and had filed various motions on his behalf and that another attorney had been on the case for at least one week. In the Vicars case, supra, we found no abuse of discretion in denying an eleventh hour request for continuance filed six days before trial. Under the circumstances outlined above, we are unable to perceive any abuse in the denial of this motion for continuance.

Second, appellant insists that the trial judge committed prejudicial error when she “forced” him to proceed to trial with counsel not of his own choosing. When the ease was called for trial on the scheduled day, appellant appeared in the company of the two attorneys discussed above. Appellant again requested a continuance and claimed that he had no trial counsel. The able District Judge thereupon appointed both of the previously-retained counsel to represent appellant and proceeded to trial. We have only recently had before us a case presenting remarkably similar facts. In United States v. Sexton, 5 Cir. 1973, 473 F.2d 512, the operative facts were as follows:

“On June 15, 1972, Sexton’s attorney petitioned the court to be discharged as court-appointed counsel in the case. On the same day Sexton filed a general motion for continuance on the ground that his newly retained counsel was to be engaged in another trial on the day prior to the date set for trial and thus would not have adequate time to prepare a defense. The Court issued an order denying the petition to discharge counsel as well as the defendant’s motion for continuance . . . Trial of the ease was commenced on June 20, 1972 and a jury verdict of guilty was returned on the following day. This appeal timely followed.”

Affirming Sexton’s conviction, we said,

“We hold that the trial court’s denial of Sexton’s motions did not deprive him of any constitutional right. While it cannot be disputed that the Sixth Amendment to the Constitution grants an accused in a criminal prosecution an absolute unqualified right to have the assistance of counsel for his defense, it does not necessarily follow that his right to a particular counsel is absolute and unqualified. United States ex rel. Baskerville v. Deegan, 2 Cir., 1970, 428 F.2d 714, cert. denied, 1970, 400 U.S. 928, 91 S.Ct. 193, 27 L.Ed.2d 188. Sexton’s freedom of choice of counsel may not be manipulated to subvert the orderly procedure of the courts or to interfere with the fair administration of justice. United States v. Terry, 5 Cir., 1971, 449 F.2d 727.
“Here it cannot be said that Sexton was denied ample opportunity to secure counsel of his choice [T]he defendant had sixty-eight days to contact and retain an attorney’s services. Nor can it be argued with any seriousness whatsoever that Sexton’s court-appointed counsel was ineffective . . . ”

The instant appeal is governed by the quoted portion of the Sexton case, and we perceive no error in the trial court’s proceeding to trial as it did. See also United States v. Abshire, 5 Cir. 1972, 471 F.2d 116.

Third, appellant urges that the evidence adduced below is insufficient to support the verdict of the jury. The duty of an appellate court when presented with a sufficiency of the evidence point is clear:

“It is not for us to weigh the evidence or to determine the credibility of witnesses. The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.”

Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, 704. See also Lacaze v. United States, 5 Cir. 1968, 391 F.2d 516, 519-520; Rodriguez v. United States, 5 Cir. 1967, 373 F.2d 17. We have here fulfilled our obligation to study all of the evidence adduced below, and we are convinced that the quality and quantity of the direct testimony, coupled with the inferences that may reasonably be drawn therefrom, exceeds the minimum from which a jury could reasonably find appellant guilty beyond a reasonable doubt.

Finally, appellant urges that the court below erred in instructing the jury regarding “accomplice testimony.” Appellant’s concern is apparently that the trial judge failed to advise the jury which witnesses were, as a matter of law, accomplices. We find, however, that the learned judge did instruct the jury that “An accomplice is one who unites with another person in the commission of a crime, voluntarily and with common intent.” The judge then instructed the jury on the weight and effect to be given to the testimony of alleged accomplices. The precise charge given below was also used in United States v. Easterly, 5 Cir. 1971, 444 F.2d 1236, 1239-1240, where we found the instruction adequate, and we can perceive no prejudice to appellant by the trial judge’s failure to mention which witnesses were accomplices. Appellant did not request an expanded or more specific instruction, see Rule 30, Fed.R.Crim.P., and as Easterly made clear,

“We cannot put the district court in error for refusing to give an instruction when none was requested and no apparent prejudice resulted.”

Id., 444 F.2d at 1239.

Affirmed.

      . Appellant operated a bail bond business in Dallas, Texas. A combined total of fifty-eight overt acts in furtherance of the conspiracy were charged in the two-count indictment, which included allegations that appellant systematically induced and coerced some of his bail bond customers to join him in disposing of stolen goods and forged securities.

      . Appellant apparently “discharged” these attorneys immediately after the denial of his motion for continuance.


author: KOELSCH, Circuit Judge. ELY, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Joe Charles WALTERS, Defendant-Appellant.
    No. 72-2360.
    United States Court of Appeals, Ninth Circuit.
    April 16, 1973.
    Rehearing Denied May 29, 1973.

      Laurie S. Harris (argued), Deputy, Federal Public Defenders, Los Angeles, Cal., for defendant-appellant.
    Earl E. Boyd, Asst. U. S. Atty. (argued), William D. Keller, U. S. Atty., Eric A. Nobles, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.
    Before BARNES, KOELSCH and ELY, Circuit Judges.
   KOELSCH, Circuit Judge.

Joe Walters appeals from a judgment convicting him of robbery of a national bank by force and violence [18 U.S.C. § 2113(a)].

During the early afternoon of Thursday, January 25, 1972, two men entered the Food Stamp Center department of the Security National Bank in Los Angeles, and committed the robbery with which this appeal is concerned. After one of the two robbers — the evidence as to which one is not clear — disarmed the bank guard at gunpoint, both proceeded to the tellers’ cages and filled their pockets with money before fleeing.

Unfortunately for the robbers, they were soon identified and arrested. Shortly before the robbery, a passerby had noticed a green Buick automobile park in the vicinity of the Bank. Her attention was attracted by the unconventional garb of the driver, who was wearing a large “floppy” brown hat and black shirt, and of the passenger, who had donned a woman’s red wig. Deeming them “suspicious” characters, she wrote down the Buick’s license number and, a few moments later, observed them run back to the vehicle and drive away at high speed.

That evening police officers and agents of the F.B.I., using the information gained from the automobile license number, went to the house of Zelma Shyne, the Buick’s owner. The officers’ knock on the front door of the house was answered by Zelma’s nine-year-old son who, after asking the officers whether they were “from juvenile,” went down a hall to the rear of the house, apparently to notify his mother. However, he left the door ajar and the officers, looking in, saw Walters enter the front room. Since he answered the description of one of the robbers, the several officers immediately entered with drawn guns and, while three of them detained Walters there, the others proceeded to the rear of the house looking for the second suspect. He wasn’t there but in a bedroom they found Zelma, her uncle and her mother standing nearby. Zelma told the officers that she had let Walters use the Buick earlier that day. She also stated that Walters, upon his return, had given her a considerable sum of money, which she produced from under the pillow of her bed and handed to an officer.

The officers then continued their inquiry and asked whether Walters had also given her a hand gun that afternoon. In response, she drew out a nickel-plated pistol, but the officers expressed no interest in it, perhaps because the only gun which either robber had displayed during the robbery was a dark-colored snub-nosed revolver. Zelma then produced such a revolver from under her mattress.

Walters was formally arrested without further ado. On the way to the police station, the officers questioned Walters, following a Miranda warning given by F.B.I. Agent Chamberlain. He gave several stories, all of them exculpatory. He explained that he had loaned the Buick to one Floyd Masterson that day and that Masterson had given him the money, including the two marked bills found upon his own person, and the revolver which he had given to Zelma. Throughout his questioning, he denied any complicity in the robbery.

The officers immediately went to Masterson’s apartment and arrested him. They found one of the stolen bills on his person and in the search of his apartment, pursuant to a search warrant, they also found a woman’s red wig, a large floppy brown hat, and the bank guard’s gun.

(1) The first paragraph of the one-count indictment charged both Walters and Masterson with bank robbery with force and violence, as defined in 18 U.S. C. § 2113(a), but the second paragraph added the 18 U.S.C. § 2113(d) provision to the charge against Walters. The result was that Masterson stood charged with “simple” bank robbery, while Walters was accused of the more aggravated, or subsection (d), form of the same offense, because of the use of a dangerous weapon. Green v. United States, 365 U.S. 301, 306, 81 S.Ct. 653, 5 L.Ed. 2d 670 (1961).

During the government’s case in chief the court, on motion of the district attorney, for reasons that need not be discussed, dismissed the subsection (d) portion of the charge against Walters.

Walters now contends that such dismissal constituted an impermissible' amendment of the indictment. The Fifth Amendment, in express language, makes the bringing of indictments the exclusive province of the grand jury. Any amendments to an indictment must be made by the grand jury alone. Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887). However, the action taken by the court in this case did not encroach upon the prerogative of the grand jury at all. Here the court simply withdrew a portion of the charge as laid; the offense remained the same, but the degree was reduced. See Salinger v. United States, 272 U.S. 542, 47 S.Ct. 173, 71 L.Ed. 398 (1926); Thomas v. United States, 398 F.2d 531 (5th Cir. 1967).

(2) Zelma was a witness for the prosecution. Because she was convalescing from recent surgery, she was permitted to testify out of order, as the government’s second witness, before any proof of the robbery or of Walters’ participation in it was presented. The dark-colored snub-nosed revolver, which she gave the officers at her home, was thus conditionally admitted into evidence as Exhibit 3-A, upon her identifying it as the gun given her by Walters on the day of the robbery.

Subsequently the government put on considerable proof, not only to establish the corpus delicti, but also tending to prove that Walters was an active participant in the commission of the robbery.

When the government rested, the court entertained Walters’ motion, among others, to strike from evidence the gun, which had been only conditionally admitted. That motion was denied.

Walters vigorously contends that the court’s admission of the gun into evidence, and the denial of his motion to strike, was prejudicial error. He stresses the fact that neither the bank guard nor any other eyewitness to the robbery was able to identify Exhibit 3-A as a gun used during the robbery. On this basis, he argues that the gun was irrelevant because not connected to the commission of the robbery, and that it served only to impermissibly show his bad character. He relies on Moody v. United States, 376 F.2d 525 (9th Cir. 1967). In Moody we held irrelevant, and prejudicially erroneous, proof that the accused kept a revolver in his car. Moody involved a charge of smuggling narcotics and, as we noted, a revolver “could only be regarded by the jury as indicating that the appellant was a bad man engaged in a criminal enterprise, who might shoot anybody who attempted to frustrate the illegal importation of heroin, although in the circumstances of [that] case the presence of the loaded gun was not relevant to any matter which the jury was called upon to decide.” 376 F.2d at 532.

But Moody affords Walters no comfort. The commission of the offense in Moody did not involve the use of force. Here it did.

A gun lacked relevance in Moody because it was not related to the crime of smuggling. But that is not true of the crime of robbery. In robbery force, or a threat of force, is essential. Obviously a gun is a useful instrument for a robber. Professor Wigmore points out: “As a general principle, then, the existence * * * of the physical * * * means to do an act is admissible as some evidence of the possibility or probability of the person’s doing * * * it.” 1 Wigmore, Evidence, § 83 (3rd ed. 1940). And Mr. Wharton, in his work on criminal evidence, writes: “It is also relevant to show that the defendant owned or had access to any article with which the crime was or could have been committed. * * * The possession by the defendant of a weapon or instrument of crime is relevant although there is no evidence that it was used in the commission of any particular crime, but there must be evidence that some crime was committed.” Wharton, Criminal Evidence, § 203 (12th ed. 1955). Nor is the proposition confined to text writers. Thus, in State v. Montgomery, 175 Kan. 176, 261 P.2d 1009 (1953), the Supreme Court of Kansas observed that:

“The books are full of eases holding that where an accused is identified as having been at or near the scene of a crime about the time of its commission evidence showing that he owned, possessed or had access to any articles with which the crime was or might have been committed is competent.” (Citations omitted). 261 P.2d at 1011.

And in People v. Powloski, 311 Ill. 284, 142 N.E. 551 (1924), the Supreme Court of Illinois, answering an argument that the court erred in admitting an unidentified gun into evidence where the charge was robbery, declared:

“[i]t is competent to prove that an accused, when arrested, possessed a weapon or tools suitable for the commission of the crime charged, even if no claim is made that the tools or deadly weapon was actually used in committing the crime.” 142 N.E. at 553.

More recently the Second Circuit, in reviewing a robbery conviction, has had occasion to consider and reject this same argument:

“Direct evidence of such possession would have been relevant to establish opportunity or preparation to commit • the crime charged, and thus would have tended to prove the identity of the robbers, the only real issue in this trial, [citations omitted].”

United States v. Ravich, 421 F.2d 1196, 1204 (2d Cir. 1970), cert. denied, 400 U.S. 834, 91 S.Ct. 69, 27 L.Ed.2d 66. See also, United States v. Fisher, 455 F.2d 1101 (2d Cir. 1972).

(3) Walters may not complain of the court’s refusal to grant his pretrial motion to order excluded at trial any evidence of. his prior state robbery conviction. He did not take the stand, and that conviction was never offered in evidence. As this court has recently held: “In electing not to take the witness stand, [the defendant] waived any objection regarding the admissibility of evidence concerning [his] * * * prior convictions.” United States v. Murray (9th Cir. 1973) (Slip opinion at 24).

(4) Walters’ remaining contentions lack any evidentiary support. The record plainly shows that the money and gun obtained from Zelma at her house were voluntarily given to the officers. Zelma so testified. They were not the product of a search.

The record similarly reveals that the officers fully advised Walters of his Miranda rights before questioning him. Thus, the statements which he made to the officers were not rendered inadmissible.

The judgment is affirmed.

ELY, Circuit Judge

(concurring):

I concur in the majority’s opinion. The only troublesome question involves the admission into evidence of a pistol not proved to have been used in the robbery. The majority correctly quotes from United States v. Ravitch, 421 F.2d 1196 (2d Cir. 1970), cert. denied, 400 U.S. 834, 91 S.Ct. 69, 27 L.Ed.2d 66 (1970). I think it desirable, however, to emphasize another portion of the Second Circuit’s language in that opinion. It reads:

“Notwithstanding the relevance of the guns and the ammunition, the trial judge would have been justified in excluding them if he decided that their probative value was outweighed by their tendency to confuse the issues or inflame the jury.”

421 F.2d at 1204. This qualifying language is significant. It more completely announces the proper and desirable standard, conferring upon our district judges the power to exercise reasonable discretion to the end that an accused not be unnecessarily or unfairly prejudiced. I have no reason to believe that my Brothers object to this recognition of the power of our district judges in that respect.

      . However, Masterson’s girl friend, Mary Jane Williams, who appeared at trial as a witness for the government, testified that both Walters and Masterson were together at the latter’s apartment shortly before the time of the robbery, that they left together, and reappeared approximately an hour later.


author: ALBERT V. BRYAN, Jr., District Judge:

text:
    UNITED STATES of America, Appellee, v. John Russell KARNAP, Appellant.
    No. 72-2000.
    Untied States Court of Appeals, Fourth Circuit.
    Argued Feb. 8, 1973.
    Decided April 20, 1973.

      Harvey M. Cohen, Huntington, W. Va., court-appointed (Naomi W. Cohen, Charleston, W. Va., on brief), for appellant.
    Wayne A. Rich, Jr., Asst. U. S. Atty. (John A. Field, III, U. S. Atty., on brief), for appellee.
    Before HAYNSWORTH, Chief Judge, BUTZNER, Circuit Judge, and BRYAN, District Judge.
   ALBERT V. BRYAN, Jr., District Judge:

Complaining that hearsay evidence was admitted against him and that he never received the order to report for induction, the defendant appeals his conviction on both counts of a two-count indictment charging (1) that he wilfully and knowingly failed to report for an Armed Forces physical examination, and (2) that he similarly failed to report for induction. 50 U.S.C. App. § 462. We affirm on both counts.

At his trial the evidence introduced by the United States included the classification questionnaire, Form 100, from the defendant’s Selective Service file on which were the entries “Did not report” on January 4, 1970, and February 1, 1970. These entries followed other notations indicating that the defendant was mailed a notice to report on the first date for a physical examination and on the second date for induction. In addition, two documents were introduced from the Selective Service file, one entitled Physical Examination List and the other designated Delivery List, on each of which appeared an “X” mark opposite the defendant’s name in the column headed “Failed to Report.” The witnesses who testified as custodians of the records concededly had no knowledge as to their truth, and the defendant objects to their introduction on the ground that they were hearsay. The question is whether these documents were properly introduced as substantive evidence of guilt either under the Federal Shop Book Rule, 28 U.S.C. § 1732, or as official government records under 28 U.S.C. § 1733.

The X marks on the Delivery List and on the Physical Examination List were not made in the office of the' Selective Service Board, but rather by an Army officer at the examining station where the defendant was supposed to report. A copy with the notations thereon was then returned to the Selective Service Board, kept in its file and maintained by that board in the ordinary course of business. Apparently the information on the classification questionnaire was based on the entries placed on the two lists.

Selective Service files have generally been held admissible as public documents under 28 U.S.C. § 1733. Penor v. United States, 167 F.2d 553 (9th Cir. 1948); United States v. Ward, 173 F.2d 628 (2nd Cir. 1949); United States v. Borisuk, 206 F.2d 338 (3rd Cir. 1953); Pardo v. United States, 369 F.2d 922 (5th Cir. 1966).

Technically the notations were not made by an employee of the local board in the ordinary course of the board’s business, but were made by an Army officer stationed at the examination station; however, the documents on which they appeared were received and kept in the ordinary course of the local board’s business. United States v. Harris, 446 F.2d 129, 131 (7th Cir. 1971). When viewed as statements made in the routine of the Army officer’s business these records would be admissible under 28 U.S.C. § 1732. United States v. Burruss, 418 F.2d 677 (4th Cir. 1969), does not dictate a contrary result. There the government sought to introduce the report of a police officer which contained the statement that certain automobiles, the subject matter of the criminal charge involved, had been stolen. This statement was based on information obtained from the owners of the cars. This is distinguishable from the instant case in that it is reasonable to infer that the third party here, the Army officer, was “acting routinely, under a duty of accuracy, with employer reliance on the result, or in short ‘in the regular course of business.’ ” Proposed Rules of Evidence for the United States Courts and Magistrates, Rule 803(6), Advisory Committee’s Note, 56 F.R.D. 183, 308.

If the Army officer who made the entry is considered an ad hoc official of the Selective Service System as set forth in LaPorte v. United States, 300 F.2d 878, 881 (9th Cir. 1962), then the documents are viewed as official statements and are admissible under 28 U.S.C. § 1733. United States v. Holmes, 387 F.2d 781 (7th Cir. 1968).

Admissible under either section, they make out a prima facie case of the defendant’s failure to report and where, as here, there is no evidence to the contrary, they are sufficient to establish that as a fact.

Defendant’s second ground of appeal is that because there is no evidence that he ever received actual notice of the induction order, he cannot be convicted of wilfully and knowingly failing to report for induction as charged under Count II.

The facts necessary to determine this question are as follows: On June 15, 1969 the defendant advised the local Selective Service Board that his address would thereafter be 203 Green Oak Drive, Huntington, West Virginia. On or about September 24, 1969, he wrote the board that his address “while at N. Y.U. is: ... 2207 University Ave., Bronx, N. Y.” On March 16, 1970, he again wrote the board that “My present local address while attending New York University is . 1920 Osborne Place, Apt. 2C, Bronx, N. Y.” On December 16, 1970, the local board sent out two (2) copies of SSS Form 223 (Order to Report for Physical Examination) — one of these copies was sent to 1920 Osborne Place in New York and the other to the West Virginia address. The former was returned with the notation, “Return to Writer, Moved, Left No Address,” while the latter, addressed to 203 Green Oak Drive, Huntington, West Virginia, was delivered and the receipt, on which had been stamped, “Deliver to Addressee Only,” was returned signed by the defendant. On January 12, 1971, the local board mailed out its Form 252 (Order to Report for Induction) but this time sent only one copy, that going to the West Virginia address, by registered mail, return receipt requested, with the same notation of “Deliver to Addressee Only.” This notice directed the defendant to report for induction on February 1, 1971, but it was returned to the board as “Unclaimed” on February 1, 1971.

32 CFR § 1641.3 establishes the effect of mailing a notice to the “last reported” address. It provides as follows:

“It shall be the duty of each registrant to keep his local board advised at all times of the address where mail will reach him. The mailing of any order, notice, or blank form by the local board to a registrant at the address last reported by him to the local board shall constitute notice to him of the contents of the communication, whether he actually receives it or not.”

The advice to the Board on March 16, 1969 that the defendant’s address would be 1920 Osborne Place, New York “while attending New York University” was, by its very terms, notice of a temporary address. There was no indication that the West Virginia address was not still his permanent address. When mail addressed to the New York residence was returned with the notation that the defendant had “Moved, Left No Address” while mail sent at the same time was being received personally by the defendant at the West Virginia address, it was apparent that the temporary stay, at least at that address, was terminated. It would have been useless for the board to send later notices to New York. The West Virginia address was, in fact, the defendant’s “last reported” permanent address.

In United States v. Bowen, 414 F.2d 1268 (3rd Cir. 1969), 32 CFR § 1641.3 was declared invalid because, as the jury was instructed by the trial court in that ease, the regulation created an irrebuttable presumption that mail sent was received. We need not decide that, however. The district court here, in its charge to the jury, made no mention of any presumption nor was any reference made to the regulation. The essential elements of the offense, including the requirement of knowledge and intent, were properly included in that charge. Unaided by any presumption the jury found the existence of these elements.

Indeed, appellant does not argue that the regulation is invalid. He argues only that it required that notice be sent to the New York address, a point which we have already treated. Both he and the government view the presumption as rebuttable. We share that view; and, so viewed, the regulation passes muster on due process grounds.

It has been suggested that the return of the notice marked “unclaimed” rebutted the presumption; however the notice was sent to the address reported by the defendant as the one where mail would reach him. Mail had reached him there four (4) weeks earlier. From these circumstances the trier of fact could infer and find absent some explanation, that “unclaimed” was because of defendant’s own conduct, and that the defendant should not be allowed to complain of lack of notice.

We have examined the other claimed errors including the district court’s charge, or lack of it, relating to the documents admitted in evidence and the method by which the district court arrived at the length of the sentence imposed and find them to be without merit.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Joe SUMMERVILLE, Defendant-Appellant.
    No. 72-3789
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 17, 1973.

      William P. Johnson, Carrollton, Ga., for defendant-appellant.
    John W. Stokes, Jr., U. S. Atty., P. Bruce Kirwan, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

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

   PER CURIAM:

Joe Summerville, his wife Evelyn Lue Summerville, and their daughter, Betty Lue, were convicted by a jury of possessing and transporting 105 gallons of nontaxpaid whiskey in violation of 26 U.S. C.A. § 5604(a)(1). Joe Summerville appeals his sentence of two years in the custody of the Attorney General on two grounds: (i) that the whiskey was discovered through an illegal search and the evidence produced by it should have been suppressed and (ii) that his sentence was unduly influenced by the introduction of his prior record, some of the items thereon being erroneously reported as convictions when they were not. Finding both contentions without merit, we affirm.

Search

The record indicates that the government agents had received a tip regarding Mr. Summerville. They were told that “there was supposed to be some liquor either brought to the Summerville residence or there was someone going to leave the residence and go and pick some up.”

On the strength of this tip from a “reliable informant” the agents conducted a stakeout of the Summerville residence (which is also apparently the location of the appellant’s business) beginning at 11:00 p. m. of the night of July 2, 1972. At about 4:15 a. m. on July 3, 1972, from their vantage point across the road from the house, the agents observed a light come on and some movement on the premises. A few minutes later they saw three persons enter a 1963 white Ford automobile and drive off. They followed this vehicle for a while, using a “leapfrog” technique where two vehicles alternate following the suspect car in order to avoid detection by those under surveillance. At one point, the officers lost sight of the Summerville car. One agent testified that when the vehicle had originally left the family house, it was riding with its trunk higher in the air than was normal for that make of car. After losing sight of the car, the agents later found the vehicle again about 40 minutes later. This time, the vehicle was riding low “as if it were weighted down.” The agents pulled the car over and approached it. One agent who approached the car testified that he could smell the aroma of “moonshine whiskey” emanating from the car. After all three occupants were out of the car, an agent shined his flashlight into the back seat and rear floorboard of the car. He saw a number of clear plastic, one-gallon jugs there. Subsequently, the car was searched at the agents’ headquarters and some 105 gallons of illicit whiskey were uncovered— 33 one-gallon jugs in the back seat and floorboards of the car, and 72 one-gallon jugs in the trunk.

Summerville’s chief contention is that, based on the informant’s tip, the government agents had probable cause to secure a warrant at the time of the stakeout of his home and that since they failed to obtain one then, the subsequent discovery of the whiskey in the vehicle was an unconstitutional search and should have been suppressed. We cannot agree with this.

The agents had not sufficient information upon which to justify the issuance of a warrant by a detached magistrate. All they knew was that appellant might come into possession of some moonshine sometime in the near future. There were no details indicating the method or circumstances under which the crime would occur. There were no objective facts corroborating the story, save the knowledge of one Alcohol, Tax and Firearms Division agent that “ever since I have been here in Newnan for approximately three years I have received information that Mr. Summerville was bootlegging moonshine whiskey.”

This was not sufficient evidence to put before a magistrate during the afternoon and evening hours of July 2, 1972. More was needed. Spinelli v. United States, 1968, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; Whiteley v. Warden, 1971, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306; Bailey v. United States, 5 Cir., 1967, 386 F.2d 1, 3; Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.

Only when the tip was corroborated by some objective or tangible evidence could the agents justify a search. Aguilar v. Texas, supra. As it happened though, the point at which this independent and corroborative evidence was observed was when the defendant (and his family members) were in the very vehicle which was searched.

It is now reasonably settled that a search of a vehicle which has the capacity to convey its occupants and possible contraband contents to a place of refuge from a warranted search, may be searched without a warrant provided there is “probable cause” to suspect the commission of a crime or the possession of contraband. Carroll v. United States, 1925, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Brinegar v. United States, 1949, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; United States v. Brown, 5 Cir., 1969, 411 F.2d 478; Williams v. United States, 5 Cir., 1968, 404 F.2d 493.

Clearly this was the case here. The agents who had “tailed” the suspect car could not reasonably halt the car at any time prior to that which they did. They had observed the car “riding high” with its rear end jacked up on special supporting springs prior to the time they lost sight of the car. Later, when they regained contact with it, the car seemed to be heavily weighted down. This fact in connection with the tip now presented sufficient probable cause to halt the vehicle, to search for illicit whiskey, without a warrant. Draper v. United States, 1959, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed. 2d 327; Gonzales v. Beto, 5 Cir., 1970, 425 F.2d 963; Davis v. Smith, 5 Cir., 1970, 430 F.2d 1256, 1260. See also, Clay v. United States, 5 Cir. 1956, 239 F.2d 196.

No warrant was required since the occupants of the car might reasonably be expected to move the car to a place of hiring or dispose of the suspected contraband. Carroll v. United States, supra.

The actual search of the vehicle' was properly conducted. The agents smelled whiskey from five to ten feet away and saw sitting on the back seat, plastic jugs of the type they knew to be commonly used by the local rumrunners. Thus we conclude the search was legitimately based on probable cause and was conducted at a point when no warrant was needed due to the location of the contraband in a readily movable vehicle. Appellant’s contention that the agents had to seek a warrant many hours earlier based on the informant’s tip simply has no foundation in fact, or precedent in law.

Sentence

Appellant’s contention that his sentence was unduly influenced by his prior record is simply without merit. The hearing on sentencing was conducted about two weeks after the trial. It takes up 15 pages of the record. A careful reading of the report of that hearing clearly reveals that: (i) the defendants were adequately represented by Counsel, (ii) each was given a chance to speak up and in fact, Mr. and Mrs. Summerville each did have exculpatory statements to make in their own behalves, (iii) Counsel for appellant vigorously challenged the accuracy of Mr. Summerville’s record, (iv) the trial court recognized the inaccuracies and agreed to take into account only those convictions which were acknowledged as valid, and (v) the trial judge based his sentence primarily on his perception that Summerville had used his wife and 18 year old daughter as decoys in the illegal operation. Accordingly, we find there is neither an action based upon misinformation, nor an abuse of discretion.

Affirmed.

      . From the transcript of the October 20, 1972 hearing where appellant challenged the sufficiency of the probable cause for the search.

      . Transcript of the October 20, 1972 hearing at p. 40. See footnote 1, supra.

      . The jury evidently chose not to believe Mrs. Summerville’s statement that she knew of no whiskey in the car nor could she smell any there. Trial transcript page 161.

      . The sentence was two years in the custody of the Attorney General. 26 U.S.C.A. § 5604 provides for jiunishment by imprisonment for up to five years and fines of up to $10,000 for each offense. The sentence imposed was certainly far from the maximum.

      . We quote from a portion of the trial judge’s statements in passing sentence on the defendant:
      * * * !¡: *
      “In the case of Mr. Joe Summerville, I will only take into consideration the conviction, the 1939 conviction, driving under the influence, and the 1965 conviction of possession and transportation of whiskey in Carroll County, Georgia, in passing upon his sentence.
      “What is of more significance to me than his past record is the manner in which this crime was committed and the manner in which he used his family in order to commit the crime. I have no respect or I can’t tolerate any man who would use his family, especially a seventeen-year-old girl, seventeen years old at that time, drive around in the middle of the night carrying a load, carrying 105 gallons of whiskey. Appears to me very strongly, after I heard the evidence in this case and all the testimony in the case, that this — he was using his wife and his daughter more as a sham or decoy to keep anybody from stopping him from carrying whiskey. Otherwise, why in the world would any man, who had any other lawful business at that hour of the morning, 3:00 or 4:0O or 5:00 o’clock in the morning, be out with his family driving around.
      “The evidence is pretty clear on that. It’s almost undisputed. And that’s the most serious thing in this ease.”

      (Emphasis supplied).


author: TUTTLE, Circuit Judge:

text:
    Willard BROXSON, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Respondent-Appellee.
    No. 72-2675.
    United States Court of Appeals, Fifth Circuit.
    May 3, 1973.
    Lewis F. Ray, Jr., Pensacola, Fla. (Court Appointed), for petitioner-appellant.
    Robert L. Shevin, Atty. Gen., Raymond L. Marky, Andrew W. Lindsey, Asst. Attys. Gen., Tallahassee, Fla., for respondent-appellee.
    Before TUTTLE, GODBOLD and MORGAN, Circuit Judges.
   TUTTLE, Circuit Judge:

This habeas corpus case is before this court for the second time. Broxson, the habeas corpus petitioner and appellant herein, in 1963 pled guilty to five counts of an information charging him with robbery and he was sentenced to concurrent terms of six months to twenty years imprisonment. He is currently incarcerated at Raiford State Prison in Florida, his parole from the 1963 sentence having been revoked.

Once in 1964 and again in 1966 Broxson applied to a United States District Court in Florida for a writ of habeas corpus which both times was denied without hearing. In his second such petition he alleged (1) that he was illegally arrested without a warrant, and that his home and automobile were illegally searched; (2) that there was an unreasonable delay in taking him before a committing magistrate; (3) that following his arrest he was held incommunicado for a period of several days during which time he was coerced into signing a confession; (4) that he was denied an attorney of his choice and had inadequate time to prepare his defense; and (5) that he was afforded ineffective assistance of counsel. The district court concluded that these allegations had been raised and determined in the prior habeas corpus proceeding and refused to consider them anew. Broxson appealed to this court (Broxson v. Wainwright, 372 F.2d 944 (C.A. 5, 1967)) and we characterized the issue involved as follows:

“The threshold question, given the fact of a guilty plea, is whether the plea of guilty was voluntarily and understandingly made. Thus the sole question presented on this appeal is whether Broxson’s allegations form such a contrary basis as to warrant reversal for a hearing on the question of whether the pleas of guilty were coerced. All of the other errors asserted occurred prior to the pleas and may not now form the basis for collateral relief until and unless the pleas of guilty are set aside.”

We concluded that the allegations in the petition, taken separately or in sum, were insufficient to impugn the pleas of guilty, and on that basis refused to remand the case for a hearing.

It is noted that each of Broxson’s allegations in this earlier petition related to events precedent to his pleas of guilty and since none was jurisdictional in nature, any objection relative thereto was waived by entry of the pleas. Busby v. Holman, 356 F.2d 75 (C.A. 5, 1966). We have carefully studied the record of the case and the only allegation in Broxson’s prior petition which might arguably be said to have impugned the validity of the guilty pleas is his statement that just prior to the entry of such pleas “the petitioner and three alleged co-defendants was (sic) all taken into a small room to consult with the lawyer, that during these proceedings one of the interrogating officers was present while the lawyer was to be discussing the defendants’ case, that the attorney and officer talked in private before the lawyer came on into the room, that the attorney only advised the petitioner and his co-defendants to finish pleading guilty . . .” This allegation, we think, fell far short of raising a substantial question as to whether Broxson was coerced into entering his pleas of guilty.

However, in his present petition Broxson squarely raises an issue of fact with respect to coercion. He avers, among other things, that “the pleas of guilty of the petitioner were not freely and voluntarily made but was (sic) predicated upon . . the belief instilled in the petitioner that he would be shot and killed; that his wife and sister would be seriously harmed and sexually molested ; and that his children would be adopted out by the police and the welfare department if he did not cooperate and plead guilty.” Moreover, with reference to the events transpiring immediately prior to his entry of the guilty pleas Broxson makes additional allegations of fact, not present in his earlier petition, to wit, that his court appointed attorney “failed to obtain the petitioner privacy while- conferring with the petitioner and the other defendants, in that he allowed a police detective, Tommy Ray, who was the investigating officer of the petitioner’s case, and the officer had threatened to shoot and kill the petitioner if he did not plead guilty, and during the pretrial conference the police officer used coercements (sic) on the petitioner, and thwarted the petitioner from obtaining advice from the court appointed attorney . .

On the basis of the foregoing we conclude that Broxson has raised in his present petition an issue not heretofore raised, i. e., whether his pleas of guilty were coerced, which entitles him to a hearing on the merits of his application for writ of habeas corpus. See Fontaine v. United States, 411 U.S. 213, 93 S.Ct. 1461, 36 L.Ed.2d 169 decided April 12, 1973. Accordingly, the case is remanded to the district court for a hearing and further proceedings not inconsistent with this opinion.


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Larry SMITH, Defendant-Appellant.
    No. 72-1728.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 16, 1973.
    Decided April 12, 1973.
    Rehearing Denied May 4, 1973.
    Murry L. Randall, St. Louis, Mo., for appellant.
    Robert B. Schneider, Asst. U. S. Atty., St. Louis, Mo., for appellee.
    Before MATTHES, Chief Judge, ROSS and STEPHENSON, Circuit Judges.
   PER CURIAM.

Larry Smith appeals from his conviction, after a trial to the court, of knowingly possessing an unregistered firearm in violation of 26 U.S.C. §§ 5861(d) and 5871. We affirm the judgment of conviction.

The firearm in question is an unserviceable Thompson submachine gun. There is no challenge to the proof of possession by Smith, but rather, he bases his appeal from his conviction on two points: First, that the welded receiver of the gun was not a firearm within the meaning of the National Firearms Act, and therefore was not required to be registered, and secondly, that the Government did not prove that Smith had knowledge that the inoperative gun had to be registered.

26 U.S.C. § 5861(d) provides in pertinent part that it is unlawful “to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record;” 26 U.S.C. § 5845(a) states that “firearm” as used in the Act includes machinegun; and 26 U.S.C. § 5845(b) defines machine-gun as follows: “The term ‘machine-gun’ means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” The key question in the first issue raised by the appellant then becomes whether or not the machinegun in question could be “readily restored to shoot, automatically . . . . ” Since the trial court did not make a specific finding in this regard, we remanded with the request that a finding be made as to whether or not the machinegun could be readily restored to shoot automatically as provided in 26 U.S.C. § 5845(b).

The trial court then made the requested finding as follows:

“The sole evidence on the issue as to which our findings are directed is that given by Robert J. Scroggie, a firearms enforcement officer with the Alcohol, Tobacco, Firearms Division of the United States Treasury Department. He testified, and we find, that the gun was registered [to a former owner] as an unserviceable Thompson submachine gun, the registration form stating that the barrel was filled with metal. This statement indicated to Scroggie that the barrel was welded so that the weapon was not in fireable condition.
“There were two welds in the gun which obviously was, when manufactured, ‘designed to shoot.’ The barrel of the gun was welded closed at the breech and was also welded to the receiver on the outside under the hand-guard. Scroggie testified that there are two possible ways by which the firearm could be made to function as such. The most feasible method would be to cut the barrel off, drill a hole in the forward end of the receiver and then rethread the hole so that the same or another barrel could be inserted. To do so would take about an 8-hour working day in a properly equipped machine shop. Another method which would be more difficult because of the possibility of bending or breaking the barrel would be to drill the weld out of the breech of the barrel.
“The term ‘readily restorable to shoot’, as used in Section 5845(b) is not defined, so that whether a firearm is capable of being ‘readily restorable to shoot’ is a matter of judgment. In view of the object of the statute and the context of the legislation as a whole, we find as a fact that the gun in question is capable of being ‘readily’ restored to shoot automatically even though the process of restoration would require a working day for that purpose.”

We have examined the record, including the transcript of the testimony of agent Scroggie, and conclude that the proof relating to the restoration of the machinegun is exactly as described by the trial court and that this constituted “substantial evidence, taking the view most favorable to the Government, to support the fact determination by the trial court. ...” See United States v. Rischard, 471 F.2d 105, 107 (8th Cir. 1973). We conclude, therefore, that the trial court correctly determined that the machinegun in this case could be readily restored to shoot automatically and that it was required to be registered.

Smith’s second allegation relating to the necessity of alleging and proving knowledge that Smith knew the gun had to be registered is likewise without merit. The Supreme Court has specifically held that the Act

“requires no specific intent or knowledge that hand grenades were unregistered. It makes it unlawful for any person ‘to receive or possess a firearm which is not registered to him.’ By the lower court decisions at the time that requirement was written into the Act the only knowledge required to be proved was knowledge that the instrument possessed was a firearm. See Sipes v. United States, [8th Cir.] 321 F.2d 174, 179, and cases cited.” United States v. Freed, 401 U.S. 601, 607, 91 S.Ct. 1112, 1117, 28 L.Ed.2d 356 (1971).

Smith surely could not have felt that the machinegun in question was not a “firearm” in view of the fact that he had concealed the weapon under a shed back of his trailer and asked the sum of $300.00 for it. He finally sold it for $175.00. Under these circumstances, he can hardly claim that he thought it to be completely useless as a weapon and contrary to allegations of Smith’s counsel, the rationale of United States v. Freed, supra, is controlling. In that case, the Supreme Court noted:

“They [hand grenades] are highly dangerous offensive weapons, no less dangerous than the narcotics involved in United States v. Balint, 258 U.S. 250, 254, [42 S.Ct. 301, 66 L.Ed. 604] where a defendant was convicted of sale of narcotics against his claim that he did not know the drugs were covered by a federal act. We say with Chief Justice Taft in that case:
‘It is very evident from a reading of it that the emphasis of the section is in securing a close supervision of the business- of dealing in these dangerous drugs by the taxing officers of the Government and that it merely uses a criminal penalty to secure recorded evidence of the disposition of such drugs as a means of taxing and restraining the traffic. Its manifest purpose is to require every person dealing in drugs to ascertain at his peril whether that which he sells comes within the inhibition of the statute, and if he sells the inhibited drug in ignorance of its character, to penalize him. Congress weighed the possible injustice of subjecting an innocent seller to a penalty against the evil of exposing innocent purchasers to danger from the drug, and concluded that the latter was the result preferably to be avoided. Id., at 253-254, [42 S.Ct., at 302-303].” Id. at 609-610, 91 S.Ct. at 1118.

Cf. United States v. Wiley, 72-1516 (8th Circuit, April 20, 1973); Bryant v. United States, 462 F.2d 433, 435 (8th Cir. 1972); United States v. Crow, 439 F.2d 1193, 1195 (9th Cir. 1971), vacated on other grounds, 404 U.S. 1009, 92 S.Ct. 687, 30 L.Ed.2d 657 (1972).

For the reasons hereinbefore set forth we affirm the judgment of conviction.