author: GEE, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. William X. BECKHAM, a/k/a William X. Motley, William 56X, William Moore and Jerry Moore, Defendant-Appellant.
    No. 74-1782.
    United States Court of Appeals, Fifth Circuit.
    Jan. 6, 1975.

      George L. McWilliams, Texarkana, Tex. (Court-appointed), for defendant-appellant.
    Roby Hadden, U. S. Atty., Tyler, Tex., J. C. Hawthorn, Charles E. Myers, Asst. U. S. Attys., Beaumont, Tex., for plaintiff-appellee.
    Before TUTTLE, RONEY and GEE, Circuit Judges.
   GEE, Circuit Judge:

William X. Beckham was indicted in Texas on fifteen counts of stealing, possessing and obstructing the flow of the mails in violation of 18 U.S.C. 1702 and 1708. At trial, Beckham was found guilty on six counts, the remaining counts being dismissed on motion of the government. Defendant thereafter perfected this appeal, complaining that evidence should have been excluded since seized in violation of the Fourth Amendment, that an in-court identification should have been disallowed, and that his Sixth Amendment right to speedy trial was denied.

On June 3, 1971, a black man riding a bicycle and dressed in blue jeans, a red hat, a white shirt and a red tie was observed by Ernest Watson removing mail from the mail box of Mrs. Clara L. Davis. When Mrs. Davis returned home, Mr. Watson informed her of the incident. She notified the police; Mr. Watson gave them a description. Later that day police officers stopped Beckham, who was riding his bicycle and dressed as described. Beckham agreed to accompany the officers to Mrs. Davis’ home. On the way, the officers decided to search Beckham’s bicycle basket. The missing mail was found in the basket. Beckham contends that this search was an unconstitutional one and that the mail should have been excluded as evidence at trial. The trial court found that Beckham had voluntarily consented to the search.

One established exception to the Fourth Amendment’s warrant and probable cause requirements is the search conducted with consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Garcia, 496 F.2d 670, 673 (5th Cir. 1974). The existence of consent is a question of fact to be determined from the totality of circumstances. Schneckloth v. Bustamonte, supra, 412 U.S. at 227, 93 S.Ct. 2041, 36 L.Ed.2d 854. The prosecutor’s burden of showing voluntary consent is met here. Officer McCombs testified that Beckham had given his consent; both Officer McCombs and Officer Pilant had testified that Beck-ham was cooperative from the initial contact and had agreed to allow Mr. Watson a chance to identify him. Beckham was not under arrest at the time of the search. In any case, custody is only one fact to be taken into account. United States v. Garcia, supra, 496 F.2d at 673. Not surprisingly, appellant denies he gave consent and points out that it defies logic to find that one who denies guilt would consent to a search knowing that incriminating evidence will be found. Be that as it may, Beckham had already consented to allow Mr. Watson an attempt at identification. At trial, eyewitness identification could be as damning as evidence of possession of the stolen mail. We cannot say that the trial court, called on as it was to determine the witnesses’ credibility, erred in finding voluntary consent.

Appellant next contends that the identification procedure used after the arrest was so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny him due process. Further, he says, no counsel was present at the identification as constitutionally required, and, as a result, Watson’s in-court identification was improperly admitted. Assuming that the identification procedure used by the police was unnecessarily suggestive, there was still no constitutional violation. Not only must the identification procedure be unnecessarily suggestive, but also, the procedure must have created “a substantial risk of misidentification.” Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Rudd v. Florida, 477 F.2d 805, 809 (5th Cir. 1973). See also United States v. Allen, 497 F.2d 160 (5th Cir. 1974). Watson testified that he knew Beckham before the mail theft, that he had bought papers from him previously and that Beck-ham was the only person so dressed whom he had ever seen in the neighborhood. He saw Beckham remove the mail from Mrs. Davis’ mailbox across the street during daylight hours. Each identification was certain. Finally, on cross-examination Watson rejected the idea that he had identified the culprit as Beckham solely on the basis of his costume. Given Watson’s positive identification at trial and his previous acquaintance with Beckham, the risk of mistake was small and the in-court identification stands. United States v. Sutherland, 428 F.2d 1152, 1156 (5th Cir. 1970). Finally, there was no right to counsel at the show-up since no adversary judicial criminal proceedings had been initiated at the time. Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); United States v. Abshire, 471 F.2d 116, 119 (5th Cir. 1972).

Appellant’s contention that he was denied the right to a speedy trial fares no better. Beckham was arrested and a complaint filed in 1971. At the hearing Beckham revealed that he was wanted for homicide in Pennsylvania. Subsequently, the complaint was dismissed in favor of the Pennsylvania prosecution. Beckham waived extradition. When the Pennsylvania charges were later dropped, the United States Attorney for the Eastern District of Texas reopened the mail tampering case. Beckman was indicted in 1973 and convicted in 1974 on the Texas charges. In this case Beckham was arrested, released and again arrested. Given the intervening release, this circuit’s post-arrest, pre-indictment test for speedy trial may not apply, and appellant could be restricted to a due process complaint. We need not decide which standard is appropriate. Due process would be violated if in addition to showing substantial actual prejudice the accused could show that the prosecution had intentionally employed the delay to gain a tactical advantage. United States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); United States v. Zane, 489 F.2d 269, 270 (5th Cir. 1973), cert. denied, 416 U.S. 959, 94 S.Ct. 1975, 40 L.Ed.2d 310 (1974). Under our post-arrest, pre-indictment test, defendant is required to make a substantial showing of actual prejudice if the limitations period has not run. United States v. Palmer, 502 F.2d 1233, at 1235 (5th Cir., 1974); United States v. Zane, supra. On either theory, substantial actual prejudice — absent here — is required. Beckham testified that, because of the lapse of time and his impression that he had no need to preserve his defense after the 1971 dismissal of charges, he was unable to remember the names of people who might aid him in his defense. However, he failed to indicate how those people would have been able to assist his case. “A general allegation of loss of witnesses and failure of memories is insufficient to establish prejudice.” United States v. Zane, supra. Beckham also testified to mental anguish on learning that he had been indicted on the Texas charges. Personal hardship can be considered, United States v. Palmer, supra at 6; however, this was not a period of extended mental suffering since Beck-ham had for two years thought the 1971 dismissal permanent. Moreover, since he was not under arrest or detainer as a result of the Texas crime, his liberty was not curtailed during the two-year period. Any anxiety during the two-year period likely resulted from the Pennsylvania murder charges, not the Texas mail-tampering ones. His feeling of distress on learning of the Texas indictment in 1973 does not rise to the level of substantial actual prejudice.

There remains one issue which requires development on remand. Beck-ham testified that he had waived extradition in return for the government’s dismissal of the charges. The government made no reference to a bargain; however, the government did state that Beckham informed the Texas Magistrate that he was wanted for homicide in Pennsylvania and that the mail theft charges were then dismissed in favor of the Pennsylvania prosecution. The record contains no finding of the existence vel non of a bargain, nor any consideration by the trial court of the possible impact of such principles of prosecutorial good faith as are instanced by Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). We remand for findings of fact and conclusions of law on this issue.

Affirmed in part, remanded in part.

      . Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

      . The distinctive clothing worn by Beckham was the garb worn by all Black Muslims in the area.

      . Q. These are members of the Muslem religion that you mentioned a few minutes ago.
      A. Yes.
      Q. And you could identify them as such primarily by the way they dressed, could you not?
      A. I know people. I don’t know — you know, I know my people.
      Q. All right.
      A. And I know their favor and everything so I don’t have to guess about it. I know them.
      Tr. 83.

      . “But the major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused’s defense. To legally arrest and detain, the Government must assert probable cause to believe the arrestee has committed a crime. Arrest is a public act that may seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and friends.”
      United States v. Marion, 404 U.S. 307, 321, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971) (emphasis added).

      . Q. And you waived extradition and went back to Pennsylvania under the belief that the charges would be dropped and forgotten about?
      A. This is the offer that was provided for me and I accepted it.
      TR. 283.


source: Caselaw Access Project

author: SIMPSON, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jack MEKJIAN, Defendant-Appellant.
    No. 73-3841.
    United States Court of Appeals, Fifth Circuit.
    Jan. 6, 1975.

      Theodore Klein, Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Robert C. Byrne, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Appeal from the United States District Court for the Southern District of Florida.
    Before BELL, SIMPSON and IN-GRAHAM, Circuit Judges.
   SIMPSON, Circuit Judge:

After a jury trial, appellant, an osteopath practicing in Fort Lauderdale, Florida, was convicted upon sixteen counts of a sixty-count indictment for violations of Title 18, U.S.C., Sec. 1001. Eighteen counts, Counts 1, 7, 14, 18, 21, 27, 34, 36, 37, 38, 39, 43, 48, 50, 52, 54, 56 and 60, were submitted to the jury, Mekjian being acquitted as to Counts 1 and 48. Each count involved the submission of false claims to Blue Shield as agent of the Social Security Administration under the Medicare program. He received concurrent sentences under the split sentence provisions of Title 18, U. S.C., Sec. 3651 to 18 months imprisonment, of which 15 days were to jail confinement with the remainder suspended under two years probation. A single $5,000 fine was also imposed. Dr. Mekjian asserts four errors in the trial court: (1) the failure of each count of the indictment to charge that the offense was done “willfully”; (2) the admission into evidence of history files of the Bureau of Health Insurance without proper authentication; (3) the admission into evidence of copies of patient records photocopied by a former employee without permission; and (4) the denial of a motion for a judgment of acquittal on counts- as to which no live witness testimony was offered by the prosecution. We reverse for failure of the indictment to allege the essential element of “willfulness.” We agree that the history files were improperly authenticated. The remaining two contentions we regard as insubstantial, but we discuss them for the benefit of court and counsel in the event of re-indictment and retrial. ’

Medicare is a program administered by the Social Security Administration (SSA), an agency of the United States Department of Health, Education and Welfare (HEW). Title 42, U.S.C., Sec. 1395 et seq. (1970). Florida Blue Shield (BS), a private insurance carrier, was under contract with the SSA to process and pay Medicare claims. See Title 42, U.S.C., Sec. 1395u. A physician rendering services to Medicare patients may either bill the patient, who in turn submits a claim to BS, or, if an assignment is executed by the patient and physician, may bill BS directly. During the period covered by the indictment, appellant obtained the necessary assignments and submitted numerous “Requests for Medicare Payment” forms (SSA Form 1490), with representations therein that the indictment alleged were knowingly false. Specifically, he was charged with submitting bills for care never performed, with billing for Dura-bolin injections when in fact he had given B-12, and with submitting bills for laboratory work done in his office when in fact he had sent the work out to an independent laboratory. The significance of the latter two allegations was that re-imbursement was not permitted for a B-12 injection except in designated categories of cases, Medicare Part B, Intermediary Manual Sec. 6103.1, and (a change in) prescribed billing procedures required that work done by an independent laboratory be so indicated on the 1490’s. Intermediary Manual, Sec. 6235.2.

Each count of the indictment contained similar wording except for differences in dates, patients’ names, and in the underlying activities alleged. The statutory language “willfully” was not employed in any count. Defense counsel moved prior to trial to dismiss the indictment for failure to allege the essential element of “willfulness”. The trial court denied the motion at that time and again when it was renewed at the close of the evidence. The judge did, however, give instructions to the jury that proof of willfulness was required to sustain conviction.

A large part of the government’s evidence was based upon copies of records made and given to the government by a nurse, Mrs. Jones, a former employee in the doctor’s office. Disturbed by what she considered to be fraudulent conduct, she talked to a Mr. McDonnell, an employee of Florida Blue Shield and BS’s manager of Medicare Part B for the State of Florida, over the telephone on October 21, 1971 and thereafter forwarded copies of records she had xeroxed with a cover note. On October 26, she sent a letter further substantiating her allegations. She was not in contact with either the government or BS from that time until late December, when she forwarded a copy of another patient chart to Blue Shield. On January 13, 1972, two FBI agents went to her home and told her not to copy any more patient charts. At that time, she turned over several more that she then had in her possession. In spite of the FBI’s instructions she sent copies of more records in August 1972. The trial court, after a hearing, denied a motion to suppress, finding that no fourth amendment violation had occurred because the search and seizures were conducted solely by a private individual.

At trial, the government sought to prove that a change in coverage and billing procedures had taken place, that appellant was aware of such changes, and that he had altered his billing procedures accordingly. To this end, a letter sent out by BS to participating physicians notifying them of such changes was introduced into evidence. The government also sought to introduce a Medicare manual on coverage issued by the SSA to carriers, including BS. Because there was no testimony as to the currency of the manual at the time in issue, the document was ruled inadmissible. But the government was successful in introducing relevant portions of the manual contained in the history files of the Bureau of Health Insurance through the testimony of Mr. Harold Fishman, Chief of the Instructions Coordination Branch in the Bureau of Health Insurance of the SSA. The Instructions Coordination Branch does precisely what its name indicates; it coordinates and issues instructions of the Bureau of Health Insurance to carriers, including BS, who process claims. These instructions are sent out in the Medicare manual, noted above. In the event interim changes are made, intermediary letters are issued. Mr. Fishman testified thai his office maintains history files on all revision transmittals issued (i. e. all changes in the manual), which are kept in the ordinary course of business and under his care, custody and control. The standards contained in his files were admitted into evidence over appellant’s objection.

Appellant asserts that the failure of the indictment to allege that the charged offense was committed “willfully” requires reversal of his conviction. We agree, and hold that “willfulness” is an essential element of a Sec. 1001 offense which must be alleged in haec verba or by words of similar import.

This court has recognized that an indictment must set forth all essential elements of an offense in order to apprise a defendant of the charge he must meet and to protect against double jeopardy. United States v. Fischetti, 5 Cir. 1971, 450 F.2d 34, 39, cert. denied, 405 U.S. 1016, 92 S.Ct. 1290, 31 L.Ed.2d 478. If this requirement were to be undermined, a defendant would have no assurance that a grand jury would have returned an indictment against him. United States v. Denmon, 8 Cir. 1973, 483 F.2d 1093, 1095.

The initial question for consideration, then, is whether “willfully” is an essential element of a Sec. 1001 offense. We answer this question in the affirmative. The statute uses both “willfully” and “knowingly” in defining the offense. Each encompasses a different element of the requisite mens rea, requiring differing proof. “Knowingly” under Sec. 1001 requires proof that a defendant acted “with knowledge.” See McBride v. United States, 5 Cir. 1955, 225 F.2d 249. “Willfully” under Sec. 1001 requires proof that a defendant acted “deliberately,” or “deliberately and with knowledge.” Id. at 253-255; see United States v. Parten, 5 Cir. 1972, 462 F.2d 430, 432-433. Each must be proved beyond a reasonable doubt, as the district court recognized by so instructing the jury. See 225 F.2d at 253; Walker v. United States, 10 Cir. 1951, 192 F.2d 47, 49. It follows that, if a defendant is to be assured that he is being called to answer only to a grand jury indictment, is to be protected against double jeopardy, and is to be apprised of the charge he must meet in order to challenge effectively the government’s proof, an allegation that the act alleged was done willfully must appear in the indictment.

“Willfulness” not being specifically alleged, the next question is whether the counts submitted to the jury contained words of similar import. We determine that they did not.

The government contends that from the allegations of “fraudulent statement,” “as he then knew he had not performed such services,” “knowingly,” and the facts as set forth in the several counts, a charge that the acts were done “willfully” may be implied. We reject this contention because, as noted above, to act “willfully” means to act “deliberately.” None of the allegations relied upon by the government import more than that the defendant acted “with knowledge,” a separate and distinct element of a Sec. 1001 offense.

The similar import doctrine advances the policy, reflected in F.R.Cr.P. 7(c), against fine-combing indictments for technical errors. But the words of similar import must be clear enough to insure that the indictment meets the purposes it is intended to serve. Such assurance is not present here.

Our decision in United States v. Fischetti, 5 Cir. 1971, 450 F.2d 34, cert. denied, 405 U.S. 1016, 92 S.Ct. 1290, 31 L.Ed.2d 478 controls this question. The indictment in that case charged the defendant with demanding, requesting and agreeing to receive and accept money from an employer engaged in an industry affecting interstate commerce in respect to his actions as an officer of a labor organization, in violation of Title 29, U.S.C., Sec. 186(b)(1). The statutory requirement that this be done “willfully” was omitted from the indictment. Although the issue before the court was whether an amendment to the indictment by the trial court was permissible, this court found the change to be a substantial one in the nature of the offense charged. Judge Dyer stated:

When the original indictment was returned in this case, the substantive counts did not allege that the appellants had “willfully” violated the statute. Willfulness is specifically set out in the statute sub judice. It is thus an essential element of the offense and such statutory requirement cannot be ignored. (Citations omitted) It must be alleged and proved in order to obtain a conviction. Id. at 39.

In an indictment comparable to the present one, this court found that “[t]his essential element cannot be implied from a reasonable reading of the language of the indictment.” Id. Where an essential element is omitted, a trial court’s instructions to the jury on the necessity of finding the missing element will not cure the error. See Den-mon, supra 483 F.2d at 1097.

Inasmuch as the government may later try the appellant upon a new indictment, we address the remaining grounds of claimed error.

Appellant argues that the government failed to authenticate properly the history files admitted into evidence on the basis of Mr. Fishman’s testimony as government composite exhibit 17. He urges that copies of official records of the Bureau of Health Insurance can be admitted into evidence only if their authenticity is certified by the Secretary of HEW or those to whom he has delegated this authority by virtue of Title 42, U.S.C., Sec. 3505. Relevant delegations and redelegations have been made only to the Assistant Secretary for Administration and the Director and Deputy Director of the Bureau of Health Insurance. 32 Fed.Reg. 17550 (1967); 32 Fed.Reg. 17866 (1967); 33 Fed.Reg. 2613 (1968); 34 Fed.Reg. 13046 as amended by 37 Fed.Reg. 10602 (1972). Therefore, he continues, the government must offer properly certified copies of the rules then in effect or those individuals authorized to certify authenticity must appear in court to lay the predicate for the admission of the history files. We agree.

The government contended in the court below and urges on appeal that the history files were properly received in evidence under the business records statute, Title 28, U.S.C., Sec. 1732. The government misconceives the scope and purpose of this statute. Sec. 1732 is a codification of the shop book rule. It is not, and was not intended to provide, a catchall which will allow the government the benefit of introducing any documents it wishes in order to avoid the authenticating procedures directed by other statutes when Sec. 1732 is inapplicable. One could as logically qualify a copy of an Act of Congress kept in a congressman’s file as a business record within the meaning of Sec. 1732 as the document in issue here.

The district court allowed the files into evidence, apparently impressed by the fact that these documents appear to carry indicia of their reliability on their face and' evidently reassured that Mr. Fishman’s testimony settled earlier confusion as to effective dates of coverage.

While acknowledging that “[t]he trial court has a broad zone of discretion in determining the admissibility of documents,” United States v. Miller, 5 Cir. 1974, 500 F.2d 751 (1974), we opine that these files were improperly received as evidence of authorized standards. Despite the documents’ appearance of reliability statutory requirements were not here complied with, and the documents in the form proffered should have been excluded.

Appellant’s third contention is that his fourth amendment rights have been violated by allowing into evidence copies of records made by a nurse while in his employ. A delineation of the time sequence involved and the evidence adduced is necessary in order to understand the objections raised. In October, 1971, Dr. Mekjian’s office nurse, Mrs. Jones, began making photocopies of the records. On October 21, she contacted Mr. McDonnell, an employee of BS, to ask where she could forward information she had obtained on Medicare fraud. In the phone call she stated that she has some of the patient charts and records and that false claims had been submitted. At that time she refused to reveal her identity. Mr. McDonnell notified his supervisor of the call, indicating that a woman had “agreed” to supply him with some patient records. On October 27 Mr. McDonnell received the first batch of records, mailed a few days earlier. Mrs. Jones included a note which contained the statement, “Here is some material I promised you”, and indicated that more material would follow. She testified she wrote another letter on October 26. This letter was received October 28. It stated that she had been planning to leave but “decided to stay until I could find some way to try to right this terrible wrong that was taking place.” In late December, she forwarded copies of another record. On January 13, 1972, FBI agents contacted her for the first time and told her not to copy any more records. They did, however, accept from her records which she had copied between October and January. She disregarded their directive and copied another record in August 1972, the Norman Drug records. At no time until the January 13 visit by the FBI did the government tell Mrs. Jones not to send information or not to copy any more records. According to her testimony, the government did not know she was copying records until her initial contact with Mr. McDonnell, nor did it know she would continue to do so.

Appellant argues that any records copied after the initial contact with the government’s agent, BS, are inadmissible. When the government then becomes aware that an illicit search is being conducted by a private person, it is under an affirmative duty to direct that such activity cease and may not take use of the fruits of any continued search. For at that point, appellant contends, there is government participation and knowledge which subjects the later searches to the full panoply of fourth amendment protections. The government, in response, contends that the search was conducted entirely and solely by a private individual, and as such is not subject to" the fourth amendment. After a full hearing on a motion to suppress, the district court rejected appellant’s contentions. The ruling of the district court was not clearly erroneous. The evidence was properly allowed before the jury for consideration in the circumstances presented here.

Burdeau v. McDowell, 1921, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 has made it clear that the fourth amendment was intended as a restraint on the activities of the government and its agents and is not addressed to actions, legal or illegal, of private parties. Where no official of the federal government has any connection with a wrongful seizure, or any knowledge of it until after the fact, the evidence is admissible. See United States v. Harper, 7 Cir. 1971, 458 F.2d 891, cert. denied, 406 U.S. 930, 92 S.Ct. 1772, 32 L.Ed.2d 132; United States v. McGuire, 2 Cir. 1967, 381 F.2d 306, cert. denied, 389 U.S. 1053, 88 S.Ct. 801, 19 L.Ed.2d 848; Barnes v. United States, 5 Cir. 1967, 373 F.2d 517. No objection, therefore, has been raised or could be raised as to the admissibility of any records copied before the initial contact of Mrs. Jones with BS.

A much more difficult issue arises once the government is contacted. The fourth amendment is given a generous interpretation in order to insure that its safeguards are not evaded by circuities. Byars v. United States, 1927, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520. Fourth amendment protections can be effectively undercut by the intervening agency of non-governmental individuals. Accordingly, where federal officials actively participate in a search being conducted by private parties or else stand by watching with approval as the search continues, federal authorities are clearly implicated in the search and it must comport with fourth amendment requirements.

The leading case in this area is Lustig v. United States, 1949, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819. There a federal agent joined an illegal search while it was in progress, picking and choosing objects which could aid in a federal prosecution. The Court pointed out that a search is a functional, not merely a physical process. It is not completed until effective appropriation, as part of an uninterrupted transaction, is made. Because the federal agent joined the search before it was completed, the evidence was excluded. The Court went on to state that a search is a federal search if the federal agent has a hand in it. It is not if the evidence obtained by state authorities is turned over on a silver platter. ■ Although the “silver platter” doctrine allowing fruits of illegal state searches to be freely received in the federal courts has now been abrogated, Elk-ins v. United States, 1960, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669, that former rule has its analogue in the law governing searches conducted by private individuals. Cases holding that fourth amendment rights have been violated by the intervening agency of non-governmental individuals have usually involved searches conducted by private persons under the active supervision of state or federal authorities, but it is equally clear that such protections may be as effectively undercut by private individuals conducting a search with government knowledge and consent, tacit or explicit, even though the government authorities have removed themselves from the immediate physical scene. See Knoll Associates, Inc. v. FTC, 7 Cir. 1968, 397 F.2d 530.

In any search conducted by a private individual in which the evidence is later turned over to federal authorities, and especially where as here the evidence is turned over in several stages, the question arises whether or not there was such participation by the federal authorities as to require a holding that they had a hand in it. “The decisive factor in determining the applicability of the Byars case,” making a search a federal one, “is the actuality of a share by a federal official in the total enterprise of securing and selecting evidence by other than sanctioned means.” Lustig, 338 U.S. at 79, 69 S.Ct. at 1374, 93 L.Ed. at 1823. It must be remembered nevertheless that the fourteenth amendment is aimed at governmental action. Action clearly private is outside its scope.

The decision here, then, finally revolves around the factual situation with regard to government participation and government knowledge that an illegal search was being conducted and that the government would be the beneficiary of such misconduct. If government officials were aware, or should have been aware, that Mrs. Jones was removing and copying records for their use, they will not be permitted to stand by or blink their eyes and accept the benefit of her activities. On the other hand, absent governmental knowledge, actual or implicit, that she would continue to copy records after her phone call with Mr. McDonnell and absent encouragement or cooperation, the evidence was admissible. The meaning of the statements made with regard to promises to send information depend upon the context in which they were made and the credibility of witnesses. This appraisal was a role most appropriate for the trial judge. We cannot say that his finding of non-governmental involvement on this record was clearly erroneous.

Appellant’s final contention is that a judgment of acquittal should have been granted on 13 counts involving no live-witness testimony by appellant’s patients. These thirteen counts were proved by the absence of supportive entries in the patient records. Appellant’s wife would work on the charts at home when sending out bills. If a patient was treated while Mrs. Mekjian had the charts, treatment would be noted on a separate piece of paper. Mrs. Jones characterized the patient charts as “loose”. In addition, Mrs. Jones only removed a portion of the patient file. Appellant urges that this evidence lacks sufficient earmarks of trustworthiness to carry the issue to the jury. We are not persuaded by this contention.

The test to be applied upon review of a denial of a motion for a judgment of acquittal has been stated as follows:

“[o]n a motion for judgment of acquittal, the [appellate] test is whether, taking the view most favorable to the Government, a reasonably-minded jury could accept the relevant evidence as adequate and sufficient to support the conclusion of the defendant’s guilt beyond a reasonable doubt. [I]n criminal cases based on circumstantial evidence our task is to determine whether reasonable minds could conclude that the evidence is inconsistent with the hypothesis of the accused’s innocence.” (Citations omitted) . Weighing the sufficiency of the evidence in such a case does not depend upon whether “in the opinion of the trial judge or the appellate court the evidence fails ■ to exclude every reasonable hypothesis, but that of guilt, but rather whether the jury might reasonably so conclude.” (Citations omitted).
United States v. Edwards, 5 Cir. 1974, 488 F.2d 1154.

See also Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, 704.

The government’s evidence in support of these thirteen “no live witness” counts consisted in the main of the absence of supportive entries on patient charts for which bills were submitted. The chart entries primarily reflected different treatment from that billed. Outside laboratory and hospital records were introduced in support of the government’s case. In addition to the testimony of Mrs. Jones, there was testimo-ered for Dr. Mekjian while the latter ny by a physician, Dr. Tucker, who cov-was hospitalized, as to services rendered which contradicted statements in the Form 1490’s submitted by appellant. We find the patient charts and supportive evidence sufficient to withstand a motion for judgment of acquittal. The trial court’s denial of such a motion was proper.

Reversed.

      . Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both. Title 18, U.S.C., Sec. 1001 (1970).

      . A typical count of the indictment charged that appellant knowingly did make and cause to he made a false, fictitious and fraudulent statement and representation as to material facts in a matter within the jurisdiction of the Department of Health, Education and Welfare, Social Security Administration, an agency of the United States, in that in a document entitled “Bequest for Payment” (Form SSA-1490), submitted to Blue Shield of Florida, Inc., acting as agent for said Social Secui'ity Administration, Jack Mekjian stated and represented that he had performed certain medical services upon . . . [named individual], to wit: . . . [named services and date of services] whereas in truth and in fact as he then knew he had not performed such services, in violation of Title 18 United States Code, Sections 1001 and 2. (emphasis added)

      . Although we note that Fischetti did not involve a Sec. 1001 offense, the principle of that case nevertheless controls. The only Sec. 1001 case we have found where “willfully” was omitted failed to indicate what allegations of fact the court found sufficient to save the indictment. United States v. Okin, D.C.N.J.1955, 154 F.Supp. 553. It therefore, can offer little comfort to the government.

      . The Administrator of the Federal Security Agency [Secretary of Health, Education, and Welfare] is authorized to adopt an official seal to be used as directed by the said Administrator [Secretary of Health, Education, and Welfare] on appropriate occasions in connection with the functions of such Agency [Department of Health, Education, and Welfare] or of any office, bureau, board, or establishment which is or shall hereafter become a part of such Agency [Department of Health, Education, and Welfare], and such seal shall be judicially noticed. Copies of any books, records, papers, or other documents in the Federal Security Agency [Department of Health, Education, and Welfare] shall be admitted into evidence equally with the originals thereof when authenticated under such seal. Title 42, U.S.C., Sec. 3505.

      . For the kind of record coming within this exception, see Hanley v. United States, 5 Cir. 1969, 416 F.2d 1160, cert. denied, 397 U.S. 910, 90 S.Ct. 908, 25 L.Ed.2d 91, and cases cited therein. The records were “created in the ordinary course of business affairs, as routine recurring entries to identify routine transactions,” attesting to their trustworthiness. Id. at 1167. Further,
      The purpose of this law was to render unnecessary the strict requirements of the common law for producing as witnesses every person who had anything to do with the record in order to prove its authenticity. Stegemann v. Miami Beach Boat Slips, 5 Cir. 1954, 213 F.2d 561, 563.
      In La Porte v. United States, 9 Cir. 1962, 300 F.2d 878 a document was accurately described as falling within the purpose and scope of Sec. 1732 because it was a
      “contemporaneous record of events, systematically prepared by an agency for its own use and relied upon by it in the performance of its functions, which experience has shown to be trustworthy . . Id. at 880.

      . In the trial court and on brief the United States has contended as noted in the text, that these documents should have been received under Title 28, U.S.O. Sec. 1732, the business records statute. No mention is made of the following section, Sec. 1733(a) of Title 28, which deals with admission of books or records of account or minutes of proceedings of any department or agency of the United States, “to prove the act, transaction or occurrence as a memorandum of which the same were made or kept”.
      Our view would remain the same if the documents had been offered as qualified under Sec. 1733(a). These history files of the Bureau of Health Insurance were clearly not “books or records of account or minutes of proceedings” of a department or agency of the United States.
      Sec. 1733(b) provides for admission of properly authenticated copies or transcripts of books, records, papers or documents of any department or agency of the United States.

      . From the records, briefs, and oral argument, it is unclear whether the records Mr. McDonnell received on October 27 had been made before the initial phone call on October 21 or had been made after that phone call. It is also unclear exactly what records are being objected to. At oral argument, appellant’s counsel stated that the first batch was not being objected to. If some of those records were copied after the first phone call with Mr. McDonnell, however, they are subject to the same objection as is raised to copies made later.

      . See e. g., United States v. Payne, 9 Cir. 1970, 429 F.2d 169; Moody v. United States, Mun.App.D.C.1960, 163 A.2d 337.

      . Byars v. United States, 1927, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520.

      . Thus, government action was present in the taking in Knoll Associates, Inc. v. FTC, 7 Cir. 1968, 397 F.2d 530, where federal authorities were not physically present. An employee of defendant’s agent stole a document for the purpose of assisting the FTC counsel in the prosecution of a pending proceeding. The court ordered the material suppressed on the basis that the FTC, by its use, knowingly gave its approval to the unlawful act.

      . Dr. Tucker did not bill Medicare directly for services he rendered in appellant’s office. Dr. Mekjian, rather, billed Medicare for these services.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert Clinton TYLER, Defendant-Appellant.
    No. 73-3320.
    United States Court of Appeals, Fifth Circuit.
    Jan. 8, 1975.

      Sam W. ■ Kleinfeld, Miami, Fla. (Court-appointed), for defendant-appellant.
    Robert W. Rust, U. S. Atty., Michael Patrick Sullivan, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before BROWN, Chief Judge, and TUTTLE and SIMPSON, Circuit Judges.
   SIMPSON, Circuit Judge:

Robert Clinton Tyler was indicted below under Counts I and V of a five-count indictment charging violations of narcotics laws. Count I charged that Tyler and two others conspired to possess cocaine with the intent to distribute it, in violation of Title 21, U.S.C. Sec. 846. Count V charged that Tyler and one of the alleged co-conspirators, Ramon Armand, actually possessed approximately 823 grams of cocaine with the intent to distribute it, in violation of Title 21, U.S.C. Sec. 841(a)(1). From jury verdicts of guilty on both counts and judgments of conviction entered thereon, Tyler brings this appeal. We reverse.

The Facts

Government agents had been observing and negotiating with Tyler’s alleged co-conspirator, Ramon Armand, from February 1 to March 29, 1973, hoping to uncover Armand’s source of cocaine. During this period a government agent had made one purchase of approximately 378 grams of cocaine from Armand. On March 29, Armand met government undercover agent Gillis at a Denny’s Restaurant in North Miami, Florida, and the two discussed possible purchase by Gillis of two kilograms of cocaine from Armand.

Details were arranged for a transaction to take place later that evening. Armand stated that he was obtaining cocaine from a “new source.” Armand and Gillis, pursuant to these arrangements, met at Armand’s apartment at approximately 5:30 that afternoon. The agreement called for Gillis at this point to pay Armand the $25,000 purchase price for the cocaine in advance and wait in the apartment while Armand left to obtain the cocaine, return and deliver it to Gillis. But Gillis now indicated that he wished to see a sample of the cocaine before parting with the $25,000. Armand agreed with this. After pausing to count the money, he left in his automobile, ostensibly to get the cocaine sample.

Armand was under surveillance from the time that he left his apartment. Government agents testified that he drove to a garage apartment, later identified as the appellant Tyler’s residence. Armand parked his automobile and ascended the stairs to the apartment, where he disappeared from the agent’s view. Within about five minutes Armand left the apartment and reentered his automobile, driving around the streets near Tyler’s apartment for a short while. He then returned to the apartment and talked briefly with an individual on the street corner. There is conflicting testimony whether this individual was the appellant Tyler. Armand then went upstairs once more to Tyler’s apartment.

Shortly thereafter, Armand came down from the apartment followed by Tyler. Armand in his car and Tyler in his van drove to the vicinity of Armand’s apartment. Once there, Armand parked near his apartment and joined agent Gillis in Gillis’s automobile. Tyler parked his van some distance behind Armand’s car, got out and stood waiting with a Chivas Regal liquor carton under his arm. Gillis testified that he asked Armand where the cocaine sample was and Armand replied that he had brought the entire quantity with him and that his source was also with him, gesturing in Tyler’s direction. Gillis immediately placed Armand under arrest and radioed other agents to close in and arrest Tyler.

Agent Hill approached Tyler and informed him that he was under arrest. After advising Tyler of his right to remain silent, Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, Hill asked Tyler whose “stuff” he had in the Chivas Regal carton. Tyler responded that it was his. Examination of the contents of the carton revealed a plastic bag containing what was later proved to be the 846 grams of cocaine. Hill then asked Tyler “Who is the man?” and “Where’s the other kilo at?” At this point, according to Tyler’s testimony, he responded “Right now I really don’t know what you’re talking about, because I really am not going to answer any questions, because I don’t know what you’re talking about.”

At trial, Tyler explained his refusal to answer questions with the following: “I didn’t know what was going on and he [Agent Hill] was telling me anything I said might be used against me.” Tyler explained his possession of the Chivas Regal carton containing the cocaine by stating that a fellow musician, Pepe Rodriguez had introduced him to Armand one afternoon at a rehearsal session. The following day, Pepe brought the Chivas Regal carton with him to Tyler’s apartment where another rehearsal was scheduled. As Pepe prepared to leave the apartment later in the day, he explained to Tyler that he was expecting his friend Ramon (Armand) to come by and asked Tyler if he would mind giving Ramon the Chivas Regal carton when he came. Tyler agreed and placed the carton on a table in the corner of his living room. Tyler testified that the carton was “all folded up and sealed up like it was new.” Only moments after Pepe left, Ramon arrived at the apartment and asked where Pepe was. Tyler responded that he had just left. The two went onto the stair landing to see if they could not overtake Pepe, but he was nowhere to be seen. Ramon then asked whether Pepe had left anything for him, to which Tyler answered that he had and indicated the Chivas Regal carton in the corner of the living room. Ramon then asked Tyler whether he would like to come to Ramon’s apartment to join some friends for some drinks, and Tyler answered that he would. Ramon then told Tyler to bring the Chivas Regal carton and to follow him. As it turned out, the party at Armand’s was a bust.

Issues on Appeal

Tyler urges that reversible error occurred in the trial below in two respects. The first ground is that hearsay testimony as to Armand’s identifying him as his source was improperly allowed to go to the jury. The government did not call Armand to the stand to testify, although he was apparently in custody in Miami and available at the time of trial. Tyler contends that there was insufficient independent evidence of his participation in a conspiracy with Armand to warrant admission of the hearsay under the co-conspirator exception to the hearsay rule. He asserts further that introduction of the hearsay denied him his Sixth Amendment right to confront and cross-examine the witnesses against him. Cf. Dutton v. Evans, 1970, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213. Because we decide the case on the co-conspirator exception to the hearsay rule, we find it unnecessary to reach this alternative contention.

We determine that there was an insufficient independent showing that Tyler entered into a conspiracy to distribute cocaine to permit admission of Armand’s statement under the co-conspirator exception to the hearsay rule. The test of admissibility of such hearsay is whether the government has, through independent evidence, established a prima facie case of conspiracy. United States v. Oliva, 5 Cir. 1974, 497 F.2d 130, and cases cited therein. One of the essential elements of a conspiracy charge is an intent to agree to do a wrongful act. Absent a showing of this intent, one may not be convicted of conspiracy.

The element of intent must usually be proved by circumstantial evidence. Nonetheless intent must be shown, and a conviction upon the basis of association alone may not stand. United States v. Martinez, 5 Cir. 1973, 486 F.2d 15; Panci v. United States, 5 Cir. 1958, 256 F.2d 308. Here, the only independent proof of concerted action was testimony as to Armand’s visits to Tyler’s apartment in the hour immediately preceding their arrest. There was no evidence as to what transpired inside Tyler’s apartment. Further there was no showing that Tyler and Armand had engaged in prior transactions or that Tyler had in any way been involved in illicit drug traffic. In fact, government agents testified that in the two months that they had been contacting and surveying Armand they had never seen Tyler or been led to his apartment.

It may be that Tyler was in fact the source of the cocaine. However, it is equally possible that Tyler’s exculpatory story is true. In either case, the jury should be asked to evaluate the credibility of Tyler’s story in the absence of the damning comment of the alleged co-conspirator and known drug pusher Ramon Armand unless the government is able to come forth with more substantial evidence of actual existence of a conspiracy, or alternatively, unless Armand is called to the stand and directly gives evidence of Tyler’s participation.

For the trial judge’s failure to exclude the hearsay from the jury’s consideration we reverse and remand for a new trial. The case should not be re-tried unless the government attorney makes an advance representation to the trial judge that it has substantial independent evidence — in addition to that offered at this trial — of Tyler’s participation in a conspiracy to distribute cocaine.

The second ground urged as reversible error by Tyler is that the trial judge allowed the prosecutor, during closing argument to the jury, to comment on Tyler’s failure to make to the arresting officers the exculpatory explanation of his possession of cocaine offered by his trial testimony. Because we reverse on the hearsay issue, it is unnecessary to decide whether this comment was proper in the circumstance of the trial. We note, as did the trial judge, that Tyler himself testified that he declined to answer questions from the arresting officer ’ both because he was confused and because he had been warned that anything he said might be used against him at trial. In this setting it may well have been permissible, as the trial judge held, for the prosecution to cast doubt upon Tyler’s testimonial explanation by commenting on his failure to offer such an explanation at the time of his arrest. We do not anticipate that this circumstance is likely to recur at a subsequent trial.

As to whether such prosecutorial comment might pass muster where the defendant has not raised the issue of his failure to answer questions sua sponte, we reach no conclusion. The government argues that such comment would be permitted under this court’s decision in United States v. Ramirez, 5 Cir. 1971, 441 F.2d 950. A possible factual difference may distinguish this case from Ramirez. The Ramirez opinion does not indicate whether the defendant there was given the Miranda warnings. Miranda v. Arizona, supra. The court’s reliance on Harris v. New York, 1971, 401 U.S. 222, 91 S.Ct. 648, 28 L.Ed.2d 1, might be taken as an indication that no Miranda warnings were given since Harris involved a statement taken without adequate Miranda warnings, whose use for impeachment in rebuttal was sanctioned. The Supreme Court expressly ruled in Miranda that comment on silence at the time of arrest is impermissible. 384 U.S. at 468 n. 37, 86 S.Ct. at 1624, 16 L.Ed.2d at 720. Whether Ramirez does indeed control in the circumstances here presents a close question which we find unnecessary to decide in this case.

Finally, the United States suggests that since concurrent sentences within the statutory maximum were imposed, we should here apply the “concurrent sentence” doctrine and thereby preserve intact the conviction under Count V for possession of cocaine with intent to distribute, under Title 21, U.S. C., Sec. 841(a)(1). This suggestion will not stand analysis.

The conviction under Count V was also fatally infected with Agent Hill’s hearsay testimony as to Armand’s statements implicating Tyler. Tyler’s testimony admitted possession of the Chivas Regal package when he was approached and arrested by Agent Hill. But he offered an innocent explanation for that possession and denied an intent to distribute the substance or even knowledge of the contents of the package. Indeed, as to Count Y the government did not have the claimed benefit of the co-conspirator hearsay rule. On a fortiori grounds, the conviction under that count must fail. Tyler, we hold, is entitled as to Count V also to have the question of his guilt considered without Agent Gil-lis’s hearsay testimony of Armand’s statements being brought out before the jury.

Reversed and remanded.

        . Two surveilling government agents saw the meeting. One testified that the person with whom Armand met was definitely the appellant Tyler. The other agent testified that the individual was not the appellant,

      . See Agnellino v. New Jersey, 3 Cir. 1974, 493 F.2d 714, 728 (Seitz, C. J. concurring); contra, id. at 719, n. 14 (Hunter, C. J. for the court).

      . For an example of this court’s application of the doctrine see, United States v. Vigo, 5 Cir. 1970, 435 F.2d 1347, 1352.