author: COFFIN, Chief Judge.

text:
    In the Matter of Samuel A. BITHONEY.
    No. 71-1114 Original.
    United States Court of Appeals, First Circuit.
    Argued Sept. 11, 1973.
    Decided Oct. 23, 1973.

      Lawrence P. Cohen, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for petitioner.
    John P. White, Jr., Boston, Mass., with whom Crane, Inker & Oteri, Boston, Mass., was on brief, for respondent.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   COFFIN, Chief Judge.

This is an original proceeding to determine whether disciplinary action should be taken against Samuel A. Bithoney, a member of the bar of this court. On April 9, 1971 the United States Attorney for the District of Massachusetts filed a Petition for Disciplinary Action against respondent, and an Order to Show Cause was issued by this court on the same day. After respondent had filed an answer, these proceedings were stayed during the pendency of a criminal action instituted against respondent in the United States District Court for the Western District of New York on an unrelated matter. Upon final disposition of that criminal action, the stay in these proceedings was vacated, the Petition for Disciplinary Action having been amended to reflect respondent’s conviction on a criminal charge, and a hearing was held before this court on September 11, 1973, at which hearing oral arguments were heard and sworn testimony was taken.

I — FACTS

On November 25, 1969 respondent filed in this court Petitions for Review in the cases of Angelo Coviello v. INS (No. 7472), Luciano Pino and Rosa Pino v. INS (No. 7473) and Raffaele Iacadoro v. INS (No. 7474). In all of these immigration cases the effect of the filing was to cause an automatic stay of deportation under the provisions of 8 U. S.C. § 1105a(a)(3). In each case the government moved for summary judgment and the subsequent course of events is described in our Memorandum and Order entered on January 20, 1970:

“[The government’s] motions to dismiss with accompanying memoran-da were filed in the above three cases on December 23, 1969. No response having been received from counsel for the petitioners [Mr. Bithoney], the Clerk, at the court’s instruction, notified counsel that the motions would be granted unless memorandum in opposition thereto was presented by 10:00 A.M. January 9, 1970. Instead of presenting a memorandum in opposition counsel filed, late, on January 12, motions for leave to file answers late. On said date counsel was again notified that there was required a legal memorandum showing legal cause, supported by authorities, why the motions to dismiss should not be allowed, said memorandum to be filed by January 19, by the Clerk. Nothing has been forthcoming.
“The motions to dismiss are allowed on the merits, and alternatively they are allowed for want of diligent prosecution by petitioners.”

We then went on to warn:

“This court does not propose to have appeals taken simply for the purpose of staying an enforcement of immigration orders, and when prosecution is not diligently pursued, the court presumes that this was the purpose.”

On March 12, 1970 respondent filed a Petition for Review in the case of Rocco D’Allesio et al. v. INS (No. 7566). As in the three prior cases deportation was automatically stayed. Again the government’s motion for summary judgment elicited no opposing memorandum of law and the petition was dismissed. The petition was found “totally lacking in merit”.

On August 5, 1970 respondent filed two more petitions for review in immigration cases, causing stays in deportation. On this occasion a prehearing conference was held and at the specific request of the court Mr. Bithoney submitted a memorandum of law supporting his clients’ position. The court concluded that the petitions were “patently frivolous” and granted summary judgment for the government on November 12, 1970. In the opinion in that case we made the following observation:

“One final matter. In the case of petitioner Lucia D’Allesio lack of merit in the claim was fully and finally adjudicated by this court in an earlier proceeding. In addition, counsel has been expressly warned in the order in another proceeding of the seriousness of filing frivolous petitions under this statute. The ordinary frivolous case merely consumes time, and inconveniences the opposite party and the court. A frivolous petition to review a deportation order stays the entire deportation procedure and affords immediate relief regardless of the insub-stantiality of the claim. In the light of this warning, and possibly even without such caution, considering the total clarity of the statute, it may be that counsel deliberately intended to abuse the process of this court in order to obtain an undeserved benefit for one or all of his clients. We refer this question to the U. S. Attorney to institute disciplinary proceedings if he believes it appropriate.” [Footnote omitted.] Panagopoulos v. Immigration and Naturalization Service, 434 F.2d 602, 603-604 (1st Cir. 1970).

On August 21, 1970 respondent filed one, and on August 26, 1970 two more, petitions for review in immigration eases. In all three cases this court granted summary judgment for the government and ordered that mandate issue immediately “because of the total frivolousness” of the petitions.

On January 8, 1973 respondent’s conviction on two counts of aiding and abetting the making of a false acknowledgment (in violation of 18 U.S.C. §§ 2, 1015), a felony, was affirmed, United States v. Samuel A. Bithoney, 472 F.2d 16 (2d Cir. 1973), and certiorari was denied on June 11, 1973, 412 U.S. 938, 93 S.Ct. 2771, 37 L.Ed.2d 397.

II — ISSUES PRESENTED

The government in its Petition for Disciplinary Action urges that respondent Samuel Bithoney has violated his oath as a member of this court’s bar, taken pursuant to F.R.A.P. 46(a), in that he did not “demean [him]self . . . uprightly and according to law”. The government also urges that respondent has been “guilty of conduct unbecoming a member of the bar of the court”, which, under F.R.A.P. 46(b), is grounds for suspension or disbarment from the bar of a court of appeals, and under F.R.A.P. 46(c) is grounds for other “appropriate disciplinary action” against anyone who practices before the court. Two separate reasons are given by the government for a finding that respondent should be punished pursuant to F.R. A.P. 46. The first is his course of conduct in filing nine petitions for review in immigration eases in nine months, all of which were found to be frivolous, not diligently pursued, or both, and six of which were filed after this court’s explicit warning in Angelo Coviello v. INS. The second reason is Mr. Bithoney’s felony conviction for aiding and abetting the making of a false acknowledgment.

Respondent defends, first, on the grounds that his conduct in filing the immigration appeals cannot constitute a violation of the obligations of an attorney as defined in F.R.A.P. 46, even though all of them were found by the court to be frivolous, in view of an attorney’s obligation to his clients to represent them “zealously”. Second, respondent urges that even if his conduct violated Rule 46, that rule is so vague that its enforcement violates due process. -Respondent also disputes the propriety of disbarring him because of his felony conviction, contending that his offense was such that disbarment is not warranted.

Ill — DISCUSSION

We find first that respondent’s behavior in filing the immigration appeals was improper and worthy of disciplinary action. Out of nine petitions for review not one was found to contain even a semblance of merit. And as we pointed out in Panagopoulos, supra, 434 F.2d at 603-604, such frivolous claims not only waste the time of the court and of the opposing party, but also, because of the operation of the immigration laws, confer an automatic and immediate benefit upon one who may not in the least deserve it. Furthermore, six of these cases were filed in the teeth of our warning in Coviello.

Respondent reminds us of the injunction of Canon EC 7-1, of the Code of Professional Responsibility, that a lawyer must represent the interests of his client “zealously”. The mere finding that a position advanced was frivolous must not be cause for discipline of the attorney because of the danger that such action might inhibit the bar from the most vigorous advocacy of clients’ positions and thus restrict meaningful access to the court. Furthermore, an attorney would face an intolerable dilemma when the needs or instructions of his client would force him to argue a position which he personally may feel to lack merit, and which could lead to punitive action against him by the court.

Sensitivity to these considerations requires that we indulge every presumption in favor of the attorney who presents or defends a position which is found to lack support. We must insure that there is breathing room for the fullest possible exercise of the advocacy function. But there must be limits. Canon EC 7-1 states that the duty of a lawyer is to represent his client zealously, but only “within the bounds of the law”. The processes of this court are made available for the general good; to the extent that they are abused they become less available to those genuinely in need of them. Such abuse also lowers public esteem for the judicial system and, particularly in the situation presented here, can unjustifiably result in unmerited benefit.

With these considerations in mind, we find that respondent has abused the processes of this court by lodging appeals of patent frivolity, under the circumstances shown above. Whether we question his good faith is not determinative; his course of action was so clearly and flagrantly in violation of the proper behavior of a member of the bar of this court that it represents at a minimum such gross negligence that punitive action is indicated.

Even at this point we might hesitate to take disciplinary action, sensitive to even the slightest possibility of casting an inhibitory shadow upon the ardor of those who practice before us. But even more serious, in our view, was respondent’s complete failure to diligently pursue prosecution of four of the appeals. Such behavior represents a breach of duty not only to the court, but also to the client, who justifiably expects his counsel to present his claims with utmost vigor, let alone with sufficient promptitude to avoid loss of valuable rights through default. The record indicates that the court indulged Mr. Bithoney every reasonable opportunity to fulfill the obligations of one who appeals to the court, but that respondent utterly failed to do so. Such action — or, precisely, inaction — removes all doubt as to the propriety of imposing discipline in his case. We fail to see how such inaction can be protected by the need to “zealously” defend a client’s interest. Rather we see this as a default in his duty to his clients, an additional reason for punishment, rather than a defense.

At the hearing respondent testified to a physical impairment affecting his eyesight during the period in question, requiring him to utilize his son, who is not a member of the bar, to aid him in his legal work. While we have considerable sympathy for respondent’s hardship, we have little sympathy for his use of this hardship as a defense. If Mr. Bithoney was so ill as to preclude effective legal representation then his failure to take meaningful steps to have such representation provided by alternate means amounts to a serious breach of his obligations to his clients, as well as to the court.

An interesting issue is raised by respondent’s claim that F.R.A.P. 46 is so vague that its enforcement against him would be a denial of due process. There is no question but that attorney discipline proceedings are subject to due process scrutiny. In re Ruffalo, 390 U. S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968). Indeed, in view of the gravity of the punishment which may be meted out pursuant to F.R.A.P. 46, which includes stiff fines, or even suspension or disbarment with all of the consequential damage which that entails, the test which must be employed as to.the constitutionality of the disciplinary machinery to be used must be a very severe one. There has been considerable discussion both within and without the ranks of the legal profession of the need for tightened disciplinary rules and more vigilant enforcement. While we support such efforts we do not think that there is any inconsistency between that laudable goal and the equally important goal of providing the strictest possible due process standards for the procedures used to carry out necessary bar discipline.

The question presented is whether the terms used in F.R.A.P. 46, i. e., “demean [him] self . . . uprightly and according to law”, and “conduct unbecoming a member of the bar”, are “in terms so vague that men of common intelligence must necessarily guess at its meaning”, Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926), and thus deny due process when used as the basis for a disciplinary proceeding.

In the abstract, respondent may have a colorable claim that the terminology of F.R.A.P. 46 is so indefinite as not to afford sufficient warning of the behavior which is proscribed. But we are convinced that when placed in context, as part of a rule directed to a discrete professional group, the terms take on definiteness and clarity. The legal profession has developed over a considerable period of time a complex code of behavior and it is to that code that such words as “conduct unbecoming a member of the bar” refer. In addition, the American Bar Association has promulgated a Code of Professional Responsibility which embodies in considerable detail the standards of behavior currently expected of members of the bar. Disciplinary Rule 7-102(A)(2) of the Code provides that:

“(A) In his representation of a client, a lawyer shall not:

* * * * *

“(2) Knowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such claim or defense, if it can be supported by good faith argument for an extension, modification, or reversal of existing law.”

Under these circumstances a member of the bar, like respondent, cannot complain that there is not at least a core area of clearly prohibited conduct which the words “uprightly and according to law” and “conduct unbecoming a member of the bar” mean to him.

Whatever ambiguity may remain in the terms of F.R.A.P. 46 after application of the customs and commonly accepted usages of the legal profession, respondent is not in a position to complain of them. In our Memorandum and Order disposing of the petition which he had filed in the Coviello case, we directly and specifically warned respondent that continued abuse of our process by the filing of immigration appeals solely for the purpose of achieving delay in deportation orders would constitute improper conduct on his part. In continuing this course of conduct by filing six more petitions for review respondent ran afoul not only of the general proscriptions of F.R.A.P. 46 but of our warning to him. Mr. Bithoney did not have to guess as to the conduct which would lead to sanctions against him; that unfairness which is the essence of the vagueness doctrine just did not occur in his case.

Therefore, we conclude that there is no merit to the defense of denial of due process due to the alleged vagueness of F.R.A.P. 46.

Mr. Bithoney’s criminal conviction raises a separate issue of some complexity which we do not need to consider. The punitive action which we take is fully warranted by and based on the behavior dealt with above. It seems to us sufficient under the circumstances. We thus take no punitive action with respect to the prior criminal conviction. We make it clear, however, that the conviction of any member of this bar is a matter of grave concern and will lead to disciplinary action should the nature and seriousness of the offense warrant.

IV — CONCLUSION

For the reasons which we have explained above, we find that respondent has engaged in behavior which requires this court to take punitive action against him. Specifically, we find that the filing of nine petitions for review in immigration cases, some of which were not diligently pursued and none of which raised any substantial issue on review, which petitions caused automatic stays in deportation déspite their lack of merit, and six of which petitions were filed after specific warning concerning the impropriety of such conduct, constitutes behavior “unbecoming a member of the bar of the court”. Under the authority of F.R.A.P. 46 we have the power, and we feel, the duty, to impose appropriate disciplinary measures.

Respondent has not, for the past three years, used the processes of this court. Under the circumstances we suspend him as a member of the bar of this court until March 1, 1974 and impose a fine of $500, to be paid to the Clerk of the United States Court of Appeals for the First Circuit, who shall deposit the money received into the Treasury of the United States.

      . As pointed out by the court in Gullo v. Hirst, 332 F.2d 178, 179 (4th Cir. 1964) : “While we must be careful to assure that the courts are always open to complaining parties, we have an equal obligation to see that its processes are not abused by harassing, or by recklessly invoking court action in frivolous causes or by foot dragging and delaying in order to deny or postpone the enjoyment of unquestioned rights. Lawyers have an obligation as officers of the court not to indulge in any of these practices. Vexatious litigation and the law’s delays have brought the courts in low repute in many instances, and when the responsibility can be fixed, remedial action should be taken.
      “We remand this case to the district court with instructions that it tax the plaintiff with reasonable counsel fees for the defendants’ attorneys and that it visit a proper sanction upon the plaintiff’s counsel.”

      . Respondent’s efforts on behalf of his clients in the five other cases can at best be regarded as minimal. In two of these cases a memorandum of law opposing summary judgment was filed, but only at the express instruction of the court. In the last three appeals briefs were filed which can only be described as feeble efforts. In two of them the sole ground for relief presented was the assertion that deportation would cause hardship because of- “Communistic influence” in the areas where the individuals were to be sent. The areas were Greece and Guatama-la.

      . Respondent testified that he informed his clients of his physical problem but that they declined to seek new- counsel. We cannot but be skeptical of the ability of those who have only resided in this country a short time to make an effective choice in this matter. Further, there comes a point when an attorney can no longer rely on the failure of his clients to seek alternative counsel, and must withdraw from active representation until physically able to fulfill his obligations to court and client.

      . We understand respondent does not allege that he was denied notice of the particular charges lodged against him or that he was not afforded an adequate opportunity to be heard.

      . See, e. g., In re Winsberg, 446 F.2d 641 (9th Cir. 1971).

      . See, e. g., In re Chandler, 450 F.2d 813 (9th Cir. 1971).

      . We refer to the Code only as an illustration of the lore of the profession, which we assume is familiar or should be to all attorneys. See also Canon 15 of the older Canons of Professional Ethics.

      . The fact that marginal cases may be put does not indicate that the rule is unconstitutionally vague as regards situations clearly within its purview. See United States v. Harriss, 347 U.S. 612, 618, 74 S.Ct. 808, 98 L.Ed. 989 (1954).

      . We also note that there is not involved here an infringement upon First Amendment rights, or a chilling effect upon such rights, such as prompted a considerably stricter application of the vagueness test in such cases as Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971) and Baggett v. Bullitt, 377 U.S. 360, 84 S. Ct. 1316, 12 L.Ed .2d 377 (1964).


source: Caselaw Access Project

author: HOLLOWAY, Circuit Judge.

license: Public Domain

text:
    Bernice Espy HICKS, as Special Fiduciary of the Estate of Pearle M. Espy, Deceased, Plaintiff-Appellant, and Financial Industrial Fund, Inc., et al., Intervenors, v. UNITED STATES of America, Defendant-Appellee.
    No. 72-1360.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Nov. 14,1972.
    Decided Oct. 30, 1973.

      Theodore T. Peek, Denver, Colo. (Wagner & Wyers, Denver, Colo., on the brief), for plaintiff-appellant.
    Leland E. Modesitt and Gorsueh, Kir-gis, Campbell, Walker & Grover, Denver, Colo., submitted a brief on behalf of the intervenors.
    Wesley J. Filer, Dept, of Justice, Washington, D. C. (Scott P. Crampton, Asst. Atty. Gen., Washington, D. C., Meyer Rothwacks and David English Carmack, Attys., Dept, of Justice, Washington, D. C., and James L. Treece, U. S. Atty., Denver, Colo., on the brief), for defendant-appellee.
    Before HILL, HOLLOWAY and DOYLE, Circuit Judges.
   HOLLOWAY, Circuit Judge.

Bernice Espy Hicks as special fiduciary brought this suit for refund of estate taxes paid on the estate of Pearle M. Espy. The District Court found that the fiduciary had not established that she was entitled to a refund and dismissed. 335 F.Supp. 474. The fiduciary appeals, arguing that the Court erred: (1) by substituting current liquidation value for book value in considering the real estate holdings of two corporations whose stock values were in issue; and (2) by allowing a decreased taxable value on one stock asset to be offset by an increased taxable value on another, without any such recoupment by setoff being raised in the Government’s answer.

The stock whose value is in issue is that of two closely held Colorado corporations, Espy Ice Company (Espy) and City Ice Company (City). At her death in 1966 decedent owned outright 7,600 shares in Espy and held a power of appointment over an additional 3,500 shares of Espy stock. She also had a power of appointment of 138 shares of City stock and Espy owned another 1,140 shares of City stock. Considering all the shares thus controlled, the decedent held approximately 52% of the outstanding stock of Espy and approximately 49 % of that of City.

In his deficiency assessment the Commissioner valued the Espy stock at $37.-44 per share and the City stock at $450.-00 per share. The fiduciary’s complaint in the District Court alleged by totals that these valuations had been placed on the stocks by the Commissioner. In its answer the Government alleged that the stock had been “properly valued,” at the assessed values referred to in the complaint. The pretrial order reflects that no amendments to the pleadings were made and that the fair market value of the Espy and City stocks were contested issues of fact remaining for decision.

The fiduciary’s, valuation witness testified that the value of Espy stock at decedent’s death was $13.70 per share and that the City stock was then worth $126 per share. He focused largely on recent average earnings and dividend payments, rate of return calculations, and stock book value based on book value of assets. He indicated that the market value of the assets of the closely held corporations would not affect the value of the stock since the companies were not in liquidation. The District Court found that this approach to value was “totally unrealistic” primarily because, in connection with real estate owned by the corporations, he had used the book value of the properties. The Court noted that the witness failed to take into account “. . . any appreciation in value of industrial Denver real property and the sky rocketing value of prime mountain property having potential for subdivision.” While the witness was permitted to testify as to his conclusions based on the values he used, the Court did not accept his conclusions.

The Government offered testimony by an expert appraiser on the value of real estate owned by Espy and City. It then also offered proof by another expert on the value of the corporate stocks of these companies. This witness took into consideration the prior testimony on the value of the real property owned by the corporations, along with other factors not now in issue, such as earnings records and the like. His conclusions were that the Espy and City stocks were worth $41.75 and $306 per share, respectively, at the decedent’s death. This proof placed the value of the City stock below its valuation in the Commissioner’s assessment. However, it placed the Espy stock, of which the decedent held a far greater number of shares, at a valuation above that stated in the assessment.

The District Court accepted the Government testimony as to the values of Espy and City stocks and found that the tax would have been $197,737.30 based on them and the value of other assets of the estate. This exceeded the amount of tax actually paid — $190,082.97. Therefore the Court found that the fiduciary had not established her entitlement to a refund and dismissed the action.

We agree fully with the Court’s views expressed in its detailed opinion. Our discussion will be confined to the two principal appellate arguments urged before us.

First the fiduciary argues that the District Court erred by substituting current liquidation value for book value when it considered the value of real estate holdings of Espy and City. The contention is directed at the testimony of the Government witness on the stock values, accepted by the Court, since the witness is said to have given improper consideration to the fair market value of the real property owned by the corporations. The fiduciary says that the market value of the real properties should not have been considered by the expert witnesses or the Court since the corporations were not contemplating sale of any of them. We cannot agree.

The Government’s valuation witness explained that he had studied Espy and realized it was not a wholly operating company. He considered the corporation to have three valuable assets apart from the business of vending ice through machines in downtown Denver: the lake property near Toponas; the Espy real estate near Rollinsville, and the shares of City stock owned by Espy. The witness pointed out that the lake property was no longer used for its original purpose of harvesting ice for sale in Denver and that the property could have been sold without affecting the ice business. He gave each of the three Espy assets separate weight based on their fair market values, and also considered the ongoing business producing the corporate earnings. In valuing the City stock the Government witness again considered earnings and the fair market value of assets, as well as a discount factor for lack of marketability of the stock.

By contrast the fiduciary’s witness focused largely on recent average earnings and dividends of City and Espy, rate of return calculations, and stock book value based on book value of assets. He viewed the market values of assets as immaterial and apparently relied only on book, values of them.

We feel the Court’s findings, based on acceptance of the Government proof, are fully supported by reason and the - record. The valuation of stock in the closely held corporations for tax purposes is a question of fact and the weight to be given the various evidentiary factors depends on the circumstances of each case. 26 C.F.R. § 20.-3031-2(f); Hamm v. C.I.R., 325 F.2d 934, 938 (8th Cir.), cert, denied, 377 U. S. 993, 84 S.Ct. 1920, 12 L.Ed.2d 1046; F. A. Gillespie & Sons Co. v. C.I.R., 154 F.2d 913 (10th Cir.), cert, denied, 329 U.S. 781, 67 S.Ct. 204, 91 L.Ed. 670. The value of a closely held corporation’s assets and its net worth have generally been recognized as proper factors to be considered. 26 C.F.R. §§ 20.3031-2(f); see, e. g., Hamm v. C.I.R., supra; In re Estate of Nathan (Hamburger v. C.I.R.) 166 F.2d 422 (9th Cir.); Brooks v. Willcuts, 78 F.2d 270 (8th Cir.). We are convinced that there was no error in taking into account the various factors that were considered in determining the value of the stocks in question.

Second, the fiduciary contends that the District Court erroneously allowed a decreased tax value to be set off by an increased tax value without any such re-coupment by setoff being raised in the pleadings. She says the Government was foreclosed from obtaining the benefit of proof showing a higher valuation for the Espy stock than was used in the Commissioner’s assessment. The point is also urged on the theory that the Government’s answer made a judicial admission of the correctness of the assessed value of the Espy stock so that the Government is conclusively bound by that value. Again we disagree.

At trial the fiduciary presented her own proof attempting to show that the value of the Espy stock was $13.70 per share. This was below the value of $37.44 per share relied on in the assessment. As noted above, the Government’s answer had “admitted” that the stocks had been properly valued in the assessment. Thus the $37.44 value for Espy stock used by the Government in the assessment was before the Court for consideration as an admission.

Government evidence was also offered at trial to show that the value of the Espy stock was $41.75 per share. No objection was then made by the fiduciary based on the theory of a judicial admission, or of a variance from the issues defined in the pretrial order or the pleadings. After trial and the oral announcement of the Court’s findings, the Court directed that the parties compute the proper tax under the ruling made. At that point the fiduciary’s counsel argued that he thought the Government was limited by its answer in which it was stated specifically that the values fixed by the Internal Revenue Service were correct. Subsequently the Court entered its written findings and judgment based on the Espy stock value of $41.75 per share and other values found.

The issue for trial on the claim for refund was the redetermination of the entire estate tax liability, as the District Court observed. See Lewis v. Reynolds, 284 U.S. 281, 283, 52 S.Ct. 145, 76 L.Ed. 293. There was no actual judicial admission removing the issue of the Espy stock value from trial, although the Government’s answer was before the Court to be considered as an admission on the Espy stock value. The pretrial order reflects that this issue remained for decision. And in any event the pleadings of the parties would be deemed amended to conform to the proof offered by them. Rule 15(b) F. R. Civ.P.; Hopkins v. Metcalf, 435 F.2d 123 (10th Cir.).

We are satisfied the record shows no prejudice to the fiduciary. She offered her own proof on the issue and made no objection to that of the Government. Since there was no prejudice or unfairness in trial of the issue, the judgment should not be disturbed. Monod v. Fu-tura, Inc., 415 F.2d 1170, 1174 (10th Cir.); Decker v. Korth, 219 F.2d 732, 739 (9th Cir.), cert, denied, 350 U.S. 830, 76 S.Ct. 61, 100 L.Ed. 740; see also Southwestern Investment Co. v. Cactus Motor Co., 355 F.2d 674, 678 (10th Cir.); Christie v. United States, 179 F.Supp. 709 (D.Or.) (allowing a larger refund than was sought by a taxpayer in his complaint).

The fiduciary makes a related argument against Government reliance on the increased Espy stock value above that in the assessment. She says that to allow this permits a barred claim to be used as a setoff or recoupment, relying on Brady v. United States, 24 F.2d 205 (D.Mass.), and other cases. However the issue here was the redetermination of the entire estate tax liability which the fiduciary’s refund suit called for, see Lewis v. Reynolds, 284 U.S. 281, 283, 52 S. Ct. 145, 76 L.Ed. 293, and no recoupment was involved. Even viewed as a recoupment, reliance on the Espy stock value relating to the same tax liability would not be barred. See Bull v. United States, 295 U.S. 247, 262, 55 S.Ct. 695, 79 L.Ed. 1421.

We are convinced that the claims of error are untenable and that the findings and judgment of the District Court are amply supported and proper.

Affirmed.

      . A further issue was argued below by the principal parties and intervenors as to the validity of the Commissioner’s regulation for valuing mutual fund stocks, 26 C.F.R. § 20.-2031-8 (b), and this issue has been briefed by the Government and intervenors on appeal. The issue was decided in favor of the fiduciary by the District Court and the same conclusion has now been authoritatively pronounced. United States v. Cartwright, 411 U.S. 546, 93 S.Ct. 1713, 36 L.Ed.2d 528. In view of the disposition we make on the other issues the argument by the Government on this issue need not be considered.

      . The District Court’s opinion referred to the values per share given for the Espy stock in the estate tax return, $25.00; in the assessment, $37.44; by the fiduciary’s witness, $13.70; and the Government witness, $41.75. 335 P.Supp. at 476.

      . Such an admission occurs where a proposition of fact is alleged by one party and conceded to be true by the adverse party. See McNamara v. Miller, 106 U.S.App.D.C. 64, 269 F.2d 511, 515-516; Alamo v. Del Rosario, 69 App.D.C. 47, 98 F.2d 328, 330; IV Wigmore on Evidence, § 1059 at 27 (Chadbourn Rev.). Since there was no allegation by the fiduciary that the Espy stock was worth $37.44 per share as assessed, followed by an admission of that value by the Government, the theory is inapplicable.

      . Although the District Court found that the proper tax was greater than that assessed and paid, the Government there conceded that it was not entitled to an affirmative •judgment because the statute of limitations precluded further assessment.


author: PECKHAM, District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Victor PETRUCCI, Defendant-Appellant.
    No. 72-2964.
    United States Court of Appeals, Ninth Circuit.
    Sept. 10, 1973.
    Rehearing Denied Dec. 10, 1973.

      Morris Lavine (argued), Los Angeles, Cal., for defendant-appellant.
    D. Henry Thayer, 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 MERRILL and WALLACE, Circuit Judges, and PECKHAM, District Judge.

       Honorable Robert F. Peckham, United States District Judge for the Northern District of California, sitting by designation.

   PECKHAM, District Judge:

The defendant, a licensed gun dealer, was prosecuted for several violations of the Gun Control Act of 1968, 18 U.S.C. § 922 et seq., and for illegal possession of two tear gas guns in violation of the National Firearms Act, 26 U.S.C. § 5861(d). The grand jury returned an indictment in nine counts. Count nine was dismissed before trial and defendant was found guilty by a jury on the remaining eight counts.

In counts one and two the defendant was charged with knowingly selling firearms to a minor; in counts three and five, with knowingly selling firearms to a convicted felon; in counts four and six, with the failure to properly record the transactions charged in counts three and five. Count seven charges the defendant with illegal possession of two tear gas guns and count eight with the failure to keep records or receipts of twelve guns found in his store.

I

FACTS

In March of 1972, an agent of the Alcohol, Tobacco, and Firearms Division of the Treasury Department (ATF agent) and Norman Abrams, a convicted felon, went into the defendant’s store and on two occasions purchased firearms from the defendant notwithstanding the fact that Abrams told the defendant that he was a felon. With respect to the first purchase, the defendant was found to have falsified the records so as to make it appear that the firearms sold had never been in the store. In the second purchase by Abrams, the defendant sold the firearms to him under an assumed name.

After these two sales, A.T.F. agents procured a search and an arrest warrant. Armed with the warrants, during normal business hours, the agents effected the arrest. They then proceeded to inventory the firearms and compare the inventory with the records. Initially they found nineteen firearms without receipts, but because the inventory lasted so long, the defendant (released on bond), had already returned from a hearing before the Magistrate. He accounted for seven of the firearms, which were not seized, but the remaining twelve were seized and form the basis for count eight in the indictment.

Additionally, two tear gas guns, found in the store, were of the type required to be registered with the Treasury Department.

In addition a review of A.T.F. forms revealed a wholly separate set of transactions where the defendant sold firearms to a minor. The minor’s age appeared on the face of the A.T.F. forms. The defendant was shown at trial to have at least looked at the minor’s^ driver’s license. These transactions became the basis for count one and two of the indictment.

From a conviction on all eight counts the defendant appeals. He asserts no less than fourteen different grounds for error. We discuss only the most salient.

II

INTERSTATE NEXUS

It is conceded by the government that it has not charged nor proved that the firearms in question have any interstate nexus. It is the law in this circuit, however, that Congress intended, in the Gun Control Act of 1968, to regulate all businesses engaged in importing, dealing, and manufacturing firearms, United States v. Redus, 469 F.2d 185 (9th Cir. 1972), and that Congress, consistent with the Constitution may reach wholly intrastate activities. United States v. Colicchio, 470 F.2d 977 (4th Cir. 1972); United States v. Lebman, 464 F.2d 68 (5th Cir. 1972). See Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971), holding Congress may reach intrastate loansharking. So long as the wholly intrastate activity falls within a category of activity which affects commerce, Congress may validly enact criminal statutes. The Congressional purpose, as set forth in the legislative history, is to assist the states effectively to regulate firearms traffic within their borders. S.Rep. 1097, 90th Cong., 2d Sess. (1968); H.R.Rep. 1577, 90th Cong., 2d Sess. (1968). Illegal intrastate transfer of firearms is part of a pattern which affects the national traffic and Congress can validly enact a comprehensive program regulating all transfers of firearms. See Cody v. United States, 460 F.2d 34 (8th Cir. 1971).

United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971) is inapposite. The Bass case turned on Congress’s failure to clearly manifest its intent to regulate intrastate activity when it passed the National Firearms Act. The Gun Control Act, however, has been held not to be subject to the same criticism. Redus, supra. Moreover, some courts have suggested that the business of intrastate transfer of weapons has a greater nexus with interstate commerce than does mere possession which is regulated by the National Firearms Act. United States v. Nelson, 458 F.2d 556 (5th Cir. 1972). Accordingly, there is no merit to the contention that the conviction is invalid for failure to charge and prove interstate nexus.

With respect to the charges in count seven brought pursuant to 26 U. S.C. § 5861(d), for illegal possession of a pen gun which can fire a bullet, there is no requirement whatever to prove any interstate commerce nexus as the statute is passed pursuant to Congress’s taxing power. United States v. Tous, 461 F.2d 656 (9th Cir. 1972); United States v. Giannini, 455 F.2d 147 (9th Cir. 1972).

III

FAILURE TO REQUIRE WILLFULNESS

The indictment originally charged that the defendant knowingly and willfully did the acts charged, but willfulness in not an element of the crime involved. United States v. Freed, 401 U.S. 601, 607-608, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971); United States v. Jones, 446 F.2d 12, 13 (9th Cir. 1971). On the morning of the trial the government offered a superseding indictment which omitted the word “wilfully.” The trial court refused to allow the superseding indictment, but followed the practice approved by this court in United States v. Harvey, 428 F.2d 782 (9th Cir. 1970). The court announced, from the beginning, that it would refuse to instruct on the word “wilfull” as that was mere sur-plusage. (R.T. 28). This does not amount to a modification of the indictment. Harvey, supra. Any prejudice to the defendant was obviated by the court when it announced its intention at the start of the trial that it would not instruct on the word “wilfull”. See also United States v. Neilson, 471 F.2d 905 (9th Cir. 1973).

IV

SEIZURE OF THE FIREARMS

Defendant contends that the taking of the firearms from his store violated his fourth amendment rights. These firearms were introduced in evidence, over objection, and the trial court refused to grant a pretrial motion to suppress. The A.T.F. agents had a valid search warrant authorizing the seizure of only defendant’s records. But apart from the warrant, 18 U.S.C. § 923(g) gives the A.T.F. agents, during normal business hours, the right to examine the records and inventory firearms. The recent case of United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) approved Congress’s authority to allow such warrantless searches. Having intruded legitimately, upon discovery of several unrecorded firearms, the agents were free to seize the weapons without a warrant as evidence or instrumentalities of illegal activity now in their “plain view” as a result of a lawful search. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). See also Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 290, 17 L.Ed. 2d 210 (1967), abolishing the distinction between mere evidence and instrumentalities of crime. In the Biswell case the Court approved the seizure of firearms held without payment of the appropriate tax to the Treasury Department, notwithstanding the fact that the agents did not have a warrant. The court felt that Congress’s balancing of the relevant concerns was not an unreasonable one. The court reasoned that-businessmen who engage in federally regulated and licensed commercial activity accept the burdens and benefits of their activity. Compare Biswell, supra, and Colonnade Catering Corporation, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970) with Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). See also United States v. Voegele, 346 F.Supp. 7 (D. Mich.1972). Given the broad authority conferred by the statute, the court has no cause to consider whether the search exceeded the scope of the warrant, nor reason to pass upon any other basis for upholding the search.

V

RECORD-KEEPING REQUIREMENTS

Defendant claims that the record-keeping requirement of the Gun Control Act of 1968 violates his fifth amendment rights. He claims with respect to counts one and two of the indictment, selling a firearm to a minor, he was required, under penalty of law, to furnish the government, through the use of A.T.F. forms, information on which he was tried and convicted. This objection was not properly raised in the court below. Neither at the time of the introduction of the forms, nor upon motion to suppress, nor upon a motion for judgment of acquittal did the defendant claim that his fifth amendment privilege was being violated. Nor did the defendant urge below, and he has not urged here, that his failure to record at all the firearms charged in count eight is not punishable consistent with the fifth amendment.

It is the law in this circuit that except in extraordinary circumstances, Mar-chetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968) (Brennan, J. concurring), and Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L. Ed.2d 923 (1968), require that the fifth amendment privilege be timely raised at trial as a condition to being asserted on appeal. United States v. Williams, 427 F.2d 1031 (9th Cir.) cert, denied, 400 U.S. 909, 91 S.Ct. 154, 27 L.Ed.2d 149 (1970).

Moreover, in light of this court’s concurrent sentencing doctrine, United States v. Moore, 452 F.2d 576 (9th Cir. 1971), since the defendant was validly found guilty of six other counts and received coextensive concurrent sentences on each count, it is not likely that counts one and two will have collateral consequences. The court declines to consider the effect of the privilege on the record-keeping requirement of 18 U.S.C. § 923(g) until the matter is timely raised and preserved for appeal.

Affirmed.

      . The warrant read, in part: “There is now being concealed certain property, namely firearms records, and United States currency with recorded serial numbers, three twenty dollar bills with serial numbers, G 08606851A, G 11314128B, L 73197040B, which are fruits, instrumentalities and evidence of violations of Title 18 U.S.C. Section 922(b)(5); 922(d) (1); 922 (m); and 924(a).”


author: HAYS, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Enrique BARRERA et al., Appellants.
    Nos. 960-963, Dockets 73-1227, 73-1293, 73-1303 and 73-1343.
    United States Court of Appeals, Second Circuit.
    Argued June 8, 1973.
    Decided Oct. 9, 1973.

      Walter J. Higgins, Jr., New York City (Arthur J. Viviani, Jeffrey Harris, John W. Nields, Jr., Asst. U. S. Attys., Whitney North Seymour, Jr., U. S. Atty., on the brief), for appellee.
    Paul A. Goldberger, New York City (Goldberger, Asness, Feldman & Breit-bart, New York City, on the brief), for appellant Barrera.
    Gilbert S. Rosenthal and Joel A. Brenner, New York City, for appellant Bornsztejn.
    Jay Goldberg, New York City, for appellant Enriquez.
    Gretchen White Oberman, New York City, for appellant Pinto.

      John L. Pollok, New York City (Le-nefsky, Gallina, Mass, Berne & Hoffman, New York City, on the brief), for appellant DeLuca.
    Before HAYS, MANSFIELD and MULLIGAN, Circuit Judges.
   HAYS, Circuit Judge:

These are appeals from judgments of conviction entered in the United States District Court for the Southern District of New York after a jury trial. The five appellants were each convicted of conspiracy to import, possess with the intent to distribute and distribute approximately one-eighth of a ton of heroin, and of the substantive offense of possession with intent to distribute approximately one and one-half kilograms of heroin, in violation of 21 U.S.C. §§ 812, 841, 846 and 963. Appellants Barrera and Bornsztejn were each sentenced to consecutive terms of imprisonment of 15 years on the conspiracy count and 10 years on the substantive count, fines of $50,000 and special parole terms of 3 years. Enriquez was sentenced to imprisonment for 6 years on the conspiracy count and 6 years on the substantive count, the terms to run consecutively, as well as a special parole term of 3 years, while Pinto was sentenced to consecutive terms of 15 years for the conspiracy count and 10 years on the substantive count plus a special parole term of 3 years.

Appellant DeLuca made a motion before trial under 18 U.S.C. § 4244 to have himself declared mentally incompetent to stand trial, which motion was denied (as were motions to suppress certain evidence) . After standing trial and having been found guilty, DeLuca was provisionally sentenced under the provisions of 18 U.S.C. § 4208(b) and was committed to the Bureau of Prisons for a psychiatric study. He has not yet been re-sentenced.

We affirm the convictions of all the appellants.

I. The Factual Background

This case involves an international conspiracy to import heroin into the United States from Europe — a conspiracy which government agents followed almost from its inception in Europe to its consummation on the streets of New York City. Not only was the European portion of the conspiracy known to the United States Bureau of Narcotics and Dangerous Drugs as well as to both the French and Belgian police authorities, but the individual who had been recruited by the European drug shippers to carry the drugs to New York was — unfortunately for the plotters — a government undercover agent.

Under the plan the European shippers were to fill three military footlockers with 120 kilos of pure heroin. The courier, who had military connections, was to transport the footlockers by military plane to Washington, D. C. where he was to rent a car of a certain description, put the footlockers inside the car and drive it to New York City. The plan called for the courier to abandon the car early on the morning of May 16, 1972 in the vicinity of Bloomingdale’s department store on the east side of Manhattan where the buyers were to pick up the car. The payment for the narcotics was to be wired by a co-conspirator from his bank account in New York to an account in Switzerland. The evidence established that appellants Barrera, Enriquez and DeLuca were the buyers; that appellant Bornsztejn was to wire the money from his New York account to one he held in Switzerland; and that appellant Pinto was to oversee the transfer in New York as a representative of the European shippers.

The undercover agent left Belgium for Washington, D. C. on May 14, 1972 ostensibly acting as courier for the plotters. Before his departure he emptied the three footlockers which had been filled with pure heroin and left all but three small bags of the drugs with Belgian and French police authorities in Brussels. Upon arriving in Washington, he packed one of the three remaining bags into each of the three footlockers which were otherwise filled with packages of non-narcotic substances resembling the heroin the courier was supposed to be carrying. The courier then rented a car of the exact description that the European shippers had requested, placed the footlockers in the car and set out for New York City.

What followed on the morning of May 16 in the vicinity of Bloomingdale’s was surveilled by numerous government agents who were on the scene. It was also recorded on film in movies and still photographs. Agents of the Bureau of Narcotics and Dangerous Drugs had been alerted to the location of the rendezvous spot by the undercover agent. At 6:30 A.M. appellants Bornsztejn and Pinto appeared in the neighborhood of Bloomingdale’s department store and proceeded to walk about for a half hour without apparent direction but never leaving a narrowly circumscribed area, and conversing continuously with each other. The surveilling agents who were at first unaware of their involvement in the transaction soon noticed the intense interest Pinto and Bornsztejn showed in the area where the agent-courier had been instructed to leave the heroin laden car.

During this same period appellants Barrera and Enriquez arrived in the area in the latter’s car and parked on a side street in the vicinity of Bloomingdale’s. Barrera left the car and proceeded to walk toward the store while Enriquez remained behind in the car.

At approximately 7 A.M., Bornsztejn and Pinto separated. At seven o’clock the agent arrived in the car, parked it in front of the store, hid the keys under the dashboard, left the ear and entered a subway, as he had been directed to do by the European shippers of the heroin. Pinto spotted the car first and pointed it out to Bornsztejn who then left Pinto and approached Barrera, with whom he shook hands. Bornsztejn and Barrera walked toward the car and upon reaching it Bornsztejn turned around and walked back in the direction from which he had come while Barrera entered the car, took the keys from their hidden location and drove off.

Barrera drove the car with the heroin in it up the side street in which Enri-quez was parked, made a hand motion to him, and then continued driving. Enri-quez followed him. After reaching what apparently was a predetermined spot, a spot which Barrera could have reached without driving on the side street on which Enriquez had been parked, the two cars stopped and parked. Enriquez and Barrera went into a nearby coffee shop where they were joined by appellant DeLuea who was handed something by Barrera. DeLuea then left the coffee shop and drove off in the car containing the drugs. Shortly thereafter, Barrera and Enriquez also left the coffee shop and drove around the east side of New York until they were arrested at 8:15 A.M.

Meanwhile, Pinto and Bornsztejn left the area of Bloomingdale’s and drove first to the hotel where Bornsztejn was staying and then to the hotel where Pinto was staying. They then returned to the area where the transfer had taken place, circled it for about 15 minutes and finally parked their car in front of the same coffee shop where Barrera, Enriquez and DeLuea had met. They got out of their car and walked around for awhile, then reentered their car and drove about apparently aimlessly, until they too were arrested at about 9 A.M.

In the meantime appellant DeLuea drove the car containing the footlockers from Manhattan over a bridge spanning the East River to a garage in the borough of Queens. On the way to the garage, DeLuea stopped his car and pulled over to the side of the road to allow traffic behind him (including two surveilling cars) to pass. He was arrested at about 8:15 A.M. while in the process of unloading footlockers.

Several post-arrest statements were taken from the various appellants who attempted to explain their unusual behavior on that May morning. None of the explanations are credible when considered in light of the uncontradicted evidence of the actions of the appellants. Indeed, the statement by Enriquez — the appellant whose case might be considered the closest regarding sufficiency of the evidence concerning his knowledge of the ultimate goal of the conspiracy— was most incriminating. On the afternoon that he was arrested, Enriquez told an Assistant United States Attorney that he had driven to New York City that morning leaving his home at 6:20 A.M. He said that he had parked his car in a garage, had breakfast with Barrera and then had gone back to the garage when he had left his ear and retrieved it at 8:15 A.M. When he was asked about his actions between 6:20 and 8:15 he said, “I know what I did and I will accept the consequences but I don’t want to get anybody, else in trouble.” He also denied knowing appellant DeLuca (although the two were seen with Barrera in the coffee shop) and he stated that although he knew “something was up” from talking with Barrera, he knew nothing about the heroin and “if the guy who owns the stuff, Barrera, tells the truth I can get out of this case.”

Evidence discovered after the arrest of the appellants pointed to the close-knit nature of the conspiracy. Barrera’s business telephone number was found in Bornsztejn’s possession at the time of the latter’s arrest as was the latter’s passport showing that he had entered the country on May 4, 1972. On April 16, 1972, Bornsztejn opened an account at a New York bank which was used to transfer money to another account in his name in a Swiss bank. Finally, found in possession of Pinto, who was known throughout as Ben Sadoun, was a French passport with his photograph but showing it was issued on May 8, 1972 in the name of Jean Claude Pinto and showing éntry into the United States on May 10, 1972.

II. The Sufficiency of the Evidence

The Conspiracy Count

The single thread running through the arguments of all of the appellants in this case is their claim that there was insufficient evidence presented at trial to convict them of the violations charged by the government. We reject these contentions as being without merit. The appellants’ association in a wide-ranging conspiracy to import heroin into the United States is clear beyond any doubt. Their actions, recorded on film, were in exact accord with the plan as explained to the undercover agent who acted as courier for the illicit shipment. Appellants ask us to believe that it was merely an extraordinary coincidence that these appellants appeared at the specific spot at the exact time arranged by the European shippers. We are not so credulous.

While it is more evident that the appellants other than Enriquez knew that they were playing parts in the implementation of a scheme to import, possess or sell the single shipment of narcotics, Enriquez’ unusual actions on the morning of May 16, his inability to account for his movements between 6:20 and 8:15, his conduct at the rendezvous spot' as well as at the coffee shop, provide adequate support for his conviction. To buttress that conclusion, we need only note his connection with Barrera who obviously was a key link in the conspiracy, his denial of knowing DeLuca although he had been seen with him and Barrera at the coffee shop on the morning of the transfer, and a statement he made after his arrest that he knew what he was doing and would take the consequences.

When the record is considered as a whole, there was ample'evidence to sustain the conspiracy convictions of all of the appellants.

III. Other Contentions

In addition to their claims as to the insufficiency of the evidence appellants present a number of contentions, upon which they hope to win reversal of their convictions. We find all of these to be without merit and some to border on the frivolous. We will consider briefly only the most serious.

A. Hearsay Testimony

The appellants argue that the trial court erred in admitting against them certain statements made by one of the European shippers to the undercover agent who testified as to the statements at trial. We cannot agree. There was sufficient independent evidence of defendants’ individual participation in the conspiracy to warrant the admission of the hearsay declarations of a coconspirator made in furtherance of the conspiracy and during its course. See United States v. Calabro, 449 F.2d 885, 889 (2d Cir. 1971), cert, denied, 404 U.S. 1047, 92 S.Ct. 728, 30 L.Ed.2d 735 (1972). Not only was there independent proof of the agent’s receipt of the narcotics in Europe and his transporting them to New York, but the evidence clearly showed the shippers’ instructions to deliver the heroin at Bloomingdale’s, the simultaneous travel to the United States from France by Bornsztejn and Pinto and the presence and incriminating participation of the appellants in the receipt of the heroin.

B. Entrapment, Overreaching Due Process

Appellants claim in effect that without the active participation of the undercover agent the criminal conspiracy never would have occurred. Thus they argue that they were entrapped as a matter of law. We reject this contention. The appellants were clearly predisposed to commit the crimes they have been convicted of committing. Even prior to the recent Supreme Court pronouncement on entrapment, See United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), the deci-sional law would not support the appellants’ claims in this case. See United States v. Ortega, 471 F.2d 1350 (2d Cir. 1972), cert, denied, 411 U.S. 948, 93 S. Ct. 1924, 36 L.Ed.2d 409 (1973).

C. Post-Arrest Statements

Appellants Bornsztejn and Barrera contend that certain post-arrest statements made by them on the afternoon of May 16 were improperly admitted into evidence. However, in the light of the trial judge’s finding, after a hearing, that Miranda warnings were given the appellants — a finding amply supported by the evidence — we conclude that the statements at issue were properly admitted at trial. Bornsztejn, Barrera and Enriquez also argue that their statements were obtained during a period of unnecessary delay in violation of 18 U. S.C. § 3501. This argument, raised for the first time on appeal, is without merit. The delay was slightly in excess of six hours and there is no showing that it was for any purpose other than the legitimate one of routine processing. See United States v. Marrero, 450 F.2d 373 (2d Cir.1971), cert, denied, 405 U. S. 933, 92 S.Ct. 991, 30 L.Ed.2d 808 (1972).

D. DeLuca’s insanity Defense

Appellant DeLuca claims that he was incompetent to stand trial, that the government proof of sanity was insufficient to support the jury’s verdict of criminal responsibility beyond a reasonable doubt, that permitting the psychiatrist who gave him his § 4244 examination to testify was improper under the holding of United States v. Driscoll, 399 F.2d 135 (2d Cir.1968) and that the jury should have been instructed that DeLuea could be found not guilty by reason of insanity. We reject all of these contentions. The question of DeLuca’s sanity was for the jury to decide. His arguments were fairly and adequately presented to the jury as were those of the government. See United States v. Bohle, 475 F.2d 872 (2d Cir. 1973). Sufficient evidence was presented to permit the jury to find beyond a reasonable doubt that DeLuea (who after all had been selected to be the ultimate recipient of the valuable illicit shipment) had the requisite mental capacity. See United States v. Freeman, 357 F.2d 606 (2d Cir. 1966). United States v. Driscoll, supra, is not in point since the government’s psychiatrist did not express an opinion based on his earlier § 4244 examination. This circuit does not provide for a verdict of “not guilty by reason of insanity” as requested by the appellant. See United States v. Freeman, supra. Finally, the trial judge was well within his discretion in refusing to allow further lay testimony as to DeLuca’s post-arrest behavior, in denying the appellant’s request for a continuance for further scientific tests and in refusing to permit collateral impeachment of the government’s expert witness.

E. Motion to Sever

Barrera and Bornsztejn argue that the trial court was in error when it denied their request to sever the trial of DeLuea from that of the remaining appellants. They base their claim for severance on the fact that in presenting his insanity defense. DeLuca’s counsel posed certain hypothetical questions to expert witnesses which assumed the truth of some of the government’s contentions about the participation of the other appellants in the conspiracy. They claim that this prejudiced them and thus they were denied a fair trial. Although we consider this a close question, especially in light of DeLuca’s counsel’s summation which conceded DeLuca’s participation in the conspiracy, we do not find the failure to sever to constitute grounds for reversal. In the light of the trial judge’s repeated instructions to the jury that the statements of De-Luca’s counsel were not evidence and that no inferences were to be drawn from the hypotheticals, the denial of the motion to sever was thus not an abuse of discretion.

F. Jury Instructions

Appellant Barrera contends that the trial court erred in failing to instruct the jury that they should acquit all of the appellants if the government failed to prove the single conspiracy as. charged.

There was no need to instruct the jury as to multiple conspiracies. Only one conspiracy was alleged and proved. Barrera’s request was properly denied. See United States v. Calabro, supra.

Appellant DeLuea challenges that portion of the charge which defined proof beyond a reasonable doubt in terms of an “abiding belief.” Although we think that the charge on reasonable doubt could well have been more complete, the charge given was not so inadequate as to require reversal.

The remaining claims do not merit discussion.

We affirm.

      . Enriquez argues that the trial judge improperly refused to permit him to show that he made a later statement which he claims to be exculpatory. However, the court did allow him to show that he said that he did not know that heroin ' was involved which was the gist of the later statement. The rest of the statement, implicating his code' fendant Barrera, clearly presented the judge with a Bruton situation in which he acted well within his discretion. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

      . The court’s charge on reasonable doubt stated in pertinent part:
      “Now, the question arises what is a reasonable doubt. It is a doubt which a reasonable person has after carefully weighing all the evidence, the kind of doubt which would make one hesitate to act. Reasonable doubt is doubt which appeals to your reason, to your judgment, to your common sense and to your experience. It is not caprice or whim or speculation. It is not an excuse to avoid the performance of an unpleasant duty. Nor is it sympathy for any party.
      “If after a fair and impartial consideration of all of the evidence or lack of evidence you can honestly say that you do not have an abiding belief as to the defendant’s guilt, then you have a reasonable doubt and it is your duty to acquit. On the other hand, if after a fair and impartial consideration of all of the evidence you can honestly say that you do have an abiding belief as to a defendant’s guilt, then you have no reasonable doubt and it is your duty to convict.
      “A reasonable doubt does not mean positive certainty beyond all possible doubt. The law in a criminal case is that it is sufficient if the guilt of a defendant is established beyond a reasonable doubt, not all possible doubt.”