author: WILLIAM E. MILLER, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Peter N. LAZAROS, Defendant-Appellant.
    No. 72-1721.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 7, 1973.
    Decided June 11, 1973.

      Gerald M. Franklin, Detroit, Mich., Frank Oliver, Chicago, Ill., Paul G. E. Valentino, Pontiac, Mich., Melvin B. Lewis, Chicago, Ill., for defendant-appellant.
    Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., Peter M. Shannon, Jr., Criminal Appellate Section, Dept, of Justice, Washington, D. C., for plaintiff-appellee; Henry E. Petersen, Asst. Atty. Gen., Kurt W. Muellenberg, Sidney M. Glazer, Dept, of Justice, Washington, D. C., on brief.
    Before MILLER, KENT  and LIVELY, Circuit Judges.

       Judge Kent participated in the decision in this case and concurred in this opinion prior to Ms death on May 28,1973.

   WILLIAM E. MILLER, Circuit Judge.

The defendant, Peter Lazaros, appeals his conviction by a jury on twelve counts of perjury in the District Court for the Eastern District of Michigan. He was sentenced to one year and a day on each count, to run consecutively.

During the state trial of a criminal associate, Joseph Barbara, on charges of extortion and rape of Lazaros’ wife, the defendant became an informer for the prosecution. During the ensuing months Lazaros remained under heavy protection provided by the Michigan State Police. During this period Lazaros maintained a close contact with Donald DeBoer, an internal affairs investigator of the Internal Revenue Service. He made accusations against at least three IRS officials, Harris, McDonald and Olszewski. Also from photographs, Lazaros identified IRS agents Gardner, Lockwood, Lee, and Getto, as having accepted money from underworld figures. He also implicated certain former Detroit city officials. DeBoer warned Lazaros that making a false statement to him was a violation of 18 U.S.C. § 1001, a felony for which Lazaros could be imprisoned for five years and fined up to $50,000.00.

A grand jury was convened on June 12, 1969, to investigate the accusations. On June 26, 1969, invoking the Fifth Amendment, he refused to testify. Over the next two months some 30 to 40 witnesses were called to testify before the grand jury, including DeBoer. Apparently a rift had developed between DeBoer and Edward O’Leary, the United States Attorney representing the government. DeBoer continued to believe Lazaros, while O’Leary concluded that no bribery had occurred. On August 21, 1969, Lazaros was recalled before the grand jury. In his first appearance on that day, he was asked about the bribery of certain governmental officials. He refused to testify, again asserting his Fifth Amendment rights. O’Leary then sought and obtained immunity under 18 U.S.C. § 2514 from Judge Thornton, United States District Judge for the Eastern District of Michigan. In his second appearance on August 21, Lazaros answered these same questions in an enigmatic and evasive manner. He was then returned to Judge Thornton, who held him in civil contempt, and remanded him to the custody of the federal marshal until such time as he would answer directly the questions propounded by the prosecutor.

Finally on the afternoon of August 21, Lazaros purged himself of the contempt by giving direct answers to the prosecutor’s questions. Based on the answer to these questions, he was indicted for perjury.

Specifically, Lazaros testified that four Internal Revenue agents, Lockwood, Lee, Gardner and Getto, had accepted envelopes containing $1,000 each at a Christmas party given by Lazaros at the Kingsley Inn in Birmingham, Michigan, in December of 1967. Furthermore, he testified that the former Mayor of Detroit, Jerome Cavanagh, and the former purchasing agent of Detroit, Arthur Stone, accepted envelopes that contained money. Finally, Lazaros testified that two IRS agents, Getto and Conrad, and a member of the Detroit police force, Dunleavy, received money under the pretext of a game of chance, after a prize fight that occurred in Cleveland in 1964. His testimony was that he was personally present at each of these exchanges.

18U.S.C. § 1621 provides:
Whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury, and shall, except as otherwise expressly provided by law, be fined not more than $2,000 or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States.

Lazaros’ main defense at trial was that his testimony was coerced, and therefore was not willful within the meaning of 18 U.S.C. § 1621. Lazaros argues that he was given a Hobson’s choice. If, after he was in contempt for giving evasive answers, he had chosen to go to jail, he was in danger for his life. If he took the stand and testified that the bribery had never taken place, he could be convicted of a felony for giving false statements to a government official. Finally, if he took the stand and retold his story that he had given to the IRS officials, he would be convicted of perjury. This explanation was presented to the jury under proper and unchallenged instructions to the effect that if defendant’s statements before the grand jury were indeed made as the result of coercion or duress they would not come within the ambit of the perjury statute. We find that there is sufficient evidence in the record to support the jury’s conclusion that Lazaros’ testimony was willfully false. See Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

The further argument is made that Lazaros’ testimony before the grand jury was not material. Consequently, even though false, the testimony may not be used as a basis for a perjury conviction. An aspect of the same theory of defense is the insistence that the inquiry as to the bribery of the government officials was concluded by the time Lazaros was recalled to the stand on August 21, 1969. Finally, it is said that the reason he was recalled was to force him to commit perjury or to release his testimony to the public (a violation of the doctrine of grand jury secrecy), neither of which is a legitimate function of the grand jury.

In support of these theories the defendant relies on Brown v. United States, 245 F.2d 459 (8th Cir. 1957); United States v. Cross, 170 F.Supp. 303 (D.C.D.C.1959); United States v. Icardi, 140 F.Supp. 383 (D.C.D.C.1956). The defendant relies on the testimony of the prosecuting United States Attorney, Edward O’Leary, that by August 21, 1969, he had concluded that none of the officials accused by Lazaros had taken bribes and that all were innocent of the charges made against them. Also two grand jurors testified that the investigation was nearly complete when Lazaros was recalled.

We believe that these theories of defense are without merit. The test of materiality is “whether the false testimony was capable of influencing the tribunal on the issue before it.” Fraser v. United States, 145 F.2d 145, 149 (6th Cir. 1944) quoting Blackmon v. United States, 108 F.2d 572, 573 (5th Cir. 1940). Furthermore, “materiality refers to testimony that will legally evidence the propositions to be proved.” Fraser v. United States, supra at 149 of 145 F.2d, quoting United States v. Slutzky, 79 F.2d 504, 506 (3rd Cir. 1935).

However, materiality of statements made in a grand jury investigation may more readily appear than that of similar evidence offered on an issue in civil or criminal litigation, since the purpose of the investigation is to get at facts which will enable the grand jury to determine whether formal charges should be made against someone rather than prove matters directly at issue. Leads to further inquiry may be of material worth to an investigation. Thus the test of materiality is whether the false testimony has the natural effect or tendency to impede, influence or dissuade the grand jury from pursuing its investigation.

United States v. Stone, 429 F.2d 138, 140 (2d Cir. 1970) (citations omitted); see United States v. Manfredonia, 414 F.2d 760, 764 (2d Cir. 1969); United States v. Henderson, 185 F.2d 189, 191 (7th Cir. 1950).

Lazaros was the main accuser of the government officials. It was because of his accusations that the investigation was initiated and the grand jury convened. His testimony was relevant to the bribery charges under investigation. Regardless of the actual beliefs of the United States Attorney, the grand jury was entitled to hear Lazaros’s testimony. Unless protected by privilege, the “public [through the grand jury] . has a right to every man’s evidence.” Branzburg v. Hayes, 408 U.S. 665, 688, 92 S.Ct. 2646, 2660, 33 L.Ed.2d 626 (1972).

Furthermore the testimony sought from Lazaros was within the legitimate scope of the grand jury’s functions.

[T]he grand jury . . . has the dual function of determining if there is probable cause to believe that a crime has been committed and of protecting citizens against unfounded criminal prosecutions.

Branzburg v. Hayes, supra at 687, 92 S. Ct. at 2659 (footnotes omitted).

Because its task is to inquire into the existence of possible criminal conduct and to return only well-founded indictments, its investigative powers are necessarily broad. “It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime.”

Branzburg v. Hayes, supra at 688, 92 S. Ct. at 2659, quoting Blair v. United States, 250 U.S. 273, 282, 39 S.Ct. 468, 63 L.Ed. 979 (1919). See United States v. Neff, 212 F.2d 297, 301 (3rd Cir. 1954).

A grand jury’s investigation is not fully carried out until every available clue has been run down and all witnesses examined in every proper way to find if a crime has been committed;

United States v. Stone, supra at 140.

Obviously many investigations would be incomplete and superficial if the grand jury failed to call those persons who appear to know the most about matters under inquiry.

United States v. Sweig, 441 F.2d 114, 121 (2d Cir. 1971).

We conclude that Lazaros’s testimony before the grand jury was clearly material and well within the legitimate scope of its inquiry.

Finally, the defendant asserts that his conviction should be barred by the doctrine of entrapment as a matter of law.

Unlawful entrapment involves the manufacture of crime by law enforcement officers for the purpose of procuring the prosecution of an otherwise innocent person * *
Thus, where a person has no previous intent, or no previous purpose to violate the law, but he is induced or persuaded by a law enforcement officer to commit the crime, he is the victim of an unlawful entrapment with respect to that particular crime, and the law as a matter of policy forbids his conviction in such a case * * *.

United States v. Curtis, 430 F.2d 1159, 1161 (6th Cir. 1970); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Sorrels v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932).

It is true that Lazaros was forced to tell what he knew about the alleged events. He was not forced, induced, or coerced, however, into giving false testimony before the grand jury. Lazaros urges that he had no predisposition to commit this crime. He points out that he refused initially to testify, and finally testified only under threat of being jailed for contempt of court. This argument misses the point because Lazaros, as we have said, was only compelled to state what he knew, not to testify falsely.

For these reasons we feel that entrapment was not established as a matter of law, and that the issue was properly submitted to the jury.

The defendant raises two final issues. •First, he argues that the indictment was defective because it divides a single crime into twelve different ones. Also it is argued that counts 9 and 11 do not state an offense.

As to the first issue, the defendant relies on Gebhard v. United States, 422 F.2d 281 (9th Cir. 1971). In Gebhard the court stated:

If he in fact told separate lies, each of which could have hindered the grand jury in its investigation, then he could properly be separately charged for each lie. On the other hand, we do not think it proper that the government bludgeon a witness who is lying by repeating and rephrasing the same question, thus creating more possible perjury counts.
Single punishment for a single lie should suffice.

422 F.2d at 289-290; See United States v. Tyrone, supra, 451 F.2d at 18. The government concedes that under Gebhard, the sentences imposed on counts 5, 6, and 11 should be vacated but that the sentences on the remaining counts should be affirmed. We agree with this position. Count 9, in our view does state a separate offense.

The sentences imposed on counts 5, 6 and 11 are accordingly vacated and the convictions and sentences as to all remaining counts are hereby affirmed.

APPENDIX

INDICTMENT

[Record Item 1]

(Filed August 26, 1969)

The Grand Jury charges:

COUNT ONE

1. On or about August 21, 1969, in the Eastern District of Michigan, Southern Division, Peter N. Lazaros, having duly taken an oath before a competent tribunal, that is, the Grand Jury of the United States of America, duly impaneled and sworn in the United States District Court for the Eastern District of Michigan, and inquiring for that District in a case then and there pending before the said Grand Jury in which a law of the United States authorizes an oath to be administered, that he would testify truly, did wilfully and knowingly and contrary to said oath, state material matters which he did not believe to be true, that is to say:

2. At the time and place aforesaid the Grand Jury was conducting an investigation to determine whether there had been committed in the Eastern District of Michigan, and elsewhere, violations of the laws of the United States, to wit: bribery of public officials in violation of Section 201, Title 18, United States Code.

3. It was material to this Grand Jury investigation to determine, among other things, whether Anthony Getto, also known as Tony Getto, an Internal Revenue Service employee, John Gardner, an Internal Revenue Service employee, Ellis Lockwood, an Internal Revenue Service employee, James Lee, an Internal Revenue Service employee, Jerome P. Cavanagh, Mayor of the City of Detroit, and Arthur Stone received any money or thing of value at the Kingsley Inn, 1475 Woodward, Bloomfield Hills, Michigan, on December 17, 1967, at which time and place Peter N. Lazaros was also present; further, it was material to this Grand Jury investigation to determine, among other things, whether the aforementioned individuals were present at the Kingsley Inn, 1475 Woodward, Bloomfield Hills, Michigan, on December 17, 1967, at which time and place Peter N. Lazaros was also present.

4. At the time and place alleged in paragraph 1 herein, Peter N. Lazaros appeared as a witness before the aforesaid Grand Jury, and then and there, being under oath, testified falsely before the Grand Jury with respect to the aforesaid material matters as follows:

“Q. Directing your attention to the Christmas party in December of 1967, did you or did you not give an envelope to Anthony Getto containing a thousand dollars?
A. I did.”

5. The aforesaid testimony of Peter N. Lazaros, as he then and there well knew and believed, was not true in that Anthony Getto, also know as Tony Get-to, an Internal Revenue Service employee, John Gardner, an Internal Revenue Service employee, Ellis Lockwood, an Internal Revenue Service employee, James Lee, an Internal Revenue Service employee, Jerome P. Cavanagh, Mayor of the City of Detroit, and Arthur Stone did not receive any money or thing of value at the Kingsley Inn, 1475 Woodward, Bloomfield Hills, Michigan, on December 17, 1967; and, further, the aforesaid testimony of Peter N. Lazaros as he then and there well knew and believed, was not true in that the aforementioned individuals were not present at the Kingsley Inn, 1475 Woodward, Bloomfield Hills, Michigan, on December 17, 1967.

COUNT TWO

The Grand Jury further charges:

1. The Grand Jury re-alleges all of the allegations of Paragraph 1 of Count One, which is hereby incorporated by reference.

2. The Grand Jury re-alleges all of the allegations of Paragraph 2 of Count One, which is hereby incorporated by reference.

3. The Grand Jury re-alleges all of the allegations of Paragraph 3 of Count One, which is hereby incorporated by reference.

4. At the time and place alleged in Paragraph 1 herein, Peter N. Lazaros appeared as a witness before the Grand Jury, and then and there, being under oath, testified falsely before the Grand Jury with respect to the aforesaid material as follows:

“Q. What about Mr. Gardner, did you or did you not give an envelope containing $1,000 at this Christmas party to Mr. Gardner ?
A. Yes.
Q. You did?
A. Yes.”

5. The Grand Jury re-alleges all of the allegations of Paragraph 5 of Count One, which is hereby incorporated by reference.

COUNT THREE

The Grand Jury further charges:

1. The Grand Jury re-alleges all of the allegations of Paragraph 1 of Count One, which is hereby incorporated by reference.

2. The Grand Jury re-alleges all of the allegations of Paragraph 2 of Count One, which is hereby incorporated by reference.

3. The Grand Jury re-alleges all of the allegations of Paragraph 3 of Count One, which is hereby incorporated by reference.

4. At the time and place alleged in Paragraph 1 herein, Peter N. Lazaros appeared as a witness before the Grand Jury, and then and there, being under oath, testified falsely before the Grand Jury with respect to the aforesaid material as follows:

“Q. Are you positive you gave an envelope containing $1,000 at the Christmas party in 1967 to Ellis Lockwood?
A. Yes, sir.”

5. The Grand Jury re-alleges all of the allegations of Paragraph 5 of Count One, which is hereby incorporated by reference.

COUNT FOUR

The Grand Jury further charges:

1. The Grand Jury re-alleges all of the allegations of Paragraph 1 of Count One, which is hereby incorporated by reference.

2. The Grand Jury re-alleges all of the allegations of Paragraph 2 of Count One, which is hereby incorporated by reference.

3. The Grand Jury re-alleges all of the allegations of Paragraph 3 of Count One, which is hereby incorporated by reference.

4. At the time and place alleged in Paragraph 1 herein, Peter N. Lazaros appeared as a witness before the Grand Jury, and then and there, being under oath, testified falsely before the Grand Jury with respect to the aforesaid material as follows:

"Q. Now, Mr. Lazaros, let’s go back to James Lee. Did you give James Lee an envelope with $1,000 or didn’t you, at the Christmas party in December, 1967?
A. Yes, I did.”

5. The Grand Jury re-alleges all of the allegations of Paragraph 5 of Count One, which is hereby incorporated by reference.

COUNT FIVE

The Grand Jury further charges :

1. The Grand Jury re-alleges all of the allegations of Paragraph 1 of Count One, which is hereby incorporated by reference.

2. The Grand Jury re-alleges all of the allegations of Paragraph 2 of Count One, which is hereby incorporated by reference.

3. The Grand Jury re-alleges all of the allegations of Paragraph 3 of Count One, which is hereby incorporated by reference.

4. At the time and place alleged in Paragraph 1 herein, Peter N. Lazaros appeared as a witness before the Grand Jury, and then and there being under oath, testified falsely before the Grand Jury with respect to the aforesaid material as follows:

“Q. But all of these Internal Revenue Service employees — and I mean Getto, Lockwood, Lee and Gardner— were at the party in each other’s presence, is that correct ?
A. Yes.”

5. The Grand Jury re-alleges all of the allegations of Paragraph 5 of Count One, which is hereby incorporated by reference.

COUNT SIX

The Grand Jury further charges:

1. The Grand Jury re-alleges all of the allegations of Paragraph 1 of Count One, which is hereby incorporated by reference.

2. The Grand Jury re-alleges all of the allegations of Paragraph 2 of Count One, which is hereby incorporated by reference.

3. The Grand Jury re-alleges all of the allegations of Paragraph 3 of Count One, which is hereby incorporated by reference.

4. At the time and place alleged in Paragraph 1 herein, Peter N. Lazaros appeared as a witness before the Grand Jury, and then and there, being under oath, testified falsely before the Grand Jury with respect to the aforesaid material as follows:

“Q. Well, Getto, Lockwood, Lee and Gardner were there for a long time, is that correct?
A. I say yes.
Q. From the start of the party to about the end of the party, is that correct ?
A. That is correct.”

5. The Grand Jury re-alleges all of the allegations of Paragraph 5 of Count One, which is hereby incorporated by reference.

COUNT SEVEN

The Grand Jury further charges:

1. The Grand Jury re-alleges all of the allegations of Paragraph 1 of Count One, which is hereby incorporated by reference.

2. The Grand Jury re-alleges all of the allegations of Paragraph 2 of Count One, which is hereby incorporated by reference.

3. The Grand Jury re-alleges all of the allegations of Paragraph 3 of Count One, which is hereby incorporated by reference.

4. At the time and place alleged in Paragraph 1 herein, Peter N. Lazaros appeared as a witness before the Grand Jury, and then and there, being under oath, testified falsely before the Grand Jury with respect to the aforesaid material as follows:

“Q. Are you positive that either you or Joe Barbara in your presence gave an envelope to Mayor Cavanagh at that same party, at the Kingsley Inn in December 1967, containing $3,000?
A. Yes, sir.”

5. The Grand Jury re-alleges all of the allegations of Paragraph 5 of Count One, which is hereby incorporated by reference.

COUNT EIGHT

The Grand Jury further charges:

1. The Grand Jury re-alleges all of the allegations of Paragraph 1 of Count One, which is hereby incorporated by reference.

2. The Grand Jury re-alleges all of the allegations of Paragraph 2 of Count One, which is hereby incorporated by reference.

3. The Grand Jury re-alleges all of the allegations of Paragraph 3 of Count One, which is hereby incorporated by reference.

4. At the time and place alleged in Paragraph 1 herein, Peter N. Lazaros appeared as a witness before the Grand Jury, and then and there, being under oath, testified falsely before the Grand Jury with respect to the aforesaid material as follows:

“Q. What about Art Stone, did you give Art Stone an envelope which contained $500?
A. As I said1, I give him money, but I don’t know if it was in an envelope. Today I can’t remember if it was in an envelope.
Q. Did you give him $500 ?
A. Yes.”

5. The Grand Jury re-alleges all of the allegations of Paragraph 5 of Count One, which is hereby incorporated by reference.

COUNT NINE

The Grand Jury further charges:

1. The Grand Jury re-alleges all of the allegations of Paragraph 1 of Count One, which is hereby incorporated by reference.

2. The Grand Jury re-alleges all of the allegations of Paragraph 2 of Count One, which is hereby incorporated by reference.

3. It was material to this Grand Jury investigation to determine whether one Anthony Getto, also known as Tony Getto, an Internal Revenue Service employee, Vernon Conrad, an Internal Revenue Service employee, and James Dunleavy, a Detroit Police Department officer, attended a boxing match between Joey Giardello and Rocky Rivaro in Cleveland, Ohio, in the Spring of 1964, at which time and place Peter N. Lazaros was also present; further, it was material to this Grand Jury investigation to determine whether the aforementioned individuals, at or about the time the aforementioned individuals attended the aforesaid boxing match, received money or a thing of value at the Sahara Motor Hotel, 3201 Euclid Avenue, Cleveland, Ohio, at which time and place Peter N. Lazaros was also present.

4. At the time and place alleged in Paragraph 1 herein, Peter N. Lazaros appeared as a witness before the Grand Jury, and then and there, being under oath, testified falsely before the Grand Jury with respect to the aforesaid material as follows:

“Q. (Interposing) Wait a minute, Mr. Lazaros, did you go to both Joey Giardello-Rocky Rivaro fights or one fight ?
A. I don’t remember, Mr. O’Leary.
Q. Well, did Anthony Getto go to both fights or one fight?
A. He was in one of them.”

5. The aforesaid testimony of Peter N. Lazaros, as he then and there well knew and believed, was not true in that Anthony Getto, also known as Tony Get-to, an Internal Revenue Service employee, Vernon Conrad, an Internal Revenue Service employee, and James Dunleavy, a Detroit Police officer, did not receive any money or thing of value at the Sahara Motor Motel, 3201 Euclid Avenue, Cleveland, Ohio, in the Spring of 1964; further, the aforesaid testimony of Peter N. Lazaros, as he then and there well knew and believed, was not true in that the aforementioned were not present at a boxing match between Joey Giardello and Rocky Rivaro in Cleveland, Ohio, in the Spring of 1964.

COUNT TEN

The Grand Jury further charges:

1. The Grand Jury re-alleges all of the allegations of Paragraph 1 of Count One, which is hereby incorporated by reference.

2. The Grand Jury re-alleges all- of the allegations of Paragraph 2 of Count One, which is hereby incorporated by reference.

3. The Grand Jury re-alleges all of the allegations of Paragraph 3 of Count Nine, which is hereby incorporated by reference.

4. At the time and place alleged in Paragraph 1 herein, Peter N. Lazaros appeared as a witness before the Grand Jury, and then and there, being under oath, testified falsely before the Grand Jury with respect to the aforesaid material as follows:

“Q. Do you know Inspector James Dunleavy, formerly of the Detroit Police Department?
A. Very well.
Q. Was Inspector Dunleavy at that fight?-
A. Yes, he was.”

5. The Grand Jury re-alleges all of the allegations of Paragraph 5 of Count Nine, which is hereby incorporated by reference.

COUNT ELEVEN

The Grand Jury further charges:

1. The Grand Jury re-alleges all of the allegations of Paragraph 1 of Count One, which is hereby incorporated by reference.

2. The Grand Jury re-alleges all of the allegations of Paragraph 2 of Count One, which is hereby incorporated by reference.

3. The Grand Jury re-alleges all of the allegations of Paragraph 3 of Count Nine, which is hereby incorporated by reference.

4. At the time and place alleged in Paragraph 1 herein, Peter N. Lazaros appeared as a witness before the Grand Jury, and then and there, being under oath, testified falsely before the Grand Jury with respect to the aforesaid material as follows:

“Q. You came back from the fight on Saturday; the fight was on Friday night, isn’t that correct?
A. I don’t remember if it was on Friday, but if you say it was — I don’t know the dates there. I stayed — we stayed one day over, yes.
Q. Did Mr. Getto also stay one day over?
A. Yes.”

5. The Grand Jury re-alleges all of the allegations of Paragraph 5 of Count Nine, which is hereby incorporated by reference.

COUNT TWELVE

The Grand Jury further charges:

1. The Grand Jury re-alleges all of the allegations of Paragraph 1 of Count One, which is hereby incorporated by reference.

2. The Grand Jury re-alleges all of the allegations of Paragraph 2 of Count One, which is hereby incorporated by reference.

3. The Grand Jury re-alleges all of the allegations of Paragraph 3 of Count Nine, which is hereby incorporated by reference.

4. At the time and place alleged in Paragraph 1 herein, Peter N. Lazaros appeared as a witness before the Grand Jury, and then and there, being under oath, testified falsely before the Grand Jury with respect to the aforesaid material as follows:

“Q. You say the money go from— or you saw the money go to Vernon Conrad and Tony Getto and Inspector Dunleavy ?
A. Yes.
Q. Is that correct?
A. Yes.
Q. And this was in a room at the Sahara Motel, is that correct ?
A. Yes, I can describe you the room if you want me to.
Q. Was this on the same night of the fight or was this on the following day?
A. I think it was on the following day.”

5. The Grand Jury re-alleges all of the allegations of Paragraph 5 of Count Nine, which is hereby incorporated by reference.

This is a True Bill.

Charles L. Easton Foreman

      . The indictment is attached as Appendix One to this opinion.

      . The essential elements of a violation of 18 U.S.O. § 1621 are the taking of an oath, in a case where a law of the United States authorizes the oath to be administered, to testify truly, and willfully and contrary to such oath making a false statement, as to a material fact and which the defendant did not believe to be true. United States v. Stone, 429 F.2d 138, 140 (2d Cir. 1970).

      . He points out that a week before his testimony, another government informer had been killed by the administering of a cyanide cupcake while he was in the Wayne County jail. He testified that he felt that he would receive the same treatment were he confined there.

      . Although DeBoer told Lazaros that giving him false statements was a felony, this was incorrect information. Lazaros apparently could not have been convicted under 18 U.S.C. § 1001 for any statements he made to DeBoer. See e. g., Friedman v. United States, 374 F.2d 363 (8th Cir. 1967).

      . The testimony need not actually impede the grand jury investigation. The question, to be material, need only pertain to the same general subject matter as the investigation. Vitello v. United States, 425 F.2d 416, 424 (9th Cir. 1970) ; see United States v. Tyrone, 451 F.2d 16, 18 (9th Cir. 1971).

      . Reliance on Brown v. United States, 245 F.2d 459 (8th Cir. 1957) ; United States v. Cross, 170 F.Supp. 303 (D.C.D.C. 1959) ; United States v. Icardi, 140 F. Supp. 383 (D.C.D.C.1956), is misplaced. In Cross and Icardi, both defendants were convicted of perjury for testimony before a Congressional committee. In both cases the court held that the testimony that was given was not pursuant to any valid legislative purpose, but rather was publicly to try and convict the particular individual of the allegations against him. Obviously, the legislative investigatory powers cannot be used as a substitute for the judicial process, particularly when the individual is subsequently convicted of , perjury on the basis of the testimony that he gave before the legislative committee.

        Brown presents a different situation. In that case the defendant was convicted of perjury based on testimony before a grand jury sitting in Nebraska. The testimony was given in regard to activity that occurred in St. Louis, Missouri. There was no connection between any of the alleged criminal activity and Nebraska, other than the fact that the grand jury happened to be sitting there. The Eighth Circuit held that the Nebraska grand jury had no jurisdiction to investigate criminal conduct occurring in Missouri, and consequently, the testimony before the grand jury could not be used to support a perjury conviction. This is obviously not the case here. The grand jury was investigating bribery that had occurred primarily within the jurisdiction in which the grand jury was sitting. The perjurious testimony related to incidents that occurred within that jurisdiction. The grand jury had both subject matter and territorial jurisdiction over the matters to which the perjurious testimony pertains.

      . As a corollary the defendant theorizes that the grant of immunity by the district court was void because the district court’s jurisdiction was fraudulently invoked. The defendant points out that in his application for immunity, the United States Attorney recited several facts, specifically alleging that the grand jury was presently investigating the possibility of bribery; and that Lazaros’s testimony was material to this investigation. These assertions, according to the defendant, were false. "We find otherwise on the record before us. We find that the grand jury’s investigation of the bribery was not complete when Lazaros was called to testify on August 21, 1909, and that the grand jury investigation was not fraudulently invoked.


source: Caselaw Access Project

author: OAKES, Circuit Judge:

license: Public Domain

text:
    In re FREEDOMEAND, INC., Bankrupt.
    Nos. 427, 804, 805, Dockets 72-1546, 72-1551, 72-1716.
    United States Court of Appeals, Second Circuit.
    Argued March 15, 1973.
    Decided June 8, 1973.

      Howard Karasik, New York City, for appellant Otte, Trustee in Bankruptcy of Freedomland, Inc.
    Susan Freiman, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y., on the brief), for appellant United States.
    Samuel J. Warms, New York City (Norman Redlieh, Corp. Counsel for City of New York, New York City, Raymond Herzog, Cedarhurst, N. Y., and Cornelius F. Roche, New York City, of counsel), for appellant New York City.
    Before HAYS, MULLIGAN and OAKES, Circuit Judges.
   OAKES, Circuit Judge:

This ease presents the esoteric, but nevertheless highly practical, issue of how withholding on wages earned before bankruptcy is to be handled in bankruptcy. Involved are both the income tax laws, silent in this regard as to the effect of bankruptcy, and the bankruptcy laws, silent as to the status of moneys withheld and indeed inarticulate as to the category of priority within which withholding taxes on previously earned wages fit. The problems presented in winding a tortuous path between two inexact sets of statutes in these two different areas of law as to withholdings claimed due the United States are further complicated by virtue of a claim for income tax withholdings by the City of New York on a statute enacted after the wages were earned but before any payments on their account to the wage earners have been made by the bankruptcy trustee.

Freedomland, Inc., filed an arrangement petition under Chapter XI of the Bankruptcy Act on September 15, 1964, and was adjudicated a bankrupt on August 30, 1965. During the statutory period for filing claims, 413 claims of $600 or less, totaling approximately $80,000, were filed by former employees of Freedomland on account of wages earned before the filing of the Chapter XI petition. 11 U.S.C. § 93. No claims for withholding, social security or related taxes were filed either by the United States or the City of New York during the statutory filing period or otherwise. The trustee, on November 7, 1969, moved the referee for an order authorizing payment to the wage claimants without withholding income, social security or other taxes and an order specifically declaring that he was not required (1) to make any such payments to any governmental body; (2) to prepare, distribute or file wage and tax statements for the employees or as an employer; or (3) to pay any penalties. The referee, Edward J. Ryan, was apparently much taken with the criticism by a fellow referee of United States v. Fogarty, 164 F.2d 26 (8th Cir. 1947), which held that a trustee must withhold income and social security taxes and that the taxes were payable as an administration expense entitled to first priority. Referee Ryan accordingly on January 27, 1971, granted the trustee’s petition on all counts, holding that “compliance with withholding and reporting requirements of tax authorities is utterly inconsistent with the spirit and the letter of the Bankruptcy Act,” particularly the policy in favor of “efficient, expeditious economic administration of bankrupt estates.”

The district court took evidence on the question what administrative burdens were imposed by the requirement that taxes were to be withheld, paid over and duly accounted for by the bankruptcy trustee. The district court noted (as the referee had previously) a bankruptcy practice in the Southern District of New York, concurred in by IRS, of deducting 25 per cent of gross wage claims, covering both income and social security taxes, and paying it in one check to the Director of Internal Revenue without allocation to the various individual taxpayers. Further evidence indicated that a junior accountant or clerk with payroll records could make the 25 per cent calculations quite readily and could also fill out forms 941 and W-3 for the Government and forms W-2 for the individual employees respectively. On the basis of this evidence the district court, in an opinion printed at 341 F.Supp. 647 (S.D.N.Y.1972), reversed the referee’s order that the trustee was not required to withhold taxes or file the necessary forms. The court then went on to hold, relying upon In re Connecticut Motor Lines, Inc., 336 F.2d 96 (3rd Cir. 1964), that withholdings were not “expenses of administration” as held in United States v. Fogarty, supra, but rather were entitled only to a fourth priority as taxes “legally due and owing” to the United States by the bankrupt. Bankruptcy Act § 64(a)(4), 11 U.S.C. § 104(a)(4). In reaching this decision, the court also referred to In re International Match Corp., 79 F.2d 203 (2d Cir.), cert, denied sub nom. Delaware v. Irving Trust Co., 296 U.S. 652, 56 S.Ct. 368, 80 L.Ed. 464 (1935), for the proposition that “before a tax could be found to be legally due and owing by the bankrupt . . . enough must have been known about the basis of the tax to make the tax computable or ‘knowable’ before bankruptcy, although not collectible until after adjudication.” 341 F.Supp. at 656. As to the City of New York's claim, the district court held that since the City tax was not even enacted until 1966 there were no taxes that could be said to be legally due and owing to it in September, 1964, when the Chapter XI proceeding was filed, and hence the City had no claim, under In re International Match Corp., supra. For the reasons which we state hereafter, we agree with the district court insofar as it required withholding and filing the prescribed forms, but disagree as to the order of priority assigned by it to with-holdings, as well as to its treatment of the claim of the City of New York.

The first issue is whether a bankruptcy trustee must withhold under federal income tax law. The Internal Revenue Code of 1954, § 3401(a) defines “wages” as “all remuneration . . . for services performed by an employee for his employer . . . .” Were we to face this question afresh, an argument might be made that payments made by a bankruptcy trustee for wages earned before bankruptcy are really wage claim distributions. For example, as pointed out to us by the trustee, a solvent employer required to pay a judgment for disputed wages earned might not be paying “wages.” Cf. Rev.Rul. 55-520, 1955 Int.Rev.Bull. No. 2 at 393-94 (compromise settlement for cancellation of employment contract not wages for withholding or FICA); Rev.Rul. 69-136, 1969 Int.Rev.Bull. No. 1 at 252-53 (sums paid former employees while in military service not wages). Further, it could be advanced that the bankruptcy trustee is not an “employer” since he has no “right to control and direct,” 26 C.F.R. § 31.3401(c)-l(b), the “individual performing services,” 26 C.F.R. § 31.-3401(c)-l(a), that is, the wage' claimant. See In re Park Brewing Co., 48 F. Supp. 750 (W.D.Mich.1942). But see Int.Rev.Code of 1954, § 3401(d)(1) (defining “employer” as “the person having control of the payment of wages . . . .” [emphasis supplied] ) ; Educational Fund of the Electrical' Industry v. United States, 426 F.2d 1053 (2d Cir. 1970) (payments to union members attending school which under collective bargaining agreement derived from employers but were paid out by union trust denominated as “educational fund” constituted “wages” for withholding, and educational fund held to constitute “employer” under § 3401(d)(1)).

We are not writing on a clean slate, however. United States v. Fogarty, supra, decided in the Eighth Circuit has been followed first in the Sixth, United States v. Curtis, 178 F.2d 268 (6th Cir. 1949), cert. denied, 339 U.S. 965, 70 S. Ct. 1001, 94 L.Ed. 1374 (1950), and then in the Ninth Circuits on this point. Lines v. State Department of Employment, 242 F.2d 201 (9th Cir.), rehearing denied with opinion, 246 F.2d 70, cert. denied, 355 U.S. 857, 78 S.Ct. 86, 2 L. Ed.2d 64 (1957). See also In re Connecticut Motor Lines, Inc., 217 F.Supp. 330 (E.D.Pa.), supplemented 223 F. Supp. 189 (1963), rev’d on other grounds, 336 F.2d 96 (3rd Cir. 1964). While Fogarty and its fellows have been criticized sharply by writers in the bankruptcy field, there is no decision of any court outstanding to the contrary on the point of necessity of withholding.

Indeed, as was found below, until it was decided to make a test case of this one — and we are appalled that almost nine years elapsed from the time the wages were earned until the case came to us — the bankruptcy trustees, at least in the Southern District of New York, managed perfectly well with the rough deduction of 25 per cent and remittance of that sum to the Director. The trustee’s and referee’s parade of horribles relating to computations, employment of accountants, completion of forms, etc., was quite deflated by the court below in its findings, and especially its conclusion that “Compliance with such requirements adds only slightly to the trustee’s inescapable task and cost of verifying each claim before payment.” 341 F.Supp. at 654. The result in Fogarty at least has the virtue that wage earners themselves do not have the job of determining their individual FICA taxes or figuring how to report them so as to obtain full social security credit therefor.

It may be that a dust cloth will be needed to wipe the cobwebs away from the files in which the wage and payroll records for the quarter in question are stored, now that so much time has gone by, but the amount of effort required on the trustee’s part in a bankruptcy matter involving the sums that this one does is relatively small, even though 413 wage claimants are involved. That effort probably doesn’t begin to match that which will be required of a conscientious trustee to track down the present addresses of the former employees so that they may receive their long overdue wages in the mail, effort which could largely have been avoided had distributions been made when they first could have been, several years ago. We thus hold that the trustee, as a person who substantially controls the payment of wages, Int.Rev.Code of 1954, § 3401(d)(1), is an employer for withholding tax purposes and must withhold.

It follows that as employer the trustee must file the requisite forms, including 941, W-2 and W-3, as he was ordered to do below. Cf. Nicholas v. United States, 384 U.S. 678, 692-693, 86 S.Ct. 1674, 16 L.Ed.2d 853 (1966) (trustee in bankruptcy held under an Int.Rev.Code of 1954, § 6011(a) obligation to file returns for taxes incurred by debtor in possession). We hold also that he may withhold on the 25 per cent basis which the court below found, with no real dispute here, represents an IRS attempt to facilitate bankruptcy administration on quite a practical basis. We see no objection to this commonsense approach, for if there is an overpayment the employee can file for a refund. Of course, as income or social security taxes change— and the latter have increased .65 per cent from 1971 to 1973 — the 25 per cent may have to be adjusted slightly. Perhaps Congress will ultimately be of assistance here. But in any event the 25 per cent figure still seems a sound one and one easy to compute.

To which, if any, of the five priorities under § 64 of the Bankruptcy Act, note 2 supra, then, are withholdings on wage distributions to be assigned? The Fogarty ease held that they should be classified as administration expenses, that is, in the first priority. See also Lines v. State Department of Employment, supra. But “the costs and expenses of administration,” § 64(a)(1) of the Bankruptcy Act, 11 U.S.C. § 104(a)(1), must in general relate to the preservation or development of the bankrupt’s assets. See, e. g., Adair v. Bank of America National Trust & Savings Association, 303 U.S. 350, 361, 58 S.Ct. 594, 82 L.Ed. 889 (1938). We agree with the Third Circuit’s criticism of Fogarty and Lines in In re Connecticut Motor Lines, Inc., supra, 336 F.2d at 99-102, noted, 63 Mich.L.Rev. 1103 (1965), 40 N.Y.U.L.Rev. 360 (1965), 19 Rutgers L.Rev. 546 (1965). See also Denton & Anderson Co. v. Induction Heating Corp., 178 F.2d 841, 843-844 (2d Cir. 1949) (commissions accruing after bankruptcy on goods ordered but not filled prior thereto held not entitled to first priority status). By according (a)(1) status to withholding taxes they would take priority over the wages on which they were based. In Lines, indeed, dividends which would have gone to wage earners were depleted by an employer’s tax payment to the unemployment insurance fund. See 56 Mich.L.Rev. 631, 633 (1958).

We do not agree, however, with the Third Circuit’s treatment in Connecticut Motor Lines of withholdings as “ ‘taxes [which became] legally due and owing by the bankrupt’ ” (emphasis supplied), and hence entitled to fourth priority treatment. Bankruptcy Act § 64(a)(4), 11 U.S.C. § 104(a)(4). The taxes are by law calculable only when the wage claims are paid and not until then, note 7 supra, regardless of any practice by IRS to accept a flat payment of a specified percentage such as 25 per cent. The taxes were never “due and owing by [the] bankrupt,” which was. Freedomland. When a tax “cannot be computed as of the date of the petition in bankruptcy,” it is not “due and owing by [the] bankrupt.” In re International Match Corp., supra.

We agree, rather, with the very persuasive brief of the City of New York that the proper classification for the withholdings to be made is that of second priority wage claims. All of the withholding taxes, whether federal or city, derive from the payments which will be made to the wage claimants. Int.Rev.Code of 1954, §§ 3402, 3101; New York City Admin.Code § T46-51.0 and § U46-8.0. The claimants are credited with the withheld amounts toward their income taxes. Int.Rev.Code of 1954, § 31(a); New York City Admin. Code § T46-53.0 and § U46-10.0. Conceptually the tax payments should be treated in the same way as the wages from which they derive and of which they are a part. Cf. In re Quakertown Shopping Center, Inc., 366 F.2d 95 (3rd Cir. 1966) (IRS can levy upon the claim of a taxpayer-creditor against a bankrupt estate without approval of bankruptcy court).

In our view when wage claims are ordered to be paid by the bankruptcy court they should be segregated and the tax monies due held as trust funds. Int.Rev.Code of 1954, § 7501(a); New York City Admin.Code § T46-55.0 and § U46-12.0. It is true that United States v. Randall, 401 U.S. 513, 91 S.Ct. 991, 28 L.Ed.2d 273 (1971) (5-4 decision), held that where a debtor in possession failed to obey an order of the bankruptcy court to deposit withheld taxes in a special tax account, the Bankruptcy Act’s (a)(1) priority for costs and expenses of administration would override any claim pursuant to 26 U.S.C. § 7501(a) that the withheld taxes “shall be held to be a special fund in trust for the United States.” But cf. In re Airline-Arista Printing Corp., 267 F.2d 333 (2d Cir. 1959), and City of New York v. Rassner, 127 F.2d 703 (2d Cir. 1942), referred to in United States v. Randall, supra, 401 U.S. at 519, 91 S.Ct. 991 (dissenting opinion). Randall, however, did not reach the question before us. Rather, it was concerned only with vindicating the Bankruptcy Act’s “policy of subordinating taxes to costs and expenses of administration.” 401 U.S. at 517, 91 S.Ct. at 994. That policy is fully upheld by placing the withheld taxes here in a second priority position along with the wages that create them. In other words, the trust which arises is subject to the prior payment of the statute-specified costs and expenses of administration, but exists nevertheless as to withholdings on wage claims allowed. In this view, contrary to the view of the Third Circuit in Connecticut Motor Lines, supra, 336 F.2d at 107, there is no necessity for the Government (or City) to file proofs of claims for withholdings. Since withholding tax arises only when wage claims are allowed it might well be impossible for the Government to file a proof of claim, as it must do when the taxes are owing by the bankrupt, not the case here. The filing of the wage claims by the individuals constructively constituted a claim by the taxing authorities for withholdings due by law. Other creditors are not misled, since the amounts claimed for wages include within them the amounts due to the taxing authorities. In this respect we agree with the court below.

There remains for consideration only the question whether New York City may obtain withholding taxes on the wage claims paid since there was not even a city income tax in effect when the wages were earned. But we have already pointed out that the wage earners here are in all probability on the cash basis, note 7 supra, so that regardless of when the wages were earned, they are income and taxable in the year received. As we have already said, liability for withholding arises when the wage claims are paid. Int.Rev.Code of 1954, §§ 3402, 3101 and 31(a). The City in this respect is in the same position as the federal government. New York City Admin.Code §§ T46-51.0 and U46-8.0; §§ T46-53.0 and U46-10.0. Wages are just as much a part of city “adjusted gross income,” New York City Admin.Code § T46-12.0, as they are of federal. The fact that the city tax applies to wages earned before its effective date is not important since no vested rights are impaired. See Welch v. Henry, 305 U.S. 134, 146-151, 59 S.Ct. 121, 83 L.Ed. 87 (1938); Milliken v. United States, 283 U.S. 15, 20-24, 51 S.Ct. 324, 75 L.Ed. 809 (1931); Kentucky Union Co. v. Kentucky, 219 U.S. 140, 152-153, 31 S. Ct. 171, 177, 55 L.Ed. 137 (1911) (“Laws of a retroactive nature, imposing taxes . . . and not impairing vested rights, are not forbidden by the Federal Constitution”). See also Lynch v. Hornby, 247 U.S. 339, 38 S.Ct. 543, 62 L.Ed. 1149 (1918) (federal income tax law constitutionally permits taxation of dividends paid out of surplus accumulated before date of act); Neild v. District of Columbia, 71 App.D.C. 306, 110 F.2d 246, 253 (1940). We conclude that the City is as entitled to its withholding tax as the federal government is to its taxes.

We add only that to the extent there is now a conflict among the circuits as to priorities of withholding taxes on pre-bankruptcy wages earned — the Eighth and Ninth Circuits going for the first, the Third for the fourth and the Second for the second — correction may come either from Congress or the High Court. It is a pity that the wage claimants here had to wait so long for the ease to wend its way to our court, and that so many of them were involved. Nevertheless the question has some significance in the administration of bankrupt estates so that it is perhaps well that after the 25 years that have elapsed since Fogarty the matter might receive some further congressional or judicial attention.

We reverse and remand for the entry of judgment in accordance with this opinion.

      . The United States had filed a claim for federal income and social security taxes due on wages actually paid during the quarter immediately preceding the petition for an arrangement. No claim was filed for those due on unpaid wages during that quarter, however, and it is withholdings on those wages which are in dispute here.

      . See Hiller, The Folly of the Fogarty Case, 32 J. of Nat’l Ass’n of Ref. 54 (1958).
      In general terms § 64(a) of the Bankruptcy Act, 11 U.S.C. § 104, categorizes debts having priority in .the following order :
      1. costs and expenses of administration ;
      2. wages not exceeding $600 earned within three months before the date of the commencement of the proceeding;
      3. creditor’s expenses in setting aside confirmation of an arrangement or obtaining refusal of a discharge;
      4. “taxes legally due and owing by the bankrupt to the United States or any State or any subdivision thereof . . . ” and
      5. debts owing to persons entitled to property by law.

      . New York City has had since July 1, 1966, a tax on residents as well as nonresidents earning wages in New York that tracks the federal tax (with limited immaterial modifications), New York City Admin.Code § T46-11.0, 12.0, and contains appropriate withholding provisions. New York City Admin.Code, Ch. 46, Titles T (residents) and U (non-residents). The rate of the tax,is agreed upon here as 1 per cent.

      . The trustee suggests that he does not have “control” because payment requires an order of the court and the referee’s countersignature. But the trustee applies for the order and has .title to the funds to be paid, and when he sends the checks out he surely has “control of the payment.”

      . 3A Collier on Bankruptcy U 64.202 at 2119 n. 1 (14th ed. 1972) ; Hiller, supra note 2.

      . In this connection it might be noted that even the referee whose criticism of Fogarty was heavily relied on by the referee here refused to create a test case challenging the Fogarty rule in his circuit because he realized the “hardship that a protracted delay would entail” to the needy coal miners involved in his case. Hiller, supra note 2, at 54.

      . The Government also adduced evidence from which this court finds that the foregoing forms can be and usually are filled out by a payroll clerk, bookkeeper, or other clerical employee of the employer. The court also finds that, assuming the availability of an employer’s payroll records showing each wage claimant’s social security number, the preparation of such forms by employing the 25% rule would not be unduly time consuming or costly for the trustee’s accountant to prepare in connection with verifying each wage claim before presentation to the referee for payment approval. The trustee’s accountant testified that these forms would be prepared by a junior accountant in his office.
      341 F.Supp. 647, 653.

      . It should be remembered that these wage earners are in the highest degree of likelihood on the eash basis, Int.Rev.Code of 1954, § 446(a) & (c), so that the rates of tax in effect in the year of payment as opposed to the 'year of wage-earning or the year of the referee’s order permitting payment govern. Muhleman v. Hoey, 124 F.2d 414, 415 (2d Cir. 1942) ; 2 Mertens, The Law of Federal Income Taxation § 12.42 at 179 (1973) :
      The doctrine that payments of compensation are income to a taxpayer on a cash basis in the year of receipt, as distinguished from the year in which the compensation is earned, is too firmly embedded in the income tax law to permit of any question.
      Withholding of social security taxes is also done “by deducting the amount of the tax from the wages as and when paid." Int.Rev.Code of 1954, § 3102(a) (emphasis supplied).

      . The Seventh Circuit reached the same result in In re John Horne Co., 220 F.2d 33 (7th Cir. 1955), relying somewhat on our own Pomper v. United States, 196 F.2d 211 (2d Cir. 1952). Both Horne and Pomper, however, dealt with wages actually paid before bankruptcy, not the case here. United States v. Curtis, 178 F.2d 268 (6th Cir. 1949), cert. denied, 339 U.S. 965, 70 S.Ct. 1001, 94 L.Ed. 1374 (1950).

      . It is for this reason we reject the argument made by the Third Circuit, In re Connecticut Motor Lines, Inc., 336 F. 2d 96, 102-106 (3rd Cir. 1964), relied on by the district court here, 341 F.Supp. at 656-657, that a concerted legislative policy to reduce the priority of tax claims in bankruptcy requires a fourth priority classification for the withheld taxes here. The legislative policy discerned relates to taxes owed by the bankrupt, not by the bankrupt’s employees. The fourth priority in bankruptcy relates historically and otherwise to taxes owed by the bankrupt. Similarly, the 64(a) (2) priority derives from 132 years of statutory history relating to the status of wage claims in bankruptcy, a history long precedent to the adoption in 1943 of what some will recall as “pay-as-you-go.” Act of June 9, 1943, c. 120 § 2(a), 57 Stat. 126, Int.Rev. Code of 1939, § 1621, as amended.

      . The second sentence of § 7501 of the Int.Rev.Code of 1954 is consistent with this view:
      The amount of such fund shall be assessed, collected, and paid in the same manner and subject to the same provisions and limitations (including penalties) as are applicable with respect to the taxes from which such fund arose.


author: O’SULLIVAN, Senior Circuit Judge.

text:
    Bhagwati P. K. PODDAR, Plaintiff-Appellant, v. YOUNGSTOWN STATE UNIVERSITY et al., Defendants-Appellees.
    No. 73-1002.
    United States Court of Appeals, Sixth Circuit.
    Argued April 13, 1973.
    Decided June 14, 1973.
    Eugene Green, Green, Schiavoni, Murphy & Haines, Youngstown, Ohio, for plaintiff-appellant.
    John G. Ingram, Youngstown, Ohio, for defendants-appellees.
    Before WEICK, Circuit Judge and CECIL and O’SULLIVAN, Senior Circuit Judges.
   O’SULLIVAN, Senior Circuit Judge.

Bhagwati P. K. Poddar appeals from dismissal of his civil rights action, brought under 42 U.S.C. § 1983, alleging that defendants, Youngstown (Ohio) State University and its governing authorities, violated his constitutional rights in failing to continue his employment as a professor at the University. He had been notified that his employment would terminate at the end of the 1971-1972 school year. He charged that this action was taken because of his exercise of the free speech guaranteed him by the First Amendment to the Constitution of the United States.

This was the second action brought by appellant against these defendants. In a first action, he charged constitutional wrong in the school’s decision not to continue his employment after the 1970- 1971 school year. In that action, Chief Judge Frank J. Battisti of the United States District Court for the Northern District of Ohio, Eastern Division, ordered defendants to furnish appellant with a statement of their reasons for not renewing his contract. This was followed by a hearing before a hearing examiner who concluded that defendants had not violated any of appellant’s constitutional rights in its nonrenewal of his contract. The examiner did, however, recommend that appellant be reinstated for another year because of the lateness of defendants’ formal supplying appellant with the reasons why his contract was not being renewed. On November 9, 1971, the first case was dismissed by Judge Battisti on the basis of the hearing examiner’s findings, and the agreement of the University to extend appellant’s contract for the school year 1971- 1972.

By letter dated November 13, 1971, defendant President of the University notified appellant that at the end of the 1972 school year, June 16, 1972, his employment would terminate. The letter stated that the “reasons for termination remain those previously supplied to you and found valid by the Court.” It was this letter that prompted the second action, which was heard by District Judge Leroy J. Contie, Jr. Judge Contie’s denial of relief is the subject of the appeal before us.

Appellant had been hired by the defendant University in January, 1969, as an Assistant Professor in the Department of Sociology and Anthropology. Appellant’s original employment was for a term of one year. During his first year, the head of appellant’s department recommended him for a promotion to the position of Associate Professor. Such promotion was turned down by the University officials. The asserted reason for this was the school’s practice of not considering a faculty member for promotion until he had been teaching for at least two years.. It was appellant’s disappointment at not obtaining an early promotion and his consequent activities that brought about the termination of his employment.

The conduct and attitude of appellant changed drastically and his ability to work with his fellow profes.sors became increasingly more difficult as a result of his displeasure at denial of the desired promotion. An attitude of suspicion added to the problem. He suggested that his color — he is a native of India— was part of the school’s motivation. No proof supported this assumption. Appellant was very vocal about his dislike for the University’s promotion policy, and he attempted to get support to have it changed. He also employed his classroom as a forum to air his views and feelings. He continually threatened the department head and others that he would take his case to one or more of such organizations as the Fair Employment Practices Commission, the American Sociological Association, and others. The total result of this conduct was the recommendation to the University not to renew appellant’s contract. All of appellant’s own senior professors concurred in this recommendation. The recommendation was taken under advisement and the appellant was notified in June, 1970, that his one-year contract would not be renewed for the 1971-1972 school year. We need not here review at length the evidence that was before the hearing examiner appointed by Judge Battisti and before Judge Contie at the plenary trial which he conducted.

At the first hearing the reasons furnished appellant were put in the record, as well as other testimony and evidence. As to the alleged conduct which appellant contends was the basis for defendants’ decision not to renew his contract, the examiner said in part:

“It was the unfortunate by-product of his activities, and not the activities themselves, that undoubtedly resulted in his behavior change which did adversely affect his academic and professional performance.”

His report also contained the following:

“I further find that there is no evidence that supports Paragraph 4 of Plaintiff’s Complaint to the effect that Plaintiff’s race, color or national origin had anything to do with the denial of his promotion.”
* * * * * X
“They [appellant’s seniors] tried to convince Plaintiff, without threat or intimidation on their part, to bide his time, and his promotion would come. Plaintiff apparently resented their lack of enthusiasm for his problem and concern and caused a speedy deterioration of his relationship with his co-workers, to the unfortunate detriment of the Department.”
* -X- * X- * *
“The exercise of First Amendment protection cannot completely supercede the need for orderly school administration and in this particular case, the need for maintaining harmony among fellow teachers within the same department. Plaintiff’s attitude and behavior impeded the proper performance of his daily duties within the Department.”
* X X- X X- X
“In summary the reasons given by the University are not arbitrary and capricious and are supported by sufficient and credible factual basis and were not motivated by and based upon constitutionally improper reasons.” The second lawsuit came on to be

heard on June 22, 1972, before U. S. District Judge Leroy J. Contie upon plaintiff-appellant’s motion for a preliminary injunction to restrain defendants from terminating his employment. The cause was at issue and Judge Contie chose to hear it on the merits, as well as upon the application for preliminary injunction. This procedure was proper. Rule 65(a)(2) Fed.R.Civ.Proc. Defendants urged that Judge Battisti’s order of November 9, 1971, was res judicata. Such order concluded as follows:

“By agreement of counsel, with the approval of the Court, a hearing examiner was appointed in this matter to hear the testimony, to make findings of fact and conclusions of law, and to submit same to the President of Youngstown Staté University. The hearing examiner has concluded that the University relied upon no constitutionally impermissible reasons in connection with its decision not to renew the plaintiff’s contract for the 1971-1972 academic year. The parties have agreed that the plaintiff will be retained through the 1971-1972 academic year by the defendant.
“Therefore, under consideration, it is ordered that this ease be and is hereby dismissed.” (Emphasis supplied.)

Judge Contie did not consider that such disposition was res judicata and proceeded to hear the matter on the merits. Plaintiff offered evidence to support his claim of unconstitutional treatment by defendants. The report of the hearing examiner appointed in the first case was received in evidence as Joint Exhibit I, and is part of the record presented to us. Whether the findings of the hearing examiner were, or were not, res judicata, they did provide plaintiff with full advice as to the reasons for termination of his employment and the opportunity to portray, if he could, the invalidity of such termination. It is not necessary to our decision to consider whether, as a matter of law, plaintiff was entitled to the hearing which was given to him by Judge Battisti’s order. See Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

At the conclusion of the trial on the merits, Judge Contie denied the application for an injunction and gave judgment for defendant. He made these critical findings:

“The evidence in the instant case does not substantiate a claim of violation of First Amendment rights, as there has . been no showing that the University’s action was made in retaliation for his exercise of the constitutional right of free speech.
“The Court also finds that the action of the University was not arbitrary, capricious, unreasonable nor discriminatory. The fact that some or most teachers who are hired on a year to year basis are generally rehired does not give use (sic) to a right of reemployment. There is no such common law right. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). See also Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).
“Further, the court finds that there has been no violation of the due process clause of the Fourteenth Amendment. The Fourteenth Amendment’s procedural protection of property safeguards the interests a person has already acquired in specific benefits. Board of Regents, id. Assuming, arguendo that plaintiff has acquired a right to specific benefits, which this court specifically does not find, such would entitle the plaintiff to due process rights, including the right of a hearing on his dismissal and the right to confront witnesses at such hearing. The record illustrates that such procedural safeguards have been satisfied and a hearing was held pursuant to the court order of April. 8, 1971 in Case C 71-227. [Judge Battisti’s order].”

We affirm the judgment of the District Court.


author: Mr. Justice CLARK:

text:
    UNITED STATES of America, Appellee, v. Nicholas RATTENNI, Appellant.
    No. 780, Docket 73-1062.
    United States Court of Appeals, Second Circuit.
    Argued April 18, 1973.
    Decided June 7, 1973.

      Roy M. Cohn, New York City (Saxe, Bacon, Bolan & Manley, New York City, Michael Rosen, on the brief), for appellant.
    Edward M. Shaw, Sp. Atty., Dept. of Justice (Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y., John W. Nields, Asst. U. S. Atty., on the brief), for appellee.
    Before CLARK, Associate Justice, and WATERMAN and FEINBERG, Circuit Judges.

       Associate Justice of the United States Supreme Court (Retired), sitting by designation.

   Mr. Justice CLARK:

Appellant Nicholas Rattenni, along with his co-defendants Boggia, Fiore and Roman, was charged under § 1503 of Title 18 with conspiracy to corruptly influence, impede and intimidate petit jurors in the discharge of their duties in a previous felony trial of Rattenni; a second count charged them with the substantive offense of obstruction of justice, i. e., corruptly endeavoring to influence a member of the jury, William Freeman, in the same case in violation of § 1503 and § 371, Title 18; and a third count charged Fiore alone with perjury in the presentation of this case to the grand jury. The indictment was dismissed as to Boggia on the opening day of the trial. Three days later the case went to the jury in the afternoon and about 9:30 p. m. a verdict was returned against Rattenni on the conspiracy charge. The jury announced that it was deadlocked as to all other defendants and charges. On the following morning before deliberation was resumed, the forelady of the jury advised the trial judge that she had heard a radio broadcast that morning which made reference to Rattenni’s prior conviction but stated that she was not influenced by it. The trial judge decided to interrogate the other jurors about the broadcast; he conducted the inquiry himself in an anteroom, allowing counsel to make suggestions. It was learned that six of the jurors had heard the broadcast. One juror, Mrs. Metz, stated that she had not only heard the broadcast but had also read a story about Rattenni in the New York Daily News on the previous day prior to the verdict on the conspiracy count. She readily admitted her prejudice against Rattenni on the remaining open charges against him as well as on all of the charges against his co-defendants. The trial judge then ordered a mistrial on the open charges against Rattenni and all of the charges against all of the remaining defendants. He refused, however, to set aside the verdict previously returned against Rattenni on the conspiracy charge. Later Rattenni was sentenced to five years in prison to run consecutively with a three-year sentence previously imposed upon him in another prosecution then on appeal. We have concluded that this was error and reverse.

Our reversal hinges on the disclosures of Mrs. Metz to the trial judge when he was examining the jurors about the radio broadcast. She told him that she had read the Daily News story before the verdict of . guilty was returned against Rattenni on the conspiracy count. Although she did identify the article by the tag “garbage king” that the News placed on Rattenni, she initially recalled that it stated: “And he [Rattenni] was also held on charges — something to do with garbage collection.” As to the broadcast she readily confessed that she “felt that all the indictments against that gentleman [Rattenni] could have an effect on my voting.” And she repeated: “Well, that many indictments is a little bit heavy on the load ... to feel that you are so free and easy with your thinking.” It is true that when asked if “from here on” she felt that she would be able to be impartial, she said: “Well, it would affect me.” The Government seems to say that by this forthright answer — as contrasted to her recollection only of the “garbage king” language of the Daily News story • — Mrs. Metz disclaimed prejudice resulting from the newspaper article and by implication stated that she had been fair and impartial in her vote the night before against Rattenni on the conspiracy charge. However, the trial judge never asked her explicitly whether she had been prejudiced by the Daily News story. He had conducted the interrogation of Mrs. Metz and the questions asked were insufficient to ferret out her real mental attitude after reading the story; the judge simply asked her to identify the article she had read. However, its impact is indicated by Mrs. Metz’s explanation that she “had no way of knowing what he [Rattenni] was involved in before” the publicity came out “but now that all this has happened in the past” she could not be fair or impartial. Indeed, the prejudice was so set that she admitted that she could not be fair to his co-defendants because of Rattenni’s “direct association with these people involved, completely in association with one another.” Indeed the trial judge found: “This lady gives a sincere impression that she has been influenced by this mischievous conduct on the part of the press and the media. . . . ”

Nor can we, as the Government requests, permit the judgment to stand because of the alleged dereliction of Rattenni’s counsel. He stated without contradiction that he did not know about any of the publicity until the forelady and the jurors revealed it. However, he had been told afterwards in the courtroom corridor that “for the last two days” the Westchester media had “been talking about Mr. Rattenni’s prior convictions and indictments. . . .” Counsel’s concern over the effect of the Daily News article was characterized as “a little late.” The trial judge found: “We duly recorded a proper verdict last night and the jury was polled. There was no taint whatsoever on the verdict and I am not going to have any proceeding now in a backhanded way designated to impeach that verdict in this manner. This is not the way to do it.”

We believe that this record unquestionably shows that there was a taint upon the verdict returned against Rattenni on the conspiracy charge. With six jurors having heard the publicity, the jury could not continue to deliberate impartially even though only one juror admitted prejudice. Since that same juror had expressly identified as prejudicial those aspects of the radio broadcast relating to prior indictments against appellant, and since the newspaper article which she read shortly before rendering the verdict on count one also referred to conviction on a prior indictment, it was necessary under the circumstances to set aside the verdict rendered on the previous evening. This conclusion is buttressed not only by the admissions of Mrs. Metz but by the action of the court declaring a mistrial on the remaining charges. From our reading of the transcript, we are unable to agree with the Government that “Mrs. Metz’s testimony was clear that the Daily News article had not prejudiced her.” On the contrary, she was never asked if the article biased her and made no such disclaimer sua sponte. In view of the questions asked and the answers she did make, and the material that came to her attention, the compelling inference is precisely the opposite. Moreover, no disclaimer by Mrs. Metz of prejudice on the previous day can be implied simply by her failure expressly to admit bias since this likely resulted from the failure to put the question to her and the normal juror’s disinclination to impeach his rendered verdict especially where his impartiality has not been squarely challenged. See Sheppard v. Maxwell, 384 U.S. 333, 351-352, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Marshall v. United States, 360 U.S. 310, 312, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959). Any difference between Marshall and the present case on the basis of the number of jurors prejudiced is insignificant. The verdict must be set aside where even one juror in effect admits prejudice ; after all, a defendant is entitled to twelve fair and impartial jurors. In requiring the retrial of this count (count one), we do not close our eyes to the weighty evidence presented against appellant which makes us reluctant to reverse. Nonetheless, the crucial importance of protecting the integrity of the trial process from such intrusions as occurred in this case mandates that we not permit the conviction to stand. We are further fortified in our decision by the knowledge that this disposition will not impose an undue burden on the Government if appellant is retried on count one along with the new trial on the counts which resulted in a mistrial.

Rattenni claims other errors in the trial, some of which were peculiar to it and are not likely to recur. However, some of the assigned errors might arise at the second trial and we will dispose of them.

1. Wiretap evidence was introduced which was obtained by an interception authorized under New York Criminal Procedure Law § 700.65(4), McKinney’s Consol.Laws c. 11-A, and made available to the Government. The state law permits the interception of conversations not covered in the original court authorization but requires that an amendment of that order must be sought by the appropriate party “as soon as practical.” § 700.65(4). Rattenni claims that the amendment here was not sought as soon as practical. The tap was begun on November 26, 1971, reviewed on December 26, reviewed again on January 26, 1972, and was disconnected on February 5, 1972. Amendment was not obtained until June 1, 1972. The indictment here was also returned June 1, 1972. The obvious purpose of the amendment requirement of New York law is to compel judicial approval as well as to permit supervision of evidence-gathering relating to crimes not included in the original authorization. The conversations in question were intercepted on January 12, 13, 14 and 20. Daily logs of these conversations were received by the County Attorney on January 26 but no immediate action was taken because of difficulty in interpreting the relevant conversations. The January 21 and 25 logs were received on February 5, 1972, the date the tap was discontinued. For this reason no amendment of the original order was sought at that time. In mid-February the United States Attorney’s office was contacted and told that a possible violation of federal law appeared to be involved. Since the taps had been abandoned there was no necessity to seek a prompt amendment of the original order. The June 1 amendment was purely pro forma. We cannot say that in these circumstances there was any violation of § 700.65(4).

Appellant also claims that the state court order authorizing the wiretap in question was invalid because, while it is dated November 24, 1971, the application of the District Attorney is dated November 26. The discrepancy in dates indicates a sloppiness in procedure that we cannot condone. It appears in this ease, however, that no wiretap was actually undertaken until November 26, by which time the court had an opportunity to examine the signed application. Moreover, the supporting affidavit of State Police Investigator Vernon Smith is dated November 24, and by itself establishes probable cause for the wiretap.

2. Appellant complains of the refusal of the court to admit the testimony of Christine Seymour, a defense witness, concerning statements made to her by Rattenni shortly after his acquittal on the underlying charge. The Government now admits this evidence might have been offered to explain Rattenni’s intercepted statements to Boggia. On retrial this should be borne in mind.

3. Finally, two inadvertent errors crept into the trial. The Government had stipulated that (1) references in the indictment to the underlying charge (bribery) were to be excised; and (2) references in the intercepted conversations indicating a prior Rattenni conviction was on “appeal” were to be stricken when read to the jury. The jury was, however, exposed to these references. These mistakes should be avoided on retrial.

Reversed and remanded.

      . Mrs. Metz, a juror, recalled the broadcaster as saying that Rattenni had been indicted previously “on several counts and this is his fifth trial within a year or two.”

      . “Rattenni Case to Jury
      Six witnesses were summoned by the defense yesterday to contest prosecution testimony that attempts were made to ‘reach’ a juror in the trial of Westchester ‘garbage king’ Nicholas Rattenni on tax fraud charges last January. Rattenni and two other men are on trial in Manhattan Federal Court on the jury tampering charges.
      Judge Milton Pollack recessed the trial after the testimony. The jury is to begin deliberations at 9:30 a. m. today.
      Yesterday’s witnesses addressed themselves to testimony given Monday in which a nephew of a juror in the trial that took place in January said that Joseph Fiore, 32, of Stony Point, had offered him money to speak to his uncle.
      Rattenni was acquitted in that trial, but was convicted later in a gambling protection scheme involving state troopers.”

      . Brief of the United States of America, at 16.


author: ORIE L. PHILLIPS, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. David BACA, Defendant-Appellant.
    No. 72-1838.
    United States Court of Appeals, Tenth Circuit.
    June 13, 1973.
    Rehearing Denied July 10, 1973.

      Don J. Svet, Asst. U. S. Atty., (Victor R. Ortega, U. S. Atty., on the brief), for plaintiff-appellee.
    Louis G. Stewart, Jr., Albuquerque, N. M., for defendant-appellant.
    Before PHILLIPS, HILL and DOYLE, Circuit Judges.
   ORIE L. PHILLIPS, Circuit Judge.

An indictment was returned in the United States District Court for the District of New Mexico, charging that David Baca, hereinafter called the defendant, “did possess” on July 13, 1972, “with intent to distribute a quantity of heroin, a schedule I narcotic drug controlled substance” in violation of 21 U. S. C.A. § 841(a)(1).

The sole ground urged as error was the overruling of a motion to suppress “all physical and testimonial evidence seized from Defendant on or about July 13, 1972,” on the ground that it was seized under an illegal search warrant issued on July 12, 1972, on an affidavit sworn to by Detectives C. Brown, J. Parra, and A. Cordova, and by an unlawful search.

The parts of the affidavit here material are set out in Note 1 hereto.

The search warrant was issued on July 12, 1972. The pertinent parts thereof are set out in Note 2 hereto.

It will be noted that the search warrant says first, “on the person of” David Baca and Juan Baca; and second, “and on the premises described as The house designated 1927½” and does not state “on the person of David Baca and Juan Baca” at such house “Heroin in an unknown quantity and Marijuana in an unknown quantity * * We mention this, because of the contention made that the search of the person was limited to the house designated as 1927½.

It will further be observed that at no place in the affidavit or search warrant is the residence at 1927½ stated to be or referred to as the home of the defendant. Rather, it is described as the place where the defendant and Juan Baca carried on their alleged business as dealers and distributors of narcotics, and in nowise limited the possession of narcotics on their persons to that particular place.

It will further be observed that the affidavit described David Baca by his correct name. He was well known, and that was a sufficient description of him for the officers to recognize the individual, the person of whom they were authorized to search.

It will be further observed that the search warrant recited three places of concealment; one on the person of the defendant; one on the person of Juan Baca; and one at the house designated as 1927½. It in nowise expressly or impliedly required that the search of the persons take place at the house designated as 1927½.

On July 13, 1972, Cody Prestwood was employed as a Detective in the Sheriff’s Department of Bernalillo County, New Mexico. Edward Tanuz was a Detective in the Police Department of Albuquerque, New Mexico, and A. C. Rodriguez was a State Policeman. On that day, they were engaged in the execution of such search warrant. Tanuz had physical possession of the warrant. On that day, Prestwood observed the defendant running from a point where a Dodge automobile was parked to a house numbered 1927 Second Street. The Dodge was parked on the premises where such house was located. Prestwood immediately advised his fellow officers that he had observed the defendant running from such point to such house. Prestwood had been acquainted with the defendant for at least four years and had no difficulty in recognizing him. The officers proceeded to the house and knocked on the door. Jeanette Baca responded to the knocking and opened the door. She was reputed to be the defendant’s wife. The officers advised her that they had a search warrant for the person of David Baca. She denied that he was in the house. Prestwood told her he saw David Baca enter the house. She refused permission for the officers to enter the house. After considerable discussion and the exercise of much patience, because she was pregnant and they did not want to unduly excite her, the officers entered through the open door without her consent.

Prestwood knew the plan of the inside of the house, and immediately went to the nearest bedroom. He observed the defendant on the bed, with a sheet covering only a small portion of his body, and that he was dressed in shorts and a white T-shirt. He had observed that the defendant wore a white T-shirt when he ran from the point near the automobile to the house.

There were two mattresses on the bed. As Prestwood entered the bedroom, the defendant made a quick motion to insert his left hand between the mattresses. Prestwood grabbed the defendant’s left hand, told him he was a police officer and that he had a warrant to search his person, and directed him not to move. Rodriguez, who was close behind Prestwood, entered the room and assisted Prestwood in preventing the defendant from inserting his left hand between the two mattresses. Prestwood grabbed his hand, because he had knowledge of the caliber of person the defendant was, and because he feared the defendant was reaching for a weapon or other means of doing him bodily harm.

Prestwood lifted up the top mattress. On the bottom mattress he observed a .22 caliber six-shot repeating revolver. In it were four loaded cartridges and two empty shells. The revolver was near the edge of the bottom mattress, close to the point where Baca was about to insert his hand, and close to the revolver was a cellophane bag containing 14 plastic packets, which the officers reasonably believed to contain heroin. Prestwood’s testimony as to where the revolver and bag of plastic packets were located was not denied.

The officers seized the revolver and bag of plastic packets, placed identifying marks on them, and identified them at the trial. They were introduced into evidence at the trial, and it was established that heroin was contained in the plastic packets.

After seizing the revolver and the bag of plastic packets, the officers searched the defendant, but found nothing incriminating immediately on his person. It plainly appears from Prestwood’s evidence that the gun and the bag of plastic packets, while they were between the two mattresses, were within the immediate reach and control of the defendant.

Defendant contends that the affidavit was insufficient to support a finding of probable cause for the search of the defendant’s person, because it was based on information furnished by unnamed informers.

Information obtained by the maker of an affidavit for a search warrant from a confidential informant is sufficient to establish probable cause for the issuance of a search warrant, where the informant has previously proved to be reliable.

That is especially true, where the information from the anonymous informer is strongly corroborated by other evidence. Here, the affidavit set forth facts obtained from the Albuquerque Metro Squad, that it had received complaints from nearby residents of the large amount of traffic to and from the house at 1927½, and that during a month of surveillance such Squad had met known addicts going to and from such house; that such addicts were interviewed as they left the house; that their arms bore many needlemarks, and that such addicts told the Squad that they had purchased heroin from David and Juan Baca at the house at 1927%. Indeed, the information furnished by the Metro Squad to the officers, set forth in the affidavit alone, would seem to be sufficient to show probable cause for the issuance of the warrant.

Defendant further contends that the search of his person was limited to a search of his person at the house designated as 1927%. We do not so read it. The affidavit and the search warrant did not either expressly or impliedly limit the search of the defendant while he was in the house at 1927%. Moreover, the place of the search of the defendant is not here involved. There was no evidence introduced of anything found on his person.

Defendant contends that if the search warrant was not so limited to the search of the person, it was .too general and was therefore void.

It is quite evident that the defendant was fleeing from the officers. He knew Prestwood and knew that he was an officer, and ran from the Dodge automobile when Prestwood approached. We think the warrant could have been served at any place in the vicinity, especially when, as here, the defendant was fleeing from the officers, who were in hot pursuit. Any other construction would be wholly unreasonable, for if the defendant saw the officers entering the house at 1927½, he could have avoided a search of his person by merely stepping outside of such house, even though he attempted to run away and the officers pursued and overtook him and searched his person. Neither do we agree that his home, if 1927½ was his home, was a sanctuary for a fleeing criminal from officers in pursuit of him to search his person.

The defendant here contends that the warrant was void, because its description of the defendant was too general. It described him by his true name. He was a well known character. Prestwood knew him well and could readily identify him with certainty by his name. Hence, a description of him by name was sufficient.

We therefore hold that the warrant for the search of the defendant’s person was valid, and that the officers had the right to enter the house at 1927% and there search the person of the defendant.

When Prestwood entered the bedroom, the defendant knew him and knew that he was an officer. He knew that he was not there on a social call. As Prestwood entered the room, defendant made a quick movement to insert his hand between the two mattresses. Prestwood was engaged in the performance of his lawful duties as an officer when he entered the bedroom. When the defendant made -his move to insert his hand between the two mattresses, Prestwood stated that, knowing the character of the defendant, he feared that he was reaching for a weapon with which to harm him. In so believing, Prestwood was acting as a reasonable, prudent man, and he had a right to stop the defendant from seizing a weapon and to separate the mattresses and seize the revolver that was close to where the defendant was endeavoring to insert his hand.

The revolver and the bag of plastic packets were brought into the plain view of the officers when Prestwood lifted the mattress. In so lifting the mattress, Prestwood was not engaged in making a search between the mattresses for heroin. He was searching for a revolver or other weapon with which the defendant might injure him. It was the fault of the defendant, not of the officers, that Prestwood lifted the mattress and brought into plain view, not only the revolver, but also the heroin. Under those circumstances, both the revolver and the heroin were contraband, which the officers had the right to seize, because they were performing their lawful and rightful duties, and not while they were searching for heroin.

We conclude that the order denying the motion to suppress was proper, and the judgment is therefore

Affirmed.

      . “The undersigned, being duly sworn, on his oath, states that he has reason to believe that on the person of DAVID BACA AND JUAN BACA; on the premises described as follows: The house designated as 1927½ which is located in the alley between Second and Third Street, SW.
      * * *
      in said County and State there is now being concealed certain property, namely: HEROIN in an unknown quantity Marijuana in an unknown quantity which have been used in the commission or which constitute evidence in the offense of Unlawful Possession of Heroin and the Unlawful Possession of Marijuana, and that the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows: That within the past 24 hours a reliable confidential informant who has given officers information in the past, which has resulted in the arrest of persons involved in the Sale of Narcotics and Possession of Narcotics, called and advised that the above subjects were selling narcotics from the residence at 1927% in the alley between Second and Third Street, SW and that he personally observed narcotics, to wit: heroin inside of said residence and on the persons of David and Juan Baca. The confidential informant advised that he has personally observed subject Juan and David Baca selling narcotics and distributing same to other persons to sell for them. The confidential informant advised that Pablo Sedillo, Juan Chavez, Orlando Sanchez, and Herman Padilla, as well as other known narcotic users have been selling narcotics for subjects David and Juan Baca. Officers of the Albuquerque Metro Squad have maintained surveillance on said residence for approximately one month and have observed the above subjects frequenting said residence on numerous occasions. During this past few months officers of the Albuquerque Metro Squad have received numerous complaints regarding the heavy flow of traffic coming and going from the residence at 1927½ between Second and Third Street, SW and narcotic addicts have been stopped and found to have numerous needlemarks on their arms. The subjects on each occasion advised that they had been to the residence at 1927½ where they had purchased Heroin from subjects Juan and David Baca. * * * ”

      . “Proof by sworn written statement having been submitted to me by Detective O. Brown, J. Parra, and A. Cordova who (x) has reason to believe * * * that (x) on the person of DAVID BACA AND JUAN BACA AND (X) on the premises described as The house designated as 1927½, which is located in the alley between Second and Third, SW. * * * in BERNALILLO County, State of New Mexico, there is now being concealed certain property, namely: Heroin in an unknown quantity and Marijuana in an unknown quantity which have been used in the commission or which constitute evidence in the offense of Unlawful Possession of Heroin and the Unlawful Possession of Marijuana and as I am satisfied from said sworn written statement, a copy of which is attached hereto and by reference made a part hereof, that there is probable cause to believe that the property so described is being concealed on the (x) person, (x) premises described above and that grounds for the issuance of the Search Warrant exist, * *

      . United States v. Delia, D.C.E.D.Pa., 283 E.Supp. 470, 473.

      . United States v. Pinero, D.C.S.D.N.Y., 329 F.Supp. 992, 995.

      . Terry v. Ohio, 392 U.S. 1, 23, 24, 27, 28, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889; Bell v. Kansas, 10 Cir., 452 F.2d 783.