author: GEWIN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Irving E. MILLER and Frederick T. Hyman, Defendants-Appellees.
    No. 73-1509.
    United States Court of Appeals, Fifth Circuit.
    March 18, 1974.
    Rehearing and Rehearing En Banc Denied April 19, 1974.

      William L. MeCulley, Dept. of Justice, Miami, Fla., Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Willard McBride, Attys., Tax Div., Dept. of Justice, Washington, D. C., for plaintiff-appellant.
    Daniel S. Pearson, Miami, Fla., John M. Robertson, Orlando, Fla., for defendants-appellees.
    Before TUTTLE, GEWIN and RO-NEY, Circuit Judges.
   GEWIN, Circuit Judge:

Pursuant to the Criminal Justice Act, the Government appeals from an order dismissing 9 counts of a 12 count indictment returned against taxpayer Irving E. Miller and his tax preparer Frederick T. Hyman. In an abbreviated order issued on February 2, 1973, the district court granted a motion to dismiss counts I-IX of the indictment. In a second order rendered the same day, the district court granted defendants’ motion to suppress evidence allegedly seized by agents of the Internal Revenue Service (IRS) in violation of the fourth amendment. Unlike the suppression order, the order granting the motion to dismiss the indictment failed to articulate the reasoning upon which it was predicated. Nevertheless, relying upon the grounds advanced in the various motions filed below and reiterated on appeal and the reasoning adverted to in the court’s suppression order, we reverse.

I

On August 25, 1972 a grand jury returned a 12 count indictment against Miller and Hyman, charging them in count I with conspiracy to obstruct the lawful functions of the IRS and in counts II-IX with making, under penalty of perjury, income tax returns for the years 1962-69 which they did not believe to be true and correct as to every material matter. Counts X-XII charged Hyman alone with knowingly and willfully proffering materially false and fraudulent representations with respect to corporate income tax statements filed with the IRS in 1968.

In response, defendants filed several motions to dismiss the indictment. Count I, the conspiracy charge, was claimed to be vitiated by the failure to enumerate any overt acts which were in themselves unlawful or involved any conduct other than that required by law to be performed. Counts II-V, it was asserted, were time-barred by the 6 year statute of limitations, see 26 U.S.C. § 6531 (1970). Defendants maintained that counts VI-IX should be dismissed and portions of count I struck on account of alleged prosecutorial misconduct in attempting, albeit abortively, to subpoena two critical defense witnesses to appear before a New York grand jury investigating a related potential delinquency in an estate tax return the two witnesses had helped to prepare and file. This motion was prompted by the fact that at a hearing on a motion to quash the subpoenas before the federal district court in New York, the prosecution attempted to legitimatize its issuance of the subpoenas with the observation that the two witnesses, Louis Feil and Irving Kaye, might be amenable to prosecution under section 7206(1) for preparation of a false return.

Dismissal of counts II-IX was also sought for three additional reasons. Both defendants assigned as fatally defective first, inclusion of the allegation that defendants “caused to be made and subscribed” a return which was false as to a material matter as well as “making and subscribing” such a return, the latter of which alone is expressly proscribed by section 7206(1), and second, inclusion of an allegation in each count that income was reported as gross income while there is no line on the return designated gross income. Third, Hyman alone contended that the counts were fatally defective as to him because he, as a tax preparer, could only be prosecuted under 26 U.S.C. § 7206(2) for aiding in the preparation of a false return and could not be prosecuted under section 7206(1) as a “maker” of a return. In addition both defendants maintained that count IV, in omitting an allegation that Miller’s 1964 tax return “substantially understated gross income,” was insufficient.

Finally, defendants also filed a motion to suppress evidence purportedly seized in violation of the fourth amendment. In response to a summons issued pursuant to 26 U.S.C. § 7602 (1970), defendants and IRS agents had agreed by letter that the latter could inspect certain records on premises provided by defendants. Defendants claimed and the district court agreed that by removing some of these records and retaining them for inspection, the IRS agents exceeded the scope of consent granted in the accommodation worked out between defendants and the IRS.

II

We proceed now to a consideration of the issues presented on appeal. As was noted earlier, the order granting the motion to suppress evidence outlines the reasons for the district court’s disposition. In contrast, the order dismissing counts I-IX of the indictment is bereft of such reasoning. Consequently, adequate review of the propriety of the district court’s action compels an examination of each of the abovementioned grounds proffered in the various motions to dismiss the indictment. We consider them seriatim.

A. Count I—Overt Acts

Count I alleges that from April 15, 1958 until the date of the indictment, defendants conspired to defraud the United States by impeding, impairing, obstructing, and defeating the lawful functions.of the IRS. Among other allegedly infirm actions of the defendants, paragraphs 2 through 6 of count I list the following; first, failing to file corporate income tax returns for Egyptian, Inc., as well as for other corporations for which the defendants had the responsibility of filing returns; second, falsely representing to IRS agents that such returns had been filed; third, falsely representing that certain payments made by Palm Beach Development Sales Corporation (Palm Beach) inured to the benefit of a second corporation, Concord International, Inc., as opposed to that of Irving E. Miller; fourth, falsely representing that certain payments made by Palm Beach to Creative Realty Corporation were properly reported as income to Concord International, Inc.; and finally, falsely representing that numerous documents submitted to the IRS for inspection came into existence on dates in advance of those upon which the documents were actually prepared. Each of the 12 overt acts enumerated in count I, however, while chronicling the course of conduct pursued by defendants failed to allege that such conduct was unlawful. Representative of those listed is overt act number one: “On or about July 18, 1966, the defendants prepared and filed, and caused to be filed, with Internal Revenue Service an individual income tax return of Irving E. and Shirley L. Miller for the calendar year 1962.” The omission of an allegation of unlawful preparation in each of the designated overt acts prompted defendants to move to dismiss count I.

Mindful of the principle that the sufficiency of an indictment is to be tested by practical not technical considerations, see Robbins v. United States, 476 F.2d 26, 30 (10th Cir. 1973); United States ex rel. Harris v. State of Illinois, 457 F.2d 191, 197 (7th Cir.), cert. denied, 409 U.S. 860, 93 S.Ct. 147, 34 L.Ed.2d 106 (1972); United States v. Missler, 414 F.2d 1293, 1297 (4th Cir. 1969), cert. denied, 397 U.S. 913, 90 S.Ct. 912, 25 L.Ed.2d 93 (1970), we conclude that count I is not insufficient for the reasons assigned by defendants. The overt acts alleged, when read in conjunction with paragraphs 2 through 6 of count I, sufficiently apprise the defendants of the unlawful conduct with which they are charged.

B. Counts 11-V—Statute of Limitations

Counts II-V allege that on or about July 18, 1966, defendants filed, under penalty of perjury, income tax returns for the years 1962-66 inclusive, which returns they did not believe to be true and correct as to every material matter. Although as to these counts, the indictment returned on August 25, 1972 was ostensibly time-barred by the 6 year statute of limitations set forth in 26 U. S.C. § 6531 (1970), the Government had invoked that section’s 9 month extension provision which stipulates that the filing of a complaint before a Commissioner within the 6 year period extends the time within which an indictment may be obtained after the complaint is filed for an additional 9 months. Defendants seek to vitiate the effect of the extension provision on two grounds. First, construing section 6531 to read that the grace period can be availed of only when a complaint is obtained at a time when an empaneled grand jury is not or cannot be brought into session, defendants point to the fact that at several times before the Government filed its complaint, an empaneled grand jury could have been called into session. Second, they claim that the complaint, in failing to set forth the precise amount of taxes unreported, was not sufficiently specific to establish probable cause. Under Jaben v. United States, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965), it is argued that this latter deficiency would defeat the triggering of the extension of the limitations period.

Defendants’ construction of section 6531 is untenable. In Jaben v. United States, 381 U.S. 214, 219, 85 S.Ct. 1365, 1368, 14 L.Ed.2d 345, 350 (1965), the Supreme Court announced that the statute was “intended to deal with the situation in which the Government has its case made within the normal limitations period but cannot obtain an indictment because of the grand jury schedule.” And in adumbrating the meaning of this language, Justice Goldberg noted in a concurring opinion that the purpose of the extension provision “is to avoid penalizing the Government when a criminal defendant cannot be indieted merely because no grand jury is sitting at the time the limitation period expires.” Id. at 226, 85 S.Ct. at 1372, 14 L.Ed.2d at 354 (Goldberg, J., concurring in part, dissenting in part) (emphasis added). Hence, the prosecution’s ability to call an empaneled grand jury into session is of no consequence to the activation of the 9 month extension period.

Moreover, we hasten to note that the mere fact that a grand jury is sitting at the time a complaint is resorted to does not preclude such activation. This conclusion is compelled by our decision in United States v. Bland, 458 F.2d 1, 4 (5th Cir. 1972) where the issue presented was “whether the refusal to indict by the grand jury in session 'at the time the complaint was filed cuts off further extension of the applicable period of limitations” (emphasis added). We held that the filing of a sufficient complaint before expiration of the 6 year period extended the time within which the Government could obtain an indictment for an additional nine months.

Defendants’ contention that the complaint fails to set forth facts sufficient to support a finding of probable cause is also unavailing. The complainant, IRS agent O’Dea, asserted in “Count I” of the Complaint that based upon his examination of joint income tax returns signed by the defendants, and his interviews with and examinations of the records of third parties with whom Miller and Hyman had transacted business, he had personal knowledge that Miller and Hyman “then and there well knew and believed, IRVING E. MILLER received substantial gross income in addition to that heretofore stated and the net short term capital loss reported of $78,873.58 and the net long term capital loss reported of $61,854.59 were substantially overstated.” The complaint differs from that countenanced in Jaben v. United States, supra, in only one fundamental respect, namely it fails to enumerate the amount of income which should have been returned as opposed to that which was returned. Defendants claim that this omission condemns the efficacy of the complaint.

We cannot agree. Indeed, defendants’ position, contingent upon the proposition that the requirements prescribed in Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958) should be engrafted onto complaints alleging violations of the internal revenue laws, was expressly rejected in Jaben v. United States, supra. Addressing the distinction between Giordenello and the situation presented to the Court in Jaben, Justice Harlan asserted that:

“Beyond the substance of complaint there is a material distinction in the nature of the offense charged. Some offenses are subject to putative establishment by blunt and concise factual allegations, e. g., ‘A saw narcotics in B’s possession,’ whereas ‘A saw B file a false tax return’ does not mean very much in a tax evasion case. Establishment of grounds for belief that an offense has been committed often requires a reconstruction of the taxpayer’s income from many individually unrevealing facts which are not susceptible of a concise statement in a complaint.”

Id., 381 U.S. at 223-224, 85 S.Ct. at 1370, 14 L.Ed.2d at 352. Thus, Justice Harlan concluded that a complaint instituted before a Commissioner passes muster if it contains enough information to “enable him to make the judgment that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal process.” Id. at 224-225, 85 S.Ct. at 1371, 14 L.Ed.2d at 353.

We conclude that the complaint filed herein satisfies these standards. Here, unlike in Jaben where the gravamen of the complaint was tax evasion, the defendants were charged with falsely making a tax return. Thus, even if Jaben were deemed to mandate the computation of deficiencies in a complaint in a tax evasion case, it could not be extended to require such computations where the gravamen of the complaint is the submission of a false statement. In view of the fact that the Government need not adduce evidence of a deficiency in order for a conviction under section 7206(1) to be sustained, see United States v. Jernigan, 411 F.2d 471, 473 (5th Cir.), cert. denied, 396 U.S. 972, 90 S.Ct. 262, 24 L.Ed.2d 225 (1969); cf. United States v. DiVarco, 484 F.2d 670, 673 (7th Cir. 1973); United States v. Flynn, 481 F.2d 11, 13 (1st Cir. 1973), it would be incongruous to require that such computations be set forth in a section 7206(1) complaint.

C. Counts VI-IX and Portions of Count I—Abuse of Process

Counts VI-IX charge defendants with the same substantive offense as that assigned in counts II-IV, but for the calendar years 1966-69. Defendants sought dismissal of these counts and the striking of those portions of count I which refer to any conduct of defendants regarding tax returns of Miller and his wife for 1966-69, on account of prosecutorial misconduct. This claim was prompted by the following sequence of events.

On December 4, 1972, well after the time the defendants were indicted, a federal grand jury in New York issued subpoenas to Irving Kaye, Louis Feil, Nathan Gelden and Herbert Wallach, Jr., in the course of its investigation of the propriety of the estate tax return of Robert Faber. Faber held, on paper, a 50 percent interest in each of 5 corporations from which Miller had withdrawn |1,200,000 from 1966-69. Because these withdrawals were claimed by the prosecution to have produced unreported gross income or capital gains inuring to Miller’s benefit, the IRS was desirous of determining whether in fact Faber was a 50 percent owner, and ultimately the exact nature of these financial transactions. And because Kaye and Feil would be the only persons other than defendants who could illuminate the precise business relationship of Faber and Miller, their availability in the instant prosecution was critical to the defendants.

Beyond claiming that the mere attempt to subpoena these witnesses constituted an abuse of process, defendants advert to what transpired at the hearing in New York on the federal district court’s order to show cause why the subpoena should not be quashed. At this hearing, the prosecution announced that if Faber did not in fact possess a 50 percent interest, Kaye and Feil “would be subject to [prosecution] under Section 7206, Title 26, U.S.Code for preparing and submitting a return they knew was not correct of any material matter .” and if Faber did possess such an interest, they “could be subject to [prosecution under] 7601” for under-evaluating the assets of the corporation. These statements, offered by the prosecution in hopes of convincing the court that they were conducting a bona fide investigation of Faber’s estate tax return, are characterized by defendants as constituting prosecutorial intimidation. Kaye and Feil, it is asserted, will claim the fifth amendment at defendants’ trial in the face of the aforementioned governmental “intimidation,” and therein thwart the presentation of a defense.

The propriety of granting a motion to dismiss an indictment under F.R.Crim.Pro. Rule 12 by pretrial motion is by-and-large contingent upon whether the infirmity in the prosecution is essentially one of law or involves determinations of fact. In this case, dismissal of the indictment pursuant to rule 12 could be sustained only if it is proper to presage, as defendants invariably importuned the district court to do, that Kaye and Feil would have claimed the privilege against self-incrimination when called as witnesses at trial and whether properly so, or alternatively phrased, whether the defendants’ claim of duress induced by prosecutorial misconduct is one amenable to pretrial disposition. Concluding that defendants’ claims merely invite the court to engage in Delphian pronouncements, we are constrained to hold that dismissal of the indictment was premature in this case.

This conclusion is compelled in part by the Supreme Court’s decision in Namet v. United States, 373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963) where the defendant characterized as prosecutorial misconduct the decision to ask incriminating questions of witnesses concerning their relationship with him “knowing” that the witnesses would invoke the fifth amendment and thereby allegedly implicate the defendant in criminality. The Court admonished against staying the prosecution’s hand, solely upon the defense’sprediction that a valid claim of privilege would subsequently be interposed:

“It is true, of course, that Mr. Fitzgerald [counsel for defendant] announced that the Kahns [the two witnesses] would invoke their testimonial privilege if questioned. But certainly the prosecutor need not accept at face value every asserted claim of privilege. . . .”

Id. at 188, 83 S.Ct. at 1155, 10 L.Ed.2d at 284. Similarly, whether Kaye and Feil will invoke the privilege, and if so, whether their claim would be valid is a matter better resolved during and not before trial.

Our conclusion is also compelled by the fact that the question of whether prosecutorial conduct amounts to duress is one expressly deemed by the Court to be appropriately disposed of at the trial stage. In United States v. Knox, 396 U.S. 77, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969), for example, the defendant, prosecuted for a violation of the law in connection with wagering activities, asserted that criminal sanctions for failure to file a special internal revenue return, coupled with the danger of incrimination if he filed truthfully, produced constitutionally infirm coercion. In rejecting this claim the Court responded that “the question whether Knox’s predicament contains the seeds of a ‘duress’ defense, or perhaps whether his statement was not made ‘willfully’ as required by § 1001, is one that must be determined initially at his trial.” Id. at 83, 90 S.Ct. at 367, 24 L.Ed.2d at 280-281. The Court admonished that Federal Rule 12(b)(1) “indicates that evidentiary questions of this type should not be determined on such [pretrial] motions.” Id. n. 7. A similar conclusion is appropriate here.

Moreover, we would caution that the mere attempt in this case to subpoena witnesses who may appear in other possible criminal proceedings does not necessarily amount to an abuse of process. Where the subpoena is issued pursuant to a legitimate investigation of related tax matters, proof beyond the mere fact of issuance should be required. The prosecution’s assertion in the New York hearing on the motion to quash the subpoenas that Kaye and Feil could be amenable to prosecution, pending the ascertainment of delinquencies in Faber’s estate tax return, appears to have been intended to dispel the suggestion that the investigation of Faber’s estate tax return was not bona fide. Such language does not appear to have been utilized to harass Kaye and Feil.

D. Counts II-IX—Sufficiency of the Indictment

Defendants challenged the sufficiency of counts II-IX on three grounds and assigned as insufficient, the failure of count IV to allege that they had substantially understated gross income. In view of the fact, as we noted earlier, that successful maintenance of a prosecution under section 7206(1) is not contingent upon proof of understatement of income, this latter contention is spurious. Two asserted grounds for dismissal of counts II-IX are similarly amenable to facile disposal. The first ground, that the indictment is defective because it alleged that income was reported as gross income whereas there is no line on the return designated gross income, fails under our decision in United States v. Grayson, 416 F.2d 1073, 1076 (5th Cir. 1969) which holds that an indictment which follows the language of the statute is sufficient. The second ground, that inclusion of the charge that defendants “caused to be made” a false return in each of the counts renders them duplicitous, has merely synthetic appeal. In United States v. Ponder, 444 F.2d 816 (5th Cir. 1971), cert. denied, 405 U.S. 918, 92 S.Ct. 944, 30 L.Ed.2d 788 (1972) this court held that a tax return completed by a secretary under the taxpayer’s auspices was one “made” by the taxpayer. It is this decision which presumably generated the deviation from the precise language of section 7206(1) in the indictment. Such deviations are not per se impermissible, see United States v. White, 475 F.2d 1228, 1235 (4th Cir. 1973); United States v. Berlin, 472 F.2d 1002, 1007 (2d Cir. 1973); United States v. Cluchette, 465 F.2d 749, 753 (9th Cir. 1972). The indictment avoids infirmity under the principle that where a statute, on its face or as judicially construed, specifies several alternative ways in which an offense may be committed, an indictment may allege the several alternative means of commission of the offense in the conjunctive. Cf. United States v. McCann, 465 F.2d 147, 162 (5th Cir. 1972); United States v. Lee, 422 F.2d 1049, 1052 (5th Cir. 1970); Fields v. United States, 408 F.2d 885, 887 (5th Cir. 1969).

The final contention, raised by Hyman alone, is that counts II-IX of the indictment are defective because, he, as a tax preparer, cannot be prosecuted under section 7206(1), but rather must be pursued under section 7206(2). The viability of this claim rests on the assumption that these two subsections are exclusive, the former, applying solely to taxpayers, and the latter applying solely to those who contribute to the preparation of a return other than their own. And it is upon this assumption that Hyman’s contention falls.

While our research reveals no case in which a tax preparer of an individual return has been prosecuted under section 7206(1), we would note initially that in United States v. Jernigan, 411 F.2d 471 (5th Cir.), cert. denied, 396 U.S. 927, 90 S.Ct. 262, 24 L.Ed.2d 225 (1969), this court upheld the conviction of a preparer of a corporate income tax return under section 7206(1). Conversely, in Baker v. United States, 131 U.S.App.D.C. 7, 401 F.2d 958 (1968), on remand, 301 F.Supp. 973 (D.D.C.1969), aff’d, 139 U.S.App.D.C. 126, 430 F.2d 499 (1970), the D. C. Circuit upheld a conviction of a taxpayer for assisting another to falsify his own tax return under section 7206(2). These two cases condemn Hyman’s assertion of the sanctity of the two subsections of section 7206.

Moreover, even if we were to conclude otherwise, the citation in the indictment of section 7206(1) as opposed to that of section 7206(2) would not inexorably be fatal. As we noted supra, the validity of an indictment is determined by practical, not technical considerations. United States ex rel. Harris v. State of Illinois, supra; Robbins v. United States, supra; United States v. Missler, supra. The test of an indictment’s sufficiency is whether it contains the elements of the offense intended to be charged, sufficiently apprises a defendant of what he must be prepared to meet, and is detailed enough to assure against double jeopardy. See, e. g., United States v. Driscoll, 454 F.2d 792, 797 (5th Cir. 1972); United States v. Bullock, 451 F.2d 884, 887-888 (5th Cir. 1971); United States v. Salazar, 485 F.2d 1272, 1277 (2d Cir. 1973); United States v. Glup, 482 F.2d 1288, 1290 (8th Cir. 1973). Implicit in these standards is what the Supreme Court observed in United States v. Hutcheson, 312 U.S. 219, 229, 61 S.Ct. 463, 464, 85 L.Ed. 788, 791 (1941):

“In order to determine whether an indictment charges an offense against the United States, designation by the pleader of the statute under which he purported to lay the charge is immaterial. He may have conceived the charge under one statute which would not sustain the indictment, but it may nevertheless come within the terms of another statute.”

See also United States v. Bethany, 489 F.2d 91, 93 (5th Cir. 1974). Since the indictment clearly places Hyman on notice of the unlawful conduct attributed to him, it is not deficient.

E. Suppression of Documents Seized

The final question presented for our review is whether the Government’s removal and subsequent withholding of records from the premises upon which it was agreed that they could conduct an inspection exceeded the scope of consent granted in a letter from counsel for the defendants to the Government, and hence violated the fourth amendment. The following letter sent by Miller’s attorney to IRS agent O’Dea is claimed to limit consent to inspection and not removal:

“This will confirm our understanding that, pursuant to the meeting held in our office this morning, you have agreed that, in lieu of the appearance of Fred Hyman, Irving Miller and Joseph Levine at your offices on January 18, 1971, as per your summonses, we will, in lieu thereof, furnish you with suitable working facilities at 1674 Meridian Avenue, Miami Beach, Florida, on January 18, so that you will be able to conduct your examination on those premises. We will also provide the services of our investigator, Mr. Nathan Zeldin, to work with you in facilitating the examination of the various books and records involved.
Sincerely yours,
Charles L. Ruffner”
[former attorney for Miller]

The district court held that this agreement expressly limited consent to examining and copying the records on the premises and presumably found that subsequent conduct on defendants’ part did not vitiate the limited expression of consent. Finding these conclusions infirm, we hold that the Government did not violate defendants fourth amendment rights.

A reconsideration of the facts which spawned the quoted letter convinces us that defendants did not intend to expressly limit consent to examination and copying of records on the premises furnished by defendants. Because defendants had reneged on a prior agreement to produce the records, the Government issued a summons seeking the production of records and documents of certain corporations in, which Miller had an ownership interest. Charles Ruffner, Miller’s former attorney, testified at the suppression hearing that Miller desired to avoid enforcement of the summons, entailing as it would production' of records at an office of the IRS, for three reasons. First, the records sought were so voluminous that it would take a moving van to produce them; second, their removal would disrupt corporate business, and third, by providing the IRS with office space in close proximity to Miller’s place of business, defendants would be available to aid the IRS in obtaining the exact records it wanted.

Conspicuously absent from Ruffner’s explanation is any indication that the design of the conciliatory agreement regarding inspection was to disable the IRS from removing the documents from the premises furnished. Nor does the agreement itself express such a purpose. Indeed, the affirmation that defendant would provide premises for inspection of the records in lieu of production at an office of IRS belies such an assertion. Rather, it would appear that the letter, borne out of the spirit of accommodation, was intended to ameliorate the burden attendant upon transportation of the records to the IRS office. And having validly obtained possession of the documents without transgressing the terms of the inspection agreement, the IRS had as much right to test them in order to ascertain their date of preparation as it would to photostat or copy them. See Zap v. United States, 328 U.S. 624, 629, 66 S.Ct. 1277, 1279, 90 L.Ed. 1477, 1482 (1946); United States v. Ponder, 444 F.2d 816, 818 (5th Cir. 1971), cert. denied, 405 U.S. 918, 92 S.Ct. 944, 30 L.Ed.2d 788 (1972).

Moreover, even assuming that we were to agree with defendants’ construction of the terms of the letter, we are convinced that defendants’ subsequent conduct vitiated whatever limited consent was expressed in the letter. Defendants had, upon request, permitted the IRS to remove documents other than those in question here from the premises furnished for inspection. The instant document's were removed concededly without express permission, in order to spare defendants the additional expenditure of paying another month’s lease for the inspection premises. This removal was effected without incident, and indeed, appeared to have been acquiesced in when Charles Ruffner initialed an envelope received subsequent thereto, designated “Received August 2, 1971. This envelope contains copies. Internal Revenue Service has originals.” Ruffner’s only explanation for his acknowledgement of the receipt of copies and belated demand for return of the originals was that the agents had presented him with a fait accompli—they had already taken the records. In view of the circumstances under which the records were removed, however, we conclude that whatever limited consent was expressed in the letter sent to IRS agent was vitiated., Moreover, any governmental impropriety inherent in the failure to return the documents upon demand cannot deprive the removal of its initial validity. See United States v. Ponder, 444 F.2d 816, 818 (5th Cir. 1971), cert. denied, 405 U.S. 918, 92 S.Ct. 944, 30 L.Ed.2d 788 (1972); United States v. Light, 394 F.2d 908, 914 (2d Cir. 1968).

Despite our disagreement with the district court over the consent issue, we do concur in its judgment that the IRS should be required to make available the original documents to defendants. The Government performed tests upon the documents after their removal in an effort to ascertain whether they were prepared upon the dates that Hyman claimed they were. Hyman’s access to them would appear critical to his ability to fashion a defense on this point. Their availability will adequately provide him with an opportunity to do so.

III

To recapitulate, we hold that neither dismissal of counts I-IX of the indictment nor suppression of the documents is warranted. We do, however, agree with the district court and indeed the Government that the documents should be made available to defendants, with the positive injunction that they will not be damaged, mutilated, concealed, or destroyed. The district court will exercise appropriate supervision over the examination and inspection of the documents in question.

Reversed and remanded.

      . 18 U.S.C. § 3731 (Supp.1973) :
      “In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.
      An appeal by the United States shall lie to a court of appeals from a decision or order of a district courts suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding, not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.”
      A motion to dismiss the appeal as barred by § 3731 on double jeopardy grounds, carried with the case, is herein denied. In United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), the Supreme Court held that an appeal from the dismissal of an indictment because of pre-indictment delay was not barred by double jeopardy. Its reasoning was that “[t]he motion to dismiss rested on grounds that had nothing to do with guilt or innocence or the truth of the allegations in the indictment but was, rather, a plea in the nature of confession and avoidance. . . .” 404 U.S. at 312, 92 S.Ct. at 459, 30 L.Ed.2d at 474. The import of this reasoning is that dismissal of an indictment on a plea of confession and avoidance is not tantamount to an acquittal. Since appellees in their motion to dismiss the. appeal draw the opposite conclusion, their motion must be denied.

      . 18 U.S.C. § 371 (1970) :
      “If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.”

      . 26 U.S.C. § 7206(1) applies to:
      “Any person who—
      (1) Declaration under penalties of perjury. —Willfully makes and subscribes any return, statement or other document which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter

      . 18 U.S.C. § 1001 (1970) :
      “Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictiticus or fraudulent statements or representatioas, or makes or uses any false writing or document knowing the same to contain any 1 alse, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.”

      . Subsection 5 of this statute, in providing that prosecution for a violation of section 7206(1) must be brought within 6 years after the offense is committed, obviates the applicability of the general 3 year statute of limitations for offenses under the internal revenue laws.

      . Kaye and Feil were the accountant and executor, respectively, for the estate of Robert Faber. Faber had possessed an interest in 5 corporations from which Miller had withdrawn $1,200,000 from 1966-69.

      . Section 7206(2) applies to:
      “Any person who—
      (2) Aid or assistance.—Willfully aids or assists in, or procures, counsels, or advises the preparation or presentation under, or in connection with any matter arising under, the internal revenue laws, of a return, affidavit, claim, or other document, which is fraudulent or is false as to any material matter, whether or not such falsity or fraud is with the knowledge or consent of the person authorized or required to present such return, affidavit, claim, or document;”

      . Section 7602 authorizes the Commissioner of Internal Revenue or his agent to examine books, papers or records relevant or material to a matter under investigation.

      . The other corporations for which defendants were purportedly responsible for filing returns are Congress Enterprises, Inc., Concord International, Inc., Creative Realty Corporation, and Palm Beach Development Sales Corporation (Palm Beach). While the record indicates that Miller may have had a 50 percent ownership interest in each corporation, it fails to reveal precisely what role he played in their governance.

      . It is uncontroverted that the Government could have obtained authorization from the court to telephonieally call a grand jury into session on the day it filed the complaint before the Commissioner. Had defendants contended that prosecutorial dilatoriness in obtaining an indictment resulted in actual prejudice, a due process issue would have been presented. The viability of such a contention probably would not have been foreclosed by the fact that the indictment was subsequently obtained within the extended statutory period. See United States v. Marion, 404 U.S. 307, 324-325, 92 S.Ct. 455, 465, 30 L.Ed.2d 468, 481 (1971) (dieta) ; United States v. Edwards, 458 F.2d 875, 882 (5th Cir. 1972). Cf. United States v. Zane, 489 F.2d 269, at 270 (5th Cir. 1973) (dicta). The possibility of asserting this defense obviates in part the need for the “protective” construction of section 6531 advanced by defendants.

      . Count V of the indictment, posits July 21, 1966 as the date the offense cited therein was committed. Since a grand jury was sitting on July 20, 1972—one day before the 6 year period expired—it is necessary for us to consider this issue.

      . We refer to “count I” of the Complaint as merely illustrative of the 4 counts included therein,

      . Our conclusion is buttressed by the fact that both the district court and the Eighth Circuit Court of Appeals, in Jaban, see 225 F.Supp. 47 (W.D.Mo.1963), aff’d, 333 F.2d 535, 537 (8th Cir. 1964) were unpersuaded by defendant’s reliance on United States v. Greenberg, 320 F.2d 467 (9th Cir. 1963). The complaint rejected by the court in Greenberg was similar to although less specific than that presented in the instant case in that here, agent O’Dea did set forth some figures which indicated he had examined Miller’s tax return.

      . The district court in New York did grant the motion to quash the subpoena. A reading of the transcript of this hearing suggests that its decision was essentially a prophylactic measure and was not, as defendants suggest, based on the district court’s view that the IRS had no legitimate reasons for conducting the particular investigation.

      . Compare, e. g., United States v. Freeman, 412 F.2d 1180, 1181 (10th Cir. 1969) with, e. g., United States v. Martinez, 350 F.Supp. 971, 973 (W.D.Pa.1972) ; United States v. Ceccerelli, 350 F.Supp. 475, 479 (W.D.Pa. 1972).

      . Namet argued that a claim of the privilege against self-incrimination by a witness when asked whether he participated in criminal activity with a defendant implies to the jury that a truthful answer would be in the affirmative. This inference, Namet claimed, could not be used against a criminal defendant.

      . Defendants’ reliance on Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) and Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972) is misplaced. In Washington, the Court invalidated an unequivocal prohibition against the use of testimony of persons charged or convicted as co-participants. No such prohibition is presented here. In Webb, the Court disapproved of the conduct of a trial judge who not only admonished defendants’ sole witness of the dangers of perjury, but also implied that he expected the witness to lie, and threatened that if he did, the court would “personally see” that his case would go to the grand jury. The Supreme Court concluded in Webb that the witness’ claim of the privilege against self-incrimination was clearly produced by intimidation. Since the Government’s observation that Kaye and Feil could be prosecuted under section 7206(1) was offered merely to legitimatize the issuance of subpoenas, the facts here are radically different from those presented in Webb.

      . Cases in which tax preparers were prosecuted under section 7206(2) include Hull v. United States, 324 F.2d 817 (5th Cir. 1963) ; Driscoll v. United States, 376 F.2d 254 (1st Cir. 1967) ; Edwards v. United States, 375 F.2d 862 (9th Cir. 1967) ; Hedrick v. United States, 357 F.2d 121 (10th Cir. 1966).

      . See also Hedrick v. United States, 357 F.2d 121 (10th Cir. 1966) where appellant, a C.P.A. and his employer were jointly indicted under section 7206(2).

      . At oral argument, counsel for Miller and Hyman suggested that the illegal seizure related to count I of the indictment. This argument is foreclosed by United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) and United States v. Blue, 384 U.S. 251, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966).

      . We intimate no view as to whether Miller has standing to contest the seizure of the documents removed by the IRS. See Henzel v. United States, 296 F.2d 650 (5th Cir. 1961). In view of our holding that the search was permissible, this issue warrants no further consideration.

      . According to the Government, the tests demonstrated that the ink from the pen utilized in preparing the documents was manufactured at a time after the dates upon which the documents were allegedly filed. Presumably, this discovery would substantiate the offenses charged in counts X-XII. By requiring return of the originals, we can assure that Hyman has the opportunity to counteract the Government’s evidence.


source: Caselaw Access Project

author: COLEMAN, Circuit Judge:

license: Public Domain

text:
    COLUMBIA LNG CORPORATION and Consolidated System LNG Company, Petitioners, v. FEDERAL POWER COMMISSION, Respondent. SOUTHERN NATURAL GAS COMPANY and Southern Energy Company, Petitioners, v. FEDERAL POWER COMMISSION, Respondent.
    Nos. 72-3122, 72-3251.
    United States Court of Appeals, Fifth Circuit.
    March 25, 1974.

      John F. Sisson, Richard A. Rosan, Wilmington, Del., for Columbia LNG.
    Henry P. Sullivan, Pittsburgh, Pa., Norman A. Flaningam, Washington, D. C., for Cons. System.
    Gordon Gooch, Gen. Counsel, F. P. C., Leo E. Forquer, Acting Gen. Counsel, George W. McHenry, Jr., Acting Sols., Platt W. Davis, III, John H. Burnes, FPC, Washington, D. C., for F. P. C.
    William A. Smith, Peter G. Smith, Ronald Kuehn, Jr., Penn J. Williamson, Birmingham, Ala., James J. Flood, Jr., Washington, D. C., for Southern Nat. Gas Co. and Southern Energy Co.
    Edward W. Stern, Philadelphia, Pa., for Phil. Gas Works Div. UGI Corp. amicus curiae.
    Before GEWIN, THORNBERRY and COLEMAN, Circuit Judges.
   COLEMAN, Circuit Judge:

On June 28, 1972, the Federal Power Commission promulgated its Order No. 622, whereby Columbia LNG Corporation, Consolidated System LNG Company, and Southern Energy Company were granted Certificates of Convenience and Necessity under Sections 3 and 7 of the Natural Gas Act, 15 U.S.C. §§ 717b and 717f. By these certificates, the petitioners were allowed to import approximately 1,000,000 Mcf of liquefied natural gas per day and to construct the necessary transportation and gasification facilities. This appeal asserts that the Commission’s decision to require “incremental” pricing in sales of the liquefied natural gas was not based upon substantial evidence as required by Section 19(b) of the Act, 15 U.S.C. § 717r(b). We vacate the Commission order and remand for further proceedings.

Early in 1970, anticipating a short fall in domestic supplies of natural gas to meet current demand, the petitioners and their parent companies, Columbia Gas System, Inc., Consolidated Natural Gas Company, and Southern Natural Gas Company, all registered public utilities, began searching for alternative sources of fuel. After considering a variety of supplements, petitioners contracted with El Paso Algeria Corporation, a subsidiary of El Paso Natural Gas Company, to purchase what they considered to be the most economically feasible alternative. Under the terms of the various agreements, El Paso Algeria was to purchase the required amount of liquefied natural gas from Societe National Sonatarch, an Algerian state-owned company, and transport it to the petitioners’ facilities on the East Coast of the United States. In total, the three petitioners contracted to purchase 1,000,000 Mef of liquefied natural gas per day for a twenty-five year period beginning in 1976.

Upon reaching the United States this liquefied natural gas would be re-gasified and injected into the petitioners’ transportation facilities. According to the evidence of record, this gas would be used only to service existing customers for the purpose of preventing curtailments of service.

In this time of the energy shortage and the quest for relief supplies, this case marks two rather important reference points in the effort to ease the domestic fuel problem. First, by granting the requested certificates the Commission has approved the largest importation scheme of liquefied natural gas, at the highest price, heretofore of-record, $.80 per MMBtu. Second, by its decision to require incremental pricing of imported fuels and the announcement that it will seriously and scrupulously review each case involving such, the Commission has, in effect, assumed an attitude of discouraging the use of imported supplements.

The controversy here arises over the Commission’s requirement that the imported liquefied natural gas be sold on an incremental basis. Although something of a misnomer, the incremental marketing system ordered by the Commission provides for the sale of the imported gas by separate contracts and rate schedules. Originally, by Order No. 622, the petitioners were required to institute the following three-step program: (1) the filing of an incremental rate schedule for the separate sale of the liquefied natural gas, reflecting the commodity and transportation costs; (2) during curtailments the gas must be made available to customers who had not contracted for it; and (3) the gas could be sold only to wholesale customers who had established their own incremental schedules for separate sales to retail customers.

Immediately upon rendition of the Order, the Commission was inundated with petitions for rehearing, all alleging hardship and impossibility of performance and requesting an evidentiary hearing on these factors. The Commission responded only to the extent of hearing oral arguments.

The oral arguments consisted of two major points: (1) the administrative

impossibility of implementing the incremental pricing system and (2) the advantages of the rolled-in pricing system. After argument, the Commission modified its original order by eliminating the requirement of incremental pricing at the retail level as well as the requirement that liquefied natural gas be distributed to non-subscribers for that product during times of curtailment, thereby leaving only the incremental sales to pipeline and wholesale customers. Unfortunately, both Orders No. 622 and 622-A were decided by only four members of the Commission. This is particularly troublesome because in Order No. 622-A the Commission was evenly divided, two-two, on the merits of whether to retain incremental sales as to pipeline and wholesale customers.

The record supports the petitioners’ position that virtually all of the evidence presented below went to show how much the price would rise, using the Commission’s time-honored tradition of rolling the new prices in with the old ones while letting all customers pay their pro rata share of the costs of the supplement. Petitioners contend that since all of their customers will benefit from the added liquefied natural gas they should all bear the burden. The Commission, on the other hand, contends that in the absence of incremental pricing high priority users as decreed by Commission Order No. 431 would have to bear part of the cost of maintaining a supply for the low priority users, thereby placing an undue burden upon them. Under the incremental method, the high priority users—households, etc.—would not bear a higher price burden, and those whose services would be curtailed under Order No. 431 [dated April 15, 1971] would have an incentive due to higher fuel prices to seek alternative sources of energy.

The only real evidence supporting incremental pricing comes from testimony involving a special agreement between Southern and its largest subscriber, Atlanta Gas Light Company, in which Southern would offer its customers the option of either having the price of the liquefied natural gas rolled in with the domestic or contracting separately for the service under a different rate schedule. In substance, this testimony was only an afterthought and dealt with the theoretical economic feasibility of such a program. No testimony was taken as to the administrative problems which might arise, what the cost of implementation might be, or how the public interest could best be served.

The result is that we must determine whether the Commission has met the “substantial evidence” requirement of Section 19(b), 15 U.S.C. § 717r(b); for if it has not, this Court may not affirm its action, S. E. C. v. Chenery Corporation, 1947, 332 U.S. 194, 67 S.Ct. 1575, 91 L.Ed. 1995.

Substantial evidence, as defined by the Supreme Court, means more than a mere scintilla and must do more than create a suspicion of the existence of the fact to be established, N. L. R. B. v. Columbian Enameling and Stamping Company, 1939, 306 U.S. 292, 59 S.Ct. 501, 83 L.Ed. 660. “It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”, Consolidated Edison Company v. N. L. R. B., 1938, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126. “It must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury”, N. L. R. B. v. Columbian Enameling and Stamping Company, 306 U.S. at 300.

It seems clear to us that the record, as compiled, fails to sustain the proposition that incremental pricing is more desirable. Certainly, ten pages of testimony out of a total record of 14,500 pages of testimony, affidavits, briefs, opinions, etc. cannot suffice to justify departing from the longstanding Commission practice of approving rolled-in pricing.

The Commission argues that the petitioners had ample opportunity to present their case, pointing specifically to the granting of oral arguments on the petitions for rehearing. In the context of this case, oral argument, lacking an adequate presentation and sifting of the evidence, with appropriate findings, is, we believe, not enough. The evidentiary hearing conducted below did not produce substantial evidence to support the Federal Power Commission’s decision to use incremental pricing, and it did not explore the problems that incremental pricing would create. Therefore, we must remand for an evidentiary hearing that will examine the advantages and disadvantages of incremental pricing.

Vacated and remanded.

      . 1,000 cubic feet.

      . According to the findings of fact of the Administrative Law Judge, Algerian liquefied natural gas was a more desirable supplement than natural gas from Canada, Alaska, Mexico, Nigeria, Trinidad, Venezuela, or other Domestic Sources, gasified coal, reformed Naptha or other feedstocks such as Methanol or Oil Shale, or nuclear stimulated gas for a number of reasons—cost, supply, availability, etc.

      . 1,000,000 British thermal units.

      . See, Federal Power Commission Order No. 622-A.

      . See Trunkline Gas Supply Company, 1949, 8 F.P.C. 250; Panhandle Eastern Pipe Line Company, 1951, 10 F.P.C. 185; American La. Pipeline Company, 1954, 13 F.P.C. 380; Trunkline Gas Company, 1959, 21 F.P.C. 704; El Paso Natural Gas Company, 1959, 22 F.P.C. 260; Kansas-Nebraska Natural Gas Company, Inc., 1961, 25 F.P.C. 448; Nueces Industrial Gas Company, 1971, 45 F.P.C. 1224.

      . The Commission in Opinion No. 622 stated:
      “We may note that under our Order No. 431, issued April 15, 1971, jurisdictional pipelines are required to file curtailment plans where curtailment is necessary; and Columbia Gas Transmission, Consolidated Gas Supply & Southern Natural have all done so.”


author: RIVES, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Hugh C. PRINCE, Defendant-Appellant.
    No. 73-2751.
    United States Court of Appeals, Fifth Circuit.
    March 25, 1974.

      Samuel Dickens, Baton Rouge, La., George M. Leppert (court-appointed), New Orleans, La., for defendant-appellant.
    Douglas M. Gonzales, U. S. Atty., Robert S. Leake, Asst. U. S. Atty., Baton Rouge, La., for plaintiff-appellee.
    Before RIVES, GEWIN and RONEY, Circuit Judges.
   RIVES, Circuit Judge:

Prince appeals from his conviction, after a trial by jury, for importation of 30 pounds of marijuana in violation of 21 U.S.C. § 952. On appeal he claims four errors: (1) that the marijuana received in evidence without objection was obtained by an illegal search and seizure; (2) that his trial counsel was incompetent and neglectful; (3) that the district judge should have sua sponte directed a verdict of acquittal; (4) that he was denied due process by the prosecutor’s misconduct at trial, (a) in departing from his opening statement and (b) in impeaching a government witness in a manner prejudicial to Prince. Finding no reversible error, we affirm.

Customs Agent Gustafson testified that his office had been alerted to the strong possibility that every ten to fourteen days three ships, including the S.S. Baune, were bringing in marijuana from Jamaica to the United States. The S.S. Baune sailed directly from Port Rhodes, Jamaica, to the mouth of the Mississippi River, thence up the Misssippi to Baton Rouge, Louisiana, as its first port of call. There the ship tied up at the dock of the Kaiser Aluminum works on June 9, 1972.

At that time De Peiza was the chief cook aboard the S.S. Baune. Previously De Peiza and Prince worked together as shipmates for about twenty-seven months ending about May of 1969. Since then Prince had been living in Baton Rouge but the two kept in contact with each other.

On the date of Prince’s arrest, June 9, 1972, an investigator for the East Baton Rouge Office of the District Attorney and Customs Agent Gustafson conducted a surveillance of the Baton Rouge dock area. They allowed persons to leave the S.S. Baune on foot without incident, but stopped three taxi cabs within three hundred feet of the Mississippi River. According to the testimony of Customs Agent Gustafson, the River was a national or international boundary.

De Peiza testified that he had acquired the marijuana at the request of one “Mike” whom he had previously met at the Casa Loma Bar in Scotlandville, an area of Baton Rouge, De Peiza left the ship by foot to locate Mike; Mike told him he had only half of the promised $2,000.00 purchase price for the marijuana; De Peiza agreed to see Mike later, allowing him time to raise the balance of the money.

According to De Peiza’s testimony, he then went to Prince’s home to find whether Prince had contacted his girl friend for him. Prince told him that he had alerted the girl friend. In the course of conversation, De Peiza told Prince about his dealings with Mike. Prince upbraided or “bawled out” De Peiza for taking a chance like that with Mike who was unknown to Prince and had been seen by De Peiza only once before. So far as the record shows no one has seen Mike since he told De Peiza that he did not have enough money to pay for the marijuana.

Prince left his home with De Peiza and boarded the ship with him. There the two had a few drinks in De Peiza’s cabin, after which Prince went around to visit with other crew members, his prior shipmates. Later, in his cabin, De Peiza told Prince that it was time to meet Mike and that he had to leave the ship.

Some of the marijuana was in a box marked “Grade A Eggs,” some in a blue suit case, and the rest was in a large paper bag encased in a plastic bag. At the gangway Prince took the bag from De Peiza, helped him to shore and helped place the marijuana in the taxicab which had previously been called. The investigator from the District Attorney's office testified that the bag had the “distinctive aroma” of marijuana. According to De Peiza’s testimony, Prince knew that he was planning to take the marijuana ashore to Mike at the Casa Loma Bar. Within three hundred feet from the River, government agents stopped the taxicab, searched for and seized the marijuana, and arrested Prince, De Peiza and Couch, a third passenger and later a codefendant who pleaded guilty.

The officers also searched the ship but the only thing of significance found was the sum of $17,000.00 in De Peiza’s cabin.

The indictment under which Prince was convicted charged that he “did knowingly and willfully cause to be imported into the United States approximately thirty (30) pounds of marihuana, said substance being contraband in violation of Title 21, United States Code, Section 952.”

The pertinent part of Title 21, § 952 provides: “It shall be unlawful to import into the customs territory of the United States from any place outside thereof (but within the United States), or to import into the United States from any place outside thereof, any controlled substance * *

The preceding section 951 provides in pertinent part:

“(a) For purposes of this subchapter
“(1) The term ‘import’ means, with respect to any article, any bringing in or introduction of such article into any area (whether or not such bringing in or introduction constitutes an importation within the meaning of the tariff laws of the United States).”

Without objection, either at trial or on appeal, the district court instructed the jury that

“ * * * * So this says it shall be unlawful to import into the customs territory of the United States from any place outside thereof any controlled substance including marihuana, into the United States.
“Now, when it says, ‘into the customs territory of the United States,’ customs territory is described as including all of the states of the United States and the District of Columbia and Porto Rico, So it does, of course, include—customs territory does include the state of Louisiana. And also it is importing it into this country in violation of this chapter, when it is taken off of a vessel in a navigable stream, such as. the Mississippi, and brought into the state. That is the introduction into the customs territory of the United States in accordance with the provisions of this act.” (Tr. pp. 83-84.)

In a case such as this, where the S.S. Baune had sailed directly from Port Rhodes, Jamaica, to Baton Rouge, Louisiana, the instruction was certainly correct. See United States v. Matthews, 5 Cir. 1970, 427 F.2d 992; United States v. Tonarelli, Dist.Ct.Puerto Rico, 1971, 336 F.Supp. 1084, 1085.

The foregoing rather full statement of the facts and description of the theory of importation upon which the case was tried permit an abbreviated discussion of the four claimed errors.

1. There was no objection in the trial court to the admissibility in evidence of the marijuana, nor was there any attack upon the validity of the search for and seizure of that substance. Absent plain error, the issue cannot be originated on appeal.

In any event, it is clear that the search was valid. It occurred within 300 feet of the border, within five minutes after the taxi for Prince entered the dock area and moments after it exited the gate marking that area. The search occurred about a year before the decision of Almeida-Sanchez v. United States, 1973, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596. We need not await final settlement of the issue of whether Almeida-Sanchez should be applied retroactively. Under the settled law prevailing in this Circuit prior to Almeida-Sanchez, this was a valid border search. Under the test prescribed by Almeida-Sanchez, this search was valid because it was a search of persons departing from a vessel which had sailed directly from Jamaica to Baton Rouge, and thus constituted a search at the border or at its functional equivalent. See 413 U.S. at 272-273.

2. It was, of course, not incumbent on trial counsel to register a frivolous and unfounded objection to the admissibility of evidence. A careful reading of the record reveals nothing to sustain the charge that trial counsel was incompetent or neglectful.

3. There was no motion for judgment of acquittal. The evidence here was sufficient, indeed ample, to send the case to the jury, and no miscarriage of justice occurred. Under the standard recently restated for this Circuit in United States v. Landers, 5 Cir. 1973, 484 F.2d 93, 94, the district court was under no duty to direct a judgment of acquittal sua sponte.

4. (a) The question of any variance between the proof and the government’s opening statement was not raised in the trial court. If it had been raised the matter would have been within the discretion of the district judge. Mares V. United States, 10 Cir. 1968, 409 F.2d 1083, 1085. If there was any such variance, it was slight and does not constitute plain error.

(b) Lastly, Prince complains of the introduction of hearsay evidence of a statement attributed to De Peiza immediately after his arrest, to the effect that Prince was supposed to be the buyer of the marijuana. That statement conflicted with De Peiza’s testimony that the mysterious Mike was the intended purchaser. The government admits that the prosecutor had talked with De Peiza prior to the trial and that his testimony came as no surprise to the government. We will not here consider whether the long-established rule that a party cannot impeach his own witness is now viable; that rule does not necessarily prevent an exposure of error through prior self-contradiction of some part of his testimony. Indeed, the government was under an affirmative duty not to allow false evidence to go uneorrected. Under all of the circumstances of this case, we hold that it was within the discretion of the district court to permit impeachment of De Peiza’s testimony to the extent of admitting in evidence his statement made immediately after his arrest that Prince was supposed to be the buyer of the marijuana.

The judgment is

Affirmed.

      . Witness Gustafson explained: “These persons were not carrying anything and they were not detained in any way by me.” (Tr. p. 53.)

      . “This was construed by me to be a valid border search of a vehicle. The Mississippi River is, for our purposes, considered a national, or an international boundary, and we were within approximately three hundred feet of the international boundary or border when this search occurred, and it was highly probably [sic] that these people were coming directly from the border or from the Mississippi River, this ship having arrived that day from a foreign country.” (Tr. p. 59.) The ease was tried solely on the theory of importation at this “border.”

      . De Peiza testified:
      “Q. Now, when he carried that ashore for you, did he know that that was marihuana in there?
      “A. I would assume so.
      “Q. You assume so. Prom what do you assume that?
      “A. Well, I told him I had it on the ship.
      “Q. And he knew that you were going to carry it ashore?
      “A. Yes, sir.
      “Q. And he knew you were planning to go back to the Casa Loma to find Mike?
      “A. Yes, sir.
      “Q. And he was there helping you?
      “A. Well, he was there, yes, sir.
      “Q. Did he help you?
      “A. Well, he helped me to the shore.” (Tr. p. 28.)
      When seized, the bag of marijuana was “directly where he [Prince] was seated, it would be next to his feet on the floorboards, directly in front of him.” (Tr. p. 44.)

      . It was stipulated that the substance was marijuana, and that the integrity of the chain of custody was intact. (Tr. pp. 15-16.)

      . We note that 21 U.S.C. § 951(a)(2) provides :
      “(a) For purposes of this subchapter—

        ti # * sk # *
      “(2) The term ‘customs territory of the United States’ has the meaning assigned to such term by general headnote 2 to the Tariff Schedules of the United States.”

      . Fed.R.Crim.P. 52(b).

      . United States v. Hall, 5 Cir. 1971, 440 F.2d 1277, 1278.

      . 19 U.S.C. § 482; United States v. Hill, 5 Cir. 1970, 430 F.2d 129, 131; United States v. Reagor, 5 Cir. 1971, 441 F.2d 252, 254; United States v. Bean, 5 Cir. 1973, 484 F.2d 1275; United States v. Henriquez, 5 Cir. 1973, 483 F.2d 65.

      . See Chambers v. Maroney, 1970, 399 U.S. 42, 53, 90 S.Ct. 1975, 26 L.Ed.2d 419; MacKenna v. Ellis, 5 Cir. 1960, 280 F.2d 592, 599.

      . See Chambers v. Mississippi, 1973, 410 U.S. 284, 295-298, 93 S.Ct. 1038, 35 L.Ed.2d 297; IIIA Wigmore, Evidence (Chadbourn Revision 1970) § 896, et seq. Rule 607 of proposed new Federal Rules of Evidence, H.R. 5463, 93rd Congress: “The credibility of a witness may be attacked by any party, including the party calling him.”

      . IIIA Wigmore, supra, §§ 902-905.

      . Brady v. Maryland, 1963, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215.

      . See Stevens v. United States, 9 Cir. 1958, 256 F.2d 619, 622; IIIA Wigmore, supra n. 10, § 905.


author: CHOY, Circuit Judge:

text:
    COOL-FIN ELECTRONICS CORPORATION, Plaintiff-Appellee, v. INTERNATIONAL ELECTRONIC RESEARCH CORPORATION, Defendant-Appellant. COOL-FIN ELECTRONICS CORPORATION, Plaintiff-Appellant, v. INTERNATIONAL ELECTRONIC RESEARCH CORPORATION, and United-Carr, Incorporated, Defendants-Appellees.
    Nos. 72-1023, 72-1056.
    United States Court of Appeals, Ninth Circuit.
    Jan. 9, 1974.
    As Amended on Denial of Rehearing Feb. 25, 1974.
    Vernon D. Beehler (argued), Bruce A. Jagger of Beehler, Arant, Mockabee, Jagger & Bethel, Richard Hungate (argued), Louis P. Petrich of Young-man, Hungate & Leopold, Los Angeles, Cal., for plaintiff-appellee.
    Frederick E. Mueller of Fulwider, Patton, Rieber, Lee & Utecht, Stanley H. Williams (argued), Philip F. West-brook, Jr. (argued), of O’Melveny & Myers, McCutchen, Black, Verleger & Shea, Los Angeles, Cal., for defendant-appellant.

      Before ELY and CHOY, Circuit Judges, and SOLOMON, District Judge.

       The Honorable Gus J. Solomon, United States District Judge for the District of Oregon, sitting by designation.

   CHOY, Circuit Judge:

This appeal concerns the validity of patent No. 2,807,659, a tube shield and insert designed for protecting glass electron tubes. Cool-Fin Electronics Corporation (Cool-Fin), a now defunct manufacturer of tube shields, originally sued the International Electronic Research Corporation (IERC) for violations of the antitrust laws. IERC counterclaimed that Cool-Fin had infringed its patent. The district court tried the patent issue separately and held the IERC patent invalid, reasoning that it was anticipated by the prior art under 35 U.S. C. § 102 (1970) and that it would have been obvious to one of ordinary skill in the field under 35 U.S.C. § 103 (1970). IERC appeals, and we reverse.

Tube shields are metal covers used to surround electron tubes. Following World War II, electronic equipment, especially military equipment, was notoriously unreliable due largely to breakdowns in electron tubes. Overheating of the tubes was a major cause. Vibration of the tubes, caused by the operation of the high-powered equipment to which the tubes were attached, was also responsible. Existing tube shields did not solve these problems. Despite expert efforts, no one had produced a reliable shield when the IERC apparatus was devised in 1952.

The patent in suit, issued in 1957, adequately remedied these deficiencies, as its commercial success confirmed. It utilizes a sheet metal insert, placed between the tube and the shield, with numerous leaf springs (flat pieces of tense metal cut out of the main sheet and appearing, aptly, like leaves) arranged in longitudinal and circumferential rows. These springs contact the glass bulb, holding it firmly in place, thereby dampening vibration. The springs provide curved contact with the tube, resulting in effective conduction of heat from the surface of the tube outward to the shield and thence to the chassis of the machinery to which the shield is secured, thus dissipating heat. The advantage of the patented device—and its alleged patentable feature—is the area contact provided by these arcuate leaf springs.

We need not discuss the prior art in detail. It is sufficient to note that there were a number of previously patented tube shields almost all of which are clearly different in conception and effectiveness from the patent in suit. The closest analogue to the IERC device is the Dickinson patent, No. 2,673,721. In this, a few coil springs (conventional wound wire springs) are inserted in a shield. The springs encircle the tube at its central region where the wire coils of the springs contact the tube at spaced points.

Anticipation

The trial court apparently found that the area contact concept of the IERC leaf spring insert was not contained within the four claims of the patent in issue—claims 3, 13, 14, and 15. Claims are to be read liberally. See, e. g., Smith v. Snow, 294 U.S. 1, 14, 55 S.Ct. 279, 79 L.Ed. 721 (1935). Drawings and specifications in the patent’s file folder history, while not available to enlarge a patent claim, can explain an ambiguity. See, e. g., Illinois Tool Works, Inc. v. Brunsing, 389 F.2d 38, 40 (9th Cir. 1968). In light of these principles, we find that claims 3 and 15 properly state that a novel feature of the IERC device is its use of leaf spring (area) contact.

Alternatively, though the trial court’s findings are ambiguous, the court seems to have held that even if the area concept was incorporated in the claims, the patent was still anticipated by the Dickinson device. This was clearly erroneous. It has been oft-repeated that “anticipation is a strictly technical defense. Unless all of the same elements are found in exactly the same situation and united in the same way to perform the identical function in a prior pleaded patent, there is no anticipation.” Stauffer v. Slenderella Systems, Inc., 254 F.2d 127, 128 (9th Cir. 1957). There is a major element in the IERC device not present in the Dickinson apparatus: the use of leaf springs to provide area contact. That cannot be said to be a combination of the same elements in the same way. See The Barbed Wire Patent, 143 U.S. 275, 12 S.Ct. 443, 36 L.Ed. 154 (1892); Kockum Industries, Inc. v. Salem Equipment, Inc., 467 F.2d 61 (9th Cir. 1972), cert. denied, 411 U.S. 964, 93 S.Ct. 2140, 36 L.Ed.2d 684 (1973). Furthermore, there was no evidence that the Dickinson device produced similar results—-facts that would indicate similarity of operation. Indeed, all the evidence showed the IERC apparatus to produce dramatically improved results.

Obviousness

As to obviousness, we think the trial court was also clearly in error. One of the inquiries necessary for such a finding is whether the alleged invention would be obvious to one of ordinary skill in the art. Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). Yet the evidence shows that others skilled in the field, notably military researchers, had been unable to find a satisfactory solution to the problem of electron tube failures. This is a weighty indication that at the then level of skill as to tube covers, the patented discovery was not obvious. See Reeves Instrument Corp. v. Beckman Instruments, Inc., 444 F.2d 263, 272 (9th Cir.), cert. denied, 404 U.S. 951, 92 S.Ct. 283, 30 L.Ed.2d 268 (1971); Neff Instrument Corp. v. Cohu Electronics, Inc., 298 F.2d 82, 87 (9th Cir. 1961). Neither do the Dickinson patent’s teachings support a finding of obviousness. Although Dickinson teaches the use of springs, they are structurally distinct, are not designed to dampen vibration, and provide merely point contact with the glass tube.

Certain secondary considerations, see Graham v. John Deere Co., 383 U.S. at 17-18, 86 S.Ct. 684, support our conclusion. The IERC shield fulfilled a long-felt need. Moreover, it was an undoubted commercial success.

Left, as we are, “with the definite and firm conviction that a mistake has been committed,” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948), we reverse the trial court’s ruling of invalidity.

As to Cool-Fin’s claim to an attorney’s fee in connection with IERC’s ’108 patent counterclaim which IERC dropped and which the district court dismissed with prejudice, we do not find clearly erroneous the district court’s finding that it was not of such character as to make it an exceptional case within the meaning of 35 U.S.C. § 285 (1970).

Since the issue of whether Cool-Fin infringed the IERC patent has not been decided, we remand for further proceedings.

Reversed and remanded.

      . In military electronic equipment—on missiles, ships, aircraft and the like—electron tubes functioned under conditions of extreme stress. The result was an alarming rate of failure. For example, a high percentage of electronic equipment in the Navy’s Atlantic fleet was inoperative at any one time. This created obvious strategic dangers, not to mention inordinate maintenance costs. The need for a solution was thus acute.

      . The Dickinson patent was not considered by the Patent Office as a prior reference when it issued the IERC patent. Because we conclude that Dickinson is more pertinent than the prior art considered by the Patent Office, we consider the IERC patent without the aid of the usual presumption accorded issued patents. See Westinghouse Electric Corp. v. Titanium Metals Corp., 454 F.2d 515, 516 n. 2 (9th Cir. 1971), cert. denied, 407 U.S. 911, 92 S.Ct. 2439, 32 L.Ed.2d 685 (1972) ; Aerotec Industries v. Pacific Scientific Co., 381 F.2d 795, 803 (9th Cir. 1967), cert. denied, 389 U.S. 1049, 88 S.Ct. 788, 19 L.Ed.2d 843 (1968) ; Jacuzzi Bros., Inc. v. Berkeley Pump Co., 191 F.2d 632, 634 (9th Cir. 1951).

      . We agree that the other two claims in issue, claims 13 and 14, cannot be read to incorporate the area contact concept of the leaf springs. Rather, they claim, in brief, that the longitudinal and lateral arrangement of a multiplicity of uniformly spaced springs serves to distinguish the device. Since the Dickinson device also has a similar configuration of springs, it was not clearly erroneous to find these claims were anticipated.

      . Claim 3 calls for a “means of holding the tube within the envelope comprising a multiplicity of siibstanUally flat surfaced spring contact elements of heat conducting metal . . . .” (Emphasis added.) Claim 15 states that the device includes “spring elements [which are] productive of contact areas of substantial uniformity .” (Emphasis added.) When viewed in light of the drawings in the file folder, which show leaf spring angular contacts, both claims include the notion of area contact.

      . Accord Illinois Tool Works, Inc. v. Sweetheart Plastics, Inc., 436 F.2d 1180, 1182-1183 (7th Cir.), cert. dismissed, 403 U.S. 942, 91 S.Ct. 2270, 29 L.Ed.2d 722 (1971) ; Walker v. General Motors Corp., 362 F.2d 56, 58 (9th Cir. 1966) ; McCullough Tool Co. v. Well Surveys, Inc., 343 F.2d 381, 398 (10th Cir. 1965), cert. denied, 383 U.S. 933, 86 S.Ct. 1061, 15 L.Ed.2d 851 (1966) ; National Lead Co. v. Western Lead Products Co., 324 F.2d 539, 544 (9th Cir. 1963).

      . The trial court totally discounted certain tests comparing the performance between the Dickinson and IERC shields. While the tests were flawed in certain respects, they did indicate there were substantial differences in effectiveness between the two devices. Indeed, the Dickinson point contact causes mechanical strains in the glass tube that tend to destroy the tube. More importantly, Cool-Fin did not show there were similarities in result.

      . This theoretical person of ordinary skill is “charged with knowledge of all that the prior art disclosed at the time of his alleged invention, irrespective of whether persons of ordinary skill in the field, or he himself, or anyone else, actually possessed such all-encompassing familiarity with prior disclosures.” Walker v. General Motors, 362 F.2d 56, 60 n. 3 (9th Cir. 1966).

      . Because we reverse on the validity issue, it is unnecessary to consider IERC’s contention that the trial court’s findings were overbroad. It is also unnecessary to consider Cool-Fin’s appeal from a denial of attorney’s fees on that issue, provided by 35 U.S.C. § 285 (1970) in “exceptional” cases, since such an award may be made only to the prevailing party.


author: STALEY, Circuit Judge. ADAMS, Circuit Judge

text:
    UNITED STATES of America v. Luis Donato RODRIGUES, Appellant, et al.
    No. 14753.
    United States Court of Appeals, Third Circuit.
    Argued Sept. 6, 1973.
    Resubmitted Jan. 30, 1974. Under Third Circuit Rule 12(6).
    Decided Feb. 20, 1974.

      Schapira, Steiner & Schapira, Saul A. Wolfe, Newark, N. J., for appellant.
    Herbert J. Stern, U. S. Atty., Richard S. Zackin, Asst. U. S. Atty., Newark, N. J., for appellee.
    Before STALEY, ADAMS and GIBBONS, Circuit Judges.
   OPINION OF THE COURT

STALEY, Circuit Judge.

Luis Donato Rodrigues, a citizen of Portugal, was tried to a jury in the district court and was convicted of conspiracy to defraud the United States in a matter concerning the Immigration and Naturalization Act in violation of Title 18 U.S.C. § 371. Specifically, the indictment charged that he and three others conspired to arrange a marriage ceremony between himself and an American woman, one of three other indicted co-conspirators, solely to enable him to achieve the status of permanent resident alien upon the representation that he was the alien spouse of a United States citizen.

Upon ordering a transcript of the proceedings in the district court, counsel for the appellant discovered that the stenographic notes of the trial taken by the official court reporter had been lost. The aspects of this ease related to the lost transcript have been twice before this court and twice we have remanded appellant’s cause for the purpose of reconstructing the record and determining whether he would be prejudiced in going forward with the appeal.

A partial record was reconstructed from tape recordings of the trial made by the court reporter for his own purposes. However, only a portion of the trial was available on tape. We have before us an appeal on the merits with a record consisting of an uncertified partial transcript taken from tapes.

The notes of testimony taken from the aforementioned tape recordings reveal that the woman who married the appellant pursuant to the alleged conspiracy testified on behalf of the Government. She stated that two meetings took place at her home during which the sham marriage scheme was first presented to her.

On appeal the appellant argues, inter alia,, that the admission of the woman’s versions of conversations which included declarations of the appellant’s co-conspirators without a limiting instruction by the court was reversible error.

Declarations of one conspirator made in the absence of another conspirator may be used against the other on the theory that the declarant is the agent of the absent conspirator. Lutwak v. United States, 344 U.S. 604, 617, 73 S.Ct. 481, 97 L.Ed. 593 (1953).

“However, such declarations are admissible over the objection of an alleged co-conspirator, who was not present when they were made, only if there is proof aliunde that he is conneeted with the conspiracy. [Citations omitted.] Otherwise, hearsay would lift itself by its own bootstraps to the level of competent evidence.” Glasser v. United States, 315 U.S. 60, 74-75, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942).

The Supreme Court has emphasized the importance of rulings on the admissibility and bearing of declarations of conspirators.

“Perhaps even at best the safeguards provided by clear rulings on admissibility, limitations of the bearing of evidence as against particular individuals, and adequate instructions, are insufficient to ward off the danger entirely. It is therefore extremely important that those safeguards be made as impregnable as possible.” Blumenthal v. United States, 332 U.S. 539, 559-560, 68 S.Ct. 248, 257, 92 L.Ed. 154 (1947).

With these principles in mind, we turn to an examination of the testimony of Leonore Rodrigues, the wife of the appellant.

Speaking through an interpreter, Leonore Rodrigues stated that in April 1959, one Emmanuel Rodrigues (no relation) visited her home and presented a proposal that she marry a Portuguese citizen. According to her testimony, Emmanuel explained that the marriage would be one of form only. They were not to live together as man and wife. For this service Leonore was to be paid $600. It is clear that the appellant was not present during this first conversation.

During the second meeting, which took place on the day following the first, Emmanuel and the appellant’s sister, Lucinda Marinho, spoke with Leonore regarding the proposed sham marriage. The testimony of Leonore on the question whether appellant was present at the second meeting is ambiguous and unclear. As to whether this lack of clarity is due to the language barrier or is attributable to a poor recording from which the partial transcript was made, we can only speculate.

Leonore’s testimony regarding the second meeting began with the following exchange on direct examination:

“Q. Did you have occasion to see Emmanuel Humberto Rodrigues again ?
“A. The following day he came to my home with Lucinda.
“The Interpreter: That is her brother.”

This response is unclear because Lucinda, one of the conspirators, is Luis’ sister, not Emmanuel’s. Shortly thereafter, counsel and the court inquired as follows:

“Q. Did you have a conversation with Emmanuel Humberto Rodrigues, Luis Donato Rodrigues and Lucinda Marinko [sic] on the occasion of the second visit?
“Mr. Sommer: May we have the time fixed?
“Mr. Levin: I think she said it was the day after the first conversation.
“The Court: The day after the first conversation?
“A. Yes.”

Although counsel’s question assumed the presence of all four conspirators, the witness’s affirmative reply was apparently not in response to that question. Rather, it was in answer to the court’s question regarding the time of the meeting. The only time Leonore specifically placed appellant at the second meeting was in the following inconsistent answers :

“Q. And were those conversations she has related said in the presence of all three defendants?
“A. Yes.
“Q. When was the next occasion you saw either Emmanuel, Luis or Lucinda ?
“A. The following day.
“Q. What happened the following day?
“A. I was introduced to that man.
“Q. After that, when was the next time after that?
“A. I think we went to get a blood test.”

To whom was Leonore introduced on the day following the second meeting if not the appellant? Leonore testfied that during the second meeting Lucinda Marinho, the appellant’s sister, repeated essentially what Emmanuel had proposed the day before.

Appellant Rodrigues contends that the district court committed plain error in failing to instruct the jury regarding the circumstances under which it could consider the declarations of the appellant’s alleged co-conspirators as evidence against him. We reject this contention. This court has recently stated: “ * * * once the district court determines that the statement is properly admitted under the co-conspirator exception to the hearsay rule, no instruction to the jury is necessary.” United States v. Van Orden, 469 F.2d 461, 464 (C.A. 3, 1972); see United States v. Bey, 437 F.2d 188, 191 (C.A. 3, 1971); Carbo v. United States, 314 F.2d 718 (C.A. 9, 1963). In order to be properly admitted under the co-conspirator exception to the hearsay rule, there must be independent evidence linking the declarant to the defendant. “The trial judge has wide discretion and need only be satisfied, if he accepts the independent evidence as credible, that such evidence is sufficient to support a finding of joint undertaking.” United States v. Bey, 437 F.2d 188, 190-191 (C.A. 3, 1971).

In the instant case, the ambiguous testimony set forth above and the unavailability of a full transcript make it impossible for us to determine whether there did exist independent evidence of the conspiracy. Under these circumstances we believe a new trial is proper. See, Parrott v. United States, 314 F.2d 46 (C.A. 10, 1963); Stephens v. United States, 289 F.2d 308 (C.A. 5, 1961).

The judgment of the district court will be reversed and the cause remanded for a new trial.

ADAMS, Circuit Judge

(concurring):

I agree that the district court’s judgment should be reversed. However, in my view such reversal should not be predicated upon possible infirmities resulting from the admission of co-conspirator statements, when there is an error which more clearly warrants a new trial.

Rodrigues contends that the trial court erred in failing to instruct the jury as to the essential elements of the crime with which he was charged and of which he was convicted. The government maintains that Rodrigues is barred by Rule 30, Federal Rules of Criminal Procedure, from complaining of this omission, since his counsel voiced no objection at trial. The interdiction of Rule 30, however, is inoperative regarding this asserted error.

In Screws v. United States, the Supreme Court held that where a trial court fails “to submit to the jury the essential ingredients of the ... offense . . . it is necessary to take note of it on our own motion.” Stated otherwise, the omission from jury instructions of an explanation of all the necessary elements of a crime is, per se, “plain error.”

Rodrigues was charged in a one-count indictment with “conspiracy to defraud the United States of and concerning its governmental function,” a violation of 18 U.S.C. § 371. In United States v. Vazquez this Court stated that, where an indictment charges conspiracy to defraud the United States under section 371, “fraud is an essential ingredient of the offense.” Fraud, in this connection, has been defined by the Supreme Court as “deceit, craft or trickery, or at least [as] means that are dishonest.” The gravamen of the offense, then, is the defendant’s state of mind —he must be found to possess the intent to defraud, to commit craft, deceit, or trickery, before a conviction will lie. The district court did not so instruct the jury, and such omission, in light of Vazquez and its progenitors, was plain error.

This ground for reversal would appear preferable for several reasons. First, as discussed above, the Supreme Court in Screws mandated that we consider this type of error, even if raised for the first time on appeal. Second, questions regarding the use of co-conspirator statements, particularly under the rule of Bey, supra, present grave issues that should only be resolved with a complete record at hand. Finally, it seems that the question of the appellant’s intent was, practically speaking, the fulcrum of the government’s case. Criminal statutes must be construed and applied strictissimi juris, and without a charge on the element of intent, there can be no assurance that the jury so applied section 371 in this case.

Thus, notwithstanding the appellant’s failure to object to the lack of instructions setting out each element of the crime, I would conclude that the judgment must be reversed and a new trial ordered.

      . The majority, invoking United States v. Bey, 437 F.2d 188 (3d Cir. 1971), rejects Rodrigues’ claim that the failure of the court to instruct the jury regarding the admissibility of co-conspirator statements was error.
      I, too, would reject this contention of Rodrigues because, irrespective of the rule of Bey, no objection was made at trial to this asserted error in the instructions. Rule 30, F.R.Cr.P., thus bars our consideration of such omission on this appeal. Cf. United States v. Provenzano, 334 F.2d 678, 690 (3d Cir.), cert. denied 379 U.S. 947, 85 S.Ct. 440, 13 L.Ed.2d 544 (1964).

      . Rule 30 bars consideration of errors in a trial court’s instructions that were not objected to before the jury retired. See Note 1, supra.

      . 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945).

      . Id. at 107, 65 S.Ct. at 1038.

      . See United States v. Massiah, 307 F.2d 62, 71 (2d Cir. 1962), rev’d on other grounds, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Pursuant to rule 52(b), F.R.Cr.P., “[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” See United States v. Grasso, 437 F.2d 317, 319 (3d Cir. 1970), cert. denied, 403 U.S. 920, 91 S.Ct. 2236, 29 L.Ed.2d 698 (1971).

      . Section 371 proscribes two separate offenses to wit, conspiracy to commit an offense against the United States, and conspiracy to defraud the United States. The indictment in this ease clearly charged Rodrigues only with the latter crime.

      . 319 F.2d 381 (3d Cir. 1963).

      . Id. at 384.

      . Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 512, 68 L.Ed. 968 (1924).

      . Though as a panel member I joined the majority opinion in Bey, I was then, and continue to be, troubled by some of the ramifications of that case. Particularly nettlesome is the question whether Bey’s rejection of the need for certain limiting instructions comports altogether with the Supreme Court’s pronouncements on the co-conspirator rule. See, e. g., Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949) (particularly the concurring opinion of Justice Jackson) ; Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). For example, if, under Bey, the jury need not find at least a prima facie case of conspiracy on the basis solely of independent evidence, the very “bootstrapping effect” warned against in Glasser, 315 U.S. at 75, 62 S.Ct. 457, may occur.