author: MANSFIELD, Circuit Judge:

text:
    James NEWKIRK, Plaintiff-Appellee, v. Harold N. BUTLER, Superintendent, of Wallkill Correctional Facility, and Peter Preiser, Commissioner of Correctional Services, Defendants-Appellants.
    No. 979, Docket 73-2858.
    United States Court of Appeals, Second Circuit.
    Argued May 9, 1974.
    Decided June 3, 1974.
    Certiorari Granted Oct. 21, 1974.
    See 95 S.Ct. 172.

      Hillel Hoffman, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of N. Y., Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, of counsel), for defendants-appellants.
    Daniel Pochoda, New York City (William E. Hellerstein, Marjorie M. Smith, The Legal Aid Society, Prisoners’ Rights Project, New York City, of counsel), for plaintiff-appellee.
    Before ANDERSON, FEINBERG and MANSFIELD, Circuit Judges.
   MANSFIELD, Circuit Judge:

On June 8 and 9, 1972, appellee James Newkirk and four other inmates of Wallkill Correctional Facility (“Wallkill” herein), a medium security institution, were summarily transferred to maximum security facilities in New York in response to their alleged activities in support of a prisoners’ union at Wallkill. Newkirk and three of the other four brought suit in the Southern District of New York pursuant to 28 U.S.C. § 1343(3), (4), and 42 U.S.C. § 1983 against the Superintendent of Wallkill and the State Commissioner of Correctional Services for a declaration that the transfers were in violation of the Constitution and laws of the United States and for injunctive relief. Prior to a decision in the action, which was tried in November, 1972, before Judge Robert J. Ward, sitting without a jury, all plaintiffs except Newkirk were released on parole and the action was dismissed as to them. Newkirk was returned to Wallkill but the action continued as to him. In a decision dated October 9, 1973, the district court held that the transfer violated the due process clause of the Fourteenth Amendment since it had been made without any explanation to Newkirk or opportunity to be heard. On October 23, 1973, the court entered a declaratory judgment accordingly, which, while denying injunctive relief, directed that no adverse parole action be taken against Newkirk, or punishment administered, because of the transfer and that Newkirk be told the “scope of permissible behavior at Wallkill and the circumstances which . . . would warrant his transfer to another prison.” The Superintendent and State Commissioner appeal. With modification we affirm.

Wallkill is a unique state correctional facility because it permits its inmates, who live in rooms rather than cell blocks, maximum free time and freedom of movement and gives access to numerous recreational and rehabilitative programs not available at other state correctional facilities. Because of its several advantages, which are more fully described in the district court’s opinion, see 364 F.Supp. 497 (S.D.N.Y.1973), admission to Wallkill is generally sought after and usually comes only after a state prisoner has spent time at a maximum security facility and has undergone an extensive screening procedure.

Appellee Newkirk, after being convicted of second degree murder in 1962, was incarcerated at Sing Sing and Green Haven before first applying in 1965 for admission to Wallkill, to which he was not admitted until 1971. At Wallkill he took instruction in auto mechanics, attended classes in mathematics, history and English, and, during his leisure time, played musical instruments and pursued other artistic interests. Newkirk also drove a truck at Wallkill and at times was permitted to leave the prison grounds as part of this employment.

Sometime prior to June 1972 several Wallkill inmates began circulating petitions to form an inmates’ union. These activities were openly opposed, not by prison officials but by members of the elected Inmate Liaison Committee (the “Committee”), which had general responsibility for the processing of inmate grievances. On June 2, 1972, the Committee held a general meeting of the inmates at which it disclaimed any support for the union. The discussions at this meeting, although vociferous, were not violent. Newkirk, who had previously signed a proposed union constitution, did not attend this meeting but immediately prior to it received a union petition from a fellow inmate, signed it, and passed it along to another inmate.

Concerned about a possible threat to the stability of the prison, Lieutenant Connolly, the officer in charge of Wall-kill on the evening of June 2, a Friday, telephoned reports to Superintendent Butler who had left Wallkill and was at his home for the weekend. Connolly also prepared a written report for Assistant Deputy Superintendent O’Mara in which he identified, based on what other officers had told him, Newkirk as one of the inmates who had been canvassing for the union. On Tuesday, June 6, O’Mara recommended to Butler that eight inmates, including Newkirk, be transferred from Wallkill. Before making his recommendations O’Mara did not talk to Newkirk and did not know who had observed him canvassing for the union or the extent of his activities. Butler decided to transfer Newkirk and four others on O’Mara’s list without ever talking to the inmates involved and without personally observing any of their activities or even discussing the events of Friday evening with Connolly who was the officer in charge and who had never recommended that anyone be transferred. The transfers were accomplished on June 8 and 9 when the inmates were summoned to the prison infirmary and told they were being sent away immediately. They were not told the reason or given any opportunity to contest the action.

Newkirk was transferred to Clinton Correctional Facility where he was placed in a barred cell, openable only by a guard, and was unable to pursue many of the activities he had engaged in at Wallkill. Although he asked for a job involving auto mechanics or driving, he was employed by the Clinton Superintendent as a housekeeper at a salary less than what he had earned at Wallkill. Newkirk worked for the Superintendent seven days a-sveek, often for 13 or 14 hours per day. Visits to Newkirk by members of his family were more restricted, since Clinton is located further from New York City, where Newkirk’s family lives, than Wallkill. In light of these and other deprivations suffered by Newkirk, and since the transfer was in direct response to his presumed activity in support of the inmates’ union, the district court rejected appellants’ argument that the transfer was “administrative,” and hence beyond due process requirements, because it had not resulted from formal disciplinary proceedings and had not involved any loss of good time or segregated confinement. Specifically the court declared:

“1) plaintiff Newkirk’s interest in continuing to be situated at Wallkill is sufficiently great that transfers in direct response to his activity deserves some sort of ‘due’ process, at the very least the knowledge that it is a possibility ;
“2) transfer from Wallkill to maximum security institutions is used by the defendants for disciplinary purposes ;
“3) plaintiff Newkirk could not be transferred without being afforded due process, including
a) prior notice of the rules of the institution and what acts on his part would lead to his being transferred ;
b) a hearing at which he was informed of the charges against him and afforded an opportunity to explain his behavior before a relatively impartial tribunal either prior to the transfer or if prompt action is essential, as soon thereafter as practicable; . . .

The court entered the above-described judgment (su/pra,, p. 2) and denied appellants’ requests for a resettlement which would limit the judgment to cases involving disciplinary transfers only and for a stay of that portion of the judgment directing appellants to notify New-kirk of the conduct that would lead to transfer from Wallkill,

Appellants argue that a hearing may be constitutionally required only for “disciplinary” transfers — i. e„ transfers made as punishment for past rule violations. See 7 N.Y.C.R.R. Part 250, et seq. They urge that transfers for other purposes (e. g., transfer to separate inmates who are hostile to each other or to prevent threatened disturbances before they occur, which involve no formal disciplinary proceedings, loss of good time, segregation, or adverse parole consequences) be classified as purely “administrative” and left within the exclusive discretion of prison officials. Besides being inappropriate in these cases, appellants argue, notice and a hearing might touch off exactly the disturbance which a transfer could avoid.

Classification by label (e. g., as “administrative” or “disciplinary”) may facilitate prison administration but it cannot be used as a substitute for due process. In our view appellees’ position gives insufficient consideration to the very real loss that an inmate may suffer even when his transfer is not part ■ of formal disciplinary proceedings and has no adverse parole consequences. It also overlooks the danger that a transfer, when based on rumor or “confidential” information about an inmate’s behavior, past or planned, may be arbitrary and unjustified by the facts. These factors, the adverse consequences to the prisoner and the chance of error, are the principal elements to be considered in determining what process is due the transferred prisoner, rather than the label put on the transfer. Where the prisoner suffers substantial loss as a result of the transfer he is entitled to the basic elements of rudimentary due process, i. e., notice and an opportunity to be heard. See Gomes v. Travisono, 490 F.2d 1209 (1st Cir. 1973); Ault v. Holmes, 369 F.Supp. 288 (W.D.Ky.1973); Hoitt v. Vitek, 361 F.Supp. 1238 (D.N.H.1973); White v. Gillman, 360 F.Supp. 64 (S.D.Iowa 1973); Capitan v. Cupp, 356 F.Supp. 302 (D.Or.1972). See also Landman v. Royster, 333 F.Supp. 621, 645 (E.D.Va.1971) (questioning distinction between deprivations constituting “punishment” and those presented as techniques for the maintenance of “control” or “security”). While no formal disciplinary proceedings were involved in the present case the district court found that Newkirk was deprived of living conditions and job and training opportunities for which he had waited for six years and which he was apparently eager to retain. Since this was a substantial loss he was entitled to know the reasons for the transfer, to be heard, and to be permitted to demonstrate the existence of factual errors in the basis for the discharge. Since his right to minimum due process is clear in the circumstances of this case, it becomes unnecessary for us to decide whether some form of due process is required in the case of every transfer of a prisoner. See Gomes v. Travisono, supra at pp. 1213-1214.

Nor can a denial of due process to Newkirk be justified on the ground that his transfer was intrastate rather than to a prison outside the state (the situation in Gomes), since the deprivations in both cases were, as a practical matter, equally severe. See Stone v. Egeler, 377 F.Supp. 115 (W.D.Mich.1973); Aikens v. Lash, 371 F.Supp. 482 (N.D.Ind.1974); White v. Gillman, supra. “In a prison setting where liberty is by necessity shrunken to a small set of minor amenities, such as work or schooling privileges, visitations, and some modicum of privacy, it is likely that any marked change of status which forecloses such liberties will be perceived and felt as a grievous loss.” Palmigiano v. Baxter, 487 F.2d 1280, 1284 (1st Cir. 1973). See also Diamond v. Thompson, 364 F.Supp. 659, 664 (M.D.Ala.1973). Indeed, in light of our decision that a substantial deprivation of benefits and privileges within the prison walls itself entitles a prisoner to some form of due process, see Sostre v. McGinnis, 442 F.2d 178 (2d Cir.), cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 (1972), it would be something of a paradox if prison authorities could by transferring a prisoner for disciplinary reasons to another institution (within or without the state) deprive him of due process rights to which he would be entitled upon a transfer within the prison itself.

Fundamental fairness furthermore requires that substantial deprivations “should at least be premised on facts rationally determined.” See Sostre v. McGinnis, supra at 198; United States ex rel. Campbell v. Pate, 401 F.2d 55, 57 (7th Cir. 1968) (“the relevant facts . must not be . capriciously or unreliably determined.”); Dunn v. California Dept. of Corrections, 401 F.2d 340, 342 (9th Cir. 1968); Shelton v. United States Board of Parole, 128 U.S.App.D.C. 311, 388 F.2d 567, 576 (1967) (en banc.). Here the need for at least a rudimentary hearing, with Newkirk afforded a reasonable opportunity to explain his activities, was obvious. The Superintendent’s decision to transfer Newkirk as a leading proponent of the inmates’ union was based only on third-hand reports prepared by officers who had not personally observed New-kirk’s conduct which, as it turns out, had apparently been limited to the single act of signing and passing along a union petition. A hearing might well have established that he was but a passive pawn in a larger power struggle, who had not intended to involve himself in further union activities, particularly if they would jeopardize his continued presence at Wallkill. Indeed, with respect to one of the other inmates transferred, the Superintendent conceded at the trial in the district court that a further investigation would have revealed significantly less involvement with the union than had originally been supposed. Where no hearing at all is granted and the inmate is never given any opportunity to respond to or contradict reports of his activities or intent, the risk of such mistakes is substantial. See Gomes v. Travisono, 353 F.Supp. 457, 462 (D.R.I.), affd., 490 F.2d 1209 (1st Cir. 1973).

Turning to the district court’s judgment, we believe that, with one or two modifications, it satisfactorily prescribes the minimum due process to which New-kirk is entitled. At the same time it does not attempt to foist a formal-type notice or hearing on the state. Presumably the form will be molded to suit the seriousness of the charges in each case and the deprivations threatened by the transfer. Furthermore the order recognizes- that under some circumstances there may be compelling reasons for immediate transfer without notice and prior to hearing (e. g., where the transfer is made because of fear of an imminent prison uprising or because of fire, flood, outbreak of an epidemic, or the like) and accordingly provides that “if prompt action is essential” the hearing may be held as soon after the transfer “as practicable.” This provision permits prison officials to act immediately in instances where notice will touch off the very disturbances which the transfer is designed to avoid.

In one respect, however, we believe that the order requires modification. Paragraphs (1) and (5)b of the order would require state prison officials immediately to inform Newkirk of all future activities or behavior on his part which would be grounds for transfer of him to another institution. While we agree that advance publication of rules governing the conduct of prisoners at Wallkill, to the extent that such rules can be formulated in clear and unambiguous terms, would serve the salutary function of avoiding misunderstanding and resentment on the part of the prison population, Rhem v. McGrath, 326 F.Supp. 681, 691-692 (S.D.N.Y.1971), it would be impossible, other than through the use of vague and meaningless generalities, to set forth all acts on Newkirk’s part that could conceivably require his transfer out of Wallkill. Compliance with this portion of the district court’s order, as it stands, might also preclude the flexible exercise of discretion based on changing conditions within the “volatile atmosphere of a prison,” see Sostre v. Otis, 330 F.Supp. 941, 945 (S.D.N.Y.1971). We could not affirm such a requirement without placing prison officials in an unnecessary strait jacket. We therefore hold that the final order of the district court should be modified to delete from paragraph 1 the words “at the very least the knowledge that it is a possibility,” from Paragraph 3(a) that part which directs that Newkirk be given prior notice of “what acts on his part would lead to his being transferred,” and all of paragraph 5 (b).

We find no merit in appellants’ additional argument that Newkirk’s action should have been dismissed as moot prior to the decision on the merits since prior thereto he had been returned from Clinton to Wallkill. Even after his return he remained subject to a new transfer at any time based on mere rumor or surmise which he had no opportunity to answer or refute. In light of the state’s continued insistence on its policy of not providing the inmate with any opportunity to respond to information against him, the likelihood of such a transfer was concrete rather than remote, speculative, or contingent. See Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1, 42 U.S.L.W. 4507 (1974); Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941); McGrain v. Daugherty, 273 U.S. 135, 181-182, 47 S.Ct. 319, 71 L.Ed. 580 (1927). See generally Diamond, Federal Jurisdiction to Decide Moot Cases, 94 U.Pa.L.Rev. 125, 137-47 (1945). Furthermore, notwithstanding the Superintendent’s good faith assurances in support of appellants’ motion for dismissal that there would be no adverse effects from the transfer as far as consideration for parole was concerned, we think that Newkirk was entitled to a judicial decree to that effect.

The judgment and order of the.district court is affirmed as modified.

      . Connolly could not remember specifically which officers had identified particular inmates as participants in the union organizational drive.

      . O’Mara recommended eight employees for transfer. He had talked to only one of them, Passanante, whom O’Mara placed at ' the bottom of his list for transfer since Passanante was “very scared” and “apparently willing to cooperate.”

      . Wallkill is located approximately 80 miles north of New York City, whereas Clinton, located outside of Plattsburg, New York, is approximately 300 miles from New York City.

      . Appellants’ brief (p. 22) states :
      “Appellants do not quarrel here" with the District Court’s order insofar as it holds that, as a matter of law, if an inmate is transferred from Wallkill Correctional Facility solely as a disciplinary punishment in response to an act of misconduct, the inmate must, before or shortly after such transfer, be given notice of the gravamen of the misconduct and an opportunity to be heard in relation thereto. Indeed the regulations of the Department of Correctional Services require that disciplinary punishments be preceded by notice and hearing before punishment may be imposed (see 7 N.Y.C.R.R. Part 250 et seq.).”

      . For example one of the privations referred to in Q-omes was the increased difficulty of communication and visitation. See also Capitan v. Cupp, 356 F.Supp. 302 (D.Or.1972). Due to the increased distance of Clinton from New York City, see note 3 supra, and more limited telephone privileges, the same privations were suffered here.

      . It is irrelevant, as appellants seem to suggest, whether the factual inquiry has anything to do with the possible commission of a crime or other rule violation. See Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1968).

      . According to Assistant Deputy Superintendent O’Mara, it was “reliably” reported that one union petition circulating through the Wallkill population included 225-230 signatures.

      . We note that the one prisoner who was forewarned of his possible removal from Wallkill, Passanante, quickly indicated his willingness to cooperate and, as a result, was placed at the bottom of O’Mara’s list for transfer. See note 2 supra.


source: Caselaw Access Project

author: LUMBARD, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Ariel POMARES and Antonio Veciana, Defendants-Appellants.
    No. 1127, Docket 74-1219.
    United States Court of Appeals, Second Circuit.
    Argued June 14, 1974.
    Decided July 5, 1974.
    Bancroft Littlefield, Jr., Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S. D. N. Y., and S. Andrew Schaffer, Asst. U. S. Atty., on the brief), for appellee.
    Henry J. Boitel, New York City (Barry L. Garber, Miami, Fla., and Abraham H. Brodsky, New York City, on the brief), for defendants-appellants.
    Before LUMBARD, HAYS and TIMBERS, Circuit Judges.
   LUMBARD, Circuit Judge:

After a five-day trial in the Southern District before Judge Bonsai and a jury, Ariel Pomares and Antonio Veciana were convicted on January 14, 1974 on both counts of an indictment which charged them with conspiracy to distribute narcotics and possess them with intent to distribute, and with the distribution of approximately seven kilograms of cocaine. 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846. Pomares was sentenced to concurrent terms of five years on each count, to be followed by a special parole term of three years. Veciana received concurrent terms of imprisonment of seven years on each count, also to be followed by a special parole term of three years.

On appeal, the defendants make several points, the two principal ones being that Pomares’ confession to government agents was involuntary and that the government waived its right prior to trial to introduce into evidence portions of Pomares’ confession. We affirm.

The evidence at trial established that the two defendants, along with a co-conspirator who pleaded guilty, Augustin Barres, organized a cocaine smuggling ring which succeeded in smuggling twenty-five kilograms of pure cocaine into the United States from Bolivia before Barres was finally arrested while delivering seven kilograms to an undercover agent on July 23, 1973. Barres’ role in the conspiracy was to help finance the purchase of the cocaine. Veciana was responsible for travelling to Bolivia, purchasing the drugs and delivering them to Bolivian diplomats who then smuggled them into the United States, while Pomares had the task of arranging sales in the United States. All three were experienced businessmen who had fled to Florida from Cuba after Castro had come to power.

After Barres’ arrest, he agreed to cooperate with the government. On the basis of information which he provided, Veciana was arrested in Miami on July 24, 1973 and Pomares was arrested at his home in Puerto Rico on July 29, 1973.

Upon his arrest, Pomares was advised of his rights in Spanish by Special Agents Pinol and Amador. He was then taken to the Drug Enforcement Administration office in San Juan where, prior to questioning, he was again advised of his rights by Agent Pinol. After being advised of his rights on each of these occasions, Pomares was told that he faced heavy penalties for his smuggling activities, that he was his own best lawyer, and that the wisest course of action would be to cooperaté with the government rather than exercise his right to remain silent. Pomares agreed to cooperate, and confessed twice. On the second of these occasions, Agent Pinol took handwritten notes of what was being said. These notes were eventually put into the form of a typewritten report and introduced as an exhibit in the suppression hearing held by Judge Bonsai to determine the admissibility of Po-mares’ confession at trial. Judge Bonsai ruled that Pomares’ confession was admissible.

On October 4, 1973, during a pretrial conference, the attorney for Veciana raised the issue of “a potential severance problem under Bruton since one of the defendants [Pomares] did give a statement and the other one [Veciana] did not.” Assistant United States Attorney Bannigan responded: “I can resolve that right now. We will not use the statement.”

At trial, the government took the position that it had only waived use of the written statement in order to avoid the Bruton problem, but that it had recently learned that Pomares had made an earlier confession, and that' Special Agent Pinol was prepared to testify as to this earlier oral confession. Defense counsel objected that the government had waived its right to introduce any confession and in any event both confessions were essentially one and the same, having been obtained within no more than three hours of each other on the same day. Judge Bonsai concluded that the waiver did not reach to the earlier oral confession. In order to avoid any Bruton problem, however, the court ruled that only those portions of Pomares’ confession could be introduced which dealt with events after Veciana had delivered the last shipment of cocaine. Thus so much of the statement as was admitted in evidence made no mention of Veciana or any transactions in which he participated.

I.

On appeal, Pomares and Veciana maintain that Pomares’ confession was involuntarily obtained and therefore should not have been admitted in evidence. They argue that the comments of the special agents who arrested Po-mares that he faced severe penalties, that he was his own best lawyer, and that full cooperation with the government would be the best course were improper and coerced the defendant into confessing.

We emphasized in United States v. Ferrara, 377 F.2d 16, 17 (2d Cir.), cert. denied, 389 U.S. 908, 88 S.Ct. 225, 19 L.Ed.2d 225 (1967), that

the test of voluntariness [of a confession] is whether an examination of all the circumstances discloses that the conduct of “law enforcement officials was such as to overbear [the defendant’s] will to resist and bring about confessions not freely self-determined . . . .” Rogers v. Richmond, 365 U.S. 534, 544, 81 S.Ct. 735, 741, 5 L.Ed.2d 760 (1961) ....

The circumstances here do not disclose any overbearing on the part of government agents. There is no dispute that after his arrest and prior to making his oral confession, Pomares was advised three times in his native language, Spanish, of his constitutional rights and in response indicated that he understood them. The Miranda warning was given twice at his house after his arrest, once by Agent Amador and once by Agent Pinol, and the third time at the Drug Enforcement Administration office by Agent Pinol.

Nor is there any evidence that Po-mares was subject to any threats, physical coercion, or protracted interrogation. Indeed, his arrest and arraignment, occurring on a Sunday, were carried out in an expeditious fashion. He was arrested at approximately 12:15 p. m., brought to the Drug Enforcement Administration office by 1:30 and arraigned before the Chief Judge for the District of Puerto Rico at the Chief Judge’s home between 4:00 and 5:00 p. m. the same day. See United States v. Drummond, 354 F.2d 132, 144 (2d Cir. 1965) (en banc), cert. denied, 384 U.S. 1013, 86 S.Ct. 1968, 16 L.Ed.2d 1031 (1966).

No specific promises were made to Pomares. He was simply informed that it would be to his benefit to cooperate. Such statements by law enforcement officials have not been considered overbearing. See, e.g., United States v. Williams, 479 F.2d 1138 (4th Cir.), cert. denied, 414 U.S. 1025, 94 S.Ct. 452, 38 L.Ed.2d 317 (1973); United States v. Glasgow, 451 F.2d 557 (9th Cir. 1971). In United States v. Ferrara, supra, 377 F.2d 16, we held that the confession was voluntary even though federal agents had gone beyond simply urging the defendant to cooperate and had promised that he would be released on bail if he confessed. See also United States v. Bailey, 468 F.2d 652, 672-674 (4th Cir. 1972), aff’d on other grounds, 480 F.2d 518 (5th Cir. 1973) (en banc).

Finally, it cannot be overlooked that Pomares is an. intelligent, experienced businessman, aged 37 years, who was fully aware of his situation, having been informed by the agents that he had been arrested for violating the “Federal Narcotics Law.” Indeed, the record reveals that he was already aware at the time of his arrest that his coconspirator, Barres, had been arrested. In light of all the circumstances, Judge Bonsai was correct in ruling that Pomares’ confession was voluntary.

Surely, it is the duty of law enforcement officers to assemble all available evidence relating to the commission of a crime and this includes such information as a participant may be willing to give. Having fairly and fully advised Pomares of his constitutional rights, as required by Miranda, the agents were free to discuss with Pomares the reasons why he should cooperate. It was quite proper in the course of such discussion to mention the situation which Pomares faced and the advantages to him if he assisted the government. The agents stated facts; they made no misrepresentations. Nothing the agents were shown to have said or done was unfair or overreaching. There was every reason for the agents to act as they did; their conduct did not violate the letter or the spirit of the holding of the Supreme Court in Miranda.

The appellants’ argument that the government waived its right to use Pomares’ confession in evidence is also without merit. Judge Bonsai, who was present at the pretrial conference at which the waiver was made, concluded that the waiver was not intended to go so far as to include the prior oral confession. In any event, it was within the discretion of the'trial judge to admit testimony as to this earlier oral confession, and under the circumstances it was not an abuse of discretion to do so.

Moreover, it is difficult to see how the government could have waived its right to introduce this prior oral confession, since it only learned about it at trial when Agent Pinol arrived from Puerto Rico and informed the prosecutor that there had been an earlier confession.

Nor could the defendants have been surprised by the use of the confession at trial since they were already fully aware of the substance of the admissions made by Pomares, which he had never denied. In fact, the defendants had ample opportunity to challenge the admissibility of Pomares’ confession at a suppression hearing conducted during the trial and did so. At the conclusion of that hearing Judge Bonsai held that Pomares’ confession was admissible.

Under the circumstances which disclose neither bad faith on the part of the government nor surprise to the defendants, there is no reason to conclude that Judge Bonsai abused his discretion in admitting testimony regarding Pomares’ oral confession. See United States v. Cirillo, 499 F.2d 872, 881-883 (2d Cir. 1974). It is particularly noteworthy that Judge Bonsai took great care to comply with the Bruton rule by having excluded those portions of Pomares’ confession dealing with Veciana.

The several other arguments urged by Pomares and Veciana on appeal are also without merit.

Affirmed.


author: HOLLOWAY, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Donald F. BETTENHAUSEN and Bernice A. Bettenhausen, Defendants-Appellants.
    Nos. 73-1426, 73-1427.
    United States Court of Appeals, Tenth Circuit.
    July 1, 1974.

      Robert J. Roth, U. S. Atty., Wichita, Kan., for plaintiff-appellee.
    Charles W. Harris, Wichita, Kan. (Paul M. Buchanan of Weigand, Curfman, Brainerd, Harris & Kaufman, Wichita, Kan., on the brief), for defendants-appellants.

      Before CLARK, Associate Justice, and HILL and HOLLOWAY, Circuit Judges.

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

   HOLLOWAY, Circuit Judge.

Donald F. and Bernice A. Bettenhausen, husband and wife, appeal their convictions under a multiple count indictment of making an income tax return containing written declarations not believed to be true, and making and using false writings, in the form of altered checks and other documents, to substantiate improper deductions to the Internal Revenue Service. Mr. Bettenhausen was convicted of filing such returns containing untrue declarations for 1966, 1967 and 1968, in violation of 26 U.S.C.A. § 7206(1) and 18 U.S.C.A. § 2. Mrs. Bettenhausen was convicted of the same offense by their joint return for 1968 only. Both were convicted on eight counts under 18 U.S.C.A. § 1001 and 18 U.S.C.A. § 2 for making and using of false writings. The defendants were each given three year concurrent sentences on all convictions.

Numerous propositions are seriously pressed as grounds for reversal. It is convenient to discuss the facts separately in treating these arguments.

1. Venue of the offenses under 26 U.S.C.A. § 7206(1)

Defendants object that venue was not properly laid in the District of Kansas for the offense of making the returns in violation of 26 U.S.C.A. § 7206(1). They say that there could be no offense without filing of a return and that since this occurred at the Internal Revenue Service Center at Austin, Texas, venue was improper in the District of Kansas. Reliance is placed on the constitutional guaranty of the Sixth Amendment, and Travis v. United States, 364 U.S. 631, 81 S.Ct. 358, 5 L.Ed.2d 340 and United States v. Lombardo, 241 U.S. 73, and similar authorities.

Article 3, Section 2 of the Constitution affords the fundamental guaranty that trial of all crimes “ . . . shall be held in the State where the said Crimes shall have been committed . ” The Sixth Amendment reinforces the guaranty, providing for trial “ . . . by an impartial jury of the State and district wherein the crime shall have been committed . . . ” Carrying out the constitutional mandate, Rule 18 F.R.Crim.P. provides that prosecution “ . . . shall be had in a district in which the offense was committed.”

We are persuaded by the reasoning in United States v. Hagan, 306 F.Supp. 620 (D.Md.). The court there said it might be true, as argued, that the offense was not complete and could not have been prosecuted if the return had never been filed. But the court pointed out that the key verbs defining the offense under 26 U.S.C.A. § 7206(1) are “makes” and “subscribes.” Id. at 621-622; see also United States v. Slutsky, 487 F.2d 832, 839 (2d Cir.), cert. denied, 416 U.S. 937, 94 S.Ct. 1937, 40 L.Ed.2d 287. Therefore, under Rule 18, it was held that the defendant could be prosecuted in the district where the return was made and subscribed.

We feel that Travis v. United States, 364 U.S. 631, 81 S.Ct. 358, 5 L.Ed.2d 340, and United States v. Lombardo, 241 U.S. 73, 36 S.Ct. 508, 60 L.Ed. 897, do not support the objection to venue here. They were decided under statutes requiring filing with a particular Government agency, which was stressed. See 364 U.S. at 632, n. 2, 81 S.Ct. 358; 241 U.S. at 76, 78, 36 S.Ct. 508; cf. United States v. Bithoney, 472 F.2d 16 (2d Cir.), cert. denied, 412 U.S. 938, 93 S.Ct. 2771, 37 L.Ed.2d 397.

Here the returns were made and subscribed in the District of Kansas, although mailed to Austin as required. We feel venue in Kansas was proper under Rule 18 and in accord with the constitutional guaranties.

2. Refusal of the trial court to submit the issue of Mr. Bettenhausen’s sanity

Mr. Bettenhausen argues that reversible error occurred when the trial court refused to submit the issue of his competence to commit the offenses and charged the jury that the issue was not available and should not be considered by the jury (Tr. 1366-67). The Government says that there was no proof offered during the retrial which raised the sanity issue and that the prosecution was entitled to rely on the presumption of sanity. Thus it contends the trial court’s instruction was proper.

These convictions occurred on a retrial following an earlier mistrial declared in February, 1972, when the jury was unable to agree. Before the first trial Mr. Bettenhausen’s counsel gave notice at two omnibus hearings in 1971 that insanity would be a defense. Medical examinations arranged by the defense followed. In November, 1971, the Government requested an examination to determine Mr. Bettenhausen’s competence to stand trial. In November the trial court conducted a hearing at the Government’s request and determined that Mr. Bettenhausen was competent to stand trial. The defense did not then, and does not now, assert that Mr. Bettenhausen was not competent to stand trial at either trial.

The first trial followed in February, 1972. At that trial a psychiatrist and a psychologist testified for the defense that Mr. Bettenhausen had not been competent to commit the offenses. Among others the sanity issue was submitted to the jury. They were unable to agree and a mistrial was declared.

In March the Government requested that Mr. Bettenhausen be examined by a psychiatrist. An examination was ordered in November, 1972, and conducted by three physicians, one being a psychiatrist, for the Government. In the Government’s opening statement at the second trial in December, 1972, the insanity issue was discussed. And during the presentation of its case the Government developed lay testimony attempting to show that Mr. Bettenhausen was competent.

In cross-examination Mr. Bettenhausen’s superior at Boeing, Mr. Robbins, testified that about the middle of 1971 he first learned that Mr. Bettenhausen had come under the care of a psychiatrist, and that he knew he was away from work, hospitalized and under the care of a psychiatrist (Tr. 1129-30). The offenses had allegedly occurred, at various dates from April, 1967, into May, 1969. The defense cross-examined repeatedly on the issue to attempt to develop proof of insanity, but no other evidence of substance was obtained by cross-examination.

From these and other circumstances the defense argues that from the outset of the second trial the burden was' on the Government to prove Mr. Bettenhausen’s sanity. The defense says that the Government has the burden of proving the defendant’s sanity when evidence of insanity is produced, from whatever source. And it is argued that once the Government has notice of the mental condition of the accused, it has the burden of proof in the first instance as to the sanity of the accused. Reliance is placed primarily on several Tenth Circuit cases, which we have considered, and a ruling by the trial judge who tried the first case.

As to mental responsibility to plead or stand trial — which as stated is not at issue here — the trial court’s duty flows from constitutional requirements of due process, Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 as well as from 18 U.S.C.A. § 4244. And if any information coming to the attention of the court raises a bona fide doubt of the defendant’s competency to waive his constitutional rights or plead or to stand trial, it is the inescapable duty of the court to conduct a due process hearing to determine competency and to make appropriate findings. Wolcott v. United States, 407 F.2d 1149, 1151 (10th Cir.) (en banc), cert. denied, 396 U.S. 879, 90 S.Ct. 156, 24 L.Ed.2d 137.

Our case concerns the competency to commit the offense charged, and specifically when and how it becomes an issue. It has long been settled that the law presumes that everyone charged with a crime is sane, and the law thus supplies in the first instance the required proof of capacity to commit crime. Davis v. United States, 160 U.S. 469, 486, 16 S.Ct. 353, 40 L.Ed. 499; United States v. Jacobs, 473 F.2d 461, 464 (10th Cir.), cert. denied, 396 U.S. 879, 90 S.Ct. 156, 24 L.Ed.2d 137. When the presumption of sanity is dissipated, the mental capacity of the accused to commit the crime becomes an essential element of the offense to be proved by the prosecution with competent evidence beyond a reasonable doubt. Fitts v. United States, 284 F.2d 108, 112 (10th Cir.). Our ease focuses on when and how this presumption of sanity is dissipated.

In Wolcott v. United States, supra — which dealt with competence to stand trial — the court also referred to competence to commit the offense, saying that “[i]f the defendant’s mental responsibility for the offense is in any way put in issue, the judge must determine whether the legal presumption of criminal responsibility has been dissipated.” 407 F.2d at 1150. This determination as to whether sufficient evidence of insanity has been introduced to rebut the sanity presumption is to be made by the trial judge, and not by the jury. Davis v. United States, 364 F.2d 572, 574 (10th Cir.); Otney v. United States, 340 F.2d 696 (10th Cir.); Fitts v. United States, 284 F.2d 108 (10th Cir.).

Here the defense argues that the determination at the second trial, as at the first, should have been that the Government had the burden of proving sanity in its case in chief because of facts outlined above and similar circumstances, and notice given about the issue. Reliance is placed on the court’s statements in Otney v. United States, supra, 340 F.2d at 698:

Being thus aware of appellant’s claim of mental incompetency, the Government initially undertook the burden of proving his criminal responsibility as an essential element of the offense charged.

It is true that in Otney the Government undertook the burden of proof of sanity, following an examination under 18 U.S.C.A. § 4244 and the granting of a defense motion for examination by a psychiatrist who was to testify for the defense at trial. We do not, however, feel that Otney in any way held that the Government was required to undertake the burden of proof. The observation merely recited the Government’s undertaking of the burden in that case.

We have not previously decided the procedural question raised. However we feel that our earlier decisions point the way. This court stated in United States v. Jacobs, 473 F.2d 461, 464, cert. denied, 412 U.S. 920, 93 S.Ct. 2740, 37 L.Ed.2d 147:

It is well settled that there is a presumption that a person is sane. However, such a presumption is one of law, not an inference of. fact. In a criminal case, when some evidence of insanity is introduced from any source, the presumption of sanity disappears, and the burden is upon the prosecution to prove to the satisfaction of the jury beyond a reasonable doubt that the defendant was sane when he committed the offense charged. (Emphasis added)

See also Davis v. United States, 364 F.2d 572, 574 (10th Cir.); Fitts v. United States, 284 F.2d 108, 112 (10th Cir.).

From our examination of Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499, and of our decisions dealing with the presumption, we must hold that the presumption of sanity was not dissipated for purposes of the second trial by proof at the earlier trial, notice given of reliance of insanity, or by the fact that questions and answers during the prosecution’s case at the second trial touched on Mr. Bettenhausen’s competency. We feel that whether the presumption of sanity disappeared for purposes of the second trial should be determined only in light of the proof, from whatever source, actually introduced at that trial, or of a showing furnished during pretrial procedures of an adjudication of incompetency. United States v. Shultz, 431 F.2d 907, 912 (8th Cir.); Tarvestad v. United States, 418 F.2d 1043, 1050-1051 (8th Cir.), cert. denied, 397 U.S. 935, 90 S.Ct. 944, 25 L.Ed.2d 116. Otherwise an unreasonable burden and risk would be imposed on the prosecution.

Thus we hold that the trial judge at the retrial here properly instructed the jury that the sanity issue was not available and was not to be considered. There was no showing during the pretrial procedure or at trial of an adjudication of incompetency. Moreover we have considered the evidence at retrial as to Mr. Bettenhausen’s competency in light of proof required to raise the issue as discussed in Fitts v. United States, 284 F.2d 108, 112-113 (10th Cir.). We agree with the trial court that the issue of sanity was not raised for purposes of the retrial.

On the sanity issue defendant Bettenhausen argues further that it was error for the second trial judge to rule and instruct as he did in view of a different ruling by the first trial judge. The earlier ruling did say that the issue of sanity was raised before the introduction of proof at trial, and that this shifted the burden to the Government. Defendant argues that this first ruling became the law of the case and that it was also relied on.

We cannot agree. The rule of the law of the case does not apply unless there is a final judgment that decided the issue. United States v. United States Smelting Co., 339 U.S. 186, 198-199, 70 S.Ct. 537, 94 L.Ed. 750; see Fontainbleau Hotel Corp. v. Crossman, 286 F.2d 926, 928 (5th Cir.), and authorities cited. The ruling in question here could have been reconsidered by the trial court and was not final. We feel the ruling at the second trial and the charge did not offend the rule of the law of the case or any principles of orderly procedure.

We are likewise satisfied there is no showing of reliance on the first ruling to Mr. Bettenhausen’s prejudice. The trial judge indicated his doubt as to whether sanity was an issue before the second trial began. Later defense counsel examined the instructions after the Government rested and he then announced that he would rest without offering defense testimony. There was no objection that the defense was surprised and no request for a continuance to obtain testimony to raise the sanity issue. We find no showing of prejudice based on surprise or reliance on the earlier ruling.

In connection with the insanity issue the defendant also argues that several other errors occurred during the first trial. Such objections to rulings at that trial, which resulted in disagreement of the jury and declaration of a mistrial, are of no avail on this appeal following the second trial. Savage v. United States, 295 F. 686, 687 (4th Cir.). In sum we conclude there was no error in the trial court’s treatment of the sanity issue.

3. Sufficiency of the warnings and advice of rights

Defendants contend that statements by both of them were erroneously admitted due to inadequacy of warnings and advice of rights by Special Agents of the IRS. Defendants say that the Special Agents failed at various times to identify themselves and the purpose of the inquiry, and failed to warn them of their constitutional rights to remain silent and to have the effective assistance of counsel in violation of IRS published procedures and constitutional decisions, relying on Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 and decisions enforcing administrative procedures, United States v. Leahey, 434 F.2d 7 (1st Cir.) and United States v. Heffner, 420 F.2d 809 (4th Cir.).

After the defendants’ 1967 return was selected through the usual process for audit, documents to support deductions claimed were requested. When these were furnished there were apparent alterations in checks and receipts. As soon as these were noted the return was referred to the Intelligence Division.

Four Special Agents and one group supervisor participated in different interviews with defendants. In each instance some warnings were given by the Agents. However, at least as to the last interview, which was with both defendants, the Agent was interrupted by Mr. Bettenhausen. The record does not show the nature or extent of what part of the prescribed warning was not given. At this interview both defendants made incriminating admissions. Such admissions had also been made at previous interviews and incriminating records were earlier furnished to the Agents.

Thus, in some instances the record is unclear as to the extent of compliance with the 1967 and 1968 IRS Press Releases, which are discussed in United States v. Bembridge, 458 F.2d 1262 (1st Cir.). Without determining whether the procedures outlined for the Special Agents confer any procedural rights • on the taxpayer, see United States v. Lockyer, 448 F.2d 417, 421 (10th Cir.), we are unwilling to uphold the defendants’ contentions here. While compliance with the Miranda requirements themselves, when applicable must be demonstrated by the prosecution before introducing a defendant’s incriminating statements, Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694, as to the administrative requirements relied on here, we feel that it should be incumbent on the one claiming a violation of the administrative procedures to demonstrate noncompliance prejudicial to him. See United States v. Bland, 458 F.2d 1, 8 (5th Cir.); cf. Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307. And the focus should be on whether there was a substantial omission. See United States v. Bembridge, 458 F.2d 1262, 1264 (1st Cir.). Since no such showing was developed by defendants here, we feel there was no error in the trial court’s rulings admitting the testimony by the Special Agents.

Defendants argue that because they were taken down hallways and upstairs into an apparently inside room for interview, they were therefore entitled to full and complete warnings. We are satisfied, however, that our record shows no circumstances amounting to custody or meaningful restraint on defendants’ freedom of action. See United States v. Brevik, 422 F.2d 449, 450 (8th Cir.), cert. denied, 398 U.S. 943, 90 S.Ct. 1861, 26 L.Ed.2d 279; United States v. Jaskiewicz, 433 F.2d 415, 419 (3d Cir.). And while forms of compulsion other than custody are relevant for Fifth Amendment purposes, see United States v. Jaskiewicz, supra at 419, we feel no showing was made of a coercive setting. There being no coercion, and no interrogation during custody or any meaningful restraint on defendants’ freedom of action, the requirements of Miranda for full warnings did not apply. United States v. Hensley, 406 F.2d 481, 484 (10th Cir.); United States v. Jaskiewicz, supra, 433 F.2d at 419.

There are additional contentions of misconduct. Defendants say that Mr. Bettenhausen inquired of one Special Agent if he was in trouble and. also if he needed a lawyer. The Agent said either he could not tell him, or he did not know whether he needed an attorney and that it would be his decision whether he needed an attorney. We see no misconduct prejudicial to the defendant’s rights.

We conclude that no reversible error is shown as to the the admission of proof over defendants’ objections premised on the requirements for warnings and the Special Agents’ conduct.

4. Speedy trial

Defendants argue that they were deprived of “the right to a speedy and public trial” afforded by the Sixth Amendment. Their complaint is that the mistrial and discharge of the jury after the first trial occurred on February 18, 1972, and that the second trial was not commenced until December 5, 1972. They rely on the constitutional guaranty and the provisions of Kansas law requiring criminal prosecutions within specified periods and barring prosecution of persons not brought promptly to trial within them. The defendants say that since federal law has no such limit-the State rule should be applied, as is done in federal civil cases applying a State limitations statute when the federal statute prescribes no limitation.

The Supreme Court has approved a balancing test to determine whether any violation of the right to a speedy trial has occurred, specifying that the factors to weigh are the length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. See Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101; United States v. Merrick, 464 F.2d 1087, 1090 (10th Cir.).

Our record reveals several developments between trials. Post-trial motions to acquit after the first trial were filed on February 25, 1972. On April 24 the trial court heard argument. The defendants’ brief was filed May 15 and the Government’s brief on June 12. On July 21 the trial court filed a lengthy Memorandum and Order dealing with several grounds for acquittal, and denied the motions to acquit.

On October 26, 1972 the defendants moved to strike the government’s motion, filed in March, for a psychiatric examination of Mr. Bettenhausen. The trial court held a hearing on November 1 and ruled the next day that the Government was entitled to the examination.

As to the defendants’ assertions of their right to a speedy trial, the trial court stated at the hearing on motions to acquit after the second trial that he had “never seen anybody so diligent in mounting the requests for a speedy trial,” although he did not agree with the claim of denial of a speedy trial. Nevertheless, there is no showing of prejudice to the defendants by the interim between the trials.

The interim was considerable, but it is understandable and not excessive under the circumstances and no prejudice is shown. We are not persuaded that there was any infringement of the right to a speedy trial under the standards of Barker v. Wingo. Moreover the Kansas statute does not apply. The proper measure of the federal right is that of federal constitutional law, and not that of the State. Cf. Simler v. Conner, 372 U.S. 221. And under federal law, fixed standards such as provided by the State statute are rejected in favor of the factors specified by the Supreme Court. Barker v. Wingo, supra, 407 U.S. at 521-522, 529-530, 92 S.Ct. 2182.

5. Conduct by Government counsel

Defendants strenuously argue that their right to a fair trial was denied by reason of improper argument by Government counsel and the interjection of prejudicial and inadmissible information concerning Mr. Bettenhausen’s adjudication of competency to stand trial, in violation of 18 U.S.C.A. § 4244.

In closing argument Government counsel referred to statements by prospective jurors on voir dire. The gist of the remarks cited dealt with the jurors’ experiences with the IRS: that there had been nothing unpleasant in the jurors’ involvement with IRS investigations ; that the matter was straightened out; and that there was no prosecution. And, defending the IRS actions here, counsel argued that this case “ . is the most flagrant violation of the income tax law that I have ever seen, and there is only one way to uphold that income tax law, and that is for you to enforce the law. . . . ”

The statements of personal knowledge were clearly improper. United States v. Berger, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314. Counsel must not argue or interject his personal belief or knowledge. See e. g., United States v. Fancutt, 491 F.2d 312, 314 (10th Cir.); United States v. Martinez, 487 F.2d 973, 977 (10th Cir.); United States v. Perez, 493 F.2d 1339, 1343 (10th Cir.). The comments on the prospective jurors’ statements on voir dire were also improper. And it is clear that the reference to the adjudication of competency to stand trial was plainly barred by 18 U.S.C.A. § 4244.

We must decide whether the improper remarks were prejudicial. As to the reference to the adjudication of competency to stand trial, we see no-prejudice since the issue of sanity was not submitted and was removed from the jury’s consideration entirely. And in view of the strength of the government’s uncontradicted proof, we are satisfied here that all the conduct complained of did not influence the jury or had but very slight effect. In such circumstances the conviction should not be disturbed. Kotteakos v. United States, 328 U.S. 750, 764-765, 66 S.Ct. 1239, 90 L.Ed. 1557.

6. The applicability of 18 U.S.C.A. § 1001

Defendants argue that they should not have been prosecuted for a felony under 18 U.S.C.A. § 1001 for submitting the documents to the IRS. They say instead that 26 U.S.C.A. § 7207, a misdemeanor statute specifically dealing with delivering any document, etc., to the IRS, known to be fraudulent or false, should control over the general statute, relying on Ex Parte United States, 226 U.S. 420, 33 S.Ct. 170, 57 L.Ed. 281, and similar cases.

The trial court rejected the contention. He reasoned that 18 U.S.C.A. § 1001 reaches anyone who “makes or uses” the document, while 26 U.S.C.A. § 7207 deals only with a person who “delivers or discloses” the document. Thus the felony statute was viewed as involving a type of offense — making the false document — not dealt with by the misdemeanor statute. And here the indictment in Counts IV through XI charged making and using the false statements.

We agree with the trial court. The indictment did charge the making and using violation under the terms of 18 U.S.C.A. § 1001 and 18 U.S.C.A. § 2. Moreover the charge stated that the acts of making and using, or causing to be made and used, a false writing or document was one of the essential elements of the offense under the indictment. And there was substantial proof that several of the documents involved here were altered by one defendant or the other. By direct or circumstantial evidence the making of the false documents by defendants was established sufficiently to support the verdict.

While the statutes overlap considerably, we agree that the offense of “making” reached by 18 U.S.C.A. § 1001 is significant in this case. Different proof was required for the offense of making under that statute, justifying prosecution under it. See United States v. Beacon Brass Co., 344 U.S. 43, 45, 73 S.Ct. 77, 97 L.Ed. 61. On this record we are satisfied that prosecution was permissible under 18 U.S.C.A. § 1001.

Defendants also argue that it is improper that there be prosecution by several counts under 18 U.S.C.A. § 1001 when a group of documents is furnished at one time. They point out that they were charged with four offenses covering documents submitted in support of the 1966 return and that there was only proof of the documents being submitted at one time. The argument is that there is but a single offense under Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905, and similar cases, not subject to multiple prosecution.

We disagree. While in another clause § 1001 uses the plural terms “fraudulent statements or representations,” in the clause we are concerned with the statute turned to the singular terms — “any false writing or document. .” We feel the statute aims at the making or using of each “false writing or document” and intends the wrong connected with each to be a separate offense. While penal statutes are strictly construed, the maximum is not a command to override common sense and the evident statutory purpose. See United States v. Cook, 384 U.S. 257, 262, 86 S.Ct. 1412, 16 L.Ed.2d 516.

7. Sufficiency of the evidence

The defense argues that Mrs. Bettenhausen’s conviction on Count III in connection with the 1968 joint return is not supported by the evidence. The contention is that the only evidence was that she told the agents, without proper preinterrogation warning, that she signed the return but that she was not aware of its contents.

From proof of one’s signing a return it may be believed that he knew its contents, provided a proper instruction under § 7206(1) is given, as it was here, that the jury must find beyond a reasonable doubt that the accused did not believe the return to be true and correct as to every material matter alleged in the indictment and that the act or acts constituting the offense were done knowingly and willfully, among other required elements of the offense. See United States v. Wainwright, 413 F.2d 796, 802 (10th Cir.). We feel the proof on the Count was sufficient, when we view it in the light most favorable to the Government as we must after the verdict of guilty.

Defendants contend also that there was no proof'of the fact that the check involved in Count X was ever submitted to the IRS. While such proof was made as to other documents in some instances with specific testimony on their submission (e. g., Tr. 550), we find that the conviction on Count X had only general and circumstantial testimony to support it. It was testified that supporting records for expenses on the 1968 return, consisting of cancelled checks and receipts, were delivered by Mr. Bettenhausen to Agent Nitschke (Tr. 371-72); that Agent Waddell began his investigation from documents that had been submitted by the taxpayers to other agents and examined checks, etc., and all of the papers assigned to him with that file (Tr. 488); that Wad-dell discussed the Dr. Castain $60.00 deduction for 1968 with defendants, and discussed exhibits with them (Tr. 551); and Waddell identified Government exhibit 26 — the check for this deduction— which was admitted (Tr. 551-54).

In reviewing a conviction on a guilty verdict, this court is bound to view the evidence presented in the trial court in the light most favorable to the Government to ascertain if there is sufficient substantial proof, direct and circumstantial, together with reasonable inferences to be drawn therefrom, from which a jury might find a defendant guilty beyond a reasonable doubt. United States v. Twilligear, 460 F.2d 79 (10th Cir.). Viewed in this light we feel the proof is sufficient to sustain the conviction on Count X.

We have examined the defendants’ remaining contentions and find them to be without merit. No reversible error is shown and the judgments are affirmed.

      . Defendant relies on United States v. Jacobs, 473 F.2d 461 (10th Cir.), cert. denied, 412 U.S. 920, 93 S.Ct. 2740, 37 L.Ed.2d 147; United States v. Whittenburg, 462 F.2d 581 (10th Cir.); Wolcott v. United States, 407 F.2d 1149 (10th Cir.), cert. denied, 396 U.S. 879, 90 S.Ct. 156, 24 L.Ed.2d 137; Davis v. United States, 364 F.2d 572 (10th Cir.); Otney v. United States, 340 F.2d 696 (10th Cir.) ; and Phillips v. United States, 311 F.2d 204 (10th Cir.) (en banc) ; and similar cases.

      . The first trial was conducted by Chief Judge Wesley E. Brown and the second trial by Judge Frank G. Tkeis. The pertinent portions of Chief Judge Brown’s ruling appear in note 4, infra.

      . This Circuit’s standard of competence to commit the offense charged is clear — that the jury must be convinced beyond a reasonable doubt that at the time of the offense the defendant was mentally capable of knowing what he was doing, mentally capable of knowing it was wrong, and mentally capable of controlling his conduct. Wion v. United States, 325 F.2d 420, 430 (10th Cir.) (en banc), cert. denied, 377 U.S. 946, 84 S.Ct. 1354, 12 L.Ed.2d 309.

      . In an order overruling motions to acquit after the first trial, Chief Judge Brown stated in part:
      Donald contends that the question of his sanity at the time of the offenses’ alleged commission was raised prior to trial; that he offered evidence prior to trial sufficient to rebut the presumption of sanity; that sanity thus became an element of the offenses and that the government had the affirmative burden to establish his sanity as a part of its case-in-ehief; and that the evidence presented by the government in its case-in-chief failed to meet this burden.
      The government replies that there was no evidence offered by Donald sufficient to shift the burden to the government of establishing Donald’s sanity and, in the alternative, that its evidence of Donald’s sanity was legally sufficient. It has been held that:
      ‘A defendant lias the burden of introducing evidence sufficient to impair the legal presumption of criminal responsibility. Only when this presumption has been impaired' does the burden of proving sanity shift to the government.’
      In addition, the type or degree of evidence sufficient to overcome the presumption of sanity is ‘ . . . evidence of insanity produced from whatever source . . . ’ and 1 . any relevant evidence of mental illness . . . ’ Such evidence need not be, and as a practical matter rarely would be, introduced at the trial itself. Rather, it is likely to come to the attention of the prosecution and the fudge prior to trial, for example through a pretrial motion for a mental examination made by one charged with an offense, by claims of incompetency made in previous cases, or by a history of mental illness. The determination of whether there is sufficient evidence to rebut the presumption of sanity is one for the Court, and not for the jury.

        In the instant case, the government was provided with sufficient information to raise the question of Donald’s sanity through the omnibus hearing, the arraignment, the motion to determine competency to stand trial, and through the records of his psychiatric consultations which were furnished to the government prior to trial.

      The burden of proving Donald’s sanity as an element of the offenses charged thus having shifted to the government, Donald further urges that the evidence, viewed in the light most favorable to the government, was insubstantial to establish his sanity. We disagree. (Citations omitted) (emphasis added).

      . Reference is made to the language of the warning required by an Internal Revenue Service News Release of October 3, 1967 that: “As a Special Agent, I have the function of investigating the possibility of criminal tax fraud.” See United States v. Bembridge, 458 F.2d 1262, 1263-1264 (1st Cir.) and United States v. Leahey, 434 F.2d 7, 9 (1st Cir.). The relevant IRS Press Releases of October 3, 1967, and October 21, 1968, are discussed and the pertinent provisions reproduced in the Bembridge and Leahey cases.

      . We feel that since there was no showing of any such circumstances at the time of the discussions with defendants, the direct holding of Hensley applies. That holding calls for rejection of defendants’ claim that they were entitled under Miranda to its prescribed warnings. We are, however, aware that United States v. Lockyer, 448 F.2d 417, 422 (10th Cir.), refers favorably to a broader interpretation of Miranda as applied to interrogations after reference of a case to the Intelligence Division.

      . The defendants point to K.S.A. 22-3402 et seq. (Supp.1973). In substance the state statutes require trial within 180 days after arraignment unless delay shall occur as a result of the application or fault of the defendant, or unless a continuance is granted on special grounds. Otherwise the accused is required to be discharged from further liability to be tried on the charge.

      . 18 U.S.C.A. § 1001 provides :
      Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.
      26 U.S.C.A. § 7207 provides :
      Any person who willfully delivers or discloses to the Secretary or his delegate any list, return, account, statement, or other document, known by him to be fraudulent or to be false as to any material matter, shall be fined not more than $1,000, or imprisoned not more than 1 year, or both. Any person required pursuant to section 6047(b) or (c) to furnish any information to the Secretary or any other person who willfully furnishes to the Secretary or such other person any information known by him to be fraudulent or to be false as to any material matter shall be fined not more than $1,000, or imprisoned not more than 1 year, or both.


author: PER CURIAM:

text:
    UNITED PACIFIC INSURANCE COMPANY, Plaintiff-Appellee, v. COUNTY OF FLATHEAD et al., Defendants-Appellants.
    No. 72-1702.
    United States Court of Appeals, Ninth Circuit.
    May 24, 1974.

      James A. Cumming (argued), of Measure, Cumming & Salansky, Columbia Falls, Mont., H. James Oleson, County Atty., Kalispell, Mont., for defendants-appellants.
    Albert 0. Prince (argued), of Lycette, Diamond & Sylvester, Seattle, Wash., Eugene Phillips (argued), of Murphy, Robinson, Heekathorn & Phillips, Kalispell, Mont., William Boone of Boone, Karlberg & Haddon, Missoula, Mont., for plaintiff-appellee.
    Before TRASK, GOODWIN and SNEED, Circuit Judges.
   PER CURIAM:

This is an appeal from a judgment in favor of United Pacific Insurance Co. (United Pacific) and against the Special Improvement District No. 3, Bigfork, Montana (Improvement District), pursuant to an order for a directed verdict at the conclusion of all of the evidence in a jury trial. The Improvement District also appeals from the judgment at the conclusion of the evidence dismissing its counterclaim against United Pacific. Jurisdiction of the District Court was based upon diversity of citizenship, 28 U.S.C. § 1332, and the appeal here is pursuant to 28 U.S.C. § 1291.

In July 1964, Kalispell Plumbing and Heating, Inc. (Contractor) entered into a contract with the Improvement District for construction of a sewerage collection and treatment system. The total contract price for the project was $341,452, plus compensation for additional work. Provisions of the contract pertinent to this suit provided that (1) the Architect/Engineer was to be “the final judge of the quality and suitability of the work, materials, processes of manufacture and methods of construction . . . ” Gif 20); (2) in case of a dispute between the parties, the decision of the Architect/Engineer was to be deemed final and conclusive of the contractor’s right to payment (¶ 35); and (3) the contractor guaranteed repair or liability for any defects appearing within one year after final acceptence of the work (¶ 40).

In accordance with Montana law, a bond for the project was issued by United Pacific as surety on behalf of Contractor. The plans and specifications for the sewerage project were prepared by J. G. Link & Co. (Engineer) which also acted as the owner’s supervising engineer and representative throughout the construction.

During the course of construction, the contractor encountered financial difficulties. In order to avoid a default, United Pacific advanced financial assistance. To the extent of this advance, United Pacific claims a subrogation right to the proceeds of the contract; in addition, United Pacific asserts right to the proceeds on the basis of an assignment executed by the Contractor to it in 1965.

Work on the sewerage project was completed according to the certificate of the Engineer on March 30, 1966. At that time Contractor and Surety had received a total payment of $284,164.14 on the contract, leaving a balance due of $64,318.42 for which the action was brought.

On March 30, 1966, Improvement District’s engineer executed a certificate and “final pay estimate” certifying that all work had been completed in conformity with the contract, and ordering final payment (including retained percentages). This final payment was never made by the Improvement District, however. Instead, in October 1966, a second final inspection occurred and a deficiency list was produced. On March 22, 1967, representatives of the Improvement District, Contractor and United Pacific met and executed the agreement designated as “Exhibit 11” in this suit. In that agreement Contractor and Surety agreed to correct three specified construction deficiencies, and the Improvement District agreed to take formal steps to accept the work. The agreement was executed with the express understanding that it would not compromise the parties’ earlier contentions. In accordance with, the March 22, agreement, the contractor made the necessary repairs. The Improvement District» however, ordered a detailed engineering inspection of the entire project, and this was subsequently conducted by a firm retained by the United States Government. As a result of this investigation (which included a closed circuit television inspection of the sewerage lines) the Improvement District abandoned all further action toward acceptance of the project and final payment. This move ultimately precipitated the present suit brought by the appellee, United Pacific.

Appellant contends that the court was in error in its trial ruling that the engineer’s final certificate of March 30, 1966, was binding upon the Improvement District. Paragraph 35 of the contract provides as follows:

“The Architect/Engineer shall give all orders and directions contemplated under this contract and specifications relative to the execution of the work. The Architect/Engineer shall determine the amount, quality, acceptability, and fitness of the several kinds of work and materials which are to be paid for under this contract and shall decide all questions which may arise in relation to said work and the construction thereof. The Architect/Engineer’s estimates and decisions shall be final and conclusive, except as herein otherwise expressly provided. In case any question shall arise between the parties hereto relative to said contract or specifications, the determination or decision of the Architect/Engineer shall be a condition precedent to the right of the Contractor to receive any money or payment for work under this contract affected in any manner or to any extend [sic] by such question . . . . ”
Brief of Appellee at 2.

The interpretation of this standard contract provision appears to be in accordance with the law of Montana. Polley’s Lumber Co. v. United States, 115 F.2d 751 (9th Cir. 1940); Clifton, Applegate & Toole v. Big Lake Drainage District No. 1, 82 Mont. 312, 267 P. 207 (1928).

In Clifton, the Supreme Court of Montana declared:

“The law appears to be definitely settled that: ‘The decision, estimate or certificate of an architect, engineer, or superintendent, in approving or disapproving the work as a performance of a contract, or in passing on questions relating thereto, is, in the absence of fraud, bad faith, or mistake, conclusive and binding on the parties where the contract, either in express terms provides that it shall be final and conclusive, or in plain language shows that it was the intention of the parties that the person to whom the question is submitted should be the arbiter thereof.’ ” 262 P. at 211.

Appellant’s argument that this interpretation of the contract usurps the judicial function, and appellant’s reliance upon Wortman v. Montana Cent. R.R., 22 Mont. 266, 56 P. 316 (1899), is mistakenly out-of-date. In Polley’s Lumber Co., supra, the Ninth Circuit reviewed Montana law on precisely the point involved here, and noted that the Wort-man .rule was considered an “anomaly” by subsequent Montana courts recognizing the value of private arbitration agreements. 115 F.2d at 754. Under Montana law we consider the Engineer’s certificate of- completion binding upon the parties. There was no proof of any fraud or mistake on the part of the Engineer.

The Improvement District relies upon Paragraph 40 of the contract to authorize and excuse its failure to pay based upon subsequently discovered defects of performance. Paragraph 40 is a general guaranty of materials and workmanship which survives the final completion. According to its terms it continues the responsibility for such defects “which shall appear within a period of one year from date of final acceptance of the work.” It does not open the final acceptance of the Engineer to attack. Here the Improvement District did call certain deficiencies to the' attention of the Contractor in October 1966. Later, on March 22, 1967, (just a few days before the expiration of the guaranty period dating from the final certificate on March 30, 1966) the parties entered into a formal agreement (Exhibit 11) pursuant to the guaranty provision of paragraph 40. In it United Pacific agreed to correct three items which were specifically described; the Improvement District agreed that upon signing it would take the necessary steps to “formally accept the contract.” The Contractor performed the required repairs, but the Improvement District then obtained assistance in the form of the investigative team which rendered its réport in September 1967. Objection to the admissibility of this report was sustained upon the ground that the March 22, 1967, agreement constituted a novation between the parties. Whether the ruling was justified because the March 22 agreement constituted a novation, or because it was outside the guaranty period, the Improvement District was obligated to perform its part of the bargain by payment of the balance due under its contract.

The counterclaim filed by the Improvement District alleged that the sewerage system was so negligently constructed that large sections were unusable unless extensive repairs were made. Damages were claimed.

The case in support of the counterclaim was meagre. In November or December of 1965, the Engineer made a final inspection. A punch list of uncompleted items was submitted to the Contractor. Appellee asserts in its brief that these deficiencies were corrected. The appellant does not dispute the statement. The Engineer’s final certificate was made March 30, 1966. The court correctly decided that in the absence of fraud, bad faith or mistake the final certificate of completion by the Engineer was conclusive. Clifton, Applegate & Toole v. Big Lake Drainage District, supra. In May 1966, a second request for repairs was made, presumably under the one-year guaranty of paragraph 40, and these deficiencies were corrected. Last, an additional list of repairs was submitted in October 1966 and all but three • were completed. As to these three, the Contractor and Surety entered into the written agreement dated March 22, 1967, supra. The repairs were completed. Other evidence was offered by the Improvement District of defects of performance by the Contractor but the offers related to defects which appeared or were discovered more than a year after final acceptance. These were excluded by the court upon that ground (paragraph 40), and also upon the theory that the March 22, 1967, agreement constituted a novation. The novation or new contract between the parties was that the Improvement District would accept the contract and the Contractor would make the repairs. In Grass Range High School Dist. v. Wallace Diteman, Inc., 155 Mont. 10, 465 P.2d 814, 816 (1970), the court said:

“Clearly, the requirement to correct defects appearing within one year of the final payment cannot be extended to cover defects existing at the date of acceptance, or defects that appeared later than one year after final payment.”

Here there has been no final payment. But there has been an Engineer’s final certificate of completion and a later agreement to accept the contract upon correction of three items. These corrections were made. The court’s order dismissing the counterclaim was proper.

The judgment is affirmed.

      . “40. General Guaranty

      Neither the final certificate of payment nor any provision of the Contract Documents nor partial or entire occupancy of the premises by the Owner shall constitute an acceptance of work not done in accordance with the Contract Documents or relieve the Contractor of liability in respect to any express warranties or responsibility for faulty materials or workmanship. The Contractor shall remedy any defects in the work and pay for any damage to other work resulting therefrom, which shall appear within a period of one year from the date of final acceptance of the work unless a longer period is specified. The Owner will give notice of observed defects with reasonable promptness.” Brief of Appellee at 2.

      . This counterclaim was filed on March 11, 1969. On May 17, 1971, a new answer and counterclaim was submitted for filing. It was presented 2 days later at the beginning of the trial. Upon objection the court asked counsel to justify the delay. The answer was: “The excuse, Sir, that up until the last month or so we have not had a chance to draw all the matters together.” The court denied leave to file the amended pleading. We do not disagree. A cross-complaint filed against the Engineer, Link, was dismissed prior to trial.

      . The Improvement District did not offer to prove in the District Court nor has it argued here that any of the alleged defects were latent defects not discoverable by reasonable inspection at the time the Engineer signed his certificate of final acceptance. Had the District made such an offer, a refusal to admit evidence of such defects might present a different question. See City of Midland v. Waller, 430 S.W.2d 473 (Tex.1968), which held that an architect’s final certificate was binding on all parties as to the actual physical, final completion of the work, but insofar as defects were unknown and not discoverable through the exercise of ordinary care, the relevant statute of limitations, rather than the one-year repair provision, applied. Since the Improvement District here has not presented this argument as a basis for admitting the September 1967 investigatory report, we will assume that the report did not reveal the kind of defect which may have been admissible under authorities such as City of Midland. Compare Independent Consol. School Dist. v. Carlstrom, 277 Minn. 117, 151 N.W.2d 784 (1967).


author: LEWIS, Chief Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. William J. CUDD, Hugh L. Hutton, Defendants-Appellants.
    Nos. 73-1428, 73-1429.
    United States Court of Appeals, Tenth Circuit.
    Argued March 18, 1974.
    Decided June 26, 1974.
    Rehearing Denied Aug. 29, 1974.

      Carl E. Stewart, Eilers, Stewart, Pangman & Millar, Newport Beach, Cal., for defendant-appellant Cudd.
    William Tinker, Jr., Wichita, Kan., for defendant-appellant Hutton.
    Stephen K. Lester, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty., Wichita, Kan., with him on the brief), for plaintiff-appellee.
    Before LEWIS, Chief Judge, DURFEE , Senior Judge, and BARRETT, Circuit Judge.

       United States Court of Claims, sitting by designation.

   LEWIS, Chief Judge.

The defendants were charged in a thirteen-count joint indictment with a series of mail-fraud transactions violative of 18 U.S.C. §■ 1343 and resulting in unlawful transportation of property in violation of 18 U.S.C. § 2314. Three of the thirteen counts were dismissed by the trial court and after a joint trial a jury returned verdicts of guilty on each of the remaining counts. The indictment did not contain a count for conspiracy but did allege a scheme in the following words, set out in Count I and incorporated by reference in the remaining counts:

Count I
1. That prior to November 3, 1967 and continuing to on or about November 22, 1967, in the District of Kansas,
HUGH L. HUTTON, WILLIAM J. CUDD
devised and intended to devise a scheme and artifice to defraud the Producers Packing Company, a Kansas corporation, and for obtaining money and property of the Producers Packing Company by means of the following false and fraudulent pretenses, representations and promises, well knowing at the time that the pretenses, representations and promises were false when made, that is, Hugh L. Hutton and William J. Cudd, individually and as representatives of Cal-Vegas Provision Company, Incorporated Las Vegas, Nevada, in order to induce the sale of large quantities of meat on credit, by Producers Packing Company, a Kansas corporation, to William J. Cudd and Cal-Vegas Provision Company, Incorporated, represented that said William J. Cudd and Cal-Vegas Provision Company, Incorporated, were financially sound and financially able to pay the purchase price of said meat; and to further induce the sale of such meat on credit Hugh L. Hutton, individually and as President of the First National Bank, Braman, Oklahoma, represented that he and the bank would assist William J. Cudd and Cal-Vegas Provision Company, Incorporated, financially and would guarantee payment of purchases of such meat, whereas, in truth and in fact, the defendants well knew that these promises, pretenses and representations were false when made. Based upon such false promises, representations and guarantees, Producers Packing Company did sell and deliver such large quantities of meat to William J. Cudd and Cal-Vegas Provision Company, Incorporated, on credit, and the sale price of such meat has not been paid in full.

The trial court, over the objection of both the government and the defendants, submitted only joint verdicts to the jury and specifically instructed that the jury must find both defendants guilty, or not guilty, as determined by its consideration of the evidence. This instruction is noted in full and the question of whether the instruction is inherent error is the dispositive appellate issue.

We hold that the submission of joint verdicts and that part of the instruction requiring the jury to find both defendants guilty or both innocent to be error requiring a remand for a new trial as to each defendant. Such procedure limits appellate review to a package status and error, if there be any, cannot be isolated as to individual defendants. See C. Wright, Federal Practice and Procedure Rule 31, § 513 at 368 (2d ed. 1969). So, too, we believe the procedure to be fraught with the potential for injustice and most assuredly would complicate the continuing problem of prejudice always lurking where, as here, a motion to sever has been denied. Guilt by association grows in likelihood.

The government concedes that the crime here charged in the joint indictment is one where one defendant can be proven guilty and a failure of proof may occur as to the other defendant. The situation is not comparable to a charge of conspiracy limited to two persons, where, as a matter of law and definition, the innocence of one precludes the guilt of the other. A joint indictment such as we here consider is but a procedural convenience and is to be considered as a separate charge against each defendant. Bartlett v. United States, 10 Cir., 166 F.2d 920, 927. The government contends, however, that the subject instruction and procedure can only amount to error favoring the defendants, citing Bartlett, supra, and Ebeling v. United States, 8 Cir., 248 F.2d 429.

We consider neither case to be persuasive that the error in the subject case should be classified as harmless. In neither of the cited cases is the exact instruction set out but apparently in Bartlett this court considered that partial reversal was sufficient to prevent injustice. In Ebeling the court restates the instruction to eliminate any possibility of prejudicial error and we must reject this rationalization as here applicable. Arguably an instruction that states that both defendants must be guilty or both innocent may be applied to unduly benefit either the defendants or the prosecution and its actual application by the jurors is purely speculative. But no matter how applied it is error. The jury must consider each case individually and return individual verdicts. Even the possibility of inconsistent verdicts does not change either the necessity or desirability of this procedure. Consistency in a verdict is not an invariable exaction of the law, Apodaca v. United States, 10 Cir., 188 F.2d 932, 940, and the power rests with the jury to arrive at its verdict “in the teeth of both law and facts.” Horning v. District of Columbia, 254 U.S. 135, 138, 41 S.Ct. 53, 54, 65 L.Ed. 185.

The judgments are reversed and the cases remanded for a new trial.

      . Instruction No. 24
      In your consideration of the case, it will be first necessary for the jury to determine whether a scheme, plan or devise to defraud, of the kind and scope alleged in the indictment, was formed and existed between the two defendants. If the jury finds there was no scheme, plan or devise to defraud, it would be your duty to acquit each defendant on all counts of the indictment.
      If the jury finds the existence of a scheme, plan or devise to defraud between the defendants, then they should consider as to Counts I through IV, whether there was use of interstate communications, i. e., by telephone or telegraph, by a named defendant, to carry out any part of the scheme, plan or devise. Such an act of communication by one defendant would be chargeable against the other. If such alleged act of interstate communication in the furtherance of the scheme is found as to a particular count, then the jury should return a verdict of guilty as to both defendants on any of such Counts I through IV.
      Next, the jury should consider the issue of guilt or innocence of the defendants as to the remaining six counts, VI, IX, X, XI, XII and XIII, charging acts of interstate transportation of property valued in excess of $5,000.00, induced by false or fraudulent representations. Having determined the existence of a scheme, it would be the duty of the jury to determine whether the acts of either or both defendants caused the property to be transported in interstate commerce as specifically alleged in each of those counts of the indictment. If, as alleged, the property was caused to have been transported in furtherance of the scheme to defraud, then each defendant would be guilty on that particular count.
      Please bear in mind that while each defendant is entitled to separate consideration of the evidence as it applies to showing his guilt or innocence, the indictment alleges their joint participation in the scheme, plan or devise to defraud, and you cannot find one defendant guilty and one not guilty. (Emphasis added.) Applying the standard of proof that the Government must show guilt beyond a reasonable doubt, you should find both defendants “guilty,” or “not guilty,” as you shall determine from the evidence.

      . We reject defendants’ contention that severance was required in this case.


author: TYLER, District Judge:

text:
    UNITED STATES of America ex rel. George FOYE, Petitioner-Appellant, v. J. E. LaVALLE, Superintendent of Clinton Correctional Facility, Respondent-Appellee.
    No. 1040, Docket 74-1231.
    United States Court of Appeals, Second Circuit.
    Argued May 24, 1974.
    Decided June 10, 1974.

      Michael Davidoff, Monticello, N. Y., for petitioner-appellant.
    Louis J. Lefkowitz, Atty. Gen., of N. Y., by Jean B. Mechanic, Deputy Asst. Atty. Gen., for respondent-appellee.
    Before TIMBERS and SMITH, Circuit Judges and TYLER, District Judge.

       Hon. Harold R. Tyler, Jr., of the Southern District of New York, sitting by designation.

   TYLER, District Judge:

George Foye, convicted of murder of a child in the Supreme Court of New York, Sullivan County, on July 31, 1973, appeals from a memorandum and order of the United States District Court for the Northern District of New York on January 4, 1974, denying his petition for habeas corpus relief. Although we recognize that the district court ultimately may be proved correct in its decision to entirely deny habeas relief, we remand for further proceedings on one issue to be discussed hereinafter.

After his conviction based upon a verdict of the jury and the judgment of the Supreme Court of New York, petitioner’s conviction was affirmed by the Appellate Division, Third Department, without an opinion. People v. Foye, 41 A.D.2d 902, 343 N.Y.S.2d 589 (1973). Leave to appeal to the Court of Appeals of New York was thereafter denied by one judge of that court.

In his petition for relief before the district court, Foye raised a number of issues which Judge Foley dealt with in his aforesaid memorandum and order earlier this year. Petitioner, however, seeks appeal only in respect to his claim that he was denied due process of law beeaúse the state trial judge refused to permit defense counsel to examine the complete report filed by a prosecution witness, Investigator Brown of the New York State Police, which included notes of the investigator’s conversations with petitioner and his codefendant, Delois Harden. Although the record is not crystal clear in this respect, our examination of the trial minutes indicates that the trial judge ruled that the defense should receive only extracts from that report which, in the judgment of the prosecuting attorney, pertained to the direct examination of Investigator Brown.

As we read the memorandum of the district judge, he denied this aspect of Foye’s petition on the grounds that the ruling of the trial judge appeared to be in accord with applicable New York law, see People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961); People v. Malinsky, 15 N.Y.2d 86, 262 N.Y.S.2d 65, 209 N.E.2d 694 (1965), and that the alleged error in not permitting the defense to'see the entire Brown investigative report was in the nature of an evidentiary ruling which would form no basis for federal collateral attack upon a state criminal conviction. Judge Foley also observed that the contents of the petition and the briefs and records on Foye’s direct appeal furnished no support for any claim that exculpatory material had been improperly withheld from the defense in violation of a federal constitutional right. But it is clear from Judge Foley’s decision that he was not furnished a complete copy of Investigator Brown’s report to examine.

We reason, therefore, that absent disclosure of the complete report to the district court, it is impossible to conclude with certainty that petitioner has not raised a constitutional issue cognizable in a federal habeas corpus proceeding. Judge Foley, in effect, recognized this problem in the- following statement in his memorandum:

“There is no showing, and I recognize that an examination only would fully inform, that non-disclosure was prejudicial to such extent so as to deprive the petitioner of a fair trial. It is only in such a situation that federal habeas corpus will lie. Scalf v. Bennett, 408 F.2d 325, 330 (8th Cir. 1969).”

Since the report has not been examined by the district court, we remand for a hearing before him so that he will be able to examine the report in its entirety. Only in this way can it be determined whether the prosecution has failed to disclose evidence vital to the defense. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). As Judge Foley recognized, federal habeas corpus will lie to remedy a prejudicial non-disclosure. United States ex rel. Meers v. Wilkins, 326 F.2d 135 (2d Cir. 1964); Clay v. Black, 479 F.2d 319 (6th Cir. 1973); Scalf v. Bennett, 408 F.2d 325, 330 (8th Cir.), cert. denied, 396 U.S. 887, 90 S.Ct. 175, 24 L.Ed.2d 161 (1969); Levin v. Katzenbach, 124 U.S.App.D.C. 158, 363 F.2d 287, 291 (1966).

Accordingly, we set aside so much of the aforesaid order of the district court dated January 4, 1974, which pertains to the investigative report issue, and remand this case for further proceedings consistent with this memorandum.