author: THORNBERRY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. George Ray STEINKOENIG, Defendant-Appellant.
    No. 73-2802
    Summary Calendar.

    United States Court of Appeals, Fifth. Circuit.
    Nov. 23, 1973.
    Rehearing Denied Dec. 19, 1973.

      Thomas G. Sharpe, Jr., Brownsville, Tex., for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

       Rule 18, 5 Cir.; Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 P.2d 409, Part I.

   THORNBERRY, Circuit Judge:

Appellant was convicted on a three-count indictment charging that he conspired to import 190 pounds of marijuana, imported the marijuana, and possessed it with intent to distribute, in violation of 21 U.S.C. § 963, 21 U.S.C. § 952(a), and 21 U.S.C. § 841(a)(1). On appeal he challenges the admissibility of the 190 pounds of marijuana and other evidence. We affirm his conviction on the basis that the marijuana was found in a valid border search, and the other materials’ admission was harmless error.

On January 25, 1972, customs agents received a tip that four white males staying in the Brownsville, Texas, Rode-way Inn were in the area for the purpose of buying narcotics. That afternoon the agents placed appellant and three companions under surveillance. Their efforts were soon rewarded.

' Suspects Fuller, Seals and Steinkoenig left their motel and entered Mexico at about 6:00 p. m. When their car returned to the United States at 11:00 p. m., driver Seals was the lone occupant. After a fifteen-minute stop at the motel, Seals left in a van with Newell, who had stayed behind while the others went to Mexico. Customs agents followed the van six miles to an area near the Rio Grande River; the van stayed by the river until it returned to the motel at 3:00 a. m. the next morning.

Shortly after the van arrived back at the motel, agents surrounded it and informed Newell, by this time the sole occupant, that he was under arrest. His first response was to brandish a rifle but, upon further reflection, he put it down, left the van and surrendered. Agent Nicko then searched the van; other agents entered the motel room to search it and arrest the other three suspects.

When Agent Nicko entered the van he found five burlap sacks on the floor. He opened them and found, in all, 190 pounds of marijuana. ■ Also in the van were 2,850 seconal pills. Agents searching the motel room found six and one-fourth ounces of marijuana, one and three-fourths ounces of marijuana seed, fifteen partially smoked marijuana cigarettes, amphetamines and four smoking pipes.

Appellant’s first point of error is that the 190 pounds of marijuana was the product of an unconstitutional search and therefore inadmissible. We believe that Nicko’s search of the van should be measured by border search standards. It is true that the vehicle searched had not crossed a border, but this Circuit has decided that a border t) crossing is not the sine qua non of a valid border search. In United States v. Hill, 5th Cir. 1970, 430 F.2d 129, the court adopted the Second Circuit rule that

. when an individual has direct contact with a border area, or an individual’s movements are reasonably related to the border area, that individual is a member of the class of persons that a customs officer may, if his suspicions are aroused, stop and search while the individual is still within the border area.

430 F.2d 129 at 131. See United States v. Glaziou, 2d Cir. 1968, 402 F.2d 8, cert, denied, 1969, 393 U.S. 1121, 89 S.Ct. 999, 22 L.Ed.2d 126. See also United States v. Salinas, 5th Cir. 1971, 439 F.2d 376. In Hill the court used the rule to validate the warrantless search of a panel truck that had taken on a load of smuggled liquor from a docked ship when there was no showing that the vessel had recently crossed an international boundary. In the instant case the van driven by Seals and Newell came in direct contact with the border when it parked by the Rio Grande in the early morning hours of January 26, 1972. Therefore when Agent Nicko searched the van soon after its return from its riverside parking place, he was conducting a border search even though the van had not crossed a border.

The search does not lose its border status simply because it took place six miles from the Rio Grande. In United States v. Warner, 5th Cir. 1971, 441 F.2d 821, cert, denied, 404 U.S. 829, 92 S.Ct. 519, 17 L.Ed.2d 439, this court said:

Therefore when Customs agents choose to conduct a border search outside the immediate vicinity of a border crossing point, the legality of the search will usually depend upon such factors as the distance of the search from the crossing point, the time elapsed since crossing, and the circumstances upon which the agents base their suspicions.

441 F.2d 821 at 833. See also Alexander v. United States, 9th Cir. 1966, 362 F.2d 379, cert, denied, 385 U.S. 977, 87 S.Ct. 519, 17 L.Ed.2d 439. In the instant case the search occurred six miles from the border, fifteen minutes after border area contact, and upon the basis of an informer’s tip and close surveillance. These circumstances create a nexus with the border that is sufficient to make this a border search. See also United States v. Martinez, 5th Cir. 1973, 481 F.2d 214; United States v. Maggard, 5th Cir. 1971, 451 F.2d 502, cert, denied, 405 U.S. 1045, 92 S.Ct. 1330, 31 L.Ed.2d 587; Thomas v. United States, 5th Cir. 1967, 372 F.2d 252.

Probable cause is not required to initiate a border search; we must approve Agent Nicko’s search if we conclude he had reasonable suspicion to believe the van contained contraband. See United States v. Martinez, supra; United States v. Thompson, 5th Cir. 1973, 475 F.2d 1359; Annot., 6 A.L.R.Fed. 317. We believe the events in this case would arouse a custom agent’s reasonable suspicion. There was an informant’s tip, followed by a surveillance period in which agents observed three suspects enter Mexico. Only one returned, and he quickly departed for the Rio Grande after picking up a companion and changing vehicles. He returned to the motel at 3:00 a. m. after being parked by the border for more than two hours. Such activity could easily foster the suspicion that two persons remained in Mexico to smuggle contraband across the Rio Grande after dark. Consequently we conclude the 190 pounds of marijuana was properly admitted as the product of a valid border search.

Appellant next challenges the trial court’s decision to admit other drugs and paraphernalia to show appellant’s “intent.” Challenged here are the seconal pills in the van and the sundry small quantities of narcotics and paraphernalia found in the motel room. We believe that any error the trial court may have committed in admitting these materials was harmless.

There are two tests for harmless error, and we make the choice by asking whether the error rises to constitutional dimensions. 8A Moore’s Federal Practice |f 52.02 [2], Any error committed in admitting the seconal pills would not have affected appellant’s constitutional rights, for we have already determined that Agent Nicko conducted a valid border search of the van, and that search produced the seconal pills. The proper objection to their admission would be either that they were irrelevant, or that they had slight probative value that was outweighed by their prejudicial effect. In fact, the pills arguably were evidence of “other crimes” that should have been excluded unless its admission would “complete the story of the crime on trial by proving its immediate context of happenings near in time and place.” McCormick, Handbook of the Law of Evidence 448 (2d ed. 1972). They certainly were not probative of appellant’s “intent” as the trial court believed. However, even if the pills were admitted erroneously, the error was harmless.

In Kotteakos v. United States, 1946, 328 U.S. 750, 66 S.Ct. 1239, 90 L. Ed. 1557, we find the test for determining whether a nonconstitutional error is harmless.

If, when all is said and done, .the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand, except perhaps where the departure is from a constitutional norm or a specific command of Congress. . . . But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.

328 U.S. at 764-765, 66 S.Ct. at 1248. See also United States v. Fischetti, 5th Cir. 1971, 450 F.2d 34, cert, denied, 405 U.S. 1016, 92 S.Ct. 1290, 31 L.Ed.2d 478; United States v. Cohen, 5th Cir. 1969, 418 F.2d 68; Ahlstedt ,v. United States, 5th Cir. 1963, 315 F.2d 62, cert, denied, 375 U.S. 847, 84 S.Ct. 101, 11 L. Ed.2d 74. Applying this test to the ease at hand, we note that the seconal pills had no direct bearing on the issue of whether appellant conspired to import, imported, or possessed with intent to distribute 190 pounds of marijuana. It is inescapable, of course, that admission of the seconal must have prejudiced appellant in the jury’s eyes and permitted them to infer that one who possessed large quantities of seconal was a “bad man” who would import marijuana. On the other hand the properly admitted evidence against appellant and his colleagues was formidable. Agents testified that they had received an informant’s tip and had conducted close surveillance of the suspects; they also chronicled the suspects’ suspicious behavior. As the final blow the prosecution introduced 190 pounds of marijuana. The weight of the evidence properly admitted, we conclude, removes any possibility that the sec'onal pills had a substantial influence on the jury. See United States v. Bankston, 5th Cir. 1970, 424 F.2d 714.

A stricter test of harmless error must be applied if the error affected appellant’s constitutional rights. Arguably the warrantless motel room search violated SteinJcoenig’s Fourth Amendment rights. It could not have been a valid border search because the statute authorizing the agents’ search permits warrantless searches of a “vehicle, beast or person” — not a residence. The search may have been incident to a lawful arrest if it was confined to an area within arrestees’ immediate control, but the record is silent on that point. While authorities may search a limited area incident to arrest, they may not search through “closed or. concealed areas in the room itself.” Chimel v. California, 1969, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685. The record does not disclose the extent of the motel room search. Thus we have too little information to validate this search as one incident to arrest.

Assuming arguendo that the agents’ room search was unconstitutional, we determine whether the court’s error was harmless by asking whether we can “declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. California,. 1967, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705. The Court has found harmless error of the constitutional variety where the tainted evidence did little to prove a defendant’s guilt and the valid evidence against him was strong. Harrington v. California, 1969, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284. We perceive this case to be similar to Harrington. If in fact the search was invalid, the improperly admitted evidence consisted of small quantities of marijuana and amphetamines, fifteen marijuana cigarettes, and four smoking pipes. None of this material is probative on the issue of whether appellant imported 190 pounds of marijuana that lay in five sacks on the van floor. It shrinks into insignificance when compared with the properly admitted marijuana found in the van. Therefore we conclude that any error in admitting the fruit of the motel search was harmless beyond a reasonable doubt. See United States v. Bankston, supra.

Appellant’s last contention is that the trial judge’s reasonable doubt instruction was tainted by his prefatory remark, “It is rarely possible to prove anything to an absolute certainty.” We disagree. In reviewing a reasonable doubt instruction we examine the whole instruction, not one sentence taken out of context. Baker v. United States, 5th Cir. 1969, 412 F.2d 1069. Our review of the instruction convinces us that it conveyed the proper idea; its theme is similar to that of an instruction held not incorrect in Holland v. United States, 1954, 348 U.S. 121, 75 S.Ct. 127, 99 L. Ed. 150.

Affirmed.

      . Opening the bags, like searching the van, can be analyzed in border search terms. Nicko was justified in opening them if he had a reasonable suspicion that they contained a substance being transported in violation of the customs laws. 19 U.S.C.A. § 482; United States v. McDaniel, 5th Cir. 1972, 463 F.2d 129, 134. We believe the same factors that gave him reasonable suspicion to search the van also justified his opening the bags.

      . This strong nexus with the border and the agents’ reasonable suspicion of wrongdoing distinguish this case from Almeida-Sanchez v. United States, 1973, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596, in which the Court invalidated the Border Patrol’s search of a car twenty-five miles north of the Mexican border. The officers in that case had no reason to believe the ear had been in contact with the border and no reasonable suspicion that it contained contraband or aliens; they had stopped it routinely as part of their roving patrol. The search in the instant case is not the sort of routine search limited by Almeida-Sanchez.

      . “Any of the officers or persons authorized to board or search vessels may stop, search, and examine, as well without as within their respective districts, any vehicle, beast, or person, on which or whom he or they shall suspect there is merchandise which is subject to duty, or shall have been introduced into the United States in any manner contrary to law, whether by the person in possession or charge, or by, in, or upon such vehicle or beast, or otherwise, and to search any trunk or envelope, wherever found, in which he may have a reasonable cause to suspect there is merchandise which was imported contrary to law; and if any such officer or other person so authorized shall find any merchandise on or about any such vehicle, beast, or person, or in any such trunk or envelope, which he shall have reasonable cause to believe is subject to duty, or to have been unlawfully introduced into the United States, whether by the person in possession or charge, or by, in, or upon such vehicle, beast, or otherwise, he shall seize and secure the same for trial.” 19 U.S.O.A. § 482.

      . In regard to reasonable doubt the trial court instructed the jury as follows :
      Now what is a reasonable doubt? A reasonable doubt is a fair doubt, based upon reason and common sense, and arising from the state of the evidence. It is rarely possible to prove anything to an absolute certainty. Proof beyond a reasonable doubt is established if the evidence is such as you would be willing to rely and act upon in the most important of your own affairs. A reasonable doubt may arise in your mind not only from the evidence adduced but also from the lack of evidence, and since the burden is upon the prosecution to prove the accused guilty beyond a reasonable doubt of every essential element of the crime charged, a defendant has a right to rely upon the failure of the government in the prosecution to establish such proof. .
      A reasonable doubt exists in any case when, after careful and impartial consideration of all the evidence, you, the jurors, do not feel convinced to a moral certainty tliat a defendant is guilty of the charge.

      . In Holland the trial judge said reasonable doubt was “the kind of doubt which you folks in the more serious and important affairs of your own lives might be willing to act upon.” 348 U.S. at 140, 75 S.Ct. at 138.


source: Caselaw Access Project

author: GOLDBERG, Circuit Judge:

license: Public Domain

text:
    Peter J. BRENNAN, Secretary of Labor, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Bill Echols Trucking Co., Respondents.
    No. 73-1670
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 13, 1973.

      Walter H. Fleischer, Jean A. Staudt, Civil Div., Appellate Section, Dept, of Justice, Washington, D. C., for petitioner.
    Peter Giesey, Gen. Counsel, Washington, D. C., Occupational Safety & Health Review Commission.

      Matthis W. Piel, Montgomery, Ala., for Bill Echols Trucking.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

      Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York, 5 Cir. 1970, 431 E.2d 409, Part I.

   GOLDBERG, Circuit Judge:

In this case the Secretary of Labor (the Secretary) has invoked the jurisdiction of this Court under Section 11 (b) of the Occupational Safety and Health Act of 1970 (the Act), and asked that we review a “Supplemental Order” of the Occupational Safety and Health Review Commission (the Commission) vacating a citation and proposed penalty issued by the Secretary to Bill Echols Trucking Co. (Echols).

We note that the difficulty of our task has been magnified by the paucity of the written argument presented to us. Whether out of utter frustration, battle fatigue, or neglect, neither the Commissioner nor Echols saw fit to file a responsive brief, although both had been solicited and importuned to do so. Nevertheless, on the basis of the petitioner’s brief and the record before us, we must endeavor to decide the issues presented. See Fed.R.App.P. 31(c);

Teamsters Local 524 v. Billington, 9th Cir. 1968, 402 F.2d 510, 511.

THE FACTS

The series of actions, inactions, and reactions that propelled this dispute into the Court of Appeals began on August 23, 1972, when the Secretary cited Echols for a serious violation of a safety regulation promulgated under the Act, and proposed a penalty of $600.00. The Secretary charged that Echols had violated 29 C.F.R. § 1926.601(b)(4) by its “failure to provide motor vehicles having an obstructed view to the rear with a reverse signal alarm or an observer to signal the vehicle it is safe to travel in reverse gear,” and ordered Echols to abate this condition within three days after its receipt of the citation.

Section 10(a) of the Act, 29 U.S.C. § 659(a), and regulations promulgated thereunder, provide a means of appealing citations and penalties. Under 29 C.F.R. § 1903.17, Echols could have obtained Commission review by notifying the Occupational Safety and Health Administration Area Director of its intention to contest within 15 days of its receipt of the notification of proposed penalty.

The regulation directs that “[e]very notice of intention to contest shall specify whether it is directed to the citation or to the proposed penalty, or both.” On September 5, 1972, less than 15 days after receiving notice of the proposed penalty, Echols’ attorney wrote to the Secretary’s regional representative in Birmingham, stating:

“This is to inform you that the signaling device has been installed within the three day period after the citation. We request that the penalty be abated since corrective action has been taken well within the time allot-ed. [sic].
“If there is any further information you desire of [sic] if I can be of any further assistance to you kindly contact me.”

The Secretary deferred forwarding this letter to the Commission until October 16, 1972, some 43 days later, at which time he filed a motion to strike Echols’ letter as not constituting a notice of contest. After considerable procedural maneuvering, the Commission issued a Supplemental Order on January 26, 1973, holding that Echols’ September 5 letter was a sufficient notice of contest, and therefore that the Secretary was required under 29 C.F.R. § 2200.32 to transmit the notice to the Commission within seven days of its receipt. The Commission vacated both the citation and proposed penalty because of the Secretary’s failure to transmit the notice on time.

The Secretary filed a petition for reconsideration with the Commission on February 27, 1973. The record before us gives no indication of any response by the Commission. This petition for review followed.

The Secretary raises two issues for decision by this Court: (1) Did Echols’ letter of September 5 constitute a notice of contest of the citation or of the proposed penalty, or both? (2) If the letter did constitute a notice of contest, did the Commission act improperly by vacating the citation and proposed penalty because of the Secretary’s failure to transmit such notice in timely fashion?

I

Because the Commission’s Supplemental Order of January 26, 1973 vacated both the citation and the proposed penalty against Echols, the question of whether Echols’ September 5 letter was sufficient notice of contest actually becomes two issues: (a) whether the letter constituted a notice of contest of the citation; and (b) whether the let-er constituted a notice of contest of the proposed penalty.

The first issue causes us little difficulty. Even construing the letter in the manner most favorable to Echols, we cannot conceive of any way it could be interpreted as a notice of contest of the citation. The September 5 letter, written by Echols’ attorney, raised no objection whatsoever to the citation; to the contrary the letter noted that corrective action had been taken after receipt of the citation, and thus, in effect, conceded the existence of the violations at the time of issuance of the citation. Because the letter requested that the penalty be abated, and because the regulation requires that a complainant specify whether it is contesting the -citation or the penalty, 29 C.F.R. § 1903.17 supra, the inescapable conclusion is that the letter could only have been a notice of contest of the penalty — if it was a notice of contest at all.

The Act provides that a failure to notify the Secretary within 15 days of intent to contest the citation or proposed penalty will render such citation or penalty “a final order of the Commission and not subject to review by any court or agency.” 29 U.S.C. § 659(a). Thus, the citation had become final and unreviewable, and the Commission had no authority five months later to vacate the citation. As to the citation against Echols, then, we vacate the Supplemental Order of the Commission and reinstate the citation as issued by the Secretary on August 23, 1972.

The question of whether the September 5 letter constituted a notice of contest of the proposed penalty is much more difficult to resolve. The Commission has provided only the crudest of guidelines to aid the courts, affected employers, or itself in making such a determination. Fortunately, however, it is not the province of this Court to draw the fine lines separating letters that constitute notices of contest from those that do not. The regulations stipulate that “[i]n its absolute discretion, and without affirmative action by order or otherwise, the Commission or the Examiner may permit the filing of pleadings or other documents which it deems to comply substantially with” the regulations concerning form, filing, and service. 29 C.F.R. § 2200.7(b)(4). Given such “absolute discretion” in the Commission, we cannot and will not challenge its determination that the September 5 letter constituted a notice of contest of the proposed penalty. Particularly in view of the lack of guidance to be found in the regulations, 29 C.F.R. § 2200.7(b)(1), supra at note 5, the Commission properly gave a liberal interpretation to the letter. Cf. Sanchez v. Standard Brands, Inc., 5th Cir. 1970, 431 F.2d 455, 462-464; N. L. R. B. v. Central Power & Light Co., 5th Cir. 1970, 425 F.2d 1318, 1320. The Secretary was, therefore, delinquent in failing to transmit the letter to the Commission within seven days of its receipt.

II

Having found that the Commission did not abuse its discretion by holding that the September 5 letter constituted a notice of contest of the proposed penalty, we must now inquire whether the Commission acted properly by vacating the proposed penalty because of the Secretary’s delay in transmitting the letter to the Commission. An order vacating a citation or proposed penalty is the most extreme sanction available to the Commission. We can find no authorization in the Act or the regulations for imposition of such a sanction without first providing an opportunity for a hearing. We do not now decide whether any breach of the rules by the Secretary could be serious enough to warrant dismissal of a penalty without a prior hearing. We do hold, however, that in the case before us the Commission acted improperly by vacating the proposed $600 penalty against Echols. Our conclusion is supported by both the nature of the Secretary’s error and the underlying philosophy of the Act itself.

We have found that the Commission was within its discretionary power in construing the September 5 letter as a notice of contest. Moreover, given the adjudicatory function of the Commission, the Secretary should have resolved any doubts about the sufficiency of the letter in favor of transmitting it to the Commission for its determination. Nevertheless, we cannot say that the Secretary’s action was entirely without justification. The September 5 letter, written by an attorney, was phrased in terms of a “request” to the Secretary for an abatement of penalty. The letter contained no language to the effect that Echols wished to “contest” the penalty or had any reason to “object” to the penalty proposed. Echols gave no direct indication of any desire to incur the burdens of a proceeding before the Commission. Under the circumstances the Secretary was not unreasonable in construing the letter as a request for leniency rather than as a notice of contest. Dismissal of the penalty is a sanction much too harsh for such a reasonable, although ultimately unprevailing, interpretation.

Moreover, viewed in light of the purpose of the Act, the requirement that the Secretary promptly transmit notices of contest is obviously designed to protect employees rather than employers. Congress’ statement of purpose at the beginning of the Act makes this abundantly clear:

“The Congress declares it to be its purpose and policy, through the exercise of its powers to regulate commerce among the several States and with foreign nations and to provide for the general welfare, to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources — ”

29 U.S.C. § 651(b). Prompt transmittal is important for hastening abatement of health or safety hazards to employees because, if the employer contests in good faith, the period for correction permitted by the Secretary “shall not begin to run until the entry of a final order by the Commission . . . .” 29 U.S.C. § 659(b). We can find no justification for permitting an employer to reap the benefits of its own ambiguous correspondence and to go unpenalized for an admitted serious violation of a safety standard under the banner of a rule designed to protect employees. Congress could not have intended such a result, and it gave the Commission no authority to produce such a result.

By filing a notice of contest Echols was doing nothing more than requesting a hearing; the Commission should have provided exactly that. Commission decisions in subsequent cases apparently have recognized that at least a finding of prejudice to the employer must precede dismissal of a proposed penalty for violation of a procedural rule. See Secretary of Labor v. J. Dale Wilson, Builder, OSHRC Docket No. 1625, Feb. 20, 1973; Secretary of Labor v. ADM Grain Co., OSHRC Docket No. 1767, Feb. 20, 1973. The Secretary contends that Ech-ols was not prejudiced by the delay in transmittal of his notice of contest to the Commission. The Secretary should be given an opportunity to make that argument to the Commission.

CONCLUSION

We therefore vacate that part of the Commission’s January 26, 1973 Supplemental Order which vacated the proposed penalty against Echols, and remand to the Commission for a hearing on the merits. We do not limit the scope of the hearing in any way. In addition to all other factors normally considered in such a hearing, the Commission is free to inquire to what extent, if any, Echols was injured by the Secretary’s delay in transmitting the notice of contest, and to modify the penalty accordingly upon an appropriate finding of fact. As previously indicated, the citation issued against Echols on August 23, 1972, was not contested and is hereby reinstated as a final order of the Commission.

Vacated and remanded.

      . 29 U.S.O. § 660(b) : “The Secretary may also obtain review or enforcement of any final order of the Commission by filing a petition for such relief in the United States court of appeals for the circuit in which the alleged violation occurred or in which the employer has its principal office . . .

      . Recently the Secretary and the Commission sought adjudication by this Court of a similar dispute.- We declined to involve ourselves in that fray, however, because the company over which the battle was being fought had advised the Commission of its desire not to participate in further litigation and had offered to pay the penalty assessed. Brennan v. Occupational Safety and Health Review Comm’n and Brent Towing Co., 5th Cir., 481 F.2d 619 (1973).
      The contested issues in the case before us and in, Brent Towing have also been discussed in at least five Commission decisions since July 1972. Secretary of Labor v. Stephen Adamowich d/b/a Terryville Sanitation Service, OSHRC Docket No. 2035, Feb. 23, 1973; Secretary of Labor v. J. Dale Wilson, Builder, OSHRC Docket No. 1625, Feb. 20, 1973; Secretary of Labor v. ADM Grain Co., OSHRO Docket No. 1767, Feb. 20, 1973; Secretary of Labor v. Pleasant Valley Packing Co., OSHRC Docket No. 464, Jan. 4, 1973; Secretary of Labor v. Lennox Industries, Inc., OSHRC Docket No. 1106, July 7, 1972.

      . Section 6 of the Act, 29 U.S.C. § 655, instructs the Secretary to make rules and to promulgate occupational safety and health standards. Under Section 8, 29 U.S.C. § 657, the Secretary is authorized to conduct inspections and investigations of factories, plants, and other work areas to determine whether duly promulgated standards are-being violated. Section 9, 29 U.S.C. § 658, prescribes the procedure for the issuance of citations to employers for violations of standards, and Section 17(b), 29 U.S.C. § 666(b), provides that “[a]ny employer who has received a citation for a serious violation ... of any standard, rule, or order promulgated pursuant to section 655 of this title, or of any regulations prescribed pursuant to this chapter, shall be assessed a civil penalty of up to $1,000 for each such violation.”

      . On October 24, 1972, the Commission notified Echols that its notice of contest was before the Commission and instructed the company to certify that it had completed and posted a form notifying its affected employees of the case. On November 20, the Commission Judge dismissed Echols’ notice of contest for failure to provide the required certification. Eollowing receipt of an objection from Echols, the Commission reviewed the dismissal order and decided that Echols had complied with the posting and service regulations. On December 1, the Commission set aside the dismissal order and reinstated Echols’ complaint.

      . “Form. (1) There shall be no specific requirements as to the form of a notice of contest, or a modification of abatement, except that it shall clearly identify the citation, notification of proposed penalty, or notification of failure to correct violation which forms the basis for its filing (e. g., by citation number, date of issuance, and employer’s name and address, etc.), shall clearly identify the party by whom it is filed (e. g., employer, employee, or representative of employees), shall, set forth the names and addresses of the parties personally served and the address of the posting, where such service is required . . . and shall indicate the address to which subsequent pleadings should be directed by other parties.” 29 C.F.R. § 2200.7(b)(1).

      . This holding is not inconsistent with our conclusion on the question of contest of the citation.
      The Commission’s order of January 26 stated only that the September 5 letter should be construed as a “notice of contest”; the Commission did not specify whether it meant notice of contest of the citation or of the proposed penalty, or both. We must assume that the Commission, looking at all possible interpretations of the language of that letter, did not intend that the letter constitute a notice of contest of the citation. No commission or agency, even under the formidable label of “absolute discretion,” can arrogate to itself the power to say that night is day, or that black is white, or that Echols’ letter was a notice of contest of a citation.

      . This Court claims no bureaucratic expertise and seeks no authority to make rules for the Secretary or the Commission. We would be remiss, however, if, in the interest of minimizing the need of these parties for the future assistance of this Court, we did not suggest a simple means of eliminating ambiguity in notices of contest. If each citation or notification of proposed penalty sent to an employer were accompanied by a reply form on which the employer could check boxes indicating intent to contest the citation or proposed penalty, or neither or both, with space for listing reasons or making comments, no confusion need ever again arise on the part of either the Secretary or the Commission.

      . Section 10(c) of the Act, 29 U.S.C. § 659(c), provides that, upon receipt from the Secretary of an employer’s or employee’s notice of contest, “the Commission shall afford an opportunity for a hearing” in accordance with the Administrative Procedure Act, 5 U.S.C. § 554, and “shall thereafter issue an order, based on findings of fact, affirming, modifying, or vacating the Secretary’s citation or proposed penalty . . ..”
      In its Supplemental Order the Commission cites two of its own prior decisions as authority for its action in this case. Secretary of Labor v. Lennox Industries, Inc., OSHRC Docket No. 1106, July 7, 1972; Secretary of Labor v. Pleasant Valley Packing Co., OSHRC Docket No. 464, Jan. 4, 1973. Both of those decisions note the Secretary’s fail- ' ure to transmit a notice of contest within the prescribed period of time; neither decision, however, offers any further clue to the statutory authority relied upon.


author: COLEMAN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jose Manuel SUAREZ and Leites Rufino Chiong, Defendants-Appellants.
    No. 73-1590.
    United States Court of Appeals, Fifth Circuit.
    Nov. 14, 1973.
    Certiorari Denied March 18, 1974.
    See 94 S.Ct. 1572.

      Lawrence R. Metsch, Miami, Fla., court-appointed, for Suarez.
    Albert L. Carnearte, Miguel A. Suarez, Miami, Fla., for defendants-appellants.
    Robert W. Rust, U. S. Atty., Carol M. Anderson, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.
   COLEMAN, Circuit Judge:

After trial on a multicount indictment against several defendants a jury convicted Jose Manuel Suarez of possessing with intent to distribute, and of distributing, 124 grams of cocaine (two counts) on July 31, 1972, 21 U.S.C., § 841(a)(1); 18 U.S.C., § 2(b).

In the same trial, and on separate counts in the same indictment, Leites Rufino Chiong was convicted of possession with intent to distribute, and of distributing, 126 grams of heroin on September 6, 1972, in violation of the same statutes.

The conviction of Suarez will be affirmed.

Because the evidence was clearly insufficient to support the conviction of Chiong, his conviction will be reversed.

THE SUAREZ APPEAL

As to Suarez, considering that he was specifically indicted for aiding and abet-ing the commission of the alleged offense, 18 U.S.C., § 2(b), the guilty verdict is amply supported by the evidence.

He says, however, that he was made the victim of reversible error when the trial judge allowed a government “evidence custodian” to take the witness stand a second time for the purpose of correcting an error in his original testimony as to the date he received the cocaine from the narcotics agent who had purchased it from Suarez’s confederate. This custodian first said he received the cocaine on August 9. As between the purchasing agent and the analyzing chemist this would have left an eight day gap in the chain of custody. In his second appearance, the witness said he received the material on August 1 and that his prior testimony was an inadvertent mistake.

Appointed appellate counsel for Suarez has filed a painstakingly thorough brief and has urged on oral argument that the correction of this mix-up dictates a reversal because it was done in contravention of the customary rule for the sequestration of witnesses.

It is undoubtedly correct that the custodian had been put under the rule and after giving his testimony had returned to his office. He was afterwards told by other agents that there had been an , error in his first testimony. Subsequently, he was returned to the stand, over objection, for the purpose of making a correction.

This does not, in our opinion, provide good cause for reversal.

In the first place, the record contained undisputed testimony that a field test of the substance in question identified it as cocaine. Moreover, the card which bore entries as to dates of receipts and which had been admitted in evidence was filed in this Court as a part of the trial record. That card contained a written notation that the cüstodian received the material on August 1. This appears immediately adjacent to a line showing, for another purpose, the date of August 9, lending credence to the custodian’s explanation that his use of the latter date in his first testimony was an unintentional mistake. Then, too, there was no dispute about the custodian having received the substance; the only thing involved was the ascertainment of the correct date.

As we have said on other occasions, this was too small a pebble to justify a holding that the trial judge abused his discretion in declining to allow it to overturn the trial. Failure of a witness to comply with the sequestration rule does not of itself render his testimony inadmissible, although it may affect the weight of the testimony; whether such a witness is to be permitted to testify is generally left to the sound discretion of the trial court, United States v. Picard, 1 Cir., 1972, 464 F. 2d 215; Braswell v. Wainwright, 5 Cir., 1972, 463 F.2d 1148, quoting Holder v. United States, 150 U.S. 91, 14 S.Ct. 10, 37 L.Ed. 1010 (1893).. The order of the custodian’s appearance is of no fatal significance. Although that is not what happened in this case, the trial court in the exercise of its sound discretion may allow the proof to be reopened for further testimony before the case goes to the jury, even after both sides have rested, United States v. Batie, 5 Cir., 1972, 457 F.2d 927.

THE CHIONG APPEAL

We measure Chiong’s case by the evidence submitted to the jury, weighing it in the light most favorable to the verdict, Sanders v. United States, 5 Cir., 1969, 416 F.2d 194; United States v. Warner, 5 Cir., 1971, 441 F.2d 821.

By the terms of the indictment, which did not carry a conspiracy count, the government had the burden of presenting evidence enough to support jury belief beyond a reasonable doubt that on September 6, 1972, Chiong, personally or as an aider and abetter, had heroin in his possession, that the possession was with an intent to distribute it (under one count) or that he did, in fact, distribute it (the other count).

The entire scenario took place in Maimi at the home of one Eduardo Chambless, a known narcotics violator, who was jointly indicted with Chiong and who entered a plea of guilty during the course of the trial. We may note at this point that Chambless took the witness stand and testified to the innocence of Chiong, but that has nothing to do with the result because the jury was free to reject his testimony, as evidently it did.

Jaime Forteza had been a special agent for the Bureau of Narcotics and Dangerous Drugs for a year and a half.

At 12:45 p. m., September 6, 1972, Forteza went to Chambless’ house. Chiong was there, talking to Chambless in a bedroom. Chiong left. He had no conversation with Forteza. Chambless told Forteza to come back at 3 o’clock and he would have the heroin ready for him; he went back at 2:50. An automobile drove up and Chiong got out of the car, with a brown paper bag in his hand. He and Chambless went in the house. Chiong/soon left, with the same paper bag in his hand. No effort was made to stop him and examine the contents of the bag, either upon entering or leaving. Chiong and Forteza had no conversation. Forteza then entered the house and Chambless sold him % of a kilo of heroin for $5,400, government funds, which were not thereafter recovered.

Rubin Monzon had been a special agent for the Bureau of Narcotics and Dangerous Drugs for three years and four months. He was on surveillance at the Chambless residence on September 6, 1972. He saw Chiong leave the house at the conclusion of the first visit. He saw agent Forteza leave at one o’clock. At 1:30 o’clock he saw a Chevelle automobile arrive at the Chambless residence. A man by the name of Juan Anzel got out and went in, where he remained a short time. He left in the Chevelle with a man named Jorge, who had been there all along. Monzon followed them but lost them in traffic. About 2:15 he was notified via radio from another agent that Jorge and Anzel had returned to the Chambless residence and Jorge had carried a bulky brown paper bag into the house. He left about 2:30, without the bag. Agent Forteza showed up at 2:50; Chiong appeared at 2:55. The agent saw Chiong enter and leave, carrying the same paper bag.

Special agent Billy Joe Church had been with the Bureau a year and eight months. He participated in the Chambless surveillance on September 6. He verified the previously recited narrative. He personally saw Jorge enter and leave the house with a big brown paper bag but, contrary to what agent Monzon said, he did not see the bag in Jorge’s possession when he left. He had reason to suspect that both Jorge and Anzel were involved in narcotics activities. The bag Chiong had was about 6x6 (inches). He carried it both in and out of the house. The Jorge bag looked like a 50 pound grocery bag.

At the close of this testimony, Chiong moved for a directed verdict of acquittal, which was denied.

Chiong took the stand in his own behalf, testifying through an interpreter, and stated that he was a lobster fisherman, a former resident of Cuba (as was Chambless). He had never been arrested for or convicted of a criminal offense. He claimed that he went to Chambless’ on September 6 to collect house rent on behalf of his sister, the owner of the house; that narcotics were not mentioned, that Chambless told him to return later for the money, that he went back that afternoon for the money, that Chambless paid him and he left. He said the brown , paper bag contained tickets and bills about his lobster business, that he did not leave the bag in the car because there were too many people around and he was afraid he would lose the bills.

The jury found Chiong guilty. This necessarily means that it did not accept his version of the contacts with Chambless on September 6, 1972. It is of some interest to note that after the verdict Chiong was in such distress that the trial judge noticed it and said, “Give him some help there, please. Give him some water, please”. It is also to be remembered that after the jury retired to consider its verdict it asked to have the testimony of special agent Forteza and the testimony of Chiong read back in the entirety, which was done.

It is to be recognized, also, that the jury rejection of Chiong’s testimony did not relieve the government of its obligation to present evidence sufficient to support the allegations of the indictment beyond a reasonable doubt, especially since Chiong gave no testimony from which the jury could affirmatively find guilt.

This case is reminiscent of Causey v. United States, 5 Cir., 1965, 352 F.2d 203. Causey was a conspiracy case. Chiong’s case is not. In Causey we said that “A suspicion however strong, is not proof and will not serve in lieu of proof * * * Guilt of conspiracy may not be inferred from mere association * * * The Prosecution certainly proved by association with the known guilty parties Burl Causey had an opportunity to become a conspirator * * * It did not prove that the crime followed the opportunity”.

Chiong was a man with no prior criminal record, not even a misdemeanor conviction. That he was a lobster fisherman and that his sister owned the house where Chambless lived is not disputed.

Jorge was suspected of being involved in narcotics.

Chiong has been convicted of the possession of heroin with the intent to distribute it. He has also been convicted of its actual distribution. Yet not a single eyewitness in this voluminous record ever saw any heroin in his possession, nor did they see him distribute any.

Of course, circumstantial evidence may support a conviction if sufficiently strong, in the absence of any other reasonable hypothesis, to establish guilt beyond a reasonable doubt. What are the circumstances here? Chiong, the man with no prior criminal record, is in a house which belonged to his sister at 12:30 and again at 3 o’clock. On the second trip he took a small paper bag in the house and right out again. No one made any effort to see what was in the bag.

But Chiong was not the only man who carried a paper bag in that house. About a half an hour before he appeared, Jorge, an officially suspected narcotics operator, carried a paper bag into the house and no one saw it come out again. True, it was a large paper bag but no one, not even special agent Forteza who had the best chance to know what was in it, has ever told us what it contained.

The government pins its position on such statements made by Chambless to the special agent that “my man has been here”, “I will have the stuff here at 3 o’clock”, and so on.

Even if this evidence were admissible against Chiong, which in the absence of a conspiracy count we greatly doubt, Chambless did not call Chiong’s name in any of those statements. The presence and activities of Jorge could as well have made the statements applicable to him as to Chiong.

Upon a careful reading of this record we are left with an abiding conviction that the government’s evidence failed to eliminate all reasonable doubt that Chiong’s paper bag contained hereoin. Chiong may be guilty, but that is not the standard. The evidence must' have been sufficient to support a jury belief beyond a reasonable doubt that he was, in fact, guilty.

Chiong has been sentenced to imprisonment for five years, a not unreasonable sentence if he were guilty. On the record now before us we must in good conscience say that the government did not carry the burden which was a prerequisite to such serious consequences.

The Judgment of the District Court as to Suarez is affirmed.

The Judgment of the District Court as to Chiong is reversed and remanded, with directions that the indictment be dismissed.


author: TIMBERS, Circuit Judge: FEINBERG, Circuit Judge

text:
    UNITED STATES of America, Appellant, v. Frank CACCIATORE and 1463 Restaurant Corporation, Appellees.
    No. 354, Docket 73-2265.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 5, 1973.
    Decided Nov. 14, 1973.

      Michael C. Eberhardt, Sp. Atty., Dept. of Justice, New York City (Paul J. Curran, U. S. Atty., John D. Gordan III, John W. Nields, Jr., Asst. U. S. Attys., and Edward M. Shaw, Sp. Atty., Dept. of Justice, New York Cjty, on the brief), for appellant.
    Irving Anolik, New York City, for ap-pellees.
    Before HAYS, FEINBERG and TIMBERS, Circuit Judges.
   TIMBERS, Circuit Judge:

On this appeal from an order entered in the Southern District of New York by Lloyd F. MacMahon, District Judge, on August 17, 1973 dismissing an indictment, which had been returned July 3, 1973, “for failure to prosecute and for denial of a speedy trial”, the sole issue is whether the district judge abused his discretion in ordering the government to proceed to trial the day after the only pretrial conference and in dismissing the indictment two days later when the government was unable to proceed because of the unavailability of its witnesses. We hold on the facts of this case that the judge did abuse his discretion. We reverse and remand for trial.

On July 3, 1973, a two count indictment was returned. It charged defendant Frank Caeeiatore with offering a bribe to a Treasury Department agent in violation of 18 U.S.C. § 201(b)(3) (1970). It charged Caeeiatore and defendant 1463 Restaurant Corporation (Cacciatore’s employer) with illegally refilling liquor bottles in violation of 26 U.S.C. §§ 5301(c)(2) and 5606 (1970).

On July 23, Caeeiatore (who had been arrested on March 23 and released on his own recognizance by a United States Magistrate) pleaded not guilty before Judge Ward who allowed ten days for the filing of motions and continued Cac-ciatore’s release on his own recognizance.

In due course the case was assigned on July 31 to Judge MacMahon who notified both sides on August 6 that a pretrial conference would be held on August 14.

Also on August 6, the government served and filed its Notice Of Readiness For Trial, stating that it would be ready for trial “as soon as the matter can be reached by the Court on or after September 1, 1973 subject to receiving five days’ advance notice of the actual date for trial.” Later, when the government realized that September 1 fell on a Saturday, it informed Judge MacMahon that it would be ready for trial on August 30 or 31.

The pretrial conference was held on Tuesday, August 14, at 3:30 P.M. It was brief. Defendants’ counsel first informed Judge MacMahon that the corporate defendant had not yet entered a plea. The judge said that its plea of not guilty could be entered on the morning of the trial. The judge then stated that he would like to proceed with the trial the following morning, August 15. Government counsel reminded the judge that, in accordance with its Notice of Readiness, the government had indicated that it would be ready as of September 1 and requested that the trial be put off until then. Defendants’ counsel informed the judge that for personal reasons he would be unable to proceed to trial on August 15 or 16. Judge Mac-Mahon then ordered that the trial begin on Friday, August 17, at 10 A.M.

Immediately after the pretrial conference on August 14, government counsel attempted to locate his witnesses. Of the four witnesses essential to the government’s case, three (including a New York City Police Detective) were on annual leave and could not be reached; the fourth, a Treasury Department agent, was scheduled to enter a hospital for urgent kidney surgery on August 19. These facts were communicated to Judge MacMahon orally and later were confirmed by affidavits submitted on August 16. On the same day, in chambers, government counsel again requested that the trial be rescheduled because of the unavailability of the government’s witnesses. The judge declined to do so and stated that he would dismiss the indictment if the government did not produce its witnesses the following morning.

On Friday, August 17, at 10 A.M., counsel for both sides appeared before Judge MacMahon. The government filed a written motion for an adjournment of the trial, supported by an affidavit setting forth the essential facts regarding the unavailability of its witnesses. The government made it clear that it would be ready to proceed to trial on August 30 or 31, or as soon thereafter as would be convenient to the court. While defendants’ counsel said he was ready, he did not suggest that the indictment should be dismissed until the judge expressly invited such a motion “for failure to grant this defendant a speedy trial.” Defendants’ counsel then said, “I so move, your Honor.” The motion was granted.

Later that day, Judge MacMahon filed a memorandum opinion stating the reasons for his action and concluding that “the government’s application for an adjournment is denied, and the defendants’ motion to dismiss the indictment for failure to prosecute and for denial of a speedy trial, in accordance with their constitutional rights, is in all respects granted.”

The government promptly filed a notice of appeal on August 28, pursuant to 18 U.S.C. § 3731 (1970). On August 31, we ordered an expedited appeal and heard it on October 5.

We reject out of hand the assertion that defendants were denied their Sixth Amendment right to a speedy trial. Upon the uncontroverted facts of the instant case, none of the four factors articulated by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 530 (1972), would in any way support such a claim.

We turn next to the claim that dismissal of the indictment was justified by the government’s alleged failure to comply with the Southern District’s “Plan For Achieving Prompt Disposition Of Criminal Cases” (“the Plan”), promulgated pursuant to Fed.R.Crim.P. 50(b) and made effective April 1, 1973. Since no defendant here was detained, under paragraph 4 of the Plan the government was required to be “ready for trial within six months from the date of the arrest ... or the filing of a formal charge . . . whichever is earliest.” The government’s Notice of Readiness stating that it would be ready on or after September 1, 1973 (later modified to August 30 or 31) fully complied with the six months provision of the Plan. As to Cacciatore who was arrested March 23, 1973, the government stated that it would be ready within slightly more than five months. As to the corporate defendant which was indicted July 3, 1973, the government stated that it would be ready within less than two months.

Appellees, as well as the district court in its opinion below, stress paragraph g(a) 0f the Plan. This provision places sole responsibility on the district court for setting cases for trial; imposes on counsel for both sides the burden of calling matters to the court’s attention which bear upon scheduling of cases for trial; requires the United States Attorney to familiarize himself with the scheduling procedures of each judge; and directs the court to schedule trials so as to assure prompt disposition.

Here it is true that on August 6, when government counsel received the notice of a pretrial conference to be held August 14, he knew that one of his four witnesses was scheduled to go on annual leave on August 13 and that another was scheduled to enter the hospital on August 19. Government counsel should have communicated that information promptly to the judge so that one of several alternatives might have been utilized to accommodate the government’s witnesses and still have permitted an expeditious trial. Government counsel with commendable candor informed us at oral argument that he had had no prior experience with Judge MacMahon’s scheduling procedures and did not anticipate that he would be ordered to trial within less than 24 hours of the pretrial conference. Under these circumstances, we decline to hold that the government, in requesting a two week adjournment, usurped the court’s sole responsibility for setting and calling cases for trial.

In ruling as we do, however, we wish to make it clear that we do intend to back up district judges in their efforts to dispose of criminal cases expeditiously, to apply the prompt disposition rules with even-handedness toward the government and toward defendants and to utilize the summer months to try criminal cases. These commendable objectives can be achieved without denying any party its essential rights.

We conclude, on the particular facts of this case, that the district court abused its discretion in denying the government’s application for a two week adjournment of the trial and in dismissing the indictment.

Reversed and remanded for trial.

FEINBERG, Circuit Judge

(dissenting) :

I respectfully dissent.

This case involves much more than the narrow issue — admittedly crucial to the parties — of the fate of a particular criminal indictment. It is a test, I believe, of whether the district court and the Circuit Council really meant what they were saying in adopting the Plan for Achieving Prompt Disposition of Criminal Cases under Rule 50(b).

Paragraph 9(a) of the Southern District Plan provides as follows:

9. Responsibility of United States Attorney and Defense Counsel.
(a) The court has sole responsibility for setting and calling cases for trial. Neither a conflict in schedules of Assistant United States Attorneys nor a conflict in schedules of defense counsel will be ground for a continuance or delayed setting except under unusual circumstances approved by the court and called to the court’s attention at the earliest practicable time. Each judge will schedule criminal trials at such times as may be necessary to assure prompt disposition of criminal cases. The United States Attorney will familiarize himself with scheduling procedures of each judge and will assign or reassign cases in such manner that the government will be able to announce ready for trial.

The district judge relied on this language in his opinion dismissing the indictment. The Plan makes clear that the court has “sole responsibility for setting . . . cases for trial,” places upon counsel for the Government and for the defense the burden of calling problems to the attention of the court, commands the judge to schedule criminal trials so as to assure prompt disposition, and calls on the United States Attorney to become familiar with judges’ scheduling procedures.

Bearing these directives in mind, I do not think the district judge here abused his discretion — even though we might have handled the matter differently in his place. When the United States Attorney received notice on August 6 that a pre-trial conference would be held on August 14, he should have foreseen the possibility that the judge might schedule this simple case for trial in August. At that time, the Assistant knew that one of his key witnesses (Agent Goetz) was going on leave on August 13 and that the other (Agent Jordan) was slated to enter the hospital on August 19. At the very least, the Assistant should have immediately notified the judge of these circumstances so that the judge could either set down the trial for a date before Agent Goetz went on leave or rearrange his own schedule so that other cases planned for a later date could be moved up. Alternatively, the Assistant could have made sure that Agent Goetz could be contacted during the week of August 13 so that the trial might have been held late that week, before Agent Jordan went into the hospital. By unilaterally deciding that the ease could not be tried until on or after September 1, the Government usurped the trial judge’s “sole responsibility for setting and calling cases for trial.”

It should also be stressed that the Government began these proceedings. Unlike a defendant, whose role is strictly reactive, appellant had a measure of freedom in choosing when to initiate prosecution. The trial judge noted in his opinion dismissing the charges that the indictment was filed on July 3, 1973. On August 14, the day when the judge ordered the trial to begin three days later, the indictment had already been on file for more than 40 days. During this period, the Government should have had ample time in which to prepare for trial and schedule its agents’ leaves. Under these circumstances, appellant should not now be heard to complain of having been rushed to trial. Furthermore, the majority appears to concede that the prosecutor was remiss in neglecting to familiarize himself with the district judge’s scheduling procedures and in' failing to inform the trial court promptly of its witnesses’ future unavailability. This point alone compels affirmance since a trial judge surely does not abuse his discretion in dismissing an indictment for negligent failure to prosecute.

Finally, we have been strongly urging trial judges in the Southern District to dispose of criminal matters expeditiously. Moreover, we have here a judge who was willing to use the month of August to try criminal cases. Failing to stand by him in such a situation can only detract from the force of our own exhortations to hear criminal cases very promptly.

Accordingly, I would affirm the judgment dismissing the indictment.

      . Paragraph 4 of the Southern District Plan provides as follows:
      “4. All Cases: Trial Readiness and Effect of Non-Compliance. In all cases the government must be ready for trial within six months from the date of the arrest, service of summons, detention, or the filing of a complaint or of a formal charge upon which the defendant is to be tried (other than a sealed indictment), whichever is earliest. If the government is not ready for trial within such time, and if the defendant is charged only with non-capital offenses, .the defendant may move in writing, on at least ten days’ notice to the government, for dismissal of the indictment. Any such motion shall be decided with utmost promptness. If it should appear that sufficient grounds existed for tolling any portion of the six-months period under one or more of the exceptions in [paragraph 5], the motion shall be denied, whether or not the government has previously requested a continuance. Otherwise the court shall enter an order dismissing the indictment with prejudice unless the court finds that the government’s neglect is excusable, in which event the dismissal shall not be effective if the government is ready to proceed to trial within ten days.”
      Paragraph 4 tracks the language of former Rule 4 of the Second Circuit Rules Regarding Prompt Disposition of Criminal Cases, 28 U.S.C.A. App. (Supp. 1973), promulgated January 5, 1971 and made effective July 5, 1971. During the period of more than two years since the Second Circuit Prompt Disposition Rules became effective, Rule 4 (the counterpart of paragraph 4 of the Southern District Plan) has been the subject of numerous decisions in our Court. See, e. g., cases cited in United States v. Scafo, 480 F.2d 1312, 1313 n. 1 (2 Cir.), cert, denied, - U.S. -, 94 S.Ct. 378, 38 L.Ed.2d 250 (1973) ; see also United States v. Rollins, 487 F.2d 409 (2 Cir. 1973), slip op. 5523 (October 31, 1973).

      . Appellees, as well as the district court below, repeatedly assert that “prompt disposition” of criminal cases means that the trial must begin within sixty days after indictment.
      There is no such provision in the Southern District’s “Plan For Achieving Prompt Disposition Of Criminal Cases”.
      The district court below referred to the Report of the Proceedings of the Judicial Conference of the United States, Washington, D. C., October 28-29, 1971. The Judicial Conference on October 29, 1971 adopted the report of its Committee On Court Administration (pp. 70-74), including the following: “ ‘Prompt Disposition’ means ordinarily not more than sixty days total elapsed time from date of filing to date of trial, ...” Id. at 74. Whatever the merits of this recommendation of the Judicial Conference, the fact remains that it has never been implemented by the District Court for the Southern District of New York by rule or otherwise — as likewise certain other recommendations of the same session of the Judicial Conference have never been implemented by the Southern District. See United States v. Griesa, 481 F.2d 276, 279 n. 1 (2 Cir. 1973) (Timbers, J., concurring-dissenting).
      Moreover, despite the foregoing, the government did inform the district court in the instant case that it would be ready for trial within less than sixty days from the date of the indictment.

      . Paragraph 9(a) of the Southern District Plan provides as follows :
      “9. Responsibility of United States Attorney and Defense Counsel.

      (a) The court has sole responsibility for setting and calling cases for trial. Neither a conflict in schedules of Assistant United States Attorneys nor a conflict in schedules of defense counsel will be ground for a continuance or delayed setting except under unusual circumstances approved by the court and called to the court’s attention at the earliest practicable time. Each judge will schedule criminal trials at such times as may be necessary to assure prompt disposition of criminal cases. The United States Attorney will familiarize himself with scheduling procedures of each judge and will assign or reassign cases in such manner that the government will be able to announce ready for trial.”
      Paragraph 9(a) had no counterpart in the Second Circuit Prompt Disposition Rules, supra note 1. This provision first appeared in the district court plans which became effective April 1, 1973.

      . Our dissenting colleague refers to this as a , “test” case. We regard it as a test of just one thing: the district court’s exercise of discretion.