author: JAMES HUNTER, III, Circuit Judge. SEITZ, Chief Judge

text:
    UNITED STATES of America v. Donald Thomas MARGRAF, Appellant.
    No. 72-1331.
    United States Court of Appeals, Third Circuit.
    Argued Oct. 5, 1972.
    Submitted for Reconsideration En. Banc Jan. 3, 1973.
    Decided June 20, 1973.
    Judgment Vacated Dec. 17, 1973.
    See 94 S.Ct. 833.

      Bernard L. Segal, Brian E. Appel, Segal, Appel & Natali, Philadelphia, Pa., for appellant.
    Carl J. Melone, U. S. Atty., Philadelphia, Pa., John T. Thorn, Asst. U. S. Atty., Philadelphia, Pa., for appellee.
    Argued Oct. 5,1972.]
    Before SEITZ, Chief Judge, FOR-MAN and HUNTER, Circuit Judges.
    Submitted for Reconsideration En Banc Jan. 3, 1973.
    Present SEITZ, Chief Judge, and FORMAN, VAN DUSEN, ALDISERT, ADAMS, GIBBONS, ROSENN and HUNTER, Circuit Judges.
   OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge.

Appellant Donald Thomas Margraf appeals his conviction for attempting to carry a “concealed deadly or dangerous weapon” aboard a commercial aircraft in violation of 49 U.S.C. § 1472 (l) (1971). After waiving trial before the district court, he was tried before a magistrate pursuant to 18 U.S.C. § 3401 (1971), found guilty, and fined $100. He appealed his conviction to the district court pursuant to 18 U.S.C. § 3402 (1971), which affirmed, 347 F.Supp. 230. This court’s jurisdiction is predicated upon 28 U.S.C. § 1291.

Appellant was arrested at Philadelphia International Airport while attempting to board a flight to San Francisco, California. Airline employees had notified the Customs Security Officer at the boarding gate that appellant conformed to the “Hijacker Profile.” Consequently, as appellant passed through the magnetometer, a metal detection device placed at the gate, his reading on the meter was checked. Because it indicated the possible presence of a weapon on appellant, he was asked to step through the magnetometer again. A second positive reading resulted. The officer then detained appellant. The officer testified that he asked appellant if he were carrying “a knife, a weapon, or any other large metallic object.” After appellant responded negatively to the officer’s inquiry, he was searched and a folding poeketknife seven and one-half inches in overall length with a three and one-quarter inch blade was discovered in his right front pocket.

The magistrate held that appellant had violated 49 U.S.C. § 1472(Z):

[W]hoever, while aboard an aircraft being operated by an air carier in air transportation, has on or about his person a concealed deadly or dangerous weapon, or whoever attempts to board such an aircraft while having on or about his person a concealed deadly or dangerous weapon, shall be fined not more than $1,000 or imprisoned not more than one year, or both-.

Appellant challenges this conviction on two grounds. He claims that it is necessary for the government to prove a specific intent to carry a “concealed deadly or dangerous weapon” onto a plane in order for a defendant to be convicted. In other words, it is not sufficient for the government to show that a defendant was boarding a plane with a concealed deadly weapon on his person; it must go further and show that the defendant was aware that his weapon was dangerous, and knowing this, still intended to carry the weapon aboard. Appellant’s second contention is that the poeketknife he was carrying could not be considered a “deadly or dangerous weapon.”

SPECIFIC INTENT

Congress added paragraphs (i) through (m) to § 1472 in 1961 in an attempt to combat airplane hijacking.

“The primary purpose of this legislation is to amend the Federal Aviation Act of 1958 so as to extend Federal criminal laws to certain acts committed on board aircraft — in particular, such acts as aircraft ‘hijacking’, murder, manslaughter, assault, maiming, carrying concealed deadly or dangerous weapons, and stealing personal property. .
“Recent events have demonstrated the urgent need for stronger Federal laws applicable to criminal acts committed aboard commercial and private aircraft.
“The provisions of this legislation, it will be noted, are based on the use of criminal sanctions as a deterrent to the commission of criminal acts.
“Broad, stringent legislation such as is proposed here, cannot, of course, prevent piracy of aircraft, but it is to be hoped that the enactment of laws providing stiff penalties for various crimes in air commerce will deter all except the hopelessly unbalanced from risking life and liberty in such undertakings.” H.R.Rep.No.958, 87th Cong., 1st Sess. (1961), 1961 U.S., U.S.Code Cong. & Admin.News 2563.

Although as written § 1472(Z) does not contain a specific intent requirement, appellant would have us read one into the statute. This we decline to do.

In Holdridge v. United States, 282 F. 2d 302, 310 (8th Cir. 1960), Justice (then Circuit Judge) Blackmun listed the factors to consider in whether a statute could be construed as not requiring a specific intent:

“ . . . where a federal criminal statute omits mention of intent and where it seems to involve what is basically a matter of policy, where the standard imposed is, under the circumstances, reasonable and adherence thereto properly expected of a person, where the penalty is relatively small, where conviction does not gravely besmirch, where the statutory crime is not one taken over from the common law, and where congressional purpose is supporting.”

The presence of these factors here plus the strong contrast between paragraph (Í) and 49 U.S.C. § 1472 (m) compel us to hold that paragraph (Z) does not contain a specific intent requirement. Paragraph (m) was passed by Congress at the same time as paragraph (Z). The fact that paragraph (m) contains an express intent requirement is particularly convincing evidence that Congress did not intend such a requirement for paragraph (Z). That the maximum penalties for violating paragraph (Z) are much less than those for violating paragraphs (i) and (j) is also an indication that no specific intent is necessary for a violation of paragraph (Z)

A person who boards a plane with a concealed deadly weapon need not intend to use it to be a hazard. The mere presence of a weapon on board a plane creates a hazard because it may be seized and used by a potential hijacker.

In view of the seriousness of the hijacking problem — both at the time of enactment and at the present — it is reasonable to conclude that Congress meant paragraph (£) not to have a specific intent requirement. To include a specific intent requirement would be judicial legislation, and such inclusion could seriously hinder attempts at enforcing this statute.

The dissent contends that this case is governed by United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971). In particular, it finds Justice Brennan’s concurrence in that case persuasive. Freed does not control this case. For each particular statute which we consider, we have to make a determination as to what Congress intended. As Justice Brennan pointed out, in Freed the court was considering amendments to a pre-existing statute. Cases decided under the pre-existing statute had held that a specific intent requirement was necessary to convict. The Court decided that Congress approved these cases in amending the statute. We have no similar case history before us here. Nor do we have any other indication that specific intent is necessary.

“DEADLY OR DANGEROUS WEAPON”

If, therefore, the pocketknife in this case can be described as a “concealed deadly or dangerous weapon,” it will be necessary to uphold appellant’s conviction.

The House Report accompanying paragraph (£) stated:

“Consideration was given to attempting to define the term ‘deadly or dangerous weapon’. However, this is not practicable. These terms have been used without definition in other provisions of Title 18, United States Code, and in many State Criminal laws.

The courts will determine in each case, as it arises, whether the weapon in question was deadly or dangerous.” H.R.Rep. No. 958, 87th Cong., 1st Sess. (1961), 1961 U.S.Code Cong, and Admin.News 2563, 2570.

This case-by-case determination in turn depends on the entire context of the situation being considered.

“[W]hat in one context might not be a dangerous weapon in a- different context would be a dangerous weapon, giving consideration to the language and purpose of the specific statute involved, the nature, use or anticipated use of the ‘weapon’ involved and the consequences logically flowing from its use. See United States v. Barber, D.C.Del.1969, 297 F.Supp. 917, 922, 923, and cases cited therein; Baker v. United States, 5 Cir. 1969, 412 F.2d 1069; United States v. Brown, 9 Cir. 1969, 413 F.2d 878”. United States v. Ware, 315 F.Supp. 1333 (W.D.Okla. 1970).

Appellant contends that since his knife was found in a logical place, his pocket, and since there was no indication that he intended to use the knife in a threatening way, the finding of the magistrate that this was a deadly weapon cannot be upheld.

. [3] There are several factors present here which in view of the congressional intention to prevent potential weapons from being carried aboard planes lead us to uphold the determinations of the magistrate and of the district court that the knife in question was a “concealed deadly or dangerous weapon.”

First, the knife (open) was seven and one-half inches long, including blade and handle and its blade was three and one-quarter inches long. It was certainly capable of being used as a weapon. Second, in a boarding' situation it must be emphasized that administrative agents and courts have to act prospectively. They do not have the advantage of hindsight to see if a person with a knife used it in any threatening manner. Nor can one reasonably expect a hijacker to announce his plan so early. To adhere to appellant’s argument would give many prospective hijackers a free try at evading airport security measures. The dissent’s solution — to rewrite the statute to allow weapon carriers to go free but to permit the seizure of the weapons— would provide no deterrent to any prospective hijacker.

“The term ‘dangerous weapon’ includes all articles enumerated in section 14(a) of the Act of July 8, 1932 (47 Stat. 654, as amended: D.C.Code 22-3214(a) and also any device designed to expel or hurl a projectile capable of causing injury to persons or property, daggers, dirks, stillettoes, and knives having blades over three inches in length.” (Emphasis added). 40 U.S. C. § 193m (a) (3).

Third, there were signs at the airport warning people that to board a plane with a deadly weapon.is a crime. And fourth, when appellant’s knife triggered the magnetometer, he was asked by the officer present if he was carrying any knife, weapon, or other large metallic object, to which he responded “no.” While appellant may have considered his knife a tool and not a knife or deadly weapon, he still should have been aware that it could be used as a deadly weapon and that others could have classified it as a deadly weapon.

We do not intend, as the dissent would indicate to do, that the above statement will be used as a test of culpability. We are concerned about a situation in which a person carrying what anyone in the country would classify as a knife responds “no” to a question in which he was asked if he were carrying a knife.

Appellant’s answer was a circumstance which the fact finder could consider in determining whether the pocketknife was a deadly or dangerous weapon in this case. He did not have to credit the appellant’s contention that his knife was not a knife but a tool. This case involves more than a simple “walk-on” attempt that was stopped at the magnetometer. If the appellant had attempted to stab someone with the knife, there would have been no problem in consider-' ing it a deadly or dangerous weapon. But it is entirely unrealistic to think that any hijacker would commit himself this early or in this overt a fashion.

It is more difficult to determine prospectively whether a deadly or dangerous weapon is involved than it is to make that determination retrospectively. In contrasting the penalties in paragraphs (j) and (i), Congress provided for these difficulties. We would not think that knitting needles, etc., would normally be classified as deadly or dangerous, but there certainly could be situations in which they would be so classified.

Appellant also conjures up the specter of troops of boy scouts being hauled to jail as a result of this decision. We do not think that this will occur. As in the sentencing in this case, courts will have to balance the potential harm to innocent passengers with what could be an unknowing act by a defendant. This is precisely the kind of judicial determination that Congress envisioned in passing § 1472(1).

“ . . . Obviously, in order to jeopardize the lives and safety of the smallest number of people, the hijacker must be discovered when he is least dangerous to others and when he least expects confrontation with the police. In practical terms, this means while he is still on the ground and before ho has taken any overt action.
“Clearly, this would not be an easy objective to accomplish under the best of conditions. But amidst the rush and the congestion of many airports, this task is vastly complicated. Airport security officials have the awesome responsibility of ferreting out hijacking threats from among thousands of passengers while at the same time avoiding any undue disruption to this nation’s heavy flow of commercial air traffic. . ” United States v. Moreno, 475 F.2d 44, 49 (5th Cir., 1973).

The dissent also argues that if a specific intent requirement is not read into paragraph (Í), it is unconstitutional because it is overbroad or because it permits too much discretion in law enforcement officers. This contention was argued by the appellant before the magistrate, but not before the district court nor before us on appeal. We therefore do not find it necessary to decide it.

The judgment of the district court will be affirmed.

SEITZ, Chief Judge

(dissenting).

After an examination of the statute and recent Supreme Court precedent, I am forced to conclude that the majority is in error. I believe that in order to prove its case under the statute, the Government at the minimum must prove three elements: (1) that defendant was carrying a “concealed deadly or dangerous weapon”; (2) that defendant knew what he was carrying was a “concealed deadly or dangerous weapon”; and (3) that defendant attempted to board, or did board, a commercial aircraft carrying that “concealed deadly or dangerous weapon.” Even assuming ar-guendo the Magistrate’s findings on Points (1) and (3) can be sustained, there is no basis on which Point (2) can even be arguably sustained. Not only did the Government adduce no evidence on point, but the Magistrate, like the majority, concluded that no intent or knowledge of any kind need be proven. In this, I think, lies their error. I believe the majority’s construction of the statute and the resultant validation of defendant’s conviction not only fails to comport with standards mandated by both this court and the Supreme Court, but in so doing, denies the defendant the due process of law guaranteed him under the Fifth Amendment.

However, it is imperative to emphasize at the outset what is not the result of my conclusion. The effect of my position is not to deny law enforcement officials all opportunity to search individuals boarding planes; neither is it to stop them from seizing certain objects which they might consider potentially dangerous if carried aboard the plane. The thrust of my position is that without adequate warning, which is not shown here, criminal liability cannot at--tach.

I. THE REQUIREMENT OF KNOWING POSSESSION OF A “DEADLY OR DANGEROUS WEAPON.”

In 1961, Congress added §§ (i)-(n) to § 1472 by an act known as the Anti-Hijacking Statute. 49 U.S.C. §§ 1472(i)-(n) (1971). Subsections (i)-(m) added substantive offenses; § (n) merely authorized the Federal Bureau of Investigation to investigate criminal conduct within the scope of the section. Of the offenses added, § (m) has an express intent requirement, while §§ (i)-(k) subsume an intent requirement by making criminal certain overt acts. Only § (Z), with which we are here concerned, is indefinite both on its face and by its terms as to whether it incorporates any intent requirement.

Subsection (Z), in proscribing any “concealed deadly or dangerous weapon” aboard commercial aircraft, is among those statutes which the Supreme Court has classified as regulatory. Two recent Supreme Court cases give definition to the Government’s burden of proof under such statutes.

The first of these cases was United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971). There, the defendants had been charged with possession of unregistered firearms by reason of their possession of unregistered hand grenades, in violation of 26 U.S.C. § 5812 et seq. (1971). As with 49 U.S. C. § 1472(Z), the statute contains no express intent requirement on its face nor implies such a requirement by its terms. However, unlike § 1472(Z), definition has been given as to what constitutes a “firearm” within the proscription of the statute; a hand grenade is expressly defined as a “firearm.” 26 U.S.C. §§ 5845(a) and (f) (1972). In discussing the majority opinion, the concurring opinion stated:

To convict appellees of possession of unregistered hand grenades, the Government must prove three material elements: (1) that appellees possessed certain items; (2) that the items possessed were hand grenades; and (3) that the hand grenades were not registered. The Government and the Court agree that the prosecutor must prove knowing possession of the item and also knowledge that the items possessed were hand grenades.

401 U.S. at 612, 91 S.Ct. at 1119.

The second case relevant to our discussion followed the Freed decision and shows that in fact the concurring opinion in its discussion of the requirements under the statute as to “knowing possession” — from which intent may be legally inferred — accurately reflected the views of the Freed majority. United States v. International Minerals & Chemical Corp., 402 U.S. 558, 91 S.Ct. 1697, 29 L. Ed.2d 178 (1971). In this case, the statute contained a provision requiring a “knowing” violation. However, the Court found no difficulty in equating the Government’s burden of proof therein with that discussed by the concurring opinion in Freed even though the statute in the latter case did not contain such a requirement. The Court stated:

Here, as in United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed. 2d 356 (1971), which dealt with the possession of hand grenades, strict or absolute liability is not imposed; knowledge of the shipment of dangerous materials is required.

402 U.S. at 560, 91 S.Ct. at 1698.

Yet even in the case of the Supreme Court’s mandate, and even in the face of the similarity of § 1472(Z) to the statute in Freed as to the lack of an express or implied intent requirement, the majority contends that implying just such a requirement in § 1472(Z) would be judicial legislation. In fact, in so holding, what they have imposed is an absolute liability which the Supreme Court has said was not imposed under the similar statute involved in Freed. I believe this to be the majority’s first error of law. In my opinion it is incumbent upon the Government to prove that defendant knowingly possessed what he knew to be a “concealed deadly or dangerous weapon.”

II. THE PER SE STANDARD.

Generally in statutes proscribing the carrying of a “deadly-” or “dangerous weapon,” a presumption of intent attaches under the statute merely by the fact of possession of certain specified objects. Some of these proscriptions have been aimed against particular types of knives. Pennsylvania, the state of defendant’s attempted departure, proscribes by statute any dirk, any dagger, and any automatic or spring operated knife. Pa.Stat.Annot., title 18, § 4416 (Purdon Supp.1972). A Philadelphia ordinance has added a proscription against knives with blades longer than four inches (defendant’s manual folding pocketknife had a blade of three and one-quarter inches). California, the defendant’s destination, proscribes any dirk, any dagger, any automatic or spring operated knife, and any knife with a blade longer than five inches. Cal.Penal Code § 3024(f). Thus, defendant’s knife was not proscribed by law either in the state of departure or at his destination.

Where weapons are specifically proscribed under a “deadly-” or “dangerous weapon” statute, they are considered deadly or dangerous per se — e.g., as a matter of law. In such instances, the mere possession — or the mere possession concealed or unregistered, depending upon the statute — is sufficient to infer the requisite intent or knowledge.

Again, the opinion and statute in Freed are illustrative. There, a hand grenade was expressly defined as a firearm within the proscription of the statute. Therefore, in order for the Government to show the defendants knowingly possessed a proscribed “firearm,” it would have to introduce evidence showing the defendants knew the objects they possessed in fact were hand grenades. Once this offer of proof had been made, the Government could rely upon the statutory definition of a hand grenade as a “firearm” in drawing a legal inference as to the knowing possession of a “firearm.” This proof of “knowing” possession was deemed to be required for conviction despite the absence of such a requirement on the face of the statute. Thus, the Supreme Court could say that strict liability was not imposed under the statute.*

Even a casual perusal of § 1472(Í) reveals that the Government did not have the same degree of specificity favoring it here as it did in Freed. Because of the broad language of the statute and the intricacies of the competing state and federal jurisdictions in an airport, I will assume that the statute was intended to incorporate any applicable state statute or city ordinance of the place where the airport is situated. Thus, except for those items specifically proscribed by Philadelphia and Pennsylvania, there is no “knowledge” presumption attaching to the possession and concealment of any object from which to infer legal intent under the federal statute merely by the fact of such possession and concealment. Within these parameters, defendant’s pocketknife was not proscribed per se under any applicable state or federal statute.

Because defendant’s knife was not proscribed per se under any applicable law, the Government’s burden under Freed becomes extremely difficult to sustain. As there are no specific statutory proscriptions, the Government cannot merely prove the defendant carried a specifically proscribed object which he knew to be that object. Instead, the Government must prove the defendant knew the knife he carried was a deadly or dangerous weapon. Complicating the Government’s task in this regard is the fact that a pocketknife, unlike a gun, has been recognized not to be an intrinsically deadly or dangerous weapon in .the absence of a specific statutory proscription. Fall v. Esso Standard Oil Corp., 297 F.2d 411 (5th Cir. 1961), cert. denied, 371 U.S. 814, 83 S.Ct. 24, 9 L.Ed.2d 55 (1962).

Since the defendant cannot be imputed with knowledge that he was carrying a “concealed deadly or dangerous weapon” merely because he was carrying a pocketknife, the Government, in the absence-of a statutory definition, must prove by other elements that the defendant knew he was carrying a “concealed deadly or dangerous weapon” when he attempted to board his flight.

III. THE SURROUNDING CIRCUMSTANCES TEST.

Where the Government cannot prove its case merely by relying upon a specific statutory proscription, subjective intent to do the proscribed act may be inferred from an examination of the surrounding circumstances. The Government introduced no evidence on this point nor even apparently assumed such evidence was necessary. Rather, the only evidence introduced by the Government was the pocketknife itself and the testimony of the agent who seized it. The agent testified he stopped defendant and asked him if “he had in his possession a knife, weapon, or other large metallic object.” Even the disjunctive phrasing of the question fails to equate a knife with a weapon. The agent also testified that defendant had been singled out by airline employees as fitting certain characteristics of the Hijacker Profile. Against this, defendant testified he was in a musical group and he both considered and used his knife as a tool in working with band equipment. The Government offered no rebuttal.

On this record, the Magistrate first examined other cases. He found that rakes, wine bottles, chair legs, and shoes had been held to be dangerous weapons because of the manner in which they were used. Because of this, he held that a pocketknife was within the “realm of a weapon.” Next, he concluded the statute was within the “peculiar legislative area of crime known as mala prohibita.” Based on these findings, he concluded this knife was within the ambit of the statute and defendant could be convicted under its provisions whether or not he had any intent.

Thus, although the Magistrate possibly could have considered defendant’s denial of his pocketknife probative, the record shows he did not. Rather, he considered no evidence other than the uncontested fact of defendant’s possession of the pocketknife concealed in his front pants pocket while attempting to board a commercial airplane. He then concluded, as does the majority here, that no intent is required under the statute for conviction. However, in reaching his conclusion that this object, not intrinsically deadly or dangerous, could be considered deadly or dangerous for purposes of this subsection, the Magistrate relied upon cases where the objects were classified deadly or dangerous only because of the manner in which they had actually been used.

The majority’s failure to comprehend the Government’s burden of proof under Freed is manifested by the statement in the majority opinion that “[w]hile appellant may have considered his knife a tool and' not a deadly weapon, he still should have been aware that it could be used as a deadly weapon and that others could have classified it as a deadly weapon.” However, it is not whether other people might consider it to be, or could use it as, a deadly weapon; under Freed, the Government must prove the defendant knew it to be a deadly weapon. This burden becomes even heavier if carrying a pocketknife otherwise complying with all applicable laws is considered innocent conduct. Not only would the Government have to prove defendant’s knowledge of the nature of the object he carried, it would have to prove his knowledge of the law he was allegedly violating. Cf. Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957). In misapprehending the burden of proof thrust upon the Government, I believe the majority has made its second error of law.

IV. THE CONGRESSIONAL HISTORY

The majority predicates its conclusion that no intent or knowledge is required under § 1472(1) upon its reading of the congressional history. However, in so doing, it fails to distinguish between the differing burdens of proof thrust upon the prosecution under two separate types of “deadly-” or “dangerous weapon” statute’s. These two types of statutes are: (1) the type which punishes any attack or attempted attack with a “deadly or dangerous weapon” — a “hindsight” statute; and (2) the type which proscribes the carrying of “deadly or dangerous weapons” — a “proscriptive” statute.

The legislative history which the majority quotes actually pertains to 49 U. S.C. § 1472(j), added along with § (Í) by the Anti-Hijacking Statute. Subsection (j) states:

Whoever, while aboard an aircraft in flight in air commerce, assaults, intimidates, or threatens any flight crew member or flight attendant (including any steward or stewardess) of such aircraft, so as to interfere with the performance by such member or attendant of his duties or shall lessen the ability of such member or attend-» ant to perform his duties, shall be fined not more than $10,000 or imprisoned not more than twenty years, or both. Whoever in the commission of any such act uses a deadly of dangerous weapon shall be imprisoned for any term of years or for life.

This statute is a “hindsight” type statute. In speaking to this subsection, the House Report stated:

Consideration was given to attempting to define the term “deadly or dangerous weapon.” However, this is not practicable. These terms have been used without definition in other provisions of title 18, United States Code, and in many state criminal statutes. The courts will determine, as it arises, whether the weapon in question was deadly or dangerous.

H.R.Rep. No. 958, 87th Cong., 1st Sess. (1961), reported in U.S.Code Cong. & Admin.News 2563, 2570 (1961). It is this legislative history on which the majority relies.

Under § (j), the court is dealing with a defendant who has made or attempted an attack upon members of an aircraft’s crew. In such situations, the Government can bear the burden of proof as to whether an object was a “deadly or dangerous weapon,” and defendant’s knowledge of its character, merely by showing the manner in which it was used. Thus, the court in making its findings will always have the benefit of hindsight. Armed with this hindsight, courts have held many objects not intrinsically dangerous nor statutorily proscribed to be “deadly or dangerous weapons” because of the manner in which they were used, including shoes. See, e. g., United States v. Barber, 297 F.Supp. 917 (D. Del.1969), aff’d on point, 442 F.2d 517 (3d Cir. 1971). Consequently, the failure to statutorily define a “deadly or dangerous weapon” in a “hindsight” type statute presents no difficulty for the court in seeking either a definable intent or an ascertainable statutory standard. Necessarily, an ascertainable statutory standard as to what Congress intended to proscribe is present because Congress intended the harsher criminal penalty to attach to the use of any object in a “deadly or dangerous” manner. Coupled with a manifested intent inferred from use, courts merely perform an interpretative function.

In dealing with § (Z), the congressional history states:

For the reasons stated in the discussion of subsection (j), it has not been considered feasible or necessary to define the term “deadly or dangerous weapon” as used in this subsection.

H.R.Rep. No. 958, 87th Cong., 1st Sess. (1961), reported in U.S.Code Cong. & Admin.News at 2575. However, unlike § (j). § (Z) is a “proscriptive” type statute. Consequently, the legislative failure to define “deadly or dangerous weapon” for purposes of § (Z) poses major difficulties not encountered in the lack of definition of the same term under § (j).

I submit the majority have failed to comprehend the differing characteristics of the offenses proscribed under the two separate subsections. Unlike a prosecution under § (j), the court in a § (Z) prosecution generally will not have the benefit of hindsight. Rather, it will be confronted with the very type of situation which we have here. Defendant manifested no intention to use his knife, nor could the majority even find that he had knowledge that it was a “deadly or dangerous weapon.” Had the defendant manifested an intention to use this knife so that it became clear he in fact considered it a “deadly or dangerous weapon,” the prosecution would likely have occurred under a “hindsight” provision, such as § (j), rather than under the proscriptive provisions of § (Z). Therefore, a court’s determination under § (Z) will almost always be in a vacuum because of the lack of either a manifested intent or an ascertainable statutory standard.

Although there are federal and state statutes which have not specific prohibitions, they resemble the “hindsight” language of § (j) rather than the “proscriptive” language of § (Z). As was noted earlier, those federal and state statutes which in fact are like § (Z) — such as the unregistered firearm statute in Freed — do have express proscriptions and thereby create a presumption and ascertainable standard for the benefit of the prosecutor, the courts, and the defendant and his constitutional right to due process.

There is one federal statute highly similar to § (Z); this is the maritime equivalent of § (Z), governing the carrying of weapons aboard ships under the American flag. The relevant portion of the statute states:

Whoever brings, carries, or possesses any dangerous weapon, instrument, or device, or any dynamite, nitroglycerin, or other explosive article or compound on board of any vessel ....

18 U.S.C. § 2277(a) (1971). By contrast, the relevant portion of § (l) states:

[Wjhoever while aboard an aircraft being operated by an air carrier in air transportation, has on or about his person a concealed deadly or dangerous weapon, or whoever attempts to board such an aircraft having on or about his person a concealed deadly or dangerous weapon. .

49 U.S.C. § 1472(0 (1971).

Unlike § (i), which proscribes only concealed deadly or dangerous weapons, § 2277(a) proscribes all weapons aboard ships. As with § (0, however, other than for the enumeration of the various explosive materials proscribed, there is no explication of what constitutes a “deadly or dangerous weapon” for purposes of the statute. Apparently the Government has recognized the difficulties in enforcing this statute, or has brought its prosecution under another section once the allegedly deadly weapon has been used. Since the passage of this section in 1948, only one reported decision has arisen under its provisions, and that involved a civil action. Fall v. Esso Standard Oil Corp., 297 F.2d 411 (5th Cir. 1961), cert. denied, 371 U.S. 814, 83 S.Ct. 24, 9 L.Ed.2d 55 (1962).

Leaving the determination to the discretion of the judiciary in no way mitigates the lack of such a statutory standard in a “proscriptive” type statute. Merely because in an instance of actual use, a shoe has been held to be a “deadly or dangerous weapon” should not mean that every passenger with a pair of shoes in a carry-on overnight bag should be subjected to criminal liability. Yet, under the majority’s standard of whether someone could consider or use those shoes as a “deadly or dangerous weapon” — as in fact someone has — the passenger could be subjected to arrest and conviction for violation of this subsection.

Such a delegation to the courts imper-missibly thrusts them into a legislative role each time a prosecution is brought under this subsection. Since the majority claim no intent is required under the statute, the court is forced to make a legislative type inquiry into whether the object defendant is charged with carrying should be considered a “deadly or dangerous weapon” if carried aboard a plane. If it so finds, then it must make a legislative decision that such an object should be absolutely proscribed aboard aircraft. Once having done so, it must change its legislative pen for judicial garb and convict the defendant for violating the absolute proscription which it has just legislated. The very elucidation of such a proposition reveals its error.

Further, even if the Government can move the court to declare a particular object a “deadly or dangerous weapon” in an individual prosecution, the Government must then prove under Freed that the defendant knew the object to be a “deadly or dangerous weapon” in those circumstances. Absent some threatening manifestation by the defendant, I believe such burden to be practically impossible for the Government to carry. The instant case illustrates the problem fully: the majority, unable to find the requisite knowledge proven as to defendant, upholds his conviction on the ground he should have been aware other people could have considered or used his pocketknife as a deadly or dangerous weapon if carried aboard a plane. That the majority has in fact legislated an absolute proscription against pocketknives on which it has then proceeded to convict defendant is manifestly apparent.

Rather than emasculating § (i), as the majority implicitly contends my conclusion would do, it is Congress which has failed to draft an enforceable “proscriptive” type statute in the first instance. In attempting to salvage this unuseable provision with a broad legislative brush, I believe the majority has committed its third error of law.

V. THE FAILURE TO COMPLY WITH DUE PROCESS STANDARDS.

In ignoring the mandate of the Supreme Court in Freed, and possibly that contained in Lambert, the majority has turned § 1472 (i) into a statute which cannot withstand constitutional scrutiny. Basically, they have rescinded the presumption of innocence and replaced it with a presumption of guilt. This is highlighted by the majority’s statement: “As in the sentencing in this case, courts will have to balance the potentiál harm to innocent passengers with what could be an unknowing act by defendant.” [Emphasis supplied.] I submit that this is repugnant to fundamental constitutional precepts.

Under the majority’s standard, no intent or knowledge of any kind is required for conviction. If the judge be convinced that the item defendant carried could be used as, or even considered by, someone on the plane — not necessarily the person carrying the item — a deadly or dangerous weapon, he could be convicted under this statute. In this case, the majority says it is irrelevant whether the defendant considered his knife a tool since someone else could have considered it a weapon. Thus, under this test of culpability, attempting to board a plane with an item which has been found by any court at any time, regardless of circumstances, to be a deadly or dangerous weapon would be a criminal offense. Too, even though no court had previously considered the object a deadly or dangerous weapon, if the judge found the object could be so used aboard a plane, then he would have to convict whether or not defendant’s conduct was otherwise innocent. Thus, one could be arrested for attempting to carry a concealed pair of shoes, which have been judicially determined to be deadly or dangerous weapons, aboard a plane, or for carrying a concealed set of knitting needles, as inherently dangerous as any knife even though they have never to date been so classified by a court. Making such innocent conduct a criminal offense violates due process per se. Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957).

Since the purported purpose of § (i) is to keep all weapons off planes, anyone carrying anything which could conceivably be a weapon aboard a plane would have to be not only arrested but also convicted. Only in sentencing could the court take into account the unknowing nature or innocence of the defendant’s act. The majority’s conclusion that an inventory of proscribed items would be impracticable is true. The list would be endless and all-inclusive. The potential for abusive and discriminatory application is manifest.

Vesting such discretion in the hands of law enforcement officers, and in the courts, has been held violative of due process too many times to recount. The most recent pronouncement on this issue by the Supreme Court was in Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). Although that case involved a First Amendment problem, the majority of the Supreme Court made clear that certain standards applied in testing all laws under the “vagueness” standard. The Court stated:

Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, • laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory enforcement.

Id. at 108-109, 92 S.Ct. at 2298-2299 (footnotes omitted).

Relying upon these principles, our own circuit and the District of Columbia Circuit have recently determined a statute which possessed the same potential for arbitrary enforcement and harassment to be unconstitutionally vague. It is to be noted that First Amendment freedoms were not directly involved in either. The statutes there struck down vested in military authorities and its judicial tribunals the unbridled authority to determine what actions were to the detriment of the discipline and good order of the military. Additionally, the decision in this circuit struck down on similar grounds the statute allowing punishment of conduct unbecoming an officer.

I find the same problems here. The court has the power in each individual instance to determine whether it will hold the object to be a “deadly or dangerous weapon.” Thus, one could be punished for carrying, without any manifested intent to use, any object conceivably capable of use in the proscribed manner. Because most anything could become a deadly or dangerous weapon if so wielded, and because Congress has given no standards by which such determinations are to be made in the absence of any manifested use, a reasonable man reading this statute would not be adequately forewarned of what is considered criminal conduct under its provisions.

The majority, in their opinion, state that requiring a specification of those objects to be proscribed per se aboard planes would unreasonably restrain agents at the gate in their efforts to prevent hijackings. However, in so saying, they have confused the distinction between delegating to agents at the gate the power to search individuals and to remove objects which might be considered potentially dangerous if carried aboard an aircraft, and allowing the agents to make arrests based upon those seizures. I reemphasize that my opinion does not go to the first power; it only goes to the legitimacy of the exercise of the second power — the power to arrest.

By their holding, the majority have placed a judicial imprimatur upon discretionary. and discriminatory enforcement of this subsection by those agents, both in this case and for future cases. The majority’s implicit answer — that the courts can weigh the relative innocence or lack of knowledge of the individual at sentencing rather than at the initial determination of guilt — is no solace to an innocent individual who is branded a criminal. Such action is repulsive to establish concepts of due process.

The potential for abuse under the majority’s holding is nowhere better highlighted than by an examination of the facts shown on the record in the instant case. After defendant was detained pursuant to his registering a positive reading on the magnetometer, and after the defendant had responded negatively to the officer’s inquiry as to what he was carrying, the officer immediately conducted a search of defendant’s shoulder bag. In it, he found approximately $12,000 cash. The officer then misrepresented to defendant that it was illegal to carry more than $5,000 across state lines without first notifying the Internal Revenue Service. Whether this served as the pretext for defendant’s detention, or whether the agent completed his search then or at some later point in an attempt to justify the detention, is unclear from the record. Suffice it to say that at some point, the defendant’s person was searched, and the knife — on which the present conviction is based— was found. There was an innuendo at trial that the agent suspected the money to be the fruits of a bank robbery or other such illegal act and called in the Federal Bureau of Investigation.

It is important to note what is not presented here. Defendant neither consented to the search of his shoulder bag nor of his person. He was not asked to identify himself at the gate, and when finally asked after being taken into custody, he responded truthfully and provided corroborative identification. Thus, probable cause was neither established by an evasive response to a request for identification nor negatived by consent. Nor, lacking consent, did the agent make any attempt to minimize the Fourth Amendment intrusion. Recommended procedures specify that consent to search the person be first requested and, if given, the search be conducted. Should that prove unproductive, consent to search the person’s hand luggage should be requested. The agent here did not even make a feint at complying with these procedures. Compare with United States v. Slocum, 464 F.2d 1180 (3d Cir. 1972).

Further evidence of such discriminatory enforcement is revealed in recent figures published by the Federal Aviation Agency. In January, 1973, 149 guns, 365 knives, and 131 other weapons were seized by enforcement officials at the gate or were found hidden in airports. This adds up to a total of 645 concealed weapons seized. However, for all of these seizures, only 57 arrests were made. The December, 1972 figures illustrate even more graphically the random and selective enforcement of this statute. That month 1,536 weapons were seized, while only 37 arrests were made. Thus, contrary to the Government’s contentions, undefined criteria other than the mere fact of possession are being used to determine who will be arrested for violation of this statute. Such manifested arbitrary enforcement is sufficient to render this statute unconstitutional as currently applied.

These constitutional problems are significantly mitigated by the actual burdens thrust upon the Government under Freed. The majority and the Government contend that the responsible regulatory agency, or Congress, should not be required to make a listing of those items which it might feel to be inherently “deadly or dangerous” if carried aboard an airplane. Failure to do so, in view of Freed, leaves the subsection practically impossible of enforcement and opens its provisions to arbitrary and abusive enforcement. Obviously, other “proscriptive” statutes specify those objects within their respective coverage. Under these statutes, law enforcement officials are impeded in their efforts to enforce criminal proscriptions against other objects outside the express statutory proscription. However, due process requires no less.

This is not to say Congress itself must draw the specifications. A specific legislative function has been delegated to the Civil Aeronautics Board for the administration of air transportation, and it operates as an arm of the legislature. It is up to the CAB, and not the courts, to draft applicable regulations on proscribed weapons; the judiciary should not be forced into improperly assuming such a legislative role. Neither should the individual be forced to risk arrest and conviction for unknowing and unspecified conduct each time he becomes an air passenger. Until such time as such regulations are drafted and promulgated, the Government’s interest is equally served by requiring surrender, without any attendant criminal liability and with proper provisions for return, of those objects which officials feel pose a threat if carried aboard a plane. That, in fact, appears to be the procedure presently utilized except for selective and highly suspect criminal enforcement, such as the instant case.

VI. CONCLUSION.

In short, the majority, at the minimum, have refused to impose the burden of proof upon the Government mandated by the Supreme Court in United States v. Freed and United States v. International Minerals & Chemical Corp. Further, as a consequence of their refusal to require definition of items proscribed, they have left innocent conduct open to criminal prosecution under the terms of §,(0, in violation of the mandate of the Court in Lambert v. California. Finally, because of these failures, the majority has left this statute open to arbitrary and discriminatory application. Consequently, as interpreted by the majority, this subsection is unable to withstand constitutional scrutiny.

While I too feel the pressures which have caused the majority to reach the present conclusions, I cannot countenance this judicial abdication of responsibility under the doctrine of present exigencies. Not only does the majority opinion jeopardize the due process rights of individuals, but it also sanctions the legislative failure to provide a workable statute or regulations by which law enforcement officials can legally protect the air traveling public.

Although law enforcement officials and the courts are legitimately concerned about the current dangers posed by air piracy, the right to travel by air in this country cannot be conditioned upon the total waiver of one’s substantive constitutional rights merely because of the presence or immediacy of such dangers. It is only where the constitutional intrusion is minimal that there can be any weighing of the societal interest in maintaining the safety of the airways against the strong societal interest in preserving constitutional rights inviolate. The waiver of an individual’s Fifth Amendment right to due process of law in exchange for the right to travel in air commerce, here contemplated by the majority opinion, cannot be considered such a minimal intrusion. Particularly in times of stress, constitutional rights must be jealously guarded lest they become mere platitudes to be enforced at the pleasure of a temporary majority.

Therefore, I would reverse the defend^ ant’s conviction.

Judge FORMAN and Judge GIBBONS concur in this opinion.

      . Appellant claims lie was asked only if lie were carrying any large metal objects. Although the magistrate did not make any specific finding on this point, on appeal the evidence and the inferences to be drawn from it must be taken in the light most favorable to the government. E. g., United States v. Goberman, 458 F.2d 226 (3d Cir. 1972). We must, as did the district court, credit the testimony of the officer.

      . 49 U.S.C. § 1472 (i) imposes a minimum sentence of twenty years for air piracy. 49 U.S.C. § 1472(j) permits a maximum sentence of twenty years and a fine of $10,000 for interfering while on board an airplane with a flight crew member. If a deadly or dangerous weapon is used, life imprisonment may be imposed.

      . As the Fifth Circuit recently stated in United States v. Moreno, 475 F.2d 44 at p. 48 (5th Cir., 1973) :
      “ . . . Although the crime of air piracy exceeds all others in terms of the potential for great and immediate harm to others, its undesirable consequences are not limited to that fact. Among other things, it has been used as an avenue of escape for criminals, a means of extorting huge sums of money and as a device for carrying out numerous acts of political violence and terrorism. Perhaps most disturbing of all is the fact that aerial hijacking appears to be escalating in frequency. We’ do not think that it is unrealistic to say that the current situation has approached the crisis stage for law enforcement officials in this country.”

      . As the dissent points out, this statement was made concerning paragraph (j) of the Act. But it was also specifically-made applicable to paragraph (l). H.R. Rep.No.958, 87th Cong., 1st Sess. (1961), 1961 U.S.Code Cong, and Admin.News 2563, 2575.

      . While we do not adopt the following definition, it may be relevant to note how Congress defined the term “dangerous weapon” in prohibiting people from carrying one onto the grounds of the United States Capitol:

      . The Fifth Circuit has recognized these difficulties in a different context:

      . But the language of the Supreme Court in United States v. Petrillo, 332 U.S. 1, 7, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877 (1947), could well be applicable:
      “We think that the language Congress used provides an adequate warning as to what conduct falls under its ban, and marks boundaries sufficiently distinct for judges and juries fairly to administer the law in accordance with the will of Congress. That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense.”
      There are, it seems, two problems raised by the dissent. The first is whether the wording “deadly or dangerous” is over-broad. To this the above language may be applicable. The second is whether given that “deadly or dangerous” is capable of constitutional definition, are law enforcement officials unconstitutionally discriminating in their decisions as to whom to prosecute under the statute.
      Our legal system relies to a large extent on the discretion of law enforcement officers and judges. There has been no allegation of discriminatory enforcement in this case. Nor do the figures cited by the dissent give us a sound basis for finding that to be the practice under this statute.

      . The majority in Freed stated: “This is a regulatory measure in the interest of public safety, which may well be premised on the theory that one would hardly be surprised to learn that possession of hand grenades is not an innocent act.” Id. at 609, 91 S.Ct. at 1116. However, while one might not be surprised to find that carrying a hand grenade is not an innocent act, I think most would be surprised to find out that attempting to board a plane carrying a pocketknife which otherwise complies with all applicable laws is not an innocent act. In this regard, see Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957).

      . The concurring opinion in Freed relied upon two cases for the proposition that Congress implicitly approved an intent requirement in its revisions of the statute there under review. Sipes v. United States, 321 F.2d 174 (8th Cir. 1963) ; United States v. Decker, 292 F.2d 89 (6th Cir. 1961). In both, the Government proved the defendant knowingly possessed an object, that the object was specifically defined under the statute, and that the defendants knew the object to be that specifically defined item. Because of this statutory specificity, the Government was able to rely upon the statutory definition to prove defendants’ knowing possession of a firearm. The majority in Sipes also noted that a sawed-off rifle, the weapon there involved, is useless for any lawful purpose.
      I note that it was only because of this specificity that the majority in each case found it unnecessary to consider the Fifth Amendment due process issue.

      . I make this assumption only for the purposes of this dissent in order to give the Government every benefit that could arguably support its position. I would note that no such intent to incorporate concurrent state provisions appears in the statute or the legislative history. If in fact the Government cannot avail itself of the presumptions under the applicable state law, the problems outlined in this dissent are only further exacerbated.

      . Where a defendant waives his right to trial before the district court and consents to trial before a magistrate under 18 U.S.C. § 3401 (1971), the magistrate is the only fact finder.

      . Tlie disparity in the maximum sentence under § (j) versus that in § (Z), pointed out by the majority, appears to be based on the differences in the nature of the substantive crime proscribed rather than whether or not intent is required. In fact, if the majority’s argument is accepted, because § (m) (1) has the same maximum sentence as § (Z), and also has an express intent requirement, then an intent requirement likewise must be attributed to § (i). •

      . The proscriptive statute governing the carrying of weapons on the Capitol grounds, cited by the majority in its opinion at fn. 5, is a representative illustration of the specificity normally incorporated into federal proscriptive statutes.

      . Similar provisions have been added by regulation proscribing the carrying of explosives aboard aircraft. 14 C.F.R.. § 103.1 et seq. (1972).

      . I note that although the unconstitu-„ tionality of the majority’s result was not raised in this court, it was raised before the Magistrate. However, I believe even so, the constitutional breach here contemplated, which goes to the validity of the subsection, comes within the ambit of clear error under Fed.R.Crim.P. 52(b).

      . United States v. Barber, 297 F.Supp. 917 (D. Del. 1969), aff’d on point, 442 F. 2d 517 (3d Cir. 1971).

      . Avrech v. Secretary of the Navy, 477 F.2d 1237 (D.C.Cir., 1973) ; Levy v. Parker, 478 F.2d 772 (3d Cir., 1973). For a particularly good discussion of the dangers of this type of statute and its foreign nature to our system of constitutional democracy, see Levy v. Parker, supra, at 788-792.

      . To the extent this subsection resultantly makes criminal that which is normally innocent conduct, the previously discussed problems under Lambert are raised.

      . Wall.St.J., p. 5, col. 3 (3/29/73).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    NEW JERSEY WELFARE RIGHTS ORGANIZATION et al. v. William T. CAHILL, in his capacity as Governor and Chief Executive officer of the State of New Jersey, et al. New Jersey Welfare Rights Organization et al., Appellants.
    No. 72-2077.
    United States Court of Appeals, Third Circuit.
    Argued May 17, 1973.
    Decided Aug. 10, 1973.
    As Amended Aug. 28, 1973.

      See also D.C., 349 F.Supp. 491.
    Michael C. Parks, Gerard J. Clark, Newark Essex Joint Law Reform Project, Newark, N. J., for appellants.
    Stephen Skillman, Asst. Atty. Gen., George F. Kugler, Jr., Atty. Gen., Dept, of Law & Public Safety, Trenton, N. J., for appellees.
    Before VAN DUSEN and ROSENN, Circuit Judges.
   OPINION OF THE COURT

PER CURIAM.

This appeal raises the important question whether administrative changes instituted in 1971 by New Jersey in its program of Aid to Families with Dependent Children (AFDC) violated federal statutory requirements. The United States District Court for the District of New Jersey held that the state did not violate Social Security Act § 402(a) (23), 42 U.S.C. § 602(a) (23), when it converted its method of evaluating family needs from a case-by-case cost to a flat grant state-wide average method. We affirm.

In an attempt to reform the state’s welfare system, improve its efficiency and eliminate inequities, New Jersey converted in 1971 to a system which evaluated recipient needs on the basis of a state-wide average of family needs. Basically, what the state did was to compute the average need of a random sample of welfare recipients in the state with use of the data it had compiled in the past on family-by-family needs. The result was a flat grant sum, which varied from family to family with respect only to family size. The inevitable result of such an averaging was that the state’s calculated need for some families decreased, while the calculated need for other families increased. Also as a re-suit of the averaging process, some fam-, ilies with incomes previously eligible for welfare became ineligible, and, conversely, previously ineligible families became eligible. As New Jersey pays eligible recipients 100% of need, the result was also to increase some AFDC families’ welfare payments while decreasing others.

Appellants contend the methods used by New Jersey in calculating the flat grant needs were contrary to the statutory mandate of 42 U.S.C. § 602(a) (23):

[The States shall] provide that by July 1, 1969, the amounts used by the State to determine the needs of individuals will have been adjusted to reflect fully changes in living costs since such amounts were established, and any máximums that the State imposes on the amount of aid paid to families will have been proportionately adjusted.

In an opinion which carefully and extensively examined the legislative history of § 602(a) (23), Justice Harlan, in Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970), found “two broad purposes” in the statute:

First to require States to face up realistically to the magnitude of the public assistance requirement and lay bare the extent to which their programs fall short of fulfilling actual need; second, to prod the States to apportion their payments on a more equitable basis.

397 U.S. at 412-413, 90 S.Ct. at 1218. Consistent with those broad purposes, the Court said, conversion to a flat grant system, such as New Jersey’s, was permissible for purposes of administrative efficiency, if that purpose was not achieved “at the expense of significantly reducing the content of the standard of need.” The Court explicated what it considered a significant reduction in the standard of need by detailing the statute’s requirements when a state consolidates items on the basis of statistical averaging:

Providing all factors in the old equation are accounted for and fairly priced and providing the consolidation on a statistical basis reflects a fair averaging, a State may, of course, consistently with § 402(a) (23) redefine its method for determining need.

397 U.S. at 419, 90 S.Ct. at 1221.

Appellants attack the New Jersey consolidation of needs in two basic respects. They argue that they demonstrated in the district court both (1) that some factors of need accounted for prior to 1971 were left out of the equation in calculating the FAM flat grants; and (2) that the methodology used by the state was not a “fair” averaging based on “fairly priced” data.

With respect to appellants’ first major contention, the district court could find in the great mass of oral and written evidence no indication that in averaging shelter and special circumstance needs, New Jersey left any need factor out of the equation:

Nothing has been left out of the averaging, nor has anything been priced at less than actual cost.

349 F.Supp. at 512. After close examination of appellants’ brief and of the record, we can find no basis for a determination that the district court was clearly erroneous in so finding. We find no evidence in the record of the existence of any shelter or special circumstance need which New Jersey recognized before 1971 which was not used in calculating the FAM flat grant averages.

Appellants argue that because pre-1971 need calculations were based on actual costs, inflation was a “factor” of need which had been accounted for previously but which was disregarded in the flat grants. New Jersey has not incorporated into FAM any provision for changing need figures due to fluctuations in the cost of living after July 1, 1971; thus, the automatic changes due to inflation which previously had existed no longer prevail. We do not, however, consider inflation a “factor” of need as that term was used in Rosado.

In holding in Rosado that New York had violated § 602(a) (23), the Supreme Court found the factors left out of the equation were “particular items such as laundry and telephones.” 397 U.S. at 418, 90 S.Ct. at 1221. On remand, 322 F.Supp. 1173 (E.D.N.Y.), aff’d, 437 F.2d 619 (2d Cir. 1970), aff’d mem., 402 U.S. 991, 91 S.Ct. 2169, 29 L.Ed.2d 157 (1971), in considering a New York welfare program which had previously, like New Jersey’s, accounted for some need items on the basis of cost, the district court did not discusss inflation as a factor of need, although it did very carefully canvass in a lengthy opinion all conceivable need factors. The Supreme Court’s discussion of the legislative history of § 602(a) (23) confirms our understanding that inflation was not to be considered a factor of need which could not be eliminated in a consolidation. Early drafts of § 602(a) (23) would have required states to annually' review need standards “for up-dating such standards to take into account changes in living costs.” But, as Justice Harlan noted, such legislation “was stillborn.” 397 U.S. at 410, 90 S.Ct. at 1217. Legislative compromise resulted in a requirement that there be only a one-time adjustment to reflect changes in the cost of living, as of July 1,1969.

With respect to appellants’ second major contention, the district court rejected the argument that by “fairly priced” and “fair averaging” the Supreme Court meant to imply a qualitative statutory requirement. It said:

The Supreme Court apparently intended the term “fair averaging” to apply to the technical statistical process rather than to any qualitative review of the components of the averages

“[F] airly priced” does not mean what the price would be by market standards or what would be required for a decent existence, but rather by what the price actually is.

349 F.Supp. at 510-511. We agree. Although appellants argue forcefully that the district court’s interpretation of “fair averaging” must be incorrect as there is no such term in the discipline of statistics, we cannot find in Rosado any statistical analysis which would indicate the Court was speaking in such an academic sense that use of the unscientific term “fair averaging” would necessarily imply qualitative analysis. We interpret the use of the term to be quite simply a layman’s recognition that statistics can often be manipulated in a misleading manner and an admonition that the data and statistics not be used “unfairly.”

Appellants argue, inter alia, that mean averaging of shelter costs creates an average figure far below housing costs in some areas of the state, consolidation and averaging of special circumstances need results in an average need far below the real need of families actually confronted with special circumstances need, averaging of need items which are not regular and predictable is unsound, and inclusion of public housing rental cost data was an error because few welfare recipients can find available public housing. The thrust of these arguments is that any averaging process is “unfair” to many welfare recipients. While it is conceded that the result of averaging may reduce welfare payments to many families and increase the grants to others, § 602(a)(23), as interpreted by Rosado, does not proscribe such a result. We find in none of these arguments, or in the supporting data advanced on behalf of each, an indication that New Jersey used data which was not “fairly priced” or that “fair averaging” was not employed.

Our function is not to weigh the wisdom, the weaknesses or the virtues of the consolidated flat grant system of benefits adopted by New Jersey in its AFDC welfare program. Our grave task is to ascertain whether on the record before us the system offends the applicable statutory mandate and the admonitions of the Supreme Court in Rosado v. Wyman. We find no violation.

The judgment of the district court will be affirmed.

      . A more detailed examination of the facts here is in the district court opinion. 349 F.Supp. 501 (D.N.J.1972).

      . When this proceeding was originally before us on appeal, we remanded with certain specific directions, “in light of its importance to both the State of New Jersey and its citizens.” We also directed that certain counts, not now before us, be referred to a three judge court pursuant to 28 U.S.C. §§ 2281, 2284, because those counts presented a substantial constitutional question. New Jersey Welfare Rights Organization v. Cahill, 448 F.2d 1247 (3d Cir. 1971). On this appeal, the state argues that federal jurisdiction is lacking in the instant suit.
      Because pendent jurisdiction was found for the federal statutory claim in Rosado v. Wyman, 397 U.S. 397, 405 n. 7, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970), the jurisdictional issue before us in this case was there left undecided. Although we doubt that jurisdiction could be found on the alleged statutory bases of 28 U.S.C. §§ 1337 or 1343, we do find jurisdiction on the third alleged ground: 28 U.S.C. § 1331, the general federal question provision.
      Although no individual here was shown to meet the statute’s $10,000 amount-in-controversy requirement, this is a class action brought on behalf of all welfare recipients in New Jersey. In holding that the 1986 amendment to Rule 23 of the Federal Rules of Civil Procedure did not alter the principles for determining whether claims could be aggregated in class actions, the Supreme Court in Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969), reaffirmed the principle that “[ aggregation has been permitted ... in cases in which two or more plaintiffs unite to enforce a single title or right in which they have a common and undivided interest.” 394 U.S. at 335, 89 S.Ct. at 1056.
      When, as here, the adversary of the class has no interest in how the claim is to be distributed among members of the class, none of the class members could bring suit without affecting rights of other class members, and the rights asserted are common to the class rather than individually held, aggregation is allowed. See Bass v. Rockefeller, 331 F.Supp. 945 (S.D.N.Y.), appeal dismissed as moot, 464 F.2d 1300 (2d Cir. 1971).
      The issues raised here involved federal statutory interpretation affecting the expenditure of many millions of federal dollars in the State of New Jersey. They are not trivial, and allowing aggregation of these claims does not encourage cluttering the federal courts with minor controversies involving matters of state law.


author: ROSENN, Circuit Judge.

text:
    UNITED STATES of America v. Maurice S. OSSER, Appellant.
    No. 73-1061.
    United States Court of Appeals, Third Circuit.
    Argued June 12, 1973.
    Decided July 30, 1973.
    Certiorari Denied Nov. 12, 1973.
    See 94 S.Ct. 457.

      Benjamin Paul, Philadelphia, Pa., Frederic J. Barnett, Mark J. Kadish, Gerald Alch, Bailey, Alch & Gills, Boston, Mass., for appellant.
    Peter F. Vaira, U. S. Dept, of Justice, Philadelphia, Pa., for appellee.
    Before GIBBONS, ROSENN and WEIS, Circuit Judges.
   OPINION OF THE COURT

ROSENN, Circuit Judge.

This appeal primarily presents an unusual issue of whether the Government’s tapping of a telephone conversation between an indicted defendant and a potential government witness in the absence of defendant’s counsel was in violation of the principles set forth in Mas-siah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). We find the Massiah principles inapplicable to the circumstances presented here and affirm.

Defendant-appellant Maurice S. Osser served as a County Commissioner (title later changed to City Election Commissioner) in Philadelphia for more than two decades. During early 1972, a federal grand jury investigated various frauds on the city during Osser’s term of office. The grand jury indicted Os-ser on February 25, 1972, for involvement in fraudulent schemes involving rigging of contracts for election machines. That -indictment, as amended May 17 and May 24, 1972, led to another trial (District Court No. 72-349) in the Eastern District of Pennsylvania separate from the trial of the indictment involved in the present case.

Following presentment of the first indictment, the grand jury continued to hear evidence against Osser. In March 1972 it subpoenaed Leon Freedman in connection with an investigation of rigging of city council minutes and election ballot printing contracts. Freedman originally invoked the fifth amendment at the hearing, but later decided to cooperate with the Government after receiving a promise of immunity.

On May 17, 1972, Freedman received a telephone call from Osser. Osser, apparently unaware that Freedman had already decided to cooperate with the Government, urged him not to mention Os-ser’s name to the grand jury. Osser visited Freedman the next day at Freedman’s store. Freedman told Osser that he was going to see Government officials on May 19; Osser said he would call Freedman again to find out about that meeting.

Later on May 18, Freedman and his attorney met with a Department of Justice attorney and reported Osser’s contacts with Freedman. The Government attorney asked Freedman if the Government could tape the expected phone call from Osser. The attorney told Freedman his promised immunity would not be affected by his decision whether or not to consent to the taping. After meeting alone with his attorney, Freedman consented, was instructed how to operate a transmitter placed on his person, and had a recorder placed on his store phone. The Government gave Freedman no instructions on what he should say to Osser.

Osser called Freedman on May 19. He again pleaded with Freedman not to tell the Government of their previous commission splitting practices. The tape of the Freedman-Osser conversation was played in the trial of the ease sub judice, following a hearing on, and denial of, a motion to suppress its use.

The grand jury on June 28, 1972, returned a second indictment against Os-ser, charging nine counts of mail fraud, 18 U.S.C. §§ 1341, 2, and one count of conspiracy, 18 U.S.C. § 371, for his alleged involvement in rigging city printing contracts, and one count of endeavoring to obstruct justice, 18 U.S.C. § 1510, based on his entreaties to Freedman. This indictment (District Court No. 72-384) led to the conviction under appeal here. Two mail fraud counts were dismissed at trial by the court; the jury returned guilty verdicts on the other nine counts. . Osser was sentenced to two consecutive three year terms and fined $19,000.

The evidence at trial disclosed that Freedman, a salesman for Weiss Printing House, had sought Osser’s assistance in 1957 to procure city council printing contracts for Weiss. Freedman subsequently paid one-third of his fifteen percent commission from Weiss to Osser in return for his actions in guaranteeing the contract to Weiss. In 1965, Freedman’s commission was increased, and he increased his payments to Osser to six and one-half per cent for about three years. The Osser-Freedman arrangement eventually also embraced election ballot printing for the city. Splitting of Freedman’s commission from Weiss continued through 1971.

In order to demonstrate the schem'e’s connection with the United States mails, a necessary element of the federal crime, the Government proved the means by which Osser received his payments. Philadelphia paid Weiss by check. Some of these checks were mailed. Weiss paid Freedman his commission by check; Freedman paid Osser in cash.

Appellant Osser claims reversible error was committed by the trial court both (1) in admitting into evidence the taped conversation between Osser and Freedman; and (2) in failing to instruct the jury that use of the mails must be an integral part of the alleged scheme to defraud.

I

Appellant’s objection to the taped telephone conversation is two-fold: (A) Freedman’s consent was insufficient to justify admission of the tape; (B) the taping deprived Osser of his right to counsel as set forth in Massiah v. United States.

A

Appellant’s contention that Freedman’s consent was insufficient is premised on the principle that taping of conversations of persons acting undercover for the Government is permissible only if those persons consent freely tthe taping. United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971); Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957); and 18 U.S.C. § 2511(2) (c):

It shall not be unlawful under this chapter for a person acting under col- or of law to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception. [Emphasis added.]

See also United States v. Riccobene, 320 F.Supp. 196, 202-203 (E.D.Pa.1970), aff’d per curiam, 451 F.2d 586 (3d Cir. 1971).

Appellant argues that at the time Freedman consented to the taping, any consent he made could not have been voluntary because he had yet to receive officially his promised grant of immunity. Appellant further argues the Government attorney’s assurance that immunity did not depend on whether or not Freedman consented to the taping was merely self-serving.

We find no basis in the suppression hearing record for reversing the district court determination that Freedman’s consent was given voluntarily. Freedman himself testified clearly that he did not feel pressured by the Government request and that he believed his promised immunity would be forthcoming whether or not he consented. Nothing in the record indicates Freedman’s belief was unwarranted. No implied threats were made to Freedman; he was not coerced. The present factual situation is thus quite different from that in United States v. Laughlin, 222 F.Supp. 264 (D.D.C.1963). There, the consent to tape was found involuntary in light of the “consentor’s” testimony that “I felt I had to cooperate,” 222 F.Supp. at 266, under the implied threat of indictment if she did not. Id. at 268.

Although it is possible to infer from the circumstances of Freedman’s consent that he hoped by continuing cooperation with the Government not to disturb forthcoming immunity, such hopes alone do not render his consent involuntary. Our inquiry on appeal is limited to whether the consent was voluntary and uncoerced, not whether the motivations for it were altruistic or self-seeking. As the court said with respect to hopes for leniency in United States v. Zarkin, 250 F.Supp. 728, 737 (D.C.C.1966):

We can think of no time in which a party to a telephone conversation would permit the police to intercept that conversation when he, himself, would not seek something from the police in return, assuming he is of sound mind and knows the police are police. He might merely be seeking police protection from threatening phone calls. Or, he might be an undercover policeman who seeks his pay check. Or, indeed, he may be seeking leniency. However, so long as pressure is not initiated by the police for the purpose of overbearing the will of the party, this Court does not believe that the authorization given by the party is involuntary.

B

Appellant’s second attack on admission of the tape of the telephone conversation at trial is based on a contention that the conversation was recorded after Osser was indicted and in the absence of his counsel, thus depriving defendant of his right to counsel’s assistance at a critical stage of the prosecution. Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Appellant argues that by virtue of his indictment on February 25, 1972, (which indictment was superseded by amended indictments on May 17 and May 24) the taping of his conversation with Freedman on May 19 was a pretrial confrontation at which he had a right to counsel. He contends that this first indictment (District Court No. 72-349) was “cut from the same block of wood” as the subsequent indictment (District Court No. 73-384) that led to conviction in the case now appealed. Both indictments involved alleged activities of Osser in rigging city contracts between 1965 and 1972; one co-conspirator was named in both. Thus, argues appellant, the May 19 surveillance was part of the Government’s continuing investigation of the circumstances of the first indictment. Stripped of its legal trappings, appellant’s disingenuous contention is that notwithstanding he initiated the telephone call to a potential witness for the Government in an alleged effort to obstruct justice and seal his lips in the ongoing investigation, taping of that conversation, even with the witness’s consent, violated appellant’s constitutional rights since he was not informed of the taping and afforded the benefit of counsel.

Appellant’s effort to fit his situation into the mold condemned in Massiah is unavailing. Significant factual differences convince us that the exclusionary rule of Massiah should have no application here.

In Massiah, defendant was indicted for drug possession, pleaded not guilty, and was released on bail. A few days later, co-defendant Colson decided to cooperate with the continuing police investigation into Massiah and Colson’s drug activities. Colson permitted Government agents to install a transmitter in his automobile and subsequently held a lengthy conversation with Massiah in the car. The tape of that conversation was introduced into evidence at Mas-siah’s trial.

The Court held that Massiah had been deprived of his sixth amendment right to counsel because “there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from, him, after he had been indicted and in the absence of his counsel.” 377 U.S. at 206, 84 S.Ct. at 1203. [Emphasis added.] The Court compared the taping of Mas-siah’s conversation with Colson to the coercive interrogation of defendant in the absence of counsel in Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959), equating the “deliberate eliciting” of confessions from Massiah with coercive interrogation. The court indicated the deprivation of the right to counsel in Massiah was even more grievous than its deprivation in coerced confession cases such as Spano because Massiah was unaware he was under interrogation. 377 U.S. at 206, 84 S.Ct. 1199.

The crucial fact for the Court in Massiah was that the Government was interrogating the defendant. The interrogation was surreptitious so that Massiah himself was unaware that he was being questioned; but the consequences of the Government’s actions were, therefore, more effective than had he been openly interrogated, and statements of incrimination were deliberately elicited from an already indicted, uncounseled defendant. The Court thus concluded that the requirement of presence of counsel applied in this pre-trial confrontation between Government and defendant just as it also applied at arraignment, Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1969), and at preliminary hearing, White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963). Massiah, 377 U.S. at 205, 84 S.Ct. 1199.

Massiah was clearly predicated on existence of the right to counsel after a defendant has been indicted. In the present case, at the time of taping, Os-ser had been indicted for none of the offenses for which he was subsequently convicted. Massiah is applicable here only if we accept appellant’s argument that the Massiah protection attached after his indictment in the separate suit involving election machine contracts (District Court Civil No. 72-349) and thus prevented the Government from using incriminating statements Osser made subsequently for prosecution of the present case (District Court No. 72-384). We reject that argument.

The district court discussed extensively the differences between the indictments in its memorandum opinion and order denying Osser a new trial as follows:

The pending indictment for which Mr. Osser had engaged counsel at the time of the telephone conversation charged the defendant with interference with commerce by threat or violence and conspiracy under 18 U.S.C. § 1951, and mail fraud under 18 U.S.C. § 1341. In essence, that indictment charged that the defendant along with Thomas McHenry of the Shoup Voting Machine Corporation conspired from January 1965 to January 1972 to obstruct and affect commerce by extortion through the purchase of voting machines for the City of Philadelphia. In that eighteen count indictment, James Dunlap is named with respect to one overt act in one count in the alleged extortion violation of 18 U.S.C. § 1951. The mail fraud involved the mailing of invitations to bid, awards to the Shoup Voting Machine Corporation and the mailing of bids to the Procurement Department of the City of Philadelphia.

The present indictment under which Mr. Osser stands convicted involved mail fraud and conspiracy and endeavoring to obstruct justice. The named unindieted co-conspirators are Fred Weiss and Leon Freedman. The alleged conspiracy occurred between 1956 and 1972 in which it is charged that Mr. Osser as City Commissioner joined with the other conspirators whereby there would be fraudulent bidding for printing contracts, the essence of the scheme being that by “rigging bids,” Weiss Printing House would obtain all of the official City printing contracts and Dunlap Printing Company would obtain all of the election printing contracts for the City of Philadelphia. The scheme involved knowingly submitting non-competitive bids and the receipt by Mr. Osser of secret “commissions” of 5% of the gross amount of the contract awards for City printing obtained by Weiss Printing House. The mailings concerned the mailing of the cheeks by the City of Philadelphia to Weiss Printing House • in payment for its services. The endeavoring to obstruct justice charge arises primarily from the contents of the taped telephone conversation and other alleged conversations testified to by Mr. Freedman between Mr. Osser and Mr. Freedman during May of 1972.

The two indictments display no more than a thin veneer of similarity. They exhibit basic differences sufficient to establish separate and distinct offenses and indictments. The gravamen of each indictment emanates from two entirely different patterns of unlawful conduct. The earlier indictment primarily concerns extortionate schemes under 18 U.S.C. § 1951 in regard to the purchase of voting machines from the Shoup Voting Machine Corporation. The fraudulent scheme under 18 U.S.C. § 1341 involved in the present indictment concerns City contracts for printing of election materials and official City materials. The two indictments are obviously separate and distinct offenses in scope and subject matter. A basic difference also exists in the statutory violations alleged in the indictments. While both indictments allege mail fraud and conspiracy, the basic schemes giving rise to the fraudulent use of the mails and the conspiracies are disparate. Furthermore, the actual use of the mails is entirely different and separate. In the earlier indictment the mailing involved inviting and awarding bids on voting machines whereas in the instant indictment, the mailings involved City payments for contracts for public printing. In addition, in the earlier indictment the charge is based on Section 1951 of the Criminal Code whereas the present indictment is based on Sections 1341 and 1510. The length of time of the two alleged conspiracies although over-lapping are for different periods of time. Finally, all possible co-conspirators except for the defendant and James Dunlap are dissimilar.

As of May 19, 1972, the day the Os-ser-Freedman conversation was taped, Osser had not yet been indicted for any involvement in a scheme with Freedman to rig Philadelphia printing contracts. The Government was still in the process of investigating those alleged crimes, and Freedman was a vital link in the chain of evidence being accumulated. Therefore, when Freedman informed the Government not only that Osser was committing incriminating actions in connection with that crime, but also that he appeared to be in the prosess of committing the additional crime of endeavoring to obstruct justice, no sixth amendment constitutional impediment existed to continued investigation. The conversation was taped, providing relevant evidence for use against Osser in the subsequent trial both on the mail fraud and obstruction of justice counts. Massiah did not require suppression of use of that evidence in the trial because Osser’s right to assistance of counsel had not yet attached since there was at that point no indictment on those charges.

The Supreme Court considered a similar Massiah claim in Hoffa v. United States, 385 U.S. 293, 309-310, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). A government informer had gathered evidence that defendant Hoffa was attempting to bribe jurors by sitting in his hotel room during the trial of the Test Fleet case. Subsequently, Hoffa was indicted for the bribery offense, and the informer’s testimony was used against him. The Court dismissed with little difficulty defendant’s assertion that Massiah prevented use of the informer’s testimony because the informer had collected the evidence at a point after the right to counsel had attached. Although the Court spoke in terms of the defendant not having a right to be arrested — and thus have the right to counsel attach— prior to the time the informer gathered his information, implicit in its decision is the principle that the indictment in the Test Fleet case did not create a right of counsel which was violated in procuring information for a new, separate indictment.

A similar Massiah claim was denied in Vinyard v. United States, 335 F.2d 176 (8th Cir), cert. denied, 379 U.S. 930, 85 S.Ct. 327, 13 L.Ed.2d 342 (1964). Vinyard, arrested for refilling liquor bottles, subsequently attempted to bribe two government agents. The original charge' was not tried, but the bribery charge resulted in a conviction. Vinyard argued that the agent testimony about the bribery was of a post-arrest, uncounseled statement to government agents, which could not be introduced at trial under the Massiah principle. The court rejected the claim on the ground Massiah only applied to post-indictment statements used to prove the offense for which defendant had originally been indicted.

It is true that in both Hoffa and Vin-yard, the subsequent statements to government agents concerned crimes completely different from those originally charged. Appellant here argues that both cases are therefore distinguishable because the Osser-Freedman tape was used not only to prove the obstruction of justice charge, but also the printing contract rigging charge, which was in some respect similar to the previously charged election machine contract rigging charge. Appellant argues that to find Massiah inapplicable here would provide a “gaping loophole” since the Government could always separate multiple charges in related criminal activity, indict on some charges, continue investigations on the other charges, and thus collect uncounseled' statements from the defendant.

We do not find such a gaping loophole created by our determination that the tape was admissible against Osser on all charges in the present case. The two indictments were significantly separable and different; we do not consider the crimes alleged in each to be multiple charges in related criminal activity. No indication exists that in taping the Freedman-Osser conversation the Government anticipated or sought further information to be used in the trial of the election machine rigging indictment. Under these circumstances, we believe the principles enunciated in Hoff a and Vinyard are applicable to distinguish the present case from Massiah.

II

Appellant’s final contention is that the trial judge’s instruction to the jury on the necessary elements of use of the United States mails in the mail fraud counts was insufficient. Appellant argues that the trial judge instructed only that proof was needed to show

the use of the mails in carrying out the scheme to defraud were either known or reasonably foreseen by the defendant as a part of the scheme

when it was required that he instruct use of the mails was an “integral” part of the scheme. Appellant argues this error was crucial since evidence of use of the mails was limited to proof that seven of ninety-eight checks from Philadelphia to Weiss Printing House happened to be mailed. Thus, argues appellant, the jury under proper instructions might well have concluded that use of the mails was never foreseen as an “integral” part of the scheme.

Viewing the trial court’s instructions as a whole, United States v. Thomas, 451 F.2d 760, 762 (3d Cir. 1971), we find no error. The court instructed, inter alia, that “use of the mails is an essential element of the charge the Government must prove beyond a reasonable doubt that the defendant caused to be delivered by mail an envelope addressed to Weiss . . . .You must find that the mails were in fact used to carry out the scheme, and that the use of the mails was reasonably foreseeable. . . . you must make a two-fold inquiry. First: was there a sufficient connection between the use of the mails and the scheme? And, second, if so, was there a sufficient connection between the mail use and the defendant?” The court’s instructions therefore fully apprised the jury of the necessity of finding a connection between the scheme and foreseeable use of the mails. The charge was fully consistent with the elements of the crime established by 18 U.S.C. § 1341, as set forth in Pereira v. United States, 347 U.S. 1, 8-9, 74 S.Ct. 358, 98 L.Ed. 435 (1954). We find no error.

Appellant Osser has belatedly raised in his reply brief an asserted error to which the Government has had no opportunity to respond. He claims error in admitting the Freedman-Osser conversation tape' as substantive, rather than corroborative, evidence. At trial, Freedman did not testify as to his recollections of the conversation, although he did identify the tape as an accurate recording of the conversation. Defense counsel stated at trial, “I submit that the correct method would be to ask the witness [Freedman] what his personal recollection is of the tape recording.” He did not, however, press the point; instead, he argued to the court what type of testimony from Freedman was required to lay a proper foundation of accuracy and completeness of the tape, as is required for its admission, citing United States v. McKeever, 169 F.Supp. 426 (S.D.N.Y.1958).

We find no merit in this final contention of appellant. Nowhere in McKeever, or in the other cases relied on by appellant, United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971); Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); and Bakes v. United States, 350 F.Supp. 547 (N.D.Ill.1972); do we find any indication that taped telephone conversations can be used only as corroborative evidence. See especially Lopez, 373 U.S. at 440 n.12, 83 S.Ct. at 1388; and White, 401 U.S. at 753, 91 S.Ct. at 1126:

Nor should we be too ready to erect constitutional barriers to relevant and probative evidence which is also accurate and reliable. An electronic recording will many times produce a more reliable rendition of what a defendant has said than will the unaided memory of a police agent.

The judgment of the district court will be affirmed.

      . The five judge majority opinion in Spano had held petitioner’s conviction could not stand on the basis of fourteenth amendment standards proscribing overbearing of a defendant’s mind to obtain a confession. The- four concurring justices argued the fourteenth amendment also required presence of counsel at the interrogation in question. It was on the argument of the four concurring justices that Justice Stewart relied in Massiah. 377 U.S. at 204, 84 S.Ct. 1199.

      . We are not presented with the question whether the tape could have been played in trial of the election machine contract rigging charges since the tape was not entered into evidence in that case.