This is thе consolidated appeal of four defendants, Bradley, Johnson, Odell, and Helliesen, who were tried together before a jury on a six-count indictment. All were found guilty of conspiracy to sell a narcotic drug not in pursuance of a written order 1 (Count 1). All but defendant Johnson were charged with and convicted of carrying firearms during the commission of a felony 2 (Counts 4, 5, and 6). Defendants Johnson and Bradley were also charged with selling cocaine 3 (Counts 2 and 3), but the jury acquitted them on those two counts. The defendants urge reversal of their convictions on a number of grounds, generally attacking the legality of arrests and searches, the sufficiency of the government’s evidence, and the conspiracy instructions given by the trial judge.
The case involves a proposed narcotics transaction between the defendants and federal undercover narcotics agents. The agents, through an informer named Arthur Motsis, 4 contacted defendant Bradley, who said he could arrange for the sale to them of one and a half pounds of cocaine. Preparations for this transaction began on March 4, 1971, and continued until March 12. On that day, at approximately 9:20 р. m., Motsis and Agents Egan and Ross went to the first floor apartment at 73 Magazine Street, Cambridge, Massachusetts. Bradley, apparently alone in the apartment, admitted them, 5 and five minutes later these four went outside to the agents’ car to count the money. Bradley stated that the price was $9,500, which was $500 more than the agents had with them. The agents and Motsis then left to get the extra money, and returned at approximately 11:05 p. m.
Upon their return, the agents and the informer were admitted by defendant Odell, and within the next few minutes all the defendants were present in the apartment. In the course of conversation, Bradley admitted that he had a gun. Defendant Johnson produced a sample of the cocaine in a tinfoil packet, which was placed on a scale by Agent Egan. Each of the defendants sampled a bit of the cocaine, which remained on the scale after this sampling. Several minutes later, defendants Johnson, Helliesen, and Bradley left the apartment. Johnson and Helliesen were to get the main supply of cocaine from their car; Bradley apparently just drifted out to the courtyard of the apartment building. Agent Egan and informer Motsis lеft to get the money from the government vehicle; Agent Ross remained in the apartment with Odell.
After a quick drive around the block to Check the area, Johnson and Helliesen exited from their car and started toward the apartment. Johnson was carrying a flight bag later determined to contain *1185 sixteen plastic bags of cocaine. Motsis remained in the government car, and Egan followed Johnson and Hediesen from the street to the apartment building. A ten-man government surveillance team was in the immediate vicinity.
It is at this point, the time of re-entry into the apartment building at 11:35, that the evidence adduced at the pretrial hearing on defendants’ motion to suppress becomes contradictory. Agent Egan testified that Johnson and Hedie-sen preceded him through the unlocked outer door, at which time Odell opened the apartment door and saw them standing there. Odell buzzed open the foyer door, and Johnson, Hediesen and Egan entered. Egan stated that when the foyer door was opened, Agent Maloney was a few steps behind him, followed by the rest of the surveillance team. Agent Ross, who was inside the apartment with Odell discussing the pending sale, testified that Odеll opened the apartment door, looked out, and then buzzed open the foyer door. Hediesen and Johnson entered, followed by Egan and then the surveillance team. Johnson, Hediesen, and Odell were arrested immediately. A third agent testified that he peaceably arrested Bradley on the steps outside the apartment building after Egan had passed through the foyer door. Bradley, however, testified that Hediesen and Johnson were totally inside the apartment when Egan and the other agents ran up to the apartment building, grabbed Bradley, opened the unlocked оuter door, and then shoved Bradley against the foyer door, causing the lock to break and spring open. Bradley did not recall how the apartment door was opened. Odell testified that while in the apartment with Johnson and Helliesen he heard a loud bang from the direction of the foyer door, and seconds later the apartment door was opened from the outside and about ten agents streamed in.
“The officer may break open any outer or inner door' or window of a house, or any part of a house, or anything therein, to execute a search wаrrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.”
Based on this evidence the court found that the entry was not by force, Odell having voluntarily buzzed open the foyer door and opened the apartment door. The trial judge further found that any delay in order to obtain a warrant or any announcement of authority and purpose would likely have permitted the destruction of evidence. It therefore ruled that the arrests were legal and denied the motions to suppress. 6
Defendants challenge the legality of the arrests on several grounds, the first being that they violated 18 U.S.C. § 3109.
7
This statute is applicable to the entry of federal officers, Sabbath v. United States,
Defendants contend that, notwithstanding the absence of force, 18 U.S.C. § 3109 was violated by use of a ruse.
11
While a physical breaking is not required for a § 3109 violation, Sabbath v. United States,
supra,
the Supreme Court has expressly reserved the question of a ruse. Id.,
When Agent Egan and the surveillance team entered at 11:35 on March 12, Agent Ross was already inside the apartment. His entry at 11:05 with Egan was clearly lawful. As in Lewis v. United States,
supra
note 11, the agents were invited into the apartment for the purpose of executing a felonious sale of narcotics, and the defendants’ only concern was that the agents were willing purchasers, which they were. Following the lawful entry, Agent Ross remained in the apartment. The defendants do not allege, nor could they, that Rоss’s presence suddenly became unlawful or that their privacy suddenly was invaded solely because his role changed from undercover agent to arresting officer. To so hold, as was stated in Lewis v. United States,
supra
The defendants raise several objections to the searches apart from the alleged violation of § 3109. In that probable cause existed to arrest Johnson and Hellieson as they approached the apartment building, defendants argue that those arrests were unlawfully delayed to afford an opportunity to search the premises incident to arrest. However, any interior search incident to arrest could have been carried out with regard to Odell; and nothing was seized as a result of the delay which would not have been seizеd had Johnson and Helliesen been arrested outside. As we stated in United States v. Berkowitz,
Defendants also claim that the search and seizure of the flight bag containing cocaine violated the doctrine of Chimel v. California,
The final search and seizure claim, that entry without warrant was unjustified, is also without merit. Prior to the 11:05 meeting, the agents knew the identity of only one of the conspirators and did not know where the cocaine was located. In fact, the 11:05 meeting was not definitely arranged until about 10:35 that evening. The surveillance team was positioned in the аrea apparently on the hunch that the transaction would be completed there. This situation does not approach that of Niro v. United States,
With regard to the conspiracy convictions, the defendants challenge both the sufficiency of the evidence and the jury instructions on the issue of intent. Count 1 of the indictment charged a conspiracy to violate 26 U.S.C. § 4705(a), selling a narcotic drug not in pursuance of a written treasury order form. 16 Defend *1188 ants argue that proof of their knowledge of and intent not to obtain the Treasury forms is requisite to a conviction for conspiracy.
While it is of course true that conviction of a conspiracy to transfer narcotics in violation of 26 U.S.C. § 4705(a), unlike the substantive offense, may not be sustained without proof of specific intent,
17
the defendants are incorrect in asserting that actual knowledge of the order form requirement was an essential element of the government’s case. The essence of the jury’s task in deciding here whether the defendants were guilty of participation in an illegal conspiracy involved determining, first, whether the object of the conspiracy constituted a substantive offense; second, whether in agreeing to work in concert the defendants knew or should have known that the specific object of the agreement was unlawful; and, third, whether one or more of the defendants acted in furtherance of the agreement.
See, e. g.,
United States v. Falcone,
*1189
As to defendants’ charge that the government’s evidence was insufficient to establish that they had conspired with a specific intent to transfer narcotic drugs illegally, there was abundant evidence — to which the jury apparently attached conclusive weight — that the events leading up to the final sale and the transfer of the “sample” cocaine took place under the most clandestine of circumstances. The defendants took great care to assure themselves that they were not dealing with federal agents and numerous statements by the defendants indicated knowledge on their part that the contemplated sale was illegal. The jury was entitled to infer from this circumstantial evidence that the defendants specifically intended with full knowledge of illegality to transfer narcotics in violation of 26 U.S.C. § 4705(a). United States v. Vasquez,
Defendants’ final contention is that the court’s failure to give a requested conspiracy instruction was reversible error. The requested charge arguably combines the elements of individual participation and proof of a conspiracy independent of hearsay statements. 20 The district court did give correct instructions on each of these aspects of conspiracy. It stated that to be a conspirator “one must knowingly participate in the conspiracy intending to further its purposes,” and described at length how one might be such a participant. With respect to the independent proof of the conspiracy, until a prima facie ease of conspiracy was established the court limited all hearsay statements to the one who made them. Once a prima facie case was presented, the court gаve more extensive instructions on the need for proof of the conspiracy independent of hearsay declarations. 21 Especially in view of the substantial independent evidence of the conspiracy, it was not reversible error not to repeat this instruction in the final charge to the jury.
Affirmed.
ON MOTION FOR ORDER VACATING SENTENCES AND FOR REMAND
Following the affirmance of their convictions on appeal, United States v. Bradley, Nos. 71-1186-1189 (1st Cir. Jan. 27, 1972), the defendants jointly moved in this court for vacation of sentences pursuant to Rule 35, Fed.R. Crim.P. Although, as the government correctly contends, Rule 35 motions are properly directed in the first instance to the district court, we reach the merits of defendants’ motion by considering it as an appendage to their appeal.
Defendants allege that the district court sentenced them under the terms of a statute no longer in force. *1190 The chronology of relevant events can be simply stated. In March 1971 the four defendants conspired to violate 26 U.S.C. § 4705(a) by selling cocaine not in purance of a written order form, in violation of 26 U.S.C. § 7237(b). A jury found them guilty of this offense on May 6, 1971, and the court sentenced each defendant to a five year term, the minimum punishment for first offenders under § 7237(b). Pursuant to § 7237(d), these sentences could not be suspended, nor could parole or probation be granted. On May 1, 1971, five days prior to sentencing, most of the existing federal narcotics laws, including §§ 4705(a), 7237 (b) and 7237(d), were repealed by the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. 91-513, 84 Stat. 1242 et seq., 21 U.S.C. §§ 801 et seq. The 1970 Act redefined the substantive offenses and generally liberalized the penalty provisions, in most instances no longer forbidding suspended sentences, parole, or probation. The defendants argue that since the 1970 Act was in force when they were sentenced, the cоurt should not have felt constrained by § 7237(d), but should have considered the above sentencing alternatives. We disagree.
Whether a repealed provision remains in force as to pre-repeal activities is a matter of Congressional intent to be determined from statutory saving provisions. The general saving provision, 1 U.S.C. § 109, was originally enacted in 1871 in reaction to the common law holding in United States v. Tynen,
“The rеpeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.”
In United States v. Reisinger,
We find no express, or even implied, indication in the 1970 Act that Congress intended that prior offenders not be sentenced under the pre-existing penalty provisions. To the contrary, § 1103(a), the specific saving provision of Pub.L. 91-513, states:
“Prosecutions for any violation of law occurring prior to the effective date of section 1101 shall not be affected by the repeals or amendments made by such section or section 1102, or abated by reason thereof.”
Reading this section of the 1970 Act against the background of § 109, we hold that narcotics offenses committed prior to May 1, 1971, are to be punished according to the law in force at the time of the offense. In the instant case, this conclusion requires the continuing application of §§ 7237(b) and (d).
The defendants rely on the recent case of United States v. Stephens,
With respect to § 1103(a) of Pub.L. 91-513, relying on Korematsu v. United States,
The court in Stephens, however, did not read the two sections together because it held that § 109 was inapplicable to the repeal of § 7237(d). Noting that § 109 was designed to obviate “mere technical abatement,” the court concluded it did not apply to a provision like § 7237(d), the repeal of which did not threaten abatement of a substantive prosecution. We do not agree that § 109 is limited to those statutes the repeal of which, at common law, would have abated a cause of action or prosecution. 4 Although designed to avoid technical abatement, the statute is not limited to that situation. It refers unambiguously to “any statute,” whether that statute defines a crime, prescribes a penalty, or elaborates on the nature of the penalty to be imposed. Section 7237(d) was part of the “liability incurred” by violation of § 7237(b). That is, had trial and sentencing been simultaneous with the offense, the defendants herein clearly would have been ineligible for suspended sentences, parole, or probation. Regardless of whether the legislative grant of these sentencing alternatives is viewed as a releаse of penalty, 5 under the mandate of § 109 the repealed statute, § 7237 (d) is “[to] be treated as still remaining in force.”
The sentences having been legally imposed, they are hereby affirmed. 6
Notes
. In violation of 26 U.S.C. § 7237(b). Repealed Pub.L. 91-513, § 1101(b) (4) (A), October 27, 1970, 84 Stat. 1292, effective date of repeal being May 1, 1971, Pub.L. 91-513, § 1105(a). Defendants each were sentenced to five year prison terms, the minimum sentence under 26 U.S.C. § 7237(b).
. In violation of 18 U.S.C. § 924(c) (2). Each received a one year suspended sentence and was placed on probation for three years, to be served on and after the five year sentence.
. In violation of 26 U.S.C. § 4705(a). Repealed Pub.L. 91-513, § 1101(b) (3) (A), October 27, 1970, 84 Stat. 1292, effective date of repeal being May 1, 1971, Pub.L. 91-513 § 1105(a).
. Motsis was named in Count 1 as a co-conspirator but not as a defendant.
. It was necessary' to go through three doors to enter the apartment. The outer door to the building was closed but unlocked. Next was the foyer door, which operated on a buzzer lock system. In a direct line with these two doors was the door to the apartment itself.
. The defendants sought to suppress the cocaine found in the flight bag and the sample of cocaine found on the scales in thе apartment, as well as the firearms found incident to arrest.
. 18 U.S.C. § 3109 provides:
. This court’s decision in Jackson v. United States,
. Agent Lambert, a member of the surveillance team, testified that he watched the 11:35 entry from approximately seventy-five yards away with the aid of field *1186 glasses. Lambert saw Johnson, Helli-esen, and Egan approaching the apartment building, and then his vision was obstruсted. The next time Lambert saw Egan, the latter was about to enter the outer door, and Johnson and Helliesen were not in sight. The defendants contend this is consistent with the pre-trial testimony, of Bradley, and Odell that Johnson and Helliesen entered the apartment a considerable time before Egan entered. It is not, however, inconsistent with the agents’ testimony that Johnson and Helliesen merely preceded Egan through the outer door.
. “The Court: I agree there is additional testimony but it does not change my view of the ultimate facts.”
. The ruse is alleged to have occurred at 11:35 when Egan entеred the apartment as an undercover agent
for the purpose of arrest.
The defendants argue that the agent’s purpose sufficiently distinguishes the situation from Lewis v. United States,
. For
post-Sabbath
decisions on the issue,
see, e. g.,
United States v. Beale,
. Nor need we reach the questions of whether the action of thе federal agents constitutes a ruse,
see
note 11
supra,
or whether exigent circumstances warrant an exception to § 3109,
see generally
Sabbath v. United States,
supra
. Government evidence established that the arrests were made inside pursuant to á pre-arranged plan to keep potential gun play at a minimum.
. In Chimel police officers arrested the petitioner in his home and incident to that arrest searched his entire three-bedroom house, including attic, garage, and workshop, and caused his bureau drawers to be opened and searched. Condemning this search as unreasonable under the fourth amendment, the Court held thаt the scope of a search incident to arrest should be limited to the person and the area from which he could obtain a weapon or inculpatory evidence.
. 26 U.S.C. § 4705(a) provides:
“(a) General requirement. — It shall be unlawful for any person to sell, barter, exchange, or give away narcotic drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Secretary or his delegate.”
. The Supreme Court, construing the part of § 2 of the Harrison Narcotic Act of 1914, on which 26 U.S.C. § 4705(a) is based, held that the substantive offense did not require a showing of specific intent. United States v. Balint,
. As we noted in our recent opinion in United States v. Medina,
. Defendants’ jointly submitted instructions Nos. 8 and 9 were :
“8. Likewise, with respect to Count 1, you may not find the specific intent necessary to convict a defendant under Count 1, unless you find beyond a reasonable doubt that it was an object of the conspiracy in which a defendant may be found to have participated that a narcotic drug would be sold, bartered, exchanged or given away not in pursuance of a written order of the person to whom such narcotic was to be sold, bartered, exchanged or given away on a form issued in blank for that purpose by the Secretary of the Treasury or his delegate, and that knowing of the requirement of such written order, such defendant participated in the alleged conspiracy with the intent that such form not be obtained.
“9. The specific intent necessary for a guilty verdict is the awareness by the defendant of the existence of all those facts which make his conduct criminal. United States v. Crimmins,123 F.2d 271 (2 Cir., 1941).”
. Defendants’ requested instruction was as follows:
“3. The existence of a conspiracy cannot be established as against an alleged conspirator by evidence of the actions and declarations of his alleged co-conspirators, made in his absence. Such acts and declarations are admissible against him only when there is other proof of his connection with a conspiracy. Glasser v. United States,315 U.S. 60 , 75 [62 S.Ct. 457 , 86 D.Ed. 680] (1942) ; Ferina v. United States,302 F.2d 95 , 104-105 (8 Cir., 1962).”
. The Court:
“Now if you do by the evidence already here or hereafter submitted conclude that there was in fact such a conspiracy then the statements of any one of the co-conspirators are admissible against the other co-conspirators but you must determine by independent evidence, not by the statements themselves, as to whether there is a conspiracy.”
. See also thе elaborate discussion in Lovely v. United States,
.
See
Moorehead v. Hunter,
. 21 U.S.C. § 176a was repealed by the 1970 Act.
. Nor do we find it so clear, as did the Ninth Circuit, that the repeal of § 7237 (d) would not have abated prosecutions at common law.
. In an independent argument on the inapplicability of § 109 to the repeal of § 7237(d), the Stephens court contends that the grant of probation neither extinguishes nor releases a penal obligation.
. Since sending this case to the printer our attention has been called to a similar holding in United States v. Fiotto et al., 2 Cir.,