*1 Judges actually Trask, enjoining comes for Merrill and least until the time Eldridge’s induction, into induction the armed to submit forces, severally are each dissolved with possibility within of relief filing opinion. process Eld- this Selective remains. Service ridge’s effort to resort to the courts Compare point premature. Mc- States, Kart v. United at 196- U.S. 197, 89 v. United S.Ct. McGee States, 91 S.Ct. Lockhart
L.Ed.2d 47 1969). America, UNITED STATES of States, supra, the McKart United Plaintiff-Appellee, Supreme require Court chose not registrant always adminis- exhaust his SPANOS, Defendant-Appellant. Leo being trative challenge before allowed remedies No. 71-2342. in the courts his classification Supreme felt that the United States Appeals, because Court of Ninth Circuit. severe the doctrine of exhaustion burden always placed registrant May 4, upon outweighed governmen- compelling Rehearing Aug. 21, Denied tal interest. 395 U.S. S.Ct. involving pre-induction 1657. In a case classification, review of a the burden registrant severe,
the government’s and the is not as maintaining interest in
integrity process, administrative its yet ended, finally
which has not is more compelling. these factors are cou- When
pled Congressional disapproval with the pre-induction review manifested Military § 10(b) (3) Selective Serv- Act,
ice that a stiffer stand- conclude
ard of exhaustion of administrative rem- apply pre-induc-
edies should in cases of applies
tion than in cases involv- review prosecutions. criminal Eldridge appeal
As failed his I-A
classification, process the administrative
will not until be final for at least comes for him to to in- time submit hold, therefore, under duction. reasoning McKart, yet
has not his administrative exhausted
remedies.
The district dismissal of this court’s or-
action This court’s two affirmed. ders, April 6, 1972, April filed made Koelsch and directly supplied Eldridge pre- ever even that he has the board with tion that has challenge board, his local current information. sented his
(a) 1103(a) and of Pub.L. 91-513. We reverse. happened What here is an abuse government
conspiracy charge; prove failed a its case. There was good convicting Spanos case for for one amphetamines unlawful sale San Carlos, California, in Dis- the Northern trict of for the California. One reason charge conspiracy place of- was to fense the Central of Califor- District nia, Many the ease tried. where years ago Judge in United Learned Hand 1938, Cir., States 403, against 401, just sort of warned this the defendant case in abuse. which charged accessory and as as an conspirator, he said: against oppression “The which could be Sixth Amendment directed easily by compassed device, be- accessory real the seller be a cause place of be removed Cir., crime. Hoss United 328, 335; F. States United Cragen (argued), San Edward L. Littleton, D.C., F.2d 751. Francisco, Cal., defendant-appellant. reasoning applies “The to the same (ar- Atty. Larry Flax, U. S. Asst. S. ”1 conspiracy . . count. . Atty., gued), Nobles, S. A. Asst. U. Eric charged conspiracy The here is as fol- Keller, Atty., An- D. S. Los U. William lows: plaintiff-appellee. geles, Cal., for “Beginning October on or about MERRILL, and DUNIWAY Before continuing March and Judges. KILKENNY, Circuit California, in the District Central elsewhere, LEO defendant DUNIWAY, Judge: Circuit co-conspira- SPANOS, and unindicted judgment appeals Godwin, Rodney and other Francis tor charging conviction under an indictment and unknown conspirators both known 371) (18 conspiring him with U.S.C. § Jury agreed, confederat- to the Grand to violate with one and others together conspired to commit ed, (2) (q) former 21 U.S.C. 331 § against States offenses (added by 89-74, Pub.L. 79 Stat. § Title violation of 91-513, repealed by 226, 232, Pub.L. § 331(q) 331(q) (2) and Code, Section 1281) pro- 701(a), Stat. which (3), to wit: possession of certain hibited sale contrary drugs to sell stimulant 511(b) (21 drugs U.S.C. § stimulant law; repeal (c) they prior read to their 1101(a) 91-513, possess stimulant sale § Pub.L. 2. contrary kept (10)). This alive to law. case §§ impartial pertinent language State Sixth an been shall have the crime reads: wherein Amendment district prosecutions, committed, shall have district “In criminal accused ” trial, enjoy right previously . . ascertained shall law. objects [Spanos] any- talked and of said didn’t have accomplished thing, so I deal follows: didn’t make a [Godwin] pills.” went sup- Defendant LEO SPANOS get attempt 100,000 pills. He had Rodney ply unindicted arrangements” by phone. made “the Francis house, just the latter’s buy- located tablets whenever Godwin disagreed pills, method about *3 buyers. located a er or When Godwin purchase, and he left. buyer buyers contact LEO he or would meeting ar- be SPANOS and would The November incident. 3. ranged time would at which Godwin testimony. a. Godwin’s amphetamine from tablets receive the arranged days before, About three then SPANOS. would LEO Godwin Spanos by “get phone buy- buyer or deliver the Spanos whites.” No- said he could. On ers.” Ozment, pilot Godwin, vember 19 and a There a list of six overt acts. follows plane. flew to in a San Carlos chartered car, rented a and Ozment and Supreme The has held that pilot were left at a restaurant. Godwin extrajudicial of a before the statements Spanos Spanos’ went to house and asked evi can be considered Spanos for “whites.” refused. Godwin against govern defendant, dence Spanos Spanos told have by evidence, restrict ment must establish people” tell and that God- himself, “the aliunde, proof ed to that the introduce them. went win would Godwin existed. v. United Glasser Spanos ar- back to the restaurant. Then 60, 74-75, 86 L.Ed. 62 S.Ct. introduced him to Oz- rived and Godwin test, interpretation under our ment, Spanos conversed. Ozment States, 9 of the rule in Carbo v. United did not recall the conversation. Godwin Cir., 1963, is whether the independent testimony. makes a b. Ozment’s fa support a cie “one case, which would “Q. the substance What was finding”. This means sub Id. conversation ? independent con evidence of the stantial pur- previous A. discussed the charged. spiracy liked the him that and I told chase imposed on limitation is When this gotten He before. merchandise we had case, the evidence which record remains, effect, this merchandise said, fairly considered, time, labels it has the same as the last out sufficient to make got, you facie and then the others on it like charged conspiracy. The testi- any to do didn’t me he want he told extra-judicial mony (as opposed state- he knew that time because business at ents) Godwin, co-conspirator, followed, being then he was claimed that can be evidence, the other to leave.” started finding that support to tend relating to direct evidence 4. Other charged conspiracy existed consists Spanos. following: testifying. Herring Agent a. sale, Godwin 1. The October at Godwin’s November testifying. On Spanos. telephoned home, Godwin bought 50,000 Spanos in Carlos. San tablets speak ask “He [Godwin] incident, U, 1969 2. The November the conver- [Spanos], Leo testifying. you well, was, are I heard sation not, or at all going to do Francisco with to San flew okay, I then long, Tuesday, for how agent He and others. Ozment narcotic conversation in touch. Carlos will in San restaurant left Ozment at a ended.” Spanos’ “We house. alone to and went buy; dealings Herring God- Godwin he did wanted not learn had no more buyer. Spanos. had located a But win, much less with arrived,, Spanos when Godwin refused testifying. b. Godwin pertinent sell. So far as the October, had known n shows, only it was 19 that November year occa- half. On for about sions, Spanos learned that Godwin had resold buying pills had been any pills, or that Ozment someone as- Spanos. on occa- to San Carlos flew bought sociated with get them. sions to Spanos sold to Godwin October. Agent testifying. c. Clark He also learned that wanted Ozment 19, 1969, On he saw Ozment happened Spanos more. ? refused. What meet at the restaurant San meetings There is much evidence about Carlos. agents narcotics damaging Apart from the considerable arrange- California, and the Southern testimony agents and Ozment *4 trips ments between them for to San Spanos about did, said said what Godwin agents Carlos. Thus Godwin and the there is that that is all the evidence busy conspiring. there is no But charged Spanos “con- with the connects spiracy.” hearsay Spanos evidence other than that enough a to make It is not assuming conspiracy, was a of that case. facie it charged, that was it not. which was Peoni, United States v. Peoni considering important, It is this evi- Regno Regno counterfeit to sold bills dence, remember nature of the to Dorsey, pass re-sold them to to who tried charged conspiracy, is that God- which them. Each of that the the three knew win, Spanos agreed, and others within bills Peoni were counterfeit. was California, that the Central District charged Dorsey conspiring with to have Spanos supply “would Godwin . convicted, pass the bills. He was but buyer buy- or whenever located Godwin appeal reversed. the conviction was that, located ers” and “When Judge Learned Hand said: buyer buyers or he contact would be'arranged meeting Spanos would and a Regno “Assuming that Peoni and receive time Godwin would which agreed Regno posses- should that have Spanos. from say bills, sion absurd to it is to then deliver agreed Dorsey that should Peoni that buyer buyers.” or Regno. knew have them Peoni from Regno might bought somebody pills that he that Godwin sold besides Herring, get them, conspiracy imports there is no also in October to but but agreed again purpose, Peoni evidence that had a concert of to resell the bills after that Godwin was to had no concern anyone Regno it paid At else. This does for times or to them. charged conspiracy, supposed that, even once not show seemed established, incident The November 4 criminal concert is kind of facie. everything only proves parties an un- are liable even less. shows buy original participants anyone attempt by of the successful appears, does, do who Spanos. those For all that and even for what from only Nothing may arrangements” more join could be have been later. “the conspiracy buy Nobody is liable than to sell. meet, rather untrue. strikingly import sim- the con- except the fair 19 incident agreement he un- purpose or However, time, this before certed ilar. change it; later comers if he asked derstands went to San Carlos change; “get that, for the telephone, some whites” not liable could he is liability the common far as limited to that he could. So his and was told remains it. purposes learned while all that appears, the fact perhaps due to phone that call was confusion advance edge conspira- everything conspiracy, of the done discussed selling including it declarations difficulties of imported. heroin once was tors— later entrants —is competent then, al- He because ready law, may fairly against all, declined it be trouble with so far as agree participate. thought to a second He did in execution of the con- be meeting, refused privy, cert to which accused talk, participate. he said though After further often doctrine too is might help, the con- (100 be 403) (Empha- he spirators able abused.” F.2d at again. never heard from added.) sis He a member was convicted as sup- Nothing in the cases cited to us conspiracy. court said: appeal, the On analyzed ports Peoni, a claim Ragland, Cir., purposes “Appellant United States v. Cianehetti, not fit our facts the Gov- appeal, 375 F.2d does not contest does controlling longer precedent, or is no except ex- ernment’s field narrow to which isted or that Cianehetti however, argues, directly applies, operations. whatever its only thought reference to mean. The insufficient entered, Ragland appears Peoni in at 375 F.2d that he the conclusion warrant There, p. in, Waterman con- participated furthered the at quotes ap- apparent agree, therefore spiracy. and we following: proval, dismiss conviction reverse his as to him. indictment sort as- “The accused must ‘in some *5 venture, himself sociate with that Cianehetti is little doubt There * * * participate in in some- it as group, for Marseilles of the knew thing bring about that he wishes Warycha their conver- admitted to * * * by his action to seek [or] had September sation ” make succeed.’ thirty years and Arancis for known support large quan- No other case is cited to us to they offered him argued status moreover, characterization of the heroin; discus- tities of Peoni. dis- Warycha problems of sed with securing prompt and and of tribution Spanos’ does fall Moreover, case knowledge payment. full But within the narrow field to which conspiracy goals of a existence and language directly applies, Peoni if that charged conspir a cocon- one not of itself make does anything. means The spirator. . . . acy buyers, is find that Godwin was to revealing in the a stake than get Rather de then affirma- conspiratorial or an venture buyers. proof is liver them to the only The purposes, attempt its bought further tive that Godwin inten- of his statements buy Cianchetti’s re tried and was twice most equivocal, at at least tion were proof The is similar to what fused. disclamatory. clearly proved held in Peoni, and was there certainly not make sufficient. does the District nor we Neither prima of the out a charged. case facie rea judgment individual’s of an sits agreement abstaining from an sons for mo Cianchetti’s a crime. to commit point States Also wholly lauda may not have Cianchetti, Cir., tives tory [sic], remains the fact but There, con a substantial did indeed shows the evidence spiracy import into the heroin lot in his cast did not conspirators abstain. need it. The and sell nothing did conspirators, ap with and Cianehetti was ed a outlet new enterprise, the success further the con proached. He met with His in its outcome. no stake and had knowl- spirators, displayed considerable business, amounting reg- (PP- reversed." a course of conviction must be prolonged, 587-588.) ular, sustained, in- volving nothing more on the seller’s parallel The Cianchetti’s be- buyer’s than indifference to the striking, especial- Spanos’ havior illegal purpose passive acquies- ly the November on November 19 purchase, in his desire cence phone call. degree A considerable whatever end. Peoni and Cianehetti It is true that the coupled casual with carelessness sufficientcy of evi- cases with the deal is tolerable outside transactions boundary verdict, support not the dence to conspiracy. There sufficiency out a make of evidence fairly im- broad latitude also they But ease under Carbo. facie munity more continuous course for a here, an ex- what we have did not involve strong sus- sales, made either with of court out tensive use statements, wrongful buyer’s picion or' use to Godwin testified stimula- knowledge, but trial, supposed to bolster a purchase.” incitement to tion or active into and thus turn it case facie fn. [Jd. 8.] beyond a reasonable doubt. deal good foregoing description The type of with the behavior here. of what the evidence aliunde shows conspiracy at all. is evidence of a government no There is doubt they apply principles are also Thus, the charged Spanos could have with the Oc- sold, applicable here. Like govern- sale, but it did tober not. knowing presumably that Godwin prima facie, prove, even ment resell; Cianehetti, Spanos probably like charged; cannot sustain what it sales, refused to make further government conviction because (so time far first charge. proved it did not what shows) he learned the extent of Godwin’s selling. reversed, judgment His to whom he was sales and Cianchetti’s, motives, not laud- to dismiss the indictment. like structions holds, im- able, that is Cianehetti
material. Judge (concur- MERRILL, Circuit prin- ring) also
This case
falls within
:
by
ciples
Supreme Court
laid down
Judge Duniway’s opinion
I
concur
in Direct Sales Co. v. United
thought
my
to add a
of
but wish
own
63 S.Ct.
319 U.S.
respect
conspiracies
of the sort
to
There, on
far
1019
again
appellant
cepting
independent
when
called
the
as
going
credible,
judge
if
asked
he was
do
more
that a
was satisfied
long. They agreed
business and
how
facie case had been made. Sub-
following Tuesday.
on
sequently,
to talk
is the function of the
During
agent
period
evidence, including
to decide whether the
large
playing
declarations,
was
the role of
narcotics
is credible and convinc-
agents
Angeles,
ing beyond
in
dealer
Los
while
Oz-
a reasonable
Carbo
doubt.
playing
718,
role
ment and others
v.
States,
United
314 F.2d
736-737
acting
Herring’s bodyguards.
1963).
as
Cir.
directly
establishes,
participation
The above
either
in
venture which
conspirator
bring about,
case,
or in the circumstances of the
that:
wishes
(1) Godwin,
co-conspirator,
awas
make
succeed,
seeks
his action to
illegal drugs;
(2) appellant
in
dealer
100
in
v.
outlined
United States
illegal
(2d
drugs;
(3)
upon
1938),
in
that
was
dealer
F.2d
402
Cir.
which
appellant
appellant
posses
had known each
relies,
and Godwin
be shown
half;
illegal
year
(4)
subject
that
other over a
of the
sion
matter
transactions,
appellant
plus participation
least one of Godwin’s
in
was
(5)
suppliers;
appellant
proceeds
that
knew
made
thereof. This is
clear
drugs
Ragland,
selling
Los
in the
Godwin was
United
375 F.2d
States
Angeles area;
relationship
(2d
(6)
1967),
Peoni
477
appellant
placed
perspective,
proper
and Carbo
between
one;
quantity
Ragland
continuing
(7)
approval.
em
is cited with
required
appellant
act
phasizes
involved
innocent
that an otherwise
disposing
relatively slight
may,
of them
know
of a
moment
surrounding
persons.
teaches
cir
to third
Common sense
in the context of
viewed
agents
justify
com
cumstances,
that Godwin and the undercover
an inference
flying
p.
back
Ragland,
not have
F.2d
plicity.
been
Angeles
Judge
and San
speaking
forth
the Los
between
decisions
In
Hand’s
arrange-
subject,
Francisco
some definite
area
the Second
Circuit
Geaney,
exist between Godwin
ment
F.2d
appellant.
(1969),
said:
doubt,
has
left
in some
“What
CONCLUSIONS
opinions and
Hand’s
both
majority
principal
of the
thrust
quant
court,
is the
later ones for this
implicating
opinion is that
the evidence
will suffice.
um of
evidence that
such
independent
ex-
of Godwin’s
Ross, 321
United States v.
trajudicial
declarations,
insufficient
Cir.),
(2d
denied,
cert.
establish
concert of action
L.Ed.2d
S.Ct.
necessary
au-
and Godwin
(1963),
said,
opinion
in an
admission of the declarations.
thorize the
writer,
amount
‘the
concert
that once a
well settled
con
of a
to the existence
aliunde as
shown,
independently
Lutwak
action is
required
render such
spiracy
604, 73 S.Ct.
344 U.S.
high
is not as
admissible
hearsay
state-
read record the introduction of
and feel that per- confines of within the placed procedure. before missible jury complete picture co-conspir- background. Be- ator’s activities
yond that, a considerable concerning
testimony co-conspirator’s placed in the in narcotics was
activities noAt by appellant’s counsel. own record ap- government infer that
time did the trafficking pellant heroin circumstances, er- In these cocaine. harmless within any, was
ror, 52(a),
meaning Rule F.R.Crim.P. States, F.2d v. United
Castro Daily 1961) v. United (5th Cir. 1961) are Cir. F.2d de- distinguishable
readily and do anything I find Nor do
serve comment. DeCicco, 435 require 1970), (2d conclusion. at a different
tome arrive stated, are appellant’s cases Simply point. appealed should judgment
affirmed. Julio
MALTINA CORPORATION Blanco-Herrera, Plaintiffs- Appellants, Inc., COMPANY,
CAWY BOTTLING Defendant-Appellee.
No. 71-1532. Appeals,
United States Fifth Circuit.
May 23, 1972. Rehearing
Rehearing and En Banc July Denied