Petition — Kaye v. United States

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FILED

Sep 28 1979

| MICH RODAK, JR., A

\ wees Court, U. Se “\I

IN THE

SUPREME COURT OF THE UMTED STATES

October Term, 1979

No.

79-524

JOHN A. KAYE ° . ° . ° ‘ Petitioner

versus

UNITED STATES OF AMERICA - -_ Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BERT T. COMBS

M. STEPHEN PITT

TARRANT, COMBS & BULLITT

2600 Citizens Plaza

Louisville, Kentucky 40202

WESTERFIELD-BONTE CO., 619 W. KENTUCKY-P.O. BOX 3251, LOUISVILLE, KY.

PAGE

IE a SE 1

caw oka a gk eee ences 1

Ee 2

Constitutional Provision Involved ................. 2

ee Gass e eevee sc cuee 2- 3

Reasons for Granting the Writ .................... 4-9

I. There Is a Conflict Among the Cireuits ......... 4

II. The Court of Appeals, in Refusing to Apply

United States v. Chadwick Retroactively, Decided

a Federal Question in a Way in Conflict With

Applicable Decisions of This Court, and Adopted

an Approach Contrary to the Teachings of This

Deke e ye sabesescceseces 5- 9

A. The Supreme Court Recently Applied Chad-

wick Retroactively in Arkansas v. Sanders,

ae , 47 US.L.W. 4783 (June 20,

B. The Supreme Court Directed That Chadwick

be Applied Retroactively by Its Remand of

Schleis v. United States, 433 U.S. 905 (1977),

in Light of Chadwick; and ................. 6— 7

C. The Supreme Court in Chadwick Did Not An-

nounce a New Constitutional Principle ...... 7-9

eG yes ied ssic sae es veces 9

TES CETTE ESSE EEE 11-46

Judgment of the United States Court of Appeals... 11

Opinion of the United States Court of Appeals... .12-46

TABLE OF AUTHORITIES

Cases:

Arkazwsas v. Sanders,

U.S. —_, 47 U.S.L.W.

ee SN OE MEE 6 ced ts cendencnccneeesdes )

Schleis v. United States, 483 U.S. 905 (1977) ..... 5, 6, 7

United States v. Berry, 571 F. 2d 2 (7th Cir., 1977)

cert. denied, 99 S. Ct. 129 (1978) .............. 4

United States v. Chadwick, 483 U.S. 1 (1977). ..2, 3, 4, 5,

6, 7, 8,9

United States v. Choate, 576 F. 2d 165, (9th Cir.,

snc cie ech oeseeeabanexereesne vaste 4

United States v. Montgomery, 558 F. 2d 311 (5th

SE ko kb be oe aba KO > OE Re Svan enaes 4

United States v. Ochs, 595 F. 2d 1247, 1255 (2nd

Sr csc elo kc sa 4s te hak sea ee a esos 4,7

United States v. Peltier, 422 U.S. 531 (1975) ...... 7,8

United States v. Reda, 563 F. 2d 510 (2nd Cir,

1977) cert. denied, 485 U.S. 973 (1978) ........ 4

United States v. Schleis, 582 F. 2d 1166 (8th Cir.,

1978) ; 543 F. 2d 59 (8th Cir., 1976) ........... 4,6

United States v. Stevie, 582 F. 2d 1175 (8th Cir.,

1978), cert. demed, U.S. 0. 4) Uae

OD on cave vcdapescscanccvness 4

Constitutional Provision:

United States Constitution, Fourth Amendment... 2

Statutes:

NER ED 6 ok Sb sc venv dent ¥ihyseanseess's 1

it oe See cece ceert ae ahaa 2

i en errr re rey eee 2

os one kcn ies es bate nddvasanes’s 2

ER OPT T TS TT TIT Te ree TILE tke 2

ie IN, G5A ek e005 ewan b eden Seow denn 2

ik Ge >) eee re 2

PAGE

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

No.

JOHN A. KAYE - . - - - Petitioner

UNITED STATES OF AMERICA - - Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioner, John A. Kaye, petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Sixth Circuit entered in this

ease on August 31, 1979.

OPINION BELOW

The opinion of the Court of Appeals is contained in

the Appendix hereto (App. 12-46).

JURISDICTION

The judgment of the Court of Appeals was entered

on August 31, 1979 (App. 11). The issuance of man-

date was stayed on September 21, 1979. The jurisdic-

tion of this Court is invoked under 28 U.S.C. § 1254(1),

QUESTION PRESENTED

Whether the Court of Appeals erred in declaring

the decision in United States v. Chadwick, 433 U.S. 1

(1977) not to have retroactive application.

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment to the Constitution of the

United States provides:

‘‘The right of the people to be secure in their

persons, houses, papers, and effects, against unrea-

sonable searches and seizures, shall not be violated,

and no warrants shall issue, but upon probable

cause, supported by oath or affirmation, and par-

ticularly describing the place to be searched, and

the persons or things to be seized.”’

STATEMENT OF THE CASE

The Petitioner, Kaye, now 74 years old, was con-

victed in United States District Court on March 7,

1978, of conspiracy (18 U.S.C. §371) to violate §§ 1014,

2314, 1241, and 1343, Title 18, U.S.C.; making or caus-

ing to be made materially false statements and reports

in an application for a loan from an FDIC bank (18

U.S.C. §1014), and the aiding and abetting thereof

(18 U.S.C. §2); and fraud by wire (18 U.S.C. §1348)

and the aiding and abetting thereof.

Kaye was arrested on April 11, 1977, in the office of

an officer of the Louisville Trust Bank, Louisville,

Kentucky, pursuant to an arrest warrant. In his pos-

session at the time was a briefcase which the arresting

agents of the Federal Bureau of Investigation seized

from him. Instead of immediately searching the brief-

ease at the time and place of the arrest, the agents

separated it from Kaye and took both him and it to’

their local office where later, without a search warrant

or Kaye’s consent, the briefcase was opened and

searched. Inside the briefcase were numerous incrim-

inatory documents of which twenty-eight were intro-

duced ‘at the trial of the matter. Included among the

contents of the briefcase were several different versions

of the specific balance sheet Kaye was allegedly at-

tempting to present to the bank as evidence that ‘the

bank should lend money to his corporation.

The Court of Appeals agreed with Kaye that the

search of his briefcase was in violation of the Fourth

Amendment as interpreted in this Court’s decision in

United States v. Chadwick, 433 U. S. 1 (1977), and

that arresting agents in such situations are required to

obtain a search warrant prior to searching briefcases

once they have come into the exclusive possession of

the officers (App. 29, 34). The Court, however, refused

to apply the Chadwick holding to the search of Kaye’s

briefcase because the search occurred on April 11, 1977,

and this Court did not decide Chadwick until June 21,

1977. The Court therefore affirmed Kaye’s conviction

notwithstanding its opinion that the search was illegal

and the seized evidence unconstitutionally tainted.

REASONS FOR GRANTING THE WRIT

The Court of Appeals Erred in Declaring the Decision

in United States v. Chadwick, 433 U.S. 1 (1977) Not

to Have Retroactive Application.

I. There Is a Conflict Among the Circuits.

There is presently a conflict among the circuits on

the question of whether the decision in United States v.

Chadwick, 433 U.S. 1 (1977) should be applied retro-

actively. The Kighth Circuit has held Chadwick to

apply retroactively to searches and seizures occurring

before the date of its decision, June 21, 1977. See,

Umted States v. Schleis, 582 F. 2d 1166 (8th Cir., 1978)

(en bane), on remand from the Supreme Court, 433

U.S. 905 (1977); United States v. Stevie, 582 F. 2d

1175 (8th Cir., 1978), cert. denied, U.S. , 47

U.S.L.W. 3822 (June 25, 1979.) The Second’, Fifth,

Seventh, and Ninth Circuits have all held Chadwick

not to be retroactive. United States v. Reda, 563 F. 2d

510 (2d Cir., 1977) (per curiam), cert. denied, 485 U.S.

973 (1978); United States v. Montgomery, 558 F. 2d

311 (5th Cir., 1977) (per curiam); United States v.

Berry, 571 F. 2d 2 (7th Cir., 1977), cert. denied, 99

S. Ct. 129 (1978) ; United States v. Choate, 576 F. 2d

165 (9th Cir., 1978).

1The Second Circuit in United States v. Ochs, 595 F. 2d 1247,

1255 (2nd Cir., 1979) recently questioned its prior holding on this

point although the Court, in affirming on other grounds, was not

required to decide the retroactivity question there.

II. The Court of Appeals, in Refusing to Apply United

States v. Chadwick Retroactively, Decided a Federal

Question in a Way in Conflict With Applicable De-

cisions of This Court, and Adopted an Approach Con-

trary to the Teachings of This Court, in That:

A. The Supreme Court recently applied Chadwick

retroactively in Arkansas v. Sanders, i

47 U.S.L.W. 4783 (June 20, 1979) ;

B. The Supreme Court directed that Chadwick be

applied retroactively by its remand of Schleis v. United

States, 433 U.S. 905 (1977), in light of Chadwick; ,

C. The Supreme Court in Chadwick did not an-

nounce a new constitutional principle.

A. The Supreme Court Recently Applied United States v. Chadwick

Retroactively in Arkansas v. Sanders, U.S. , 47

U.S.L.W. 4783 (June 20, 1979).

On June 20, 1979, this Court decided Arkansas v.

Sanders, supra, wherein the seizure and subsequent

warrantless, nen-consensual search of an unlocked suit-

ease seized from an automobile was held to be illegal

under the rationale in Chadwick.

The search and seizure in Sanders occurred on

April 23, 1976, over one year before the decision in

Chadwick was filed. It is therefore apparent that this

Court intended for Chadwick to be applied retroac-

tively to searches occurring prior to the date it was

decided, at least as to cases still pending as of that date,

as was Sanders, and, of course, the instant case.

B. The Supreme Court Directed That Chadwick Be Applied Retro-

actively by Its Remand of Schleis v. United States, 433 U.S. 905

(1977), in Light of Chadwick.

Umited States v. Schleis, 543 F. 2d 59 (8th Cir.,

1976), involved the search of a briefcase under cireum-

stances similar to those in this case. There the arrest-

ing officer arrested the defendant who was clutching a

closed briefcase. The police took him and the briefcase

to the police station and there searched the briefcase

without a warrant or the defendant’s consent and

found over two pounds of cocaine. The Eighth Circuit

upheld the search.

In Schleis v..United States, 483 U.S. 905 (1977),

the Supreme Court, six days after handing down Chad-

wick, vacated the Appeals Court judgment and re-

manded the case to the Court of Appeals ‘‘for further

consideration in light of United States v. Chadwick.’’

The Eighth Circuit on remand, at 582 F. 2d 1166

(8th Cir., 1978) (en banc) reconsidered its earlier

decision and reversed the conviction in Schleis, holding

the search of the briefcase there to have been illegal

under Chadwick. The question of whether Chadwick

was to be applied retroactively was raised as to the

Schleis search, which occurred on November 17, 1974,

and the Eighth Circuit, en bane, stated in that regard,

‘*Moreover, we note the Supreme Court did

remand this case for our consideration in light of

Chadwick. If the Supreme Court had not in-

tended Chadwick to be applied retroactively, there

would have been no reason for remanding the case

to this Court.”

Td. at 1173, n.6.

The significance of this Court’s remand of Schleis

in light of Chadwick was not raised in the Second,

Fifth, Seventh or Ninth Circuit decisions holding

Chadwick not to be retroactive. See United States v.

Ochs, supra at 1255.

Petitioner here argues that it would have been

futile for the Supreme Court to have remanded Schleis

in light of Chadwick had not the Court intended for

Chadwick to apply to pre-June 21, 1977, searches.

C. The Supreme Court in Chadwick Did Not Announce a

New Constitutional Principle.

The Sixth Cireuit in the instant case relied, as did

the Second, Fifth and Seventh, on the position that the

Supreme Court in Chadwick announced a new consti-

tutional doctrine and therefore, under Umited States v.

Peltier, 422 U.S. 531 (1975), Chadwick should not be

applied retroactively. The Court stated in the instant

opinion that,

‘‘In this case we believe that the agents acted

reasonably and should not be charged with the

knowledge that the’ search of Kaye’s briefcase was

illegal. In our opinion, Chadwick marked a shift

in the laws, even if it did not expressly overrule

any prior Supreme Court decisions.”’

App., p. 36.

Petitioner here respectfully urges that the decision

in Chadwick did not mark ‘‘a shift in the law.’’ It is

simply another case in the orderly progression of con-

stitutional law decisions. The fact that the specific

search and seizure question presented in Chadwick, and

here, had not been presented to, or decided by, this

Court prior to June 21, 1977, does not evidence an

‘*about-face”’ on the question of such searches. All that

is indicated is that the Supreme Court in Chadwick

first chose to state what the law has been as to such

searches all along. The decision in Chadwick is unlike

the sharp reversal in Peltier. As recognized by the

Eighth Circuit in Schleis, on remand,

“Unlike Peltier, this case does not present a

question of retroactivity and, thus, we need not

reach the question of whether or not to apply the

exclusionary rule . . . Chadwick announces no

new constitutional doctrine, nor does it broaden

any existing exclusionary rule. All the Court did

in Chadwick was to hold that warrantless searches

of luggage absent an exigency are an invasion of a

‘‘legitimate privacy interest’’ and cannot be justi-

fied under any of the long established exceptions

to the Fourth Amendment warrant requirement.

In so holding, the Court stressed that ‘‘In this area

we do not write on a clean slate.’’ United States v.

Chadwick, supra, 433 U.S. at 9, 97 S. Ct. at 2482

. . . The Supreme Court need not have applied a

well-settled constitutional principle to every pos-

sible fact situation before its decisions are entitled

to retroactive effect. Moreover, in Peltier, the

challenge border search had been conducted pur-

suant to statutory authority and similar searches

had repeatedly been upheld against Constitutional

attack . . . Such is not the case here... .

[ Neither] the search of Schleis’s briefcase nor

the search of the footlocker in Chadwick can be

justified under existing state, regulation or pre-

vailing constitutional norm. Accordingly, the de-

cision in Chadwick presents no question of retro-

activity.”’ [Emphasis added. ]

582 F. 2d at 1174.

Appellant here urges that this Court did not reverse

any established Supreme Court cases holding differ-

ently from Chadwick and made it quite clear that no

new constitutional doctrine was being advanced when

it stated,

‘‘Tn this area we do not write on a clean slate.’

Uniied States v. Chadwick, 433 U.S. at 9.

CONCLUSION

For all of the reasons set forth herein, the petition

for a writ of certiorari should be granted and the

judgment of the Court of Appeals for the Sixth Circuit

reversed,

Respectfully submitted,

’ Bert T. Comps

M. STEPHEN PITT

TARRANT, Comss & BULLITT

2600 Citizens Plaza

Louisville, Kentucky 40202

Counsel for Petitioner

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 78-5341

78-5342

Unirep States or America, - - Plaintiff-Appellee,

Vv.

Joun B. CauanpReLLa, - - - Defendant-Appellant.

AND

Unirep States or America, - - - Plaintiff-Appellee,

Vv.

JoHn A. Kayz, - - - - - Defendant-Appellant.

Before: Wetck and CELEBREzzE, Circuit Judges, and

Peck, Senior Circuit Judge.

JUDGMENT—Filed August 31, 1979

AppeaL from the United States District Court for the

Western District of Kentucky.

Tus Cause came on to be heard on the record from the

United States District Court for the Western District of

Kentucky and was argued by counsel.

On ConsweRATION WHEREOF, It is now here ordered and

adjudged by this Court that the judgment of the said Dis-

trict Court in this cause be and the same is hereby affirmed.

No costs taxed.

Entered by Order of the Court.

(s) John P. Hehman

Clerk

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 78-5341

78-5342

Unitrep States or America, - - Plaintiff-Appellee,

Joun B. Cazanpretta, - - - Defendant-Appellant,

AND

Unitep States or America, - - ~- Plaintiff-Appellee,

Joun A. Kayz, - - - - - Defendant-Appellant.

Appeal From the United States District Court for the

Western District of Kentucky at Louisville

Decided and Filed August 31, 1979.

Before Weick and Cer.esrezze, Circuit Judges and

Peck, Senior Circuit Judge.

Weick, Circuit Judge. The defendants-appellants have

filed separate appeals from judgments of conviction en-

tered upon guilty verdicts of the jury in a joint trial on a

three count superseding indictment. The indictment

charged the defendants and five other co-defendants with

conspiracy (18 U.S.C. § 371) to violate §¢ 1014, 2314, 1341

and 1343 of 18 U.S.C. (Count 1) and with the substantive

offenses of making or causing to be made materially false

statements and reports in an application for a loan from

a FDIC bank (18 U.S.C. § 1014) and aiding and abetting in

the commission thereof (18 U.S.C. § 2) (Count 2), and

fraud by wire (18 U.S.C. § 143) and aiding and abetting in

the commission thereof. (18 U.S.C. § 2) (Count 3).

The co-defendants, Carl Thomas Bannon, Jr. and Phillip

Karl Kitzer, Jr., pleaded guilty and testified for the govern-

ment at the trial. Co-defendants John Derek Packman,

Pascal Cornaz and Jean-Claude Cornaz resided in foreign

countries and were not extradited and did not attend the

trial.

The two convicted defendants were each sentenced to

consecutive terms of five years imprisonment on counts 1

and 3 and to concurrent terms of two years imprisonment

on count 2, for a total sentence of 10 years each. Thetap-

peals were heard together.

In these appeals, in briefs, making virtually the same

contentions, the appellants have argued a number of issues

relating to the various phases of the case. Finding each of

these claims ultimately to be without merit, we affirm the

judgments of conviction.

I. FACTS

This case involves a simple fraud perpetuated with the

aid of an international conspiracy. The cast of characters

includes several persons in addition to the appellants

herein. One key figure js co-defendant Phillip Karl Kitzer,

who testified as a government witness. During the period

covered by the indictment, he was in the business of taking

over or forming various financial institutions (“vehicles”)

in different countries and having them issue overvalued

certificates of deposit (CD’s) and other financial instru-

ments. For a fee, generally 10% of the face amount of the

CD, Kitzer would provide a certificate to a “desperate”

businessman who was having difficulty obtaining legitimate

financing. Kitzer’s CD’s were at no time backed by suf-

ficient funds to cover their face value. Because these in-

struments could not withstand close scrutiny by banking

officials, purchasers were instructed that the CD’s should

only be used to improve a corporate balance sheet, and

should not be pledged as collateral for a loan. If they were

used as instructed, it was hoped that a bank considering a

loan application would not bother to investigate the CD

or its issuer too closely, since they were shown only on the

books of the borrower.

Although Kitzer never expected to receive funds to pay

the face amount of the certificates, he generally obtained a

post-dated check from the certificate purchaser in addition

to his 10% fee. This check would be written in an amount

equal to the face amount of the CD purchased and would

be postdated to the CD’s maturity date. In this way, Kitzer

felt protected if a holder ever demanded payment on the

certificate.

At times relevant to this case, Kitzer was using his

Seven Oak Finance Limited (Seven Oak), a financial insti-

tution of Kent, England, as his “vehicle” for issuing cer-

tificates of deposit. Unknown to Kitzer, however, two

undercover FBI agents had infiltrated his organization.

From February, 1977, until October, 1977, agents Brennan

and Wedick were Kitzer’s daily companions, serving as

trusted apprentices in the enterprise.

In the typical transaction involving Seven Oak CD’s, the

“desperate” businessman would be placed in contact with

Kitzer through a financial broker. Co-defendant Carl

Thomas Bannon, who also testified as a government wit-

ness, was such an individual. For a fee he would attempt

to secure funds from persons looking for investments for

others looking for loans. Generally, he would attempt to

arrange to have the chosen investor deposit funds in a

selected commercial bank as a compensating balance to

secure a bank loan to Bannon’s fee-paying client. Bannon

and the investor would then split the fee, and in addition,

the investor would earn the applicable rate of interest on

his. deposited funds.

Defendant Kaye became a client of Bannon’s in 1975.

At that time, they were able to complete one such deal.

Thereafter, and until Bannon entered prison on unrelated

charges in January 1977, the two men were unsuccessful in

their efforts to close other similar deals.

Kaye operated several enterprises, the principal one

being Globe Natural Gas Company. Although Kaye was

nominally only a “consultant” to Globe, it was plain that he

not only controlled but actually ran the company. Over the

period of his relationship with Bannon, Kaye had attempted

to purchase several mineral properties. The deals could

not be closed, however, because Kaye had been unable to

arrange financing for the acquisitions. Several banks had

refused to make loans to Kaye or to Globe, despite assur-

ances from Bannon.

In December 1976, Bannon met Kitzer and was in-

structed on Kitzer’s method of using Seven Oak CD’s to

improve the chances of obtaining a conventional bank loan.

Kitzer also told Bannon that the CD’s should not be used

for collateral. Because of the repeated disappointments

which Bannon had experienced in his attempts to help

Kaye, and because Bannon was anxious to close a deal

before he had to report to prison, he fully explained

Kitzer’s methods to Kaye. Bannon also told Kaye of

Kitzer’s restrictions on the use of the CD’s.

With all of this knowledge, Kaye purchased a $100,000

Seven Oak CD on December 17, 1976. He sent Bannon two

checks totalling $100,000 postdated to the maturity date of

the CD. He also sent $11,000 to cover Kitzer’s and Ban-

non’s fees.

During the week following Christmas, 1976, Bannon

learned that his earlier conviction had been affirmed and

that he would have to report to prison. Pursuant to an

earlier arrangement, defendant Calandrella was to take

over the operation of Bannon’s financial brokerage busi-

ness, Bannon International. Calandrella was also in the

brokerage business, and Bannon was impressed with his

abilities. Since the well-being of Bannon’s family depended

on Calandrella’s ability to run Bannon’s business, Bannon

explained as much as he could about the operation, includ-

ing the details of the dealings with Kaye and with Kitzer.

Bannon remained in contact with Calandrella while the

former was in prison.

Armed with the Seven Oak CD, Kaye renewed his efforts

to close various deals for the purchase of mineral property.

Apparently ignoring Bannon’s specific instructions, Kaye

began offering to pledge the Seven Oak CD’s as collateral.

One bank that investigated the matter informed Kaye in

March 1977 that the CD was worthless. Undaunted, Kaye

attempted to negotiate another deal, which also collapsed.

Finally, Kaye attempted to close yet one more deal for

the purchase of coal property, this time involving the

Louisville Trust Bank. On March 31, 1977, Kaye met for

the first time with officials of the bank, and attempted to

negotiate a $4.5 million dollar loan. At that time he pre-

sented the CD, a balance sheet for Globe, and a letter of

introduction prepared by Calandrella acting for Bannon

International. The letter explained that Seven Oak was

committed to the issuance of up to $9 million in CD’s on

behalf of Globe and represented that the Union Bank of

Switzerland, a well known institution, would guarantee all

of the CD’s including the one already issued. Kaye also at

some point displayed a copy of an accountant’s opinion

letter concerning Globe that was purportedly prepared by

one, Linden Headlee. |

Unfortunately, for Kaye, evidence at trial showed that,

even aside from the problems with the Seven Oak CD, the

documents offered by Kaye either contained false state-

ments or were fraudulent in their entirety. For example,

a representative of the Swiss bank testified that the bank

would not as a matter of policy guarantee CD’s issued by

another financial institution. Linden Headlee, the account-

ant, denied preparing the opinion letter submitted by Kaye,

although he stated that he had done work for Kaye at an

earlier time. Also, another accountant testified that a $20

million asset on the Globe balance sheet was overvalued

under accepted accounting procedures.

Even before Kaye’s arrival at the Louisville Trust

Bank, certain bank officials had been warned that a man

named Kaye might attempt to use a CD of questionable

value to obtain a loan. The officials were instructed, how-

ever, to treat the transaction in a normal fashion. Indeed,

a bank officer stated at trial that had their investigations

proved favorable, they would have granted Kaye a loan

despite the warning. Accordingly, the bank attempted to

verify the validity of the CD and the integrity of its issuer.

They encountered difficulty, however, in contacting either

Bannon International or Seven Oak. Kaye then assisted by

placing a telephone call to Calandrella and giving the re-

ceiver to bank vice president Hagan. Calandrella spoke to

Hagan, repeating the assurances contained in his letter of

introduction, and offering to assist in contacting Seven Oak

directly. Calandrella again confirmed the validity of the

CD and Kaye’s right to use it in a later mailgram. There-

after, the Louisville Trust Bank received a telex from

Seven Oak assuring the bank of Kaye’s right to use the

CD as “backup collateral.” Hagan sent a responding telex

to Seven Oak, asking who was authorized to bind the insti-

tution. A second telex from Seven Oak stated that one

John Packman, who sent the first telex, was an authorized

agent.

The evidence at trial also showed that in addition to

helping Kaye, Calandrella was actively pursuing several

other similar deals involving Seven Oak CD’s. In this con-

nection, he met Kitzer on several occasions in various

European and American cities. They discussed pending

deals, including the problem of obtaining the promised

Swiss bank guarantees for Kaye’s CD’s.

Kaye was arrested on April 11, 1977, on the premises of

the Louisville Trust Bank pursuant to an arrest warrant.

When he was arrested, the FBI agents seized the briefcase

that he was carrying. Both Kaye and the briefcase were

taken to the local FBI office, where the case was opened

and searched without a warrant and without Kaye’s con-

sent. The briefcase was found to contain several versions

of a Globe Natural Gas balance sheet. In all, 28 documents

found in the briefcase were introduced at trial.

ll. THE ARREST

The defendants maintain that the arrest warrant was

invalid because the complaint on which it was issued did not

contain facts sufficient to establish the existence of prob-

able cause. Viewing the evidence obtained from the sub-

sequent search of Kaye’s briefcase as a fruit of that arrest,

the defendants contend that the evidence should have been

suppressed.!

As regards defendant Calandrella, the government sub-

mits that irrespective of the merits of this argument, he is

not entitled to relief because he was not the victim of any

fourth amendment violation. We agree. Fourth amend-

ment rights are personal and may not be asserted vicar-

iously. Alderman v. United States, 394 U.S. 165, 171-74

(1969). As the Supreme Court recently stated in Rakas v.

Illinois, 99 8. Ct. 421, 425 (1978) :

A person who is aggrieved by an illegal search and

seizure only through the introduction of damaging evi-

dence secured by a search of a third person’s premises

1The motion to suppress was originally only filed on behalf of

Kaye. During the trial, however, the District Court permitted

Calandrella to join in the motion.

or property has not had any of his Fourth Amendment

rights infringed. Alderman, supra, 394 U.S., at 174,

89 S. Ct., at 966. And since the exclusionary rule is an

attempt to effectuate the guaranties of the Fourth

Amendment, United States v. Calandra, 414 U.S. 338,

347, 94 S. Ct. 613, 619, 38 L. Ed. 2d 561 (1974), it is

proper to permit only defendants whose Fourth

Amendment rights have been violated to benefit from

the rule’s protections.

Not being the victim of the allegedly illegal arrest, and not

having any personal proprietary interest in the briefcase

or its contents, Calandrella is simply not entitled to com-

plain about the arrest or the admissibility as against him

of any of the evidence seized thereby. See Rakas, supra;

United States v. Killebrew, 594 F. 2d 1103, 1105 (6th Cir.

1979).

As regards Kaye, the government contends that the

complaint, when read as a whole, was sufficient to establish

probable cause for the arrest. The basic requirements for

the issuance of a federal arrest warrant upon a complaint

are contained in Fed. R. Crim. P. 3, 4, which provide in

pertinent part:

Rule 3. The Complaint

The complaint is a written statement of the essential

facts constituting the offense charged. It shall be

made upon oath before a magistrate.

Rule 4. Arrest Warrant or Summons upon Complaint

(a) Issuance. If it appears from the complaint, or

from an affidavit or affidavits filed with the com-

plaint, that there is probable cause to believe that an

offense has been committed and that the defendant has

committed it, a warrant for the arrest of the defendant

shall issue to any officer authorized by law to execute

it. Upon the request of the attorney for the govern-

ment a summons instead of a warrant shall issue.

More than one warrant or summons may issue on the

same complaint. If a defendant fails to appear in

response to the summons, a warrant shall issue.

(b) Probable cause. The finding of probable cause

may be based upon hearsay evidence in whole or in

part.

In Giordenello v. United States, 357 U.S. 480, 485-86

(1958), the court explained that these requirements imple-

ment the mandate of the warrant clause of the fourth

amendment. See Aguilar v. Texas, 878 U.S. 108, 112 n. 3

(1964). The basic requisite is that a judicial officer be

supplied with information sufficient to enable him to make

an independent judgment that probable cause exists. White-

ley v. Warden, 401 U.S. 560, 564 (1971); United States v.

Evans, 574 F. 2d 352 (6th Cir. 1978). To support the issu-

ance of a warrant, the facts, including credited hearsay

statements, must show something more than a suspicion of

criminal activity, but need not be sufficient to support a

conviction. Brinegar v. United States, 338 U.S. 160, 175-76

(1949); see Jaben v. United States, 381 U.S. 214, 224-25

(1965) ; Beck v. Ohio, 379 U.S. 89, 91 (1964). And in con-

sidering the complaint (together with any affidavits) the

magistrate must not engage in a hypertechnical reading.

Instead, he must employ a common sense approach. See

United States v. Ventresca, 380 U.S. 102, 108 (1965).

Because of the preference for the use of warrants by

law enforcement officers, and also because of the harshness

of the remedy of suppression, which is employed where

violations are found, we have held in the context of a search

warrant that on review, the magistrate’s determination will

be afforded great deference even in doubtful cases; his

judgment will be upheld unless it was “arbitrarily exer-

eised.” E. g., United States v. Lee, 581 F. 2d 1173, 1177

(6th Cir. 1978); United States v. Swihart, 554 F. 2d 264,

270 (6th Cir. 1977); United States v. Giacalone, 541 F. 2d

508, 513-14 (6th Cir. 1976) (en bane). Thus even where

alternative readings of an affidavit or a complaint are

equally susceptible, we will not disturb the magistrate’s

choice of one reading over the other. United States v. Hat-

field, No. 78-5416, slip op. at 7 (6th Cir. June 4, 1979);

United States v. Giacalone, supra, 541 F. 2d at 516.

Inasmuch as we believe that the same policies apply

with similar force in the context of an arrest warrant as

they do in the context of a search warrant, we apply the

same standards of review here. Cf. Whiteley v. Warden,

supra, 401 U.S. at 564; Aguilar v. Texas, supra, 378 UtS.

at 112 n. 3 (cases state that the fourth amendment’s prob-

able cause requirement applies in a like fashion both to

arrest warrants and to search warrants).

In reviewing the complaint in this case, which is set out

in the margin,” we believe that sufficient facts were pre-

2The complaint reads as follows:

Before Dale R. Booth, Louisville, Kentucky.

The undersigned complaint being duly sworn states:

That on or about March 31, 1977, at Louisville, Kentucky in

the Western District of Kentucky John A. Kaye did know-

ingly made false statements and reports and pledged worthless

overvalued securities for the purpose of influencing the loan

action of an institution whose accounts are insured by the

Federal Deposit Insurance Corporation.

And the complainant states that this complaint is based on

information furnished in a communication from the Charlotte

Office of the Federal Bureau of Investigation (FBI) that

Stuart A. Allen, Security and Exchange Commission, Washing-

ton, D. C., had received information that certificates of deposit

drawn against Seven Oaks Finance Limited, London, England,

were flooding the entire country. Allen advised a $100,000 cer-

tificate of deposit from Seven Oaks would be deposited into an

unknown Louisville, Kentucky, bank by a man known as Kaye.

Allen advised he had arranged for the Kentucky State Police

to arrest John A. Kaye on fraud charges. On information

from William H. Hagan, Vice President, Louisville Trust Bank,

that he received a certificate of deposit from John A. Kaye,

(Footnote continued on following page)

drawn on Seven Oak Finance Limited, Kent, England, number

2004, dated December 17, 1976, issued to Globe Natural Gas

Company, Incorporated, in the amount of $100,000. He also

received from Kaye a letter of introduction from John B.

Calandrella introducing John Kaye and stating certificates of

deposit in the amount of nine million dollars would be forth-

coming with endorsement and guarantee from Union Bank of

Switzerland. Hagan was also furnished a financial balance

sheet for Globe Natural Gas. Hagan stated attempts to verify

the validity of the certificates of deposit through normal bank-

ing channels met with negative results. Contact with Alfus R.

Bomgardner, First National Plaza Bank, New York, New York,

disclosed Union Bank of Switzerland does not guarantee nor

endorse certificates of deposit, they never have and they never

will. Information received from Detective Inspector Ken Guil-

bert, Company Fraud Department, New Scotland Yard, advised

the directors of Seven Oak Finance Limited have been informed

by the British Department of Trade that an investigation has

been conducted and a compulsory wind-up order to have them

cease business will be applied for. On information furnished

from FBI, Boston, that Kar! Thomas Brannon, Jr., President,

Brannon International, Boston, Massachusetts, is presently in-

carcerated in the Federal Penitentiary, Allenwood, Pennsy]l-

vania, for illegal securities dealings. On information furnished

by FBI, Cincinnati, that Robert Kay (sic), son of John Kay

(sic), is currently president of Globe Natural Gas, that John

Kay (sic) is a consultant for Globe Natural Gas, that they are

in receipt of confidential information stating Globe Natural Gas

has had during the past six months a steady stream of private

investors lodging complaints regarding investments, dividends

and no returns, that Kaye has been in and out of bankruptcy

for the past 14 or 15 years, and that Kaye was sentenced to

two years in the Federal Penitentiary for stock and security

fraud. On information furnished by FBI, Boston, that in Feb-

ruary 1977, Kaye representing Globe Natural Gas Company of

Ohio, attempted at a bank in Virginia to secure a two million

dollar loan with Seven Oak certificates.

And the complainant further states that he believes that Spe-

cial Agent William S. Cheek, Jr., FBI, Louisville, Kentucky,

William H. Hagan, Vice “President, Louisville Trust Bank,

Representatives of FBI Charlotte, North Carolina, Boston,

Massachusetts and Cincinnati, Ohio are material witnesses in

relation to this charge.

(s) William 8. Cheek, Jr.

Complainant

Special Agent, FBI

Sworn to before me, and subscribed in my presence April 11,

1977.

(s) Dale R. Booth

United States Magistrate

_ sented to enable us to conclude that the magistrate’s de-

termination was not arbitrary.

The essence of the violation charged was stated in the

opening paragraph as follows:

That on or about March 31, 1977, at Louisville, Ken-

tucky in the Western District of Kentucky John A.

Kaye did knowingly make false statements and reports

and pledged worthless overvalued securities for the

purpose of influencing the loan action of an institution

whose accounts are insured by the Federal Deposit

Insurance Corporation.

This conclusion is sufficiently supported, we believe, by the

sum of the following facts: First, bank vice president

Hagan had stated that defendant Kaye had presented a

$100,000 Seven Oak certificate of deposit in an effort to

obtain a loan. Hagan further stated that Kaye had sup-

plied a letter from defendant Calandrella, which introduced

Kaye, and which promised that $9 million in CD’s would be

forthcoming together with an endorsement and guarantee

from the *Tnion Bank of Switzerland. Hagan also stated

that he had been unable to verify the validity of the certifi-

cate through normal channels.

Second, the complaint indicated that “contact” had been

made with an Alfus R. Bomgardner (sic Baumgartner) of

the First National Plaza Bank. He “disclosed” that the

Union Bank of Switzerland does not and would not endorse

or guarantee certificates of deposit.

Third, the complainant stated that Detective Inspector

Gulbert of New Scotland Yard had provided information to

the effect that British officials had informed Seven Oak

officers that an investigation was underway and that the

government would seek a “compulsory wind up” of the

company, terminating its operations.

Fourth, the complainant stated that another FBI office

had provided information that one Stuart Allen of the

SEC had himself received information indicating that

Seven Oak CD’s were “flooding” the country. Allen advised

that a man known as Kaye would attempt to deposit a

$100,000 CD at an unknown Louisville bank. Finally, Allen

had reportedly “arranged” for local authorities to arrest

Kaye on fraud charges. The complaint does not indicate

how Allen knew the facts which he supplied to the FBI.

Although the complaint contains other statements, some

of which are either irrelevant or not shown to be reliable,

we believe that the above information met the requirement

of showing that there was a “probability” that Kaye was

using worthless, overvalued CD’s and was making false

statements concerning those CD’s in order to obtain a loan

from the Louisville Trust Bank, in violation of 18 U.S.C.

§ 1014. See generally Brinegar, supra, 338 U.S. at 175-76;

United States v. Prince, 548 F. 2d 164, 165 (1977).

With regard to the information supplied by Hagan,

Kaye complains that the facts on their face are innocent,

that the CD is not specifically alleged to be worthless, and

that the complaint does not explain who Calandrella is.

The short answer is that Hagan was simply reporting ihe

results of his personal encounter with Kaye as well as his

bank’s attempt to verify certain information through

normal channels. There is no requirement that each fact

contained in a complaint itself show the existence of crim-

inal activity, only that the sum total of all the facts es-

tablish probable cause. See United States v. Prince, supra,

548 F. 2d at 166, quoting Smith v. United States, 358 F. 2d

833, 837 (D. C. Cir. 1966), cert. denied, 380 U.S. 1008

(1969). :

With regard to the hearsay statements attributed to

Mr. Baumgartner, Kaye’s primary complaint is that there

is no showing of Baumgartner’s reliability or that Kaye

knew of the fact that the Swiss bank would not issue en-

dorsements or guarantees. In this context, he urges appli-

cation of the tests announced in Aguilar v. Texas, supra,

for crediting hearsay allegations of criminal activity attri-

buted to unnamed professional informers. In contrast, this

case involves statements attributed to a named banking

official who was not a professional informer. The infor-

mation was facially neutral, and merely concerned the cus-

tomary banking practices of a specific institution. While it

would have been preferable for the complaint to provide

more detail or other indicia of the reliability of this infor-

mation, we believe that these statements could properly be

credited by the magistrate. See United States v. Swihart,

554 F. 2d 264, 268-69 (1977).

Concerning the information supplied by agents of New

Scotland Yard, Kaye submits that the complaint does‘ not

state how the information was gathered. He also argues

that the facts disclosed failed to show necessarily that

there was any wrongdoing or that Kaye knew of any prob-

lems with the CD’s. First, we believe that the magistrate

was fully entitled to rely on simple objective facts supplied

by other law enforcement officers. See United States v.

Ventresca, 380 U.S. 102, 109-11 (1965); United States v.

Jenkins, 525 F. 2d 819, 822 n. 3 (6th Cir. 1975) (per curiam).

Second, as to the contention that the facts supplied by

Scotland Yard did not establish any wrongdoing, we note

again that there need only be a probability that Kaye was

knowingly using worthkss overvalued securities and mak-

ing false statements. Certainly if the Seven Oak directors

had been informed that proceedings were going to be insti-

tuted to require the termination of their operations, then it

was also likely that there was a serious question as to the

continuing value of their certificates of deposit. It was also

doubtful that they would be able to issue or honor many

fu.ure CD’s.

Third, as to the contention that there was no showing

that Kaye possessed the requisite knowledge concerning the

falseness of some of his representations, or concerning the

likely infirmities with the Seven Oak CD’s, we believe this

borders on being ridiculous. The magistrate could properly

rely on the existence of a pattern of false and unverifiable

representations to show that it was at least reasonably

probable that Kaye did in fact have knowledge of these

falsities and infirmities. See generally Umted States v.

Giacalone, 541 F. 2d 508, 516 (6th Cir. 1976) (en banc).

Finally, as regards the hearsay statements attributed to

Stuart Allen of the SEC, Kaye submits that the complaint

does not disclose the source of Allen’s information or any

other reason to credit his statements. Kaye notes that

Allen did not contend that the Seven Oak CD’s were illegal

or overvalued, and he further maintains that Allen’s bald

assertion that Kaye would be arrested by state officers

cannot provide probable cause for the federal arrest.

We believe that the magistrate was entitled to give

some credit to the statement of objective fact that large

numbers of Seven Oak CD’s were entering the country.

Although the precise source of this information was not

disclosed, the information was reported by federal officers

from the agency charged with the oversight of securities

transactions. Also, certain of his information (to the effect

that a man named Kaye would attempt to utilize a $100,000

Seven Oak CD at a Louisville bank) had already proven to

be correct. See Draper v. United States, 358 U.S. 307

(1959). The danger of Allen having falsified his informa-

tion is simply not as great as with an unnamed criminal

informer who may be seeking favorable treatment from the

government or revenge against the suspect. Jaben v.

United States, supra, 381 U.S. at 224; see United States v.

Ventresca, supra, 380 U.S. at 111.’

8Kaye has also contended that the complaint was fatally defec-

tive because it failed to allege that the Louisville Trust Bank was

insured by the FDIC. We believe that this contention is totally

without merit and is fully answered by United States v. Sevier, 539

F. 2d 599 (6th Cir. 1976), where this court held that it was not a

fatal omission for an affidavit in support of a search warrant to fail

to state that the weapons sought had traveled in interstate com-

merce, as is required to establish a violation of 18 U.S.C. App.

1202(a).

Considering the sum of the facts alleged in the com-

plaint, we are of the opinion that the magistrate did not

act in an arbitrary manner in issuing the arrest warrant

for Kaye.

As an alternative justification for the arrest, the govern-

ment contends that irrespective of the validity of the arrest

warrant, the collective knowledge of the FBI agents at the

time of the arrest was sufficient to establish probable cause.

We agree with this alternative argument.

It is established that a warrant is not required to effect

a public arrest so long as the officers possess probable

eause. United States v. Watson, 423 U.S. 411, 414-24

(1976); 18 U.S.C. § 3052. Thus, even -vhere an arrest

warrant is found to be defective, the simple existence of

probable cause will support the officer’s action. See White-

ley v. Warden, supra, 401 U.S. at 568-69; Henry v. United

States, 361 U.S. 98 (1959); United States v. Fachim, 466

F. 2d 53, 56-57 (6th Cir. 1972). Also, this court has pre-

viously held that probable cause may be established from

the collective knowledge of the arresting officers. F.g.,

United States v. Killebrew, supra, 594 F. 2d at 1105;

United States v. McManus, 560 F. 2d 747, 750-51 (6th Cir.

1977), cert. denied, 434 U.S. 1047 (1978).

Although there was no hearing on the defendants’ mo-

tion to suppress, the teStimony at trial included the follow-

ing: FBI agent Wilson, who was present at Kaye’s arrest,

testified that he was the “case agent,” and that agents

Brennan and Wedick, working undercover, had become

confidants and “partners” of Kitzer, the owner of Seven

Oak. Prior to Kaye’s arrest, their reports had indicated

that Seven Oak had issued a number of overvalued certifi-

cates of deposit and letters of credit. Agents Brennan and

Wedick also testified. Elaborating on Agent Wilson’s testi-

mony, they explained that they were in daily contact with

Kitzer beginning in February 1977. They secretly prepared

daily reports which indicated that Kitzer provided over-

valued CD’s to desperate individuals who could not obtain

legitimate financing.

When this information is added to that already con-

tained in the complaint, we believe that it is plain that the

arresting officers collective information was sufficient at

the time of the arrest to warrant the belief that it was

probable that Kaye was knowingly presenting overvalued

or worthless CD’s and was making false representations in

order to influence the Louisville Trust Bank, and persuade

them to issue a loan.

Accordingly, in our opinion the search of Kaye’s brief-

case was not the product of an illegal arrest in violation of

the fourth amendment.

Ill, THE SEARCH

As an independent ground for the suppression of the

evidence obtained from Kaye’s briefcase, the defendants

argue that under United States v. Chadwick, 483 U.S. 1

(1977), the agents were required to obtain a search warrant

prior to opening and searching the seized case. See Arkan-

sas v. Sanders, 47 U.S.L.W. 4783 (June 20, 1970 ).*

At the outset we hold that defendant Calandrella does

not have standing to complain about the search of Kaye’s

briefcase. As noted above, he has claimed no property or

privacy interest in the briefcase or its contents. Accord-

ingly, for the reasons stated previously, no right of his has

been violated and he is not entitled to invoke the exclu-

sionary rule. See Rakas v. Illinois, supra; United States v.

Killebrew, supra.

4We note that the defendants did not articulate this argument

in the District Court. We believe, however, that it may be con-

sidered here. The defendants did seek suppression, albeit on other

grounds. Also, the alleged error involves a matter of constitutional

dimension and we believe that the present record is adequate to

present the issue. Accordingly, we decline the government’s invita-

tion to refuse to consider the question. See Anderson v. United

States, 417 U. S. 211, 217 & n. 5 (1974). See also note 5, infra.

As regards defendant Kaye, we agree with his conten-

tion that under Chadwick, supra, and Sanders, supra, the

FBI agents were required to procure a search warrant

before opening his briefcase once it was reduced to their

exclusive possession. We reject the government’s claim

that under Chadwick the search of the briefease at the FBI

office could validly be viewed as incident to the arrest. We

are of the opinion, however, that the evidence procured in

the search need not be suppressed because we hold that

Chadwick is not to be retroactively applied.

United States v. Chadwick, supra, involved a 200 potind

footlocker which was seized at the time of the arrest of two

suspects for the illegal possession of drugs. The agents

had probable cause to believe that the footlocker contained

a controlled substance and they arrested Chadwick and a

companion after the two men had placed the footlocker in

the trunk of a waiting automobile. Following the arrest,

the defendants and the footlocker were taken to the local

federal building. Sometime later, the agents opened the

footlocker without either a warrant or consent. 453 U.S.

at 3-5.

As in this ease, the defendants in Chadwick did not con-

test the legality of the initial seizure of the footlocker.

Id. at 13. As regards the later search, the government

argued, inter alia, that it was justifiable as a search inci-

dent to a lawful arrest under Chimel v. California, 395 U.S.

752, 763 (1969). Rejecting that argument, the court stated:

Here the search was conducted more than an hour after

federal agents had gained exclusive control of the foot-

locker and long after respondents were securely in

custody; the search therefore cannot be viewed as inci-

dental to the arrest or as justified by any other exi-

gency. Even though on this record the issuance of a

warrant by a judicial officer was reasonably predict-

able, a line must be drawn. In our view, when no

exigency is shown to support the need for an immediate

search, the Warrant Clause places the line at the point

where the property to be searched comes under the

exclusive dominion of police authority. Respondents

were therefore entitled to the protection of the Warrant

Clause with the evaluation of a neutral magistrate,

before their privacy interests in the contents of the

footlocker were invaded.

433 U.S. at 15-16

More recently, in Arkansas v. Sanders, supra, the court

applied Chadwick to the search of unlocked luggage seized

from the trunk of a taxicab. The cab had been stopped

without a warrant because the officers had probable cause

to believe that the suitcase in the trunk contained mari-

juana. Immediately upon seizing the item, the officers

opened it and searched it without either a warrant or the

consent of the suspects. Upon finding marijuana in the

suitcase, the two suspects were placed under arrest. 47

U.S.L.W. at 4784. Affirming the Supreme Court of Ar-

kansas, the court held that the officers should have taken

the suitcase to the police station and obtained a search

warrant before opening it. Id. at 4786.

In Sanders, the court emphasized the basic fourth

amendment principle that most searches must be both rea-

sonable and pursuant to a warrant. Id. at 4785. By re-

quiring the facts to be presented to a “neutral and detached

magistrate instead of being judged by the officer engaged

in the often competitive enterprise of ferreting out crime,”

Johnson v. United States, 333 U.S. 10, 14 (1948), “the risk

of unreasonable assertions of executive authority” is min-

imized. Sanders v. Arkansas, supra, 47 U.S.L.W. at 4785.

Exceptions to the warrant requirement exist, however ;

and in Chadwick the court reaffirmed the one which is ap-

plicable to searches incident to a lawful arrest. 433 U.S.

at 14-15. Such searches are justified by the need to disarm

an arrested person and by the need to remove destructible

evidence from within his reach. Chimel v. California, supra,

395 U.S. at 763. Thus the arresting officers may search

the area within the suspect’s “immediate control” at the

time of the arrest. Jd. In addition, the officers may con-

duct a full body search of the arrested person, including

items found on his person. United States v. Robinson, 414

U.S. 218 (1973). The constitutionality of such searches of

the person does not depend on the existence of independent

probable cause for the search or on the existence of a

search warrant. Michigan v. DeFillippo, 47 U.S.L.W. 4805,

4807 (June 25, 1979). It is the arrest of the suspect that

is viewed as the significant intrusion under the fourth

amendment. The further intrusion of the search of his

person is considered incidental and does not require addi-

tional justification. United States v. Robinson, supra, 414

U.S. at 235 (majority opinion), 237 (concurring opinion).

This being so, the police may lawfully delay their search of

the suspect’s intimate belongings until after he is incar-

cerated. United States v. Edwards, 415 U.S. 800 (1974) ;

see United States v. Berry, 560 F. 2d 861 (7th Cir. 1977),

vacated on other grounds, 571 F. 2d 2 (7th Cir.), cert. de-

nied, 99 S. Ct. 129 (1978).

Chadwick establishes a limit on the validity of warrant-

less searches of the property of an arrested person. The

court there explained that an individual has a legitimate

expectation of privacy in the contents of a container such

as a footlocker which differs from the expectation of pri-

vacy associated solely with the person. The court dis-

tinguished searches of a suspect’s person (and intimate

belongings) as follows:

Unlike searches of the person, United States v. Robin-

son, 414 U.S. 218 (1973); United States v. Edwards,

415 U.S. 800 (1974), searches of possessions within an

arrestee’s immediate control cannot be justified by any

reduced expectations of privacy caused by the arrest.

Respondents privacy interest in the contents of the

footlocker was not eliminated simply because they were

under arrest. [433 U.S. at 16 n. 10.]

The court also explained that the search of the footlocker

must be viewed as a far greater intrusion under the fourth

amendment than the mere seizure of the item because of

the primary fourth amendment interest in the privacy of

the contents of the footlocker, not in the simple possession

of the receptacle. Jd. at 13-14 n. 8.

This reasoning was more recently applied in Sanders,

where the court found that the contents of an unlocked

suitcase were clothed with the same legitimate expectation

of privacy as the contents of Chadwick’s footlocker because

the “very purpose” of such luggage is to transport personal

items. 47 U.S.L.W. at 4786.

Finally, the court in Chadwick noted that “warrantless

searches of luggage or other property seized at the time of

an arrest cannot be justified as incident to that arrest either

if the ‘search is remote in time or place from the arrest,’

Preston v. United States, 576 U.S. at 367, or no exigency

exists.” 433 U.S. at 15.

In this case, the briefcase was seized from the defendant

at the time of his arrest in the bank. Thereafter, it was

within the government’s “exclusive dominion.” United

States v. Chadwick, supra, 433 U.S. at 15. The agents

transported it to the FBI office along with the defendant.

There, the briefcase was opened and searched.

We believe that the defendant’s privacy interest in his

briefcase, as a repository for personal papers, is indis-

tinguishable from the suitcase in Sanders, or the footlocker

in Chadwick. In each case the container’s “very purpose”

is to transport papers and other items of an inherently

personal, private nature. Arkansas v. Sanders, supra, 47

U.S.L.W. at 4786.5 Thus, we believe that the valid arrest

of the defendant did not eliminate his privacy interest in

the briefease.

Although the briefcase was apparently within the im-

mediate area around the defendant at the time he was

arrested, see Chimel v. California, supra, we believe that

once the agents had seized the item and reduced it to their

exclusive control there was no further danger that the de-

fendant would secure therefrom either a weapon or an

instrumentality of escape, or would destroy evidence con-

tained in the briefcase. United States v. Chadwick, supra,

433 U.S. at 15. Thus the interests sought to be protécted

by permitting warrantless searches incident to an arrest

were fully vindicated by the seizure of the briefcase at the

time of the arrest. See United States v. Robinson, supra;

Preston v. United States, 376 U.S. 364, 376 (1964).

Additionally, the government has offered no exigency or

other justification for the warrantless search of the brief-

ease. See United States v. Chadwick, 483 U.S. at 15 & n. 9;

cf. United States v. Haley, 581 F. 2d 723 (8th Cir.) (exigent

circumstances found in the presence of a potential medical

emergency), cert. denied, 99 S. Ct. 618 (1978); United

States v. Pugh, 566 F. 2d 626 (8th Cir. 1977) (per curiam)

(partially opened briefcase validly searched pursuant to

the plain view exception to the warrant requirement), cert.

denied, 435 U.S. 1010 (1978) ; United States v. Matlock, 558

F. 2d 1328 (8th Cir.) (search of opened briefcase justified

where weapons had already been found in vehicle and

‘The government has suggested that this case should be re-

manded for further proceedings because it is not clear whether the

briefcase was locked at the time it was opened and searched. We

believe that this is unnecessary because the factual point is irrele-

vant. In Sanders, the court explained that the ‘‘respondent’s fail-

ure to lock his suitease [did not] alter its fundamental character as

a repository for personal, private effects.’’ 47 U.S.L.W. at 4786,

n. 9.

where arrested person’s wife was removing an unknown

object from the briefcase), cert. denied, 484 U.S. 872

(1977).°

Accordingly, for the above reasons, we believe that

Chadwick applies to searches of the sort carried out in this

ease, and requires a warrant prior to their effectuation.

The question remains, however, whether the exclusionary

rule must be applied retroactively to this case, since the

search occurred on April 11, 1977, more than two months

prior to the court’s decision in Chadwick.

In United States v. Peltier, 422 U.S. 531 (1975), the

Supreme Court considered the question of the retroactive

application of fourth amendment search and seizure de-

cisions. At the outset the court explained:

Since 1965 this Court has repeatedly struggled with the

question of whether rulings in criminal cases should be

given retroactive effect. In those cases “[w]here the

major purpose of new constitutional doctrine is to

overcome an aspect of the criminal trial that substan-

tially impairs its truth-finding function and so raises

serious questions about the accuracy of guilty verdicts

in past trials,” Williams v. United States, 401 U.S.

646, 653 (1971), the doctrine has quite often been ap-

plied retroactively. It is indisputable, however, that

in every case in which the court has addressed the

retroactively problem in the context of the exclusionary

rule, whereby concededly relevant evidence is excluded

6We note that in United States v. Ochs, 595 F. 2d 1247 (2d Cir.

1979), and in United States v. Milhollan, No. 78-1643 (3d Cir.

March 12, 1979), the courts upheld searches of briefcases found in

automobiles under the authority of Chambers v. Maroney, 399 U.S.

42 (1969). The continued validity of Ochs and of Milhollan is in

some doubt following the Supreme Court’s later decision in Sanders,

supra. See 47 U.S.L.W. at 4786-87 & n. 14; cf. United States v.

Vickers, No. 78-5462 (6th Cir. May 23, 1979).

in order to enforce a constitutional guarantee that does

not relate to the integrity of the factfinding process,

the Court has concluded that any such new constitu-

tional principle would be accorded only prospective

application. [Jd. at 535 (citing cases).]

The court identified two policies as supporting the ex-

clusionary rule: (1) the “imperative of judicial integrity,”

Elkins v. United States, 364 U.S. 206, 222 (1960); and (2)

the deterrence of illegal police conduct, which is more com-

monly cited as the reason for the rule’s existence. United

States v. Peltier, supra, 422 U.S. at 536.

After reviewing the decisions on retroactivity, the court

concluded as regards the policy of maintaining judicial

integrity, that:

The teaching of these retroactivity cases is that if the

law enforcement officers reasonably believed in good

faith that evidence they had seized was admissible at

trial, the “imperative of judicial integrity” is not of-

fended by the introduction into evidence of that ma-

terial even if decisions subsequent to the search or

seizure have broadened the exclusionary rule to en-

compass evidence seized in that manner. [Id. at 537.]

The court continued:

It would seem to follow a fortiori from the Linkletter

and Fuller holdings that the “imperative of judicial

integrity” is also not offended if law enforcement of-

ficials reasonably believed in good faith that their

conduct was in accordance with the law even if de-

cisions subsequent to the search or seizure have held

that conduct of the type engaged in by the law enforce-

ment officials is not permitted by the Constitution.

For, although the police in Linkletter and Fuller could

<n lie Oe

not have been expected to foresee the application of the

exclusionary rule to state criminal trials, they could

reasonably have entertained no similar doubts as to

the illegality of their conduct. See Wolf v. Colorado,

338 U.S., at 27; § 605 of the Federal Communications

Act of 1934; cf. Nardone v. United States, 302 U.S.

379 (1937). [Jd. at 537-38 (emphasis original).]

As regards the deterrence rationale, the court reached

a similar conclusion, stating:

If the purpose of the exclusionary rule is to deter

unlawful police conduct then evidence obtained from a

search should be suppressed only if it can be said that

the law enforcement officer had knowledge, or may

properly be charged with knowledge, that the search

was unconstitutional under the Fourth Amendment.

[Id. at 542.]

Finally, the court also noted that earlier decisions have

pointed to the added burden on the administration of jus-

tice as a consideration in retroactivity analysis. 422 U.S.

at 534 n. 4 quoting Stovall v. Denno, 388 U.S. 293, 297

(1967).

In this case we believe that the agents acted reasonably

and should not be charged with the knowledge that the

search of Kaye’s briefcase was illegal. In our opinion

Chadwick marked a shift in the law, even if it did not ex-

pressly overrule any prior Supreme Court decisions. See

United States v. Berry, 560 F. 2d 861, 863-64 (7th Cir.

1977), vacated on other grounds, 571 F. 2d 2 (7th Cir.),

cert. denied, 99 S. Ct. 129 (1978). See also United States v.

Peltier, supra, 422 U.S. at 544-49 (Brennan, J., dissenting).

As explained above in Part A, prior to Chadwick, the

law was clear that officers were entitled to search fully

items found on an arrestee’s person incident to his arrest,

E.g., United States v. Robinson, 414 U.S. 218 (1978).

Further, in Draper v. United States, 358 U.S. 307 (1959),

the court had upheld, albeit without separate discussion,

the search of a zippered handbag as incident to an arrest.

Id. at 314. More recently, in United States v. Edwards,

415 U.S. 800 (1974), the court stated without apparent

limitation :

It is also plain that searches and seizures that could be

made on the spot at the time of arrest may legally be

conducted later when the accused arrives at the place

of detention. If need be, Abel v. United States, 362

U.S. 217 (1960), settled this question. .. .

The courts of appeals have followed this same rule,

holding that both the person and the property in his

immediate possession may be searched at the station

house after the arrest has occurred at another place

and if evidence of crime is discovered, it may be seized

and admitted in evidence. [Jd. at 803.]

In this Circuit, prior to Chadwick, the agents were entitled

to rely on the opinion in United States v. Kaye, 492 F. 2d

744 (6th Cir. 1974) (per curiam), which upheld the search

of a suitcase seized incident to a valid arrest. Relying on

United States v. Robinson, supra, the court stated that a

search incident to an arrest extends to a suitease even after

the item has been seized and the suspect subdued. Id. at

746. Accord, United States v. Gill, 555 F, 2d 597 (6th Cir.

1977) (per curiam) ; cf. United States v. Wright, 577 F. 2d

378, 380-81 (6th Cir. 1978) (opinion recognizes the prior

holding in Kaye, and notes that Chadwick probably

changed the law in this Circuit with regard to searches of

luggage incident to an arrest).

The decisions of other courts were to the same effect.

L..g., United States v. French, 545 F. 2d 1021 (5th Cir. 1977)

(per curiam) ; United States v. Schleis, 543 F. 2d 59 (8th

Cir. 1976), vacated, 433 U.S. 905 (1977), on remand, 582 F.

2d 1166 (8th Cir. 1978) (en bane) ; United States v. Eather-

ton, 519 F. 2d 603, 610-11 (1st Cir.), cert. denied, 423 U.S.

987 (1975); United States v. Battle, 510 F. 2d 776, 778-79

(D.C. Cir. 1975); United States v. Ciotti, 469 F. 2d 1204

(3d Cir. 1972), vacatew on other grounds, 414 U.S. 1151

(1974) ; United States v. Mehciz, 4387 F. 2d 145 (9th Cir.),

cert. denied, 402 U.S. 974 (1971). See also United States

ex rel Muhammad v. Mancusi, 432 F. 2d 1046 (2d Cir. 1970)

(per curiam), cert. denied, 402 U.S. 911 (1971).

Since law enforcement personnel were entitled to rely

on the cases just cited and discussed as establishing the

legality prior to Chadwick of searches such as the one at

issue in this case, we believe that neither the “imperative

of judicial integrity” nor the “deterrent purpose served by

the exclusionary rule” would be served by the retroactive

application of the exclusionary rule in this case. 422 U.S.

at 536. In so holding, we agree with the Second, Fifth,

| Seventh and Ninth Circuits, which have so held. United

States v. Reda, 563 F. 2d 510 (2d Cir. 1977) (per curiam),

cert. denied, 435 U.S. 973 (1978); United States v. Mont-

gomery, 558 F. 2d 311 (Sth Cir. 1977) (per curiam) ; Umted

States v. Berry, 571 F. 2d 2 (7th Cir.), cert. denied, 99 8.

Ct. 129 (1978) ; United States v. Choate, 576 F. 2d 165, 182

n. 20 (9th Cir.), cert. denied, 99 S. Ct. 350 (1978); see

Vaughn v. United States, 47 U.S.L.W. 3829 (1979). We

disagree with the Eighth Circuit, which has held otherwise.

United States v. Schleis, 582 F. 2d 1166, 1173-74 (8th Cir.

1978) (en bance.)‘

7Defendant Kaye contends that in United States v. Diggs, 569 I.

2d 1264 (3d Cir. 1977), the Third Circuit resolved the retroactivity

question in his favor because it applied Chadwick to a pre-Chad-

wick search. The Third Circuit did not even mention, much less

resolve the retroactivity issue in Diggs.

The defendant has also cited a decision of the Ninth Cireuit in

United Sates v. Vaughn, No. 77-1290 (9th Cir. June 9, 1978). The

opinion was designated by the court as ‘‘Memorandum’’ and ‘‘not

for publication.’’ Under Ninth Circuit Rule 21(a), (¢), such de-

cisions are not regarded as precedent and may not be cited.

The defendant’s principal argument for retroactive ap-

plication of Chadwick is that the Supreme Court had al-

legedly so held sub silentio when it decided Arkansas v.

Sanders, 47 U.S.L.W. 4783 (June 20, 1979), and when it

denied certiorari in United States v. Stevie, 47 U.S.L.W.

3822 (June 25, 1979). The defendant points out that the

search in Sanders occurred prior to the decision in Chad-

wick, and that the Hight Circuit’s decision in Stevie re-

ferred to its own prior decision on the retroactivity issue.

This argument is without merit. In United States v.

Peltier, supra, the court explained that the resolution of

eases applying a recently announced principle does not

impair or affect the court’s later determination of the ques-

tion of retroactivity. 422 U.S. at 535 n. 5. Thus, since

retroactivity was not discussed in Sanders, it was not re-

solved by the decision in Sanders. And the denial of cer-

tiorari imports with it no statement on the merits of a case.

Brown vy. Allen, 344 U.S. 448 (1953) ; United States v.

Carver, 260 U.S. 482, 490 (1923).

The defendant also submits that the courts which have

held Chadwick nonretroactive have done so without con-

sidering the significance of the order of remand in Schleis,

433 U.S. 905 (1977) ; see United States v. Ochs, 595 F. 2d

1247, 1255 (2d Cir. 1979). In the defendant’s view, “it

would have been an exercise in futility for the Supreme

Court to have remanded Schleis had it not intended Chad-

wick to apply to pre-Chadwick searches.” Reply Brief for

Appellant at 7 n. 3. We decline to adopt the defendant’s

single minded view of the significance of the court’s order,

since it is at least equally likely that the court remanded

the case in order to permit the Eighth Circuit to consider,

inter alia, the question of retroactivity.

In sum, we believe that Chadwick requires officers to

obtain search warrants prior to opening closed briefcases

and luggage once those items are lawfully seized and are

within the exclusive control of the police. We are also of

the opinion, however, that Chadwick is not to be retro-

actively applied so that the exclusionary rule does not

apply in this case and the evidence seized from Kaye’s

briefcase need not be suppressed.

IV. THE SUFFICIENCY OF THE EVIDENCE

AS TO COUNT III

The defendants were convicted on count III of the in-

dictment which charged that they transmitted or caused the

transmission of a telex from Seven Oak to the Louisville

Trust Bank in furtherance of a scheme to defraud, in viola-

tion of 18 U.S.C. §§ 2, 1343.* In the defendants’ view, they

were at most aiders and abettors and they find the evidence

insufficient to show that any of their co-defendants acted as

principal in actually sending the telex.

This argument misses the mark. The operative lan-

guage of section 1343 requires only that a person “trans-

mits or causes to be transmitted . . . any writings, signs,

signals, pictures, or sounds for the purpose of executing

such scheme. . . .” (Emphasis supplied.) Similar opera-

818 U.S.C. § 1343 provides:

§ 1343. Fraud by wire, radio, or television.

Whoever, having devised or intending to devise any scheme or

artifice, to defraud, or for obtaining money or property by

means of false or fraudulent pretenses, representations, or

promises, transmits or causes to be transmitted by means of

wire, radio, or television communication in interstate or foreign

commerce, any writings, signs, signals, pictures, or sounds for

the purpose of executing such scheme or artifice, shall be fined

not more than $1,000 or imprisoned not more than five years.

18 U.S.C. § 2 provides:

§ 2. Principals

(a) Whoever commits an offense against the United States

or aids, abets, counsels, commands, induces or produces its

commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if

directly performed by him or another would be an offense

against the United States, is punishable as a principal.

tive language is contained in the analogous mail fraud

statute, 18 U.S.C. § 1341. This similarity has been held to

require that the sections be interpreted with equal breadth.

United States v. Calvert, 523 F. 2d 895, 903 (8th Cir. 1975),

cert. denied, 424 U.S. 911 (1976). We agree with this con-

clusion. Thus the language of the Supreme Court in

Pereira v. United States, 347 U.S. 1, 8-9 (1954), is appli-

cable here:

Where one does an act with knowledge that use of the

mails will follow in the ordinary course of business, or

where such use can reasonably be foreseen, even

though not actually intended, then he “causes” the

mails to be used.

See United States v. Talbott, No. 78-5224 (6th Cir. Decem-

ber 15, 1978).

Judged by this standard, we are confident that the evi-

dence was sufficient to establish that Kaye and Calandrella,

as principals, “caused” the sending of the telex from Seven

Oak to the bank which confirmed that Kaye had the right

to use the CD as “backup collateral.” Kaye had actively

sought to help put bank officials in touch with Calandrella

and with Seven Oak in the expectation that the bank would

receive just this sort of assurance. Kaye contacted Calan-

drella who in turn, the evidence tended to show, contacted

Seven Oak. The result a few days later was the first telex

sent from Seven Oak. The telex was reasonably foresee-

able following each of the defendant’s actions.

Additionally, as regards defendant Kaye, we believe

that the evidence was also sufficient to show that he aided

and abetted defendant Calandrella in causing the telex to

be sent. See 18 U.S.C. § 2.

Vv. THE TESTIMONY OF CLIFFORD FALLEN

The defendants find reversible error in the admission of

the testimony of one Clifford Fallen over their timely ob-

jections. The substance of his testimony was that he had

invested some $127,000 with the defendant Kaye. The

money was supposed to go toward a coal venture, but

Kaye’s records indicated that at least some of the money, in

the form of CD’s, ended up in Martini Packing Commune

one of Globe’s subsidiaries. Fallen explained a series of

meetings and transactions he had had with Kaye over the

proposed coal venture, and he stated that he never recoy-

ered his investment. Kaye’s transactions with Fallen were

not the subject of criminal charges and were not otherwise

part of the indictment. The court admitted the evidence

for the limited purpose of showing Kaye’s intent or his

mode of operations generally. The court further in-

structed the jury that no statement attributed to Kaye

could be used against Calandrella unless other evidence

established the existence of a conspiracy between them.

The defendants do not deny that the testimony was

relevant to show Kaye’s business acumen and general

method of operations. They claim, however, that the court

abused its discretion in admitting the evidence because it

was unfairly prejudicial to permit the jury to consider

evidence from which they could have concluded that Kaye

had defrauded Fallen.

We find no abuse of discretion in the District Court’s

refusal to exclude the evidence on the ground of unfair

prejudice under Fed. R. Evid. 403. Defendant Kaye’s basic

defense was that he was not aware of the nature of the

transactions involving Seven Oak and that he was in effect

duped. The evidence tended to show Kaye’s level of busi-

ness sophistication in transactions involving his companies

and thus it tended to contradict this claim. The evidence

further contradicted the contention that Kaye was merely

a consultant and that his son actually ran Globe and Mar-

tini Packing.

This ease is thus unlike United States v. McFadyen-

Snider, 552 F. 2d 1178 (6th Cir. 1977), cert. denied, 435

U.S. 995 (1978), on which the defendants rely, where the

disputed evidence had little or no relevance to the crimes

charged or the defenses alleged. Jd. at 1184.

Additionally, we do not believe that the evidence could

have seriously prejudiced defendant Calandrella at all since

it was shown that he had no dealings with Fallen. More-

over, the District Court specifically cautioned the jury con-

cerning the use of the evidence against Calandrella. Thus

we find no reversible error in the admission of Fallen’s

testimony.

VI. THE CLOSING ARGUMENT

The defendants find prejudicial error in the following

‘solated remark of the government prosecutor during clos-

ing argument:

There is no difference in [sic] these guys and people

that go out and stick up banks.

Conceding that they made no objection to this at trial, the

defendants contend that the statement is plain error requir-

ing reversal. In likening the defendants armed, violent

men, Kaye and Calandrella maintain that the prosecutor

was arguing outside the record and was inflaming the

jurors.

We disagree. Although federal prosecutors must comply

with the high standard of conduct first enunciated in Berger

v. United States, 295 U.S. 78, 88 (1935), see United States

v. Bess, 593 F. 2d 749 (6th Cir. 1979), they are nonetheless

given “a certain degree of latitude in summation.” United

States v. Barker, 553 F. 9d 1013, 1025 (6th Cir. 1977).

Although improper, we do not believe that the isolated

remark quoted above was sufficiently prejudicial to rise to

the level of plain error. It did not vitiate the trial which

was conducted free from prejudicial error.

VII. THE COURT’S INSTRUCTIONS

The defendants’ only complaint concerning the District

Court’s instructions to the jury relates to the followin

concedely inadvertent remark: One who violates aa

ri Boa be fined not more than $1000—excuse me. De.

mune is up to the court. That is what the

Later, after raising several other objections to the in-

structions, counsel for the defendants complained about the

above-quoted reference to the penalty portion of the statute

and moved for a mistrial. The defendants maintained that

the court should have read the entire penalty provision so

that the jury would not be led to convict on the belief that

the only penalty would be a fine. The court overruled all

of the defendants’ motions and ga :

; ve the foll ~—

instruction: : olowing curative

Ladies and gentlemen of the jury, I inadvertently men-

tioned with reference to Count Three of the indictment

a portion of the penalty provision of that statute. he

I stated at that time, you are not to concern yourself in

any way with the penalty provisions of any statute

because your only duty in this case, and it is a solemn

duty, is to determine the guilt or innocence of the de-

fendants in this case. So please disregard, I inad-

vertently said something about it, please intend it

and strike it completely from your mind.

In these appeals, the defendants have repeated their

contentions, likening this case to one where the judge offers

a jury two sets of instructions, one of which is hazonieet

and it is impossible to tell which one the jury followed.

We disagree. We believe that the court’s curative in-

struction was adequate to eliminate any possible prejudice

and reject the defendants’ claim that the jury was likely

misled. See United States v. Davidson, 367 F. 2d 60 pl

(6th Cir. 1966). )

VIII. THE SENTENCING OF KAYE

Defendant, Kaye, points to the following statements of

the court as evidencing reversible error in sentencing:

The Court: All right. Let the record reflect that the

Court in imposing sentence will never consider any-

thing except the—does not consider particularly in this

ease anything except the prior conviction of Mr. Kaye

and the evidence introduced against him at the trial of

this action, which did reflect that one individual was

defrauded of some $70,000, minimum of $70,000, pos-

sibly as much as $127,000. I think that’s sufficient as

to what transpired at the trial.°

In the defendant’s view, this remark shows that the court

improperly considered Clifford Fallen’s testimony as hav-

ing shown that he was defrauded by Kaye. Kaye submits

that nothing in Fallen’s testimony directly indicates any

such illegality. We reject this argument.

Kaye concedes that courts have wide latitude in the

matters that may be considered in determining the appro-

priate sentence. £.g., United States v. Tucker, 404 U.S.

443, 446-47 (1972). Certainly this includes the evidence

produced at trial. As noted bove, Fallen’s testimony (if

that is what is being referred to in the above passage)

showed that he had invested funds with Kaye in the belief

that they would be used to purchase coal property. Kaye’s

records showed, however, that the money was apparently

diverted to other purposes. Fallen never recovered his

‘investment. We note that Kaye’s contention here that the

evidence disclosed no fraud is at odds with his contention

‘n Part V that the jury might well have drawn precisely

that conclusion from Fallen’s testimony. We find no abuse

of discretion in the court’s consideration of this evidence

*Kaye was convicted of a securities law violation in the Southern

District of New York in 1959.

as it decided on the appropriate sentence. Cf. Collins v.

Buchkoe, 493 F. 2d 343, 345 (6th Cir. 1974) (per curiam).

The sentences imposed were permitted by the statutes

for the violation of which appellants were convicted. We

see no reason to remand for resentencing.

The judgments of convictions are affirmed.

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