United States v. Derek Blackmon, Sidney Jones, Tyrone Stephens and Cecilia Grace Roland

This is an appeal from judgments of conviction entered in the United States District Court for the Southern District of New York after a jury trial before Judge Charles S. Haight, Jr. Derek Blackmon appeals from his convictions on one count *902 of conspiracy to commit wire fraud, 18 U.S.C. § 371 (1982), two counts of substantive wire fraud, 18 U.S.C. §§ 1343 and 2 (1982), fifteen counts of bank fraud, 18 U.S.C. §§ 1344 (Supp. IV 1986) and 2 (1982), one count of possession of fifteen or more unauthorized access devices with intent to defraud, 18 U.S.C. §§ 1029(a)(3) (Supp. IV 1986) and 2 (1982), one count of possession of. five or more identification documents with intent to use them unlawfully, 18 U.S.C. §§ 1028 (a)(3) (1982 and Supp. IV 1986) and 2 (1982), and one count of making a false statement, 18 U.S.C. § 1001 (1982). Sidney Jones appeals from his convictions on one count of conspiracy to commit wire fraud, two counts of substantive wire fraud, fifteen counts of bank fraud, one count of possession of fifteen or more unauthorized access devices with intent to defraud, one count of possession of five or more identification documents with intent to use them unlawfully, and one count of contempt for violating conditions of bail, 18 U.S.C. § 401 (1982). Tyrone Stephens appeals from his convictions on one count of conspiracy to commit wire fraud, two counts of substantive wire fraud, and twelve counts of bank fraud. Cecilia Grace Roland appeals from her convictions on one count of conspiracy to commit wire fraud, two counts of substantive wire fraud, and eleven counts of bank fraud. In various combinations of concurrent and consecutive sentences, Blackmon and Jones were sentenced to ten years imprisonment and five years probation, Stephens was sentenced to seven years imprisonment and five years probation, and Roland was sentenced to eighteen months imprisonment and five years probation.

All defendants-appellants contend that (1) the bank fraud convictions must be reversed because the statute does not reach the conduct in which they engaged, (2) the jury was erroneously instructed concerning the vicarious and retroactive liability of coconspirators, (3) the trial judge erroneously failed to instruct the jury that the interstate nature of a wire communication by a third party must be foreseeable under the wire fraud statute, and (4) the trial judge improperly responded to a note from the jury without first consulting counsel. Stephens argues, inter alia, that the trial judge erroneously admitted hearsay statements made by a coconspirator. Blackmon and Jones contend, inter alia, that the trial judge erroneously refused to instruct the jury that the access device statute requires intent to defraud a credit card holder or a credit card company, and assert other errors pertinent to their remaining convictions.

We vacate the convictions of all defendants as to the two substantive wire fraud counts and the convictions of Blackmon and Jones as to the count alleging possession of fifteen or more access devices with intent to defraud, reverse the convictions of all defendants with respect to the fifteen bank fraud counts, affirm the remaining convictions, and remand for resentencing and any other proceedings that may ensue.

Background

The indictment alleged an elaborate scheme by the appellants to defraud six victims in New York City during a period from March to November, 1985. 1 The scheme is a variation of a street confidence game known as the “pigeon drop.” The colorful details of the game are described in a portion of the district court opinion, United States v. Jones, 648 F.Supp. 225, 226-28 (S.D.N.Y.1986), that is set forth in the margin. 2 Essentially, the game in *903 volved persuading wealthy elderly women that they had “found” cash earmarked for Iran or the PLO, and then convincing the women to withdraw their own money from banks in an amount equivalent to their “share” of the found cash, convert that money into foreign currency, and give the foreign currency to the appellants for high-return foreign investment. The victims, of course, never saw either their share of the found money or their own money again. The six victims, who were defrauded of a total of $1,197,000, were: Gloria Rosenfeld, April, 1985; Josephine Palumbo, July, 1985; Simone Putnam, August, 1985; Peggy St. Lewis, September, 1985; Sylvia Roberts, September, 1985; and Hadassah Feit, October, 1985.

The jury found all appellants guilty on one count of conspiracy to commit wire fraud, and two counts of substantive wire fraud in connection with the fraud on Peggy St. Lewis, which involved two wire transfers of money by the victim from Florida to New York. The jury also found the appellants guilty on numerous counts each of bank fraud in connection with the *904 frauds on the six victims, 3 which involved the withdrawal of funds by the victims from federally insured banks.

The government also established that nineteen credit cards, two bank cards and nineteen governmental identification documents were found in Jones’ apartment, in a suitcase belonging to Blackmon. On the basis of this evidence, both Blackmon and Jones were convicted of possession of fifteen or more unauthorized access cards with intent to defraud, and possession of five or more government identification documents with intent to use them unlawfully. The government also established that Jones left New York City for Alabama on November 8,1985, one day after his arrest, in violation of his bail condition that he not depart from the southern or eastern districts of New York, and the jury convicted Jones of contempt. Finally, the Government established that Blackmon checked the answer “no” to a question on a CJA form (for court-appointed counsel) asking whether he had any cash on hand or money in a savings or checking account, at a time when he in fact had $41,000 in a safe deposit box held under an alias, and the jury convicted Blackmon of making a false statement in violation of 18 U.S.C. § 1001 (1982).

Discussion

A. Bank Fraud.

This is the first case in which this court has had occasion to construe the relatively new federal bank fraud statute, 18 U.S.C. § 1344 (Supp. IV 1986). Appellants contend that their bank fraud convictions should be reversed because neither the language of that statute nor its legislative history evinces a legislative intent to cover situations where money is merely withdrawn legally from a federally insured bank by a victim and where the bank itself is in no way victimized. We agree. Although the precise contours of the new law may be undefined as yet, we are confident that the conduct involved here is not within the intended reach of the legislation.

We begin, as we must, with the language of the statute, for if its language is unambiguous, that ordinarily ends our inquiry. United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981). The district court concluded that section 1344 has “plain and unambiguous meanings which squarely reach defendants’ conduct.” United States v. Jones, 648 F.Supp. 225, 231 (S.D.N.Y.1986). We do not agree.

Subsection (a) of the statute reads:

Whoever knowingly executes, or attempts to execute, a scheme or artifice—

(1) to defraud a federally chartered or insured financial institution; or

(2) to obtain any of the moneys, funds, credits, assets, securities or other property owned by or under the custody or control of a federally chartered or insured financial institution by means of false or fraudulent pretenses, representations, or promises, shall be fined not more than $10,000, or imprisoned not more than five years, or both.

18 U.S.C. § 1344(a) (Supp. IV 1986) (emphasis added).

It is true that the victims’ money in this case had at one time been “under the custody or control” of federally insured banks. This, however, proves too much. The property obtained by the defendants’ scheme was the foreign currency purchased by the victims with money legally withdrawn from the banks. At the time the foreign currency was obtained, it simply was not in any way under the control or custody of the banks. If the statute applied to these facts, it could apply to any situation where property purchased with money legally withdrawn from a federally insured bank was thereafter fraudulently obtained. The statute does not “plainly” yield such an extraordinary result.

Indeed, the government on appeal concedes that the property must be obtained at a time when the bank has custody or con *905 trol of the property. The government argues that this element is met by virtue of the fact that the victims acted as the defendants’ “agents” in withdrawing the money from the banks. The government cites 18 U.S.C. § 2(b) (1982), which states that “[w]hoever 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.” As we have observed, “[t]his section is based on the precept that an individual with the requisite criminal intent may be held liable as a principal if he is a cause in fact in the commission of a crime, notwithstanding that the proscribed conduct is achieved through the actions of innocent intermediaries.” United States v. Margiotta, 688 F.2d 108, 131 (2d Cir.1982) (emphasis added) (footnote omitted), cert. denied, 461 U.S. 913, 103 S.Ct. 1891, 77 L.Ed.2d 282 (1983).

The application of the “innocent intermediary” doctrine to the facts here, however, would badly strain the logic of section 2(b). The withdrawals of money from the banks were perfectly legal. Moreover, the withdrawals were not undertaken “by means of false or fraudulent pretenses, representations, or promises.” 18 U.S.C. § 1344(a)(2) (Supp. IV 1986). Thus, even if those legal withdrawals were imputed to the defendants, the imputed acts would not constitute conduct proscribed by law. Margiotta is distinguishable in that the acts of the intermediaries in that case would have been criminal if the intermediaries had had the same requisite criminal intent as the defendant. 688 F.2d at 131-32. In the instant case, no intent or other legal element provided by the defendants could convert the legal, non-fraudulent withdrawal of funds from the banks by the victims into a fraudulent obtaining of funds under the custody or control of the banks. 4

We accordingly conclude that the language of section 1344 does not “unambiguously” or “plainly” cover the conduct involved in this case. It is therefore appropriate to look to the legislative history for further guidance as to the scope of the bank fraud law. See Watt v. Alaska, 451 U.S. 259, 265-66, 101 S.Ct. 1673, 1677-78, 68 L.Ed.2d 80 (1981); United States v. Perdue Farms, Inc., 680 F.2d 277, 280 (2d Cir.1982). This history makes it abundantly clear that Congress did not intend the bank fraud statute to cover ordinary state law offenses where, as here, the fraud victim was not a federally insured bank.

The Senate report regarding this provision states that “[t]he offense of bank fraud in this part is designed to provide an effective vehicle for the prosecution of frauds in which the victims are financial institutions that are federally created, controlled or insured.” S.Rep. No. 225, 98th Cong., 2nd Sess. 377 (1983), reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3517 (emphasis added). The House report similarly states that this section is concerned with “fraudulent schemes where banks are victims,” H.R.Rep. No. 901, 98th Cong., 2d Sess. 2 (1984), and explains that subsection (a) of Section 1344 “makes it an offense for any person, having devised a scheme or intending to devise a scheme to defraud a national credit institution or to obtain property of such an institution, 5 *906 knowingly to engage in conduct in furtherance of the scheme.” Id. at 6 (emphasis added). The federal interest underlying the legislation is “protecting the financial integrity of these institutions.” S.Rep. No. 225 at 377, 1984 U.S.Code Cong. & Admin. News 3517. Where the victim is not a bank and the fraud does not threaten the financial integrity of a federally controlled or insured bank, there seems no basis in the legislative history for finding coverage under section 1344(a)(2).

Moreover, it is worth noting that the House Judiciary Committee, in considering the proposed bank fraud statute, was particularly concerned about the case law development of federal jurisdiction under the mail fraud, 18 U.S.C. § 1341 (1982), and wire fraud, 18 U.S.C. § 1343 (1982), statutes:

The Committee, however, is concerned by the history of expansive interpretations of that language [ie., “scheme to defraud” in 18 U.S.C. §§ 1341 and 1343] by the courts. The current scope of the wire and mail fraud offenses is clearly greater than that intended by Congress. Although the Committee endorses the current interpretations of the language, it does not anticipate any further expansions. The Committee believes that while the additional activity that could thus be brought within the purview of the language might well be reprehensible, and probably should be criminal, due process and notice argue for prohibiting such conduct explicitly, rather than through court expansion of coverage.

H.R.Rep. No. 901 at 4. It would seem odd indeed if the same committee that expressed concern about judicial expansion of coverage under the wire and mail fraud statutes intended a similar fate for the bank fraud statute it was proposing.

Finally, expansion of the coverage of section 1344 to include conduct that does not victimize federally insured banks and that is already criminal under state law would also implicate concerns of federalism. The Supreme Court has observed, for example, that expansive application of the Travel Act, 18 U.S.C. § 1952 (1982), to activity “traditionally subject to state regulation” and to defendants who themselves did not travel interstate (but whose betting customers did) “would alter sensitive federal-state relationships” and “could overextend limited federal police resources.” Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971). See United States v. Archer, 486 F.2d 670, 680 (2d Cir.1973). See generally R.J. Miner, Federal Courts, Federal Crimes, and Federalism, 10 Harv.J.L. & Pub.Pol’y 117, 124-27 (1987). As indicated supra, note 5, the Supreme Court has recently cut back on judicial expansion of the mail fraud statute, 18 U.S.C. § 1341 (1982), expressing similar concerns. McNally v. United States, — U.S. —, —, 107 S.Ct. 2875, 2881, 97 L.Ed.2d 292 (1987).

In sum, neither the language of section 1344, the attendant legislative history, nor the pertinent judicial precedents warrant the application of that statute to the facts *907 of this case. Accordingly, all the bank fraud convictions must be reversed.

B. Substantive Wire Fraud.

Turning to the substantive wire fraud counts under 18 U.S.C. section 1343 (1982), 6 appellants contend first that the trial judge improperly failed to instruct the jury that the appellants must have foreseen not only a wire communication by a third party, but also the interstate character of that communication. The only interstate wire communications involved in this case were two instances in which one of the victims, Peggy St. Lewis, instructed Merrill Lynch to transfer money by wire from Florida to New York. Judge Haight instructed the jury that “if you find that the wire communication was reasonably foreseeable and that the interstate wire communication charged in the indictment took place, then this element is satisfied even if it was not foreseeable that the wire communication made would be interstate.” Appellants argue that, on the contrary, a person does not cause an interstate wire communication by a third party under section 1343 unless it was foreseeable not only that there would be a wire communication connected with the fraud, but that the wire communication would be interstate.

This court has unambiguously held that there is no mens rea requirement as to the purely jurisdictional element of interstate communication under the wire fraud statute. United States v. Blassingame, 427 F.2d 329, 330-31 (2d Cir.1970), cert. denied, 402 U.S. 945, 91 S.Ct. 1629, 29 L.Ed.2d 114 (1971). As the Eighth Circuit has recently observed, the only mens rea requirements are that the defendant “be a party to some kind of scheme to defraud, a requirement that includes a high degree of scienter and moral culpability,” and that “the use of wire communication be reasonably foreseeable.” United States v. Bryant, 766 F.2d 370, 375 (8th Cir.1985), cert. denied, 474 U.S. 1054, 106 S.Ct. 790, 88 L.Ed.2d 768 (1986). The element of “interstate nexus” is not a substantive element of the offense, but arises only from “constitutional limitations on congressional power over intrastate activities under the Commerce Clause.” Id. See Blassingame, 427 F.2d at 330-31. Cf. United States v. Feola, 420 U.S. 671, 686-87, 95 S.Ct. 1255, 1264-65, 43 L.Ed.2d 541 (1975) (conviction for conspiracy to violate statute prohibiting assault on a federal officer does not require knowledge by defendant that the victim was a federal officer); United States v. Muza, 788 F.2d 1309, 1311-12 (8th Cir.1986) (conviction under federal arson statute does not require knowledge that the building destroyed by arson was used in an activity affecting interstate commerce); United States v. Roglieri, 700 F.2d 883, 885 (2d Cir.1983) (conviction under statute prohibiting possession of material stolen from the mail does not require knowledge that material was stolen from the mail, but only that material was stolen); United States v. LeFaivre, 507 F.2d 1288, 1298 (4th Cir.1974) (use of interstate facilities is a jurisdictional element and does not require an additional mens rea beyond that required for the underlying gambling activity in violation of the Travel Act), cert. denied, 420 U.S. 1004, 95 S.Ct. 1446, 43 L.Ed.2d 762 (1975).

Appellants claim, however, that the issue is different when an innocent third party makes the interstate communication, citing United States v. Muni, 668 F.2d 87 (2d Cir.1981). Muni expressly held that a defendant could be criminally liable where the interstate wire communication was made by an innocent third party, so long as that communication was reasonably foreseeable. Id. at 89-90. Muni declined to decide whether the interstate character of the communication must also be foreseeable. Id. at 90 n. 7.

*908 We conclude 7 that it is sufficient that appellants could reasonably have foreseen the use of a wire communication by Peggy St. Lewis, whether or not the interstate nature of that communication was reasonably foreseeable. 8 While Blassingame did not involve a defendant who caused a third party to make a wire communication, it did involve a defendant who himself made an interstate wire communication without knowing that it was interstate. Blassingame, 427 F.2d at 330. Since, as the cases clearly establish, the only purpose of the “interstate” requirement is jurisdictional, we see no basis in principle for distinguishing Blassingame, and therefore apply its rule to the facts presented here. 9

Nevertheless, the substantive wire fraud convictions cannot be sustained because of reversible errors elsewhere in the trial court’s instructions. First, the court incorrectly stated the law concerning criminal liability for substantive offenses committed by other members of a conspiracy prior to a particular defendant’s entry into the conspiracy. In his main instruction, the trial judge stated:

It also is not necessary that the defendant participated in the alleged scheme from its inception. A person who comes in at a later point with knowledge of the scheme’s general operation, although not necessarily all of its details, and who intentionally acts in a way to further the unlawful goals, becomes a member of the scheme and is legally responsible for all that may have been done in the past in furtherance of the criminal objective and all that is done thereafter.

J.App. 51. In response to the jury’s request for clarification of this instruction, the trial judge repeated the above language (with minor editing) and added the following instruction:

So long as the transaction is within the general scope of the scheme on which all defendants had embarked a defendant not directly connected with a particular fraudulent act is nonetheless responsible therefor if it was of the kind as to which all parties had agreed. It follows that as to all defendants who were members of a single scheme it is your duty to find them guilty of all substantive crimes committed in furtherance of that single scheme whether or not they were directly involved in a particular fraudulent transaction.

J.App. 132 (emphasis added).

Judge Haight commented on this instruction in his post-trial opinion as follows:

[C]ounsel characterizes the supplemental charge as improperly telling “the jury that it was their ‘duty’ to convict a defendant retroactively as to women who were defrauded before he joined the scheme.” ... In the first place, under settled law “retroactive” responsibility attaches to a co-conspirator or co-schemer who knowingly joins a conspiracy or scheme after it began. He ratifies what has gone before.

648 F.Supp. at 235-36 n. 8.

The confusion here is that, with regard to liability for conspiracy, a defendant may be legally responsible for acts of coconspira-tors prior to that defendant’s entry into the conspiracy, United States v. Guillette, 547 F.2d 743, 751 (2d Cir.1976), cert. denied, 434 U.S. 839, 98 S.Ct. 132, 54 L.Ed.2d 102 (1977), *909 whereas, with regard to substantive offenses, a defendant cannot be retroactively liable for offenses committed prior to his joining the conspiracy. Levine v. United States, 383 U.S. 265, 266, 86 S.Ct. 925, 925, 15 L.Ed.2d 737 (1966) (per curiam); United States v. Harrell, 737 F.2d 971, 981 (11th Cir.1984), cert. denied, 470 U.S. 1027, 105 S.Ct. 1392, 84 L.Ed.2d 781 (1985). See United States v. Carrascal-Olivera, 755 F.2d 1446, 1452 n. 8 (11th Cir.1985) (explaining the distinction). By stating that the jury must convict a member of the conspiracy for substantive offenses committed by co-conspirators prior to the member’s entry into the conspiracy, the judge clearly instructed the jury contrary to settled law. Therefore, we find the instruction to be reversible error 10 as to defendants whom the jury could have found to have joined the conspiracy after the substantive wire fraud offenses had been committed. 11

We find a second, related error in the trial judge’s instruction concerning vicarious liability and the Pinkerton doctrine. See Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). See generally United States v. Molina, 581 F.2d 56, 60-61 (2d Cir.1978). In his main instruction, the trial judge charged the jury that if a defendant was found to be a member of the wire fraud conspiracy charged in count one of the indictment, “you may also but you are not required to, find him or her guilty of the substantive crime charged against that defendant in Counts Three through Five,” provided that the person who actually committed the crime was a member of that conspiracy, that the crime was committed in furtherance of the conspiracy, and that the wire fraud could be foreseen as a consequence of the conspiracy. J.App. 60-61 (emphasis added). Judge Haight then repeated that if the jury found these elements, “you may, but you need not, find that defendant guilty of the particular wire fraud count you are considering, even though he did not personally participate in the acts constituting the crime or did not have actual knowledge of it.” J.App. 61 (emphasis added). Finally, the judge once more emphasized the discretion of the jury to use the Pinkerton option: “The reason for this option — which again, you may or may not use, it is entirely up to you — is simply that a co-conspirator who commits a substantive crime pursuant to a conspiracy is deemed to be the agent of the other conspirators.” Id. (emphasis added).

This charge properly instructed the jury as to the essential elements of the Pinkerton doctrine. See United States v. Alvarrez, 755 F.2d 830, 848 & n. 22 (11th Cir.), cert. denied, 474 U.S. 905, 106 S.Ct. 274, 88 L.Ed.2d 235 (1985). In the same jury note that later requested clarification on re-troactivity, however, the jury also asked if application of the Pinkerton theory was “mandatory” or whether “discretion [may] be applied so that only those who are determined to be directly involved in carrying out the scheme with a particular victim is [sic] guilty with respect to that victim?” J.App. 116. In response, the judge charged the jury — in the same context as he charged the jury concerning retroactive lia *910 bility — that “as to all defendants who were members of a single scheme it is your duty to find them, guilty of all substantive crimes committed in furtherance of that single scheme whether or not they were directly involved in a particular fraudulent transaction.” J.App. 132 (emphasis added).

It seems to us that Judge Haight’s initial Pinkerton charge, indicating that the jury might in its discretion, but need not, find members of a conspiracy guilty of reasonably foreseeable substantive crimes committed during their membership in, and in furtherance of, the conspiracy, correctly stated the law. In Pinkerton itself, the Supreme Court stated that “[t]he question was submitted to the jury on the theory that each petitioner could be found guilty of the substantive offenses” under the circumstances stated above, Pinkerton v. United States, 328 U.S. 640, 645, 66 S.Ct. 1180, 1183, 90 L.Ed. 1489 (1946) (emphasis added), approving an instruction that the jury had “a right ... to convict each of these defendants on all these substantive counts.” Id. at 645 n. 6, 66 S.Ct. at 1183 n. 6. And in United States v. Miller, 478 F.2d 1315 (2d Cir.1973), where the trial court oscillated from a discretionary to a mandatory and finally back to a discretionary charge, we concluded that the (discretionary) end result was “correct, unobjectionable and unobjected to,” id. at 1320, although without specific reference to Pinkerton, 12

In any event, it was clearly prejudicial error to give a discretionary Pinkerton instruction at the close of the trial, upon the basis of which defense counsel made their summations, and then switch to a mandatory charge in response to an inquiry by the jury during its deliberations. This error requires that the convictions of all defendants for substantive wire fraud (counts three and four) be vacated.

C. Wire Fraud Conspiracy.

Having concluded, supra section B, that the substantive wire fraud offense does not include a mens rea requirement as to the jurisdictional element, we also conclude that conviction for conspiracy 13 to commit wire fraud does not require foreseeability of the interstate nature of the wire communication by a third party. The Supreme Court has held that, with an exception not here relevant, “where knowledge of the facts giving rise to federal jurisdiction is not necessary for conviction of a substantive offense embodying a mens rea requirement, such knowledge is equally irrelevant to questions of responsibility for conspiracy to commit that offense.” United States v. Feola, 420 U.S. 671, 696, 95 S.Ct. 1255, 1269, 43 L.Ed.2d 541 (1975). See United States v. LeFaivre, 507 F.2d 1288, 1299 (4th Cir.1974) (“[t]he jurisdictional element should be viewed for purposes of the conspiracy count exactly as we view it for purposes of the substantive offense — simply as a jurisdictional peg on *911 which to hang the federal prosecution”), cert. denied, 420 U.S. 1004, 95 S.Ct. 1446, 43 L.Ed.2d 762 (1975); United States v. Roselli, 432 F.2d 879, 891-92 (9th Cir.1970), cert. denied, 401 U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d 828 (1971).

We also conclude that the conspiracy convictions need not be reversed because of prejudicial “spillover” from the instructions concerning retroactive and vicarious liability, discussed supra section B. While we have concluded that the judge’s instruction on retroactive liability for actions of coconspirators prejudiced the defendants as to the substantive wire fraud counts, there could be no such prejudice as to the conspiracy count. The reason is that, for purposes of conviction for conspiracy (as opposed to conviction for substantive offenses), a coconspirator is liable for acts committed in furtherance of the conspiracy prior to his entry into the conspiracy. United States v. Ebner, 782 F.2d 1120, 1127 (2d Cir.1986); United States v. Michel, 588 F.2d 986, 1002 (5th Cir.), cert. denied, 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979); United States v. Guillette, 547 F.2d 743, 751 (2d Cir.1976), cert. denied, 434 U.S. 839, 98 S.Ct. 132, 54 L.Ed.2d 102 (1977); United States v. Bridgeman,