Full opinion text
HAMLEY, Circuit Judge: On February 5, 1969, a federal grand jury in the Southern District of California returned a two-count indictment against forty-nine individuals pertaining to the narcotics activities of Robert and Helen Hernandez. Count one charged that, beginning at a date to the grand jury unknown, and continuing to February 5, 1969, all forty-nine, and divers unknown persons, conspired to violate 21 U.S.C. §§ 173 and 174, by importing heroin and cocaine into the United States from Mexico, and by thereafter selling, concealing and facilitating the transportation and concealment of such drugs. Count two charged that, on or about December 1, 1968, all forty-nine used telephone, wire and other means of communication in San Diego County, within the Southern District of California, in facilitating the commission of, and attempting to commit the importation, concealment, and sale of heroin and cocaine, in violation of 21 U.S.C. § 174 (1964), and 18 U.S.C. § 1403(a) (1964). The district court divided the forty-nine defendants into three groups for trial. Group I, with which we are here concerned, consists of Raymond Bennie Baxter, Rodolfo Gomez Marrufo, Charles Thomas Ward, Milton Norris Beasley, Antonio Orzco Rico, Estaban Gonzalez Catarino, Cleveland Pipkins, Thomas Rodriquez (the eight defendants named in the caption of this opinion) and four other defendants named in the indictment. The jury found all eight named above guilty as charged in count one, and defendants Ward and Rico also guilty on count two. Concurrent sentences were imposed upon Ward and Rico. All eight of the named individuals appeal. Their appeals have been consolidated for disposition here and will sometimes be referred to as the Group I appeals. The evidence, considered in the light most favorable to the Government, warranted the jury in finding, beyond a reasonable doubt, the following background facts: From as early as 1964 through December, 1968, the husband and wife team of Robert and Helen Hernandez (Hernandezes) of Tijuana, Mexico, were in charge of an organization devoted to the smuggling of commercial quantities of heroin, cocaine and marijuana into the United States from Mexico. They had a reputation along the Mexico-California border as being the largest “dope” peddlers in Mexico. Robert’s brother, Juan (or John) Hernandez, also of Tijuana, participated in this operation by sending customers to the Hernandezes. The latter employed operatives to bring narcotic drugs to Tijuana from such interior Mexico cities as Guadalajara, Veracruz and Mexico City. From Tijuana the narcotics were smuggled across the border into the Southern District of California and then transported into the greater Los Angeles area. Once in Los Angeles, other operatives, acting as wholesale distributors, would take control of the narcotics. They would warehouse them, usually in apartments leased specifically for this purpose, until these operatives were ready to sell the narcotics to retailers. Apparently as a security measure, the link between the wholesale distributors and the retailers was set up so that there would be no face-to-face contact between them. Instead, the Hernandez-es established an elaborate scheme of codes and telephone numbers to convey the necessary information from each wholesale distributor to the retailers he served. When a retailer needed narcotics he would call the Hernandezes’ .residence and place his order. The retailer’s order would then be telephonically conveyed to the wholesale distributor in Los Angeles. This information was conveyed in the form of a daily “load list” containing the retailers’ names in code, their coded telephone numbers and coded information regarding the quantity and type of narcotics to be delivered. Then the distributor would take from his warehoused inventory the kind and quantity of heroin or cocaine needed to fill these orders and secretively place them in various locations in the greater Los Angeles area. On occasion, such narcotics would be left, in hiding, in public restrooms in gasoline stations, bars or restaurants, or in telephone booths. The distributor would then téle-phone the retailer and inform him as to the location of the narcotics. The retailers would fetch the narcotics from the indicated location. They would usually pay for the goods with Western Union money orders or cashiers’ checks. Occasionally they journeyed to Mexico where they would pay in cash to one of the Hernandezes or to one of the headquarters staff. The weekly gross income to the Hernandezes from this operation often ranged from eighty to one hundred thousand dollars. As a result of a telephone conversation with Helen Hernandez, Donald Lan-nom became a distributor for the organization in the Los Angeles area in 1966. He kept his inventory of heroin and cocaine in a rented apartment. As a distributor, Lannom would telephone Helen Hernandez at her residence twice each day, once in the morning and once in the evening. She would on these occasions, provide Lannom with the names of the retailers who had placed orders, their telephone numbers, and the nature of the order. He would then deliver the ordered narcotics to the retailers as described above. In January, 1968, Lannom left the United States for Mexico where he continued to deal in narcotics as a member of the Hernandez organization. A major part of his duties consisted of bringing large quantities of narcotics up from the interior cities of Mexico to Tijuana. In August, 1968, Robert Hernandez was injured in a shooting incident, leaving him totally blind. Lannom then became Robert’s bodyguard and chauffeur and helped maintain the Hernandez residence while the Hernandezes were away. Wesley Richard Wright was introduced to the Hernandezes by his friend Lannom, and, starting about October 10, 1968, Wright became a part of the headquarters staff at the Hernandez residence. Wright became the “telephone man” of the organization. He received orders on the telephone for narcotics and relayed that information to the distributor working in the Los Angeles area. As part of this function Wright would jot down the order information he received during the day on scratch pads from which he subsequently prepared the “load lists” referred to above. The Los Angeles distributor was then Roy Cohn, a defendant in the Group III trial. Wright was also required to take care of the bookkeeping for the Hernandez narcotics operation. The main book he used was known as the “customer book” (exhibit 2) and was given to Wright by Helen Hernandez. This was a small black looseleaf notebook containing coded names used by the customers (retailers), their telephone numbers, a record of the amounts of narcotics smuggled north for them and a record of the money received in return. Wright did not debit the account for goods received until they had actually been physically delivered. However, these entries were made within a reasonable time after delivery, such as twenty-four hours. The entries in the “customer book” indicate that the sale of narcotics to retailers was in quantities of not less than one ounce of heroin or cocaine, and many orders were for several ounces. In the period from October 1, 1968 through December 7, 1968, the Hernandez operation transferred to the retailers in Los Angeles approximately fifty-two and three-tenths pounds (eight hundred and thirty-seven ounces) of heroin and eight and nine-tenths pounds (one hundred and forty-two ounces) of cocaine. The wholesale value of these transactions was reflected on the Her-nandezes’ books at $344,725. The going price received by the Hernandezes was five hundred and fifty dollars an ounce for cocaine and three hundred and twenty-five dollars an ounce for heroin. Wright also used a columnar book (exhibit 3), in which he kept track of money and other transactions in'connection with the operation. In addition to his telephone and bookkeeping duties Wright also had some responsibility in arranging for the transportation of narcotics across the border to the warehouse in the United States. This included contacting Tejano (“Tex”), who cut and packaged the narcotics in Tijuana for Robert Hernandez, to prepare a “load.” Wright would then coordinate the delivery of the load with the smuggler, a woman known as “Katy” or “Kathy.” Next, Wright would call the distributor in the Los Angeles area (Roy Cohn when he was operating) who would give Wright a name and telephone number for “Kathy” to call for further instructions. On November 17, 1968, Lannom consulted with his attorney and federal agents concerning Lannom’s decision to return to the United States. Wright, a fugitive felon, met with federal agents on December 1, 1968, and he also discussed plans to leave the Hernandez organization. Both Lannom and Wright continued working for the Hernandezes. This was apparently in accord with the arrangements they made with the federal agents to the effect that Lannom and Wright would continue performing their duties as usual while keeping the agents informed as to current developments. About the middle of December, 1968, Wright arranged to smuggle narcotics across the border for Roy Cohn. Wright contacted “Kathy” and gave her the necessary instructions, and arranged the transfer of narcotics from “Tex.” Helen Hernandez directed Wright to smuggle the narcotics across the border. As a result, at approximately 3:05 p.m., December 16, 1968, U. S. Customs Agent Fernando A. Maldonado met a woman in San Ysidro, California, who answered to the name of “Emma.” She turned over to the agent a paper bag which contained ten and eight-tenths pounds of heroin, most of which was of a purity of between thirty-five and forty percent. Both Lannom and Wright fled Mexico across the border into the United States on that day. I. Proof of Conspiracy and Severance for Trial General Considerations Each of the eight defendants involved in this Group I appeal contends: (1) the evidence was insufficient to establish that the individual defendants participated in an over-all conspiracy of the kind charged in the indictment; (2) if the Government proved that each individual defendant participated in a more limited conspiracy, such defendant was prejudiced by having that issue tried in the context of an over-all conspiracy and (3) by reason of the likelihood of such prejudice the trial court erred in denying the timely motion of each defendant for severance and separate trial. The kind of conspiracy which the Government here sought to prove consisted of: (1) a central core organization consisting of the Hernandezes’ headquarters staff and associated individuals engaged in transporting, preparing, packaging and smuggling the narcotics, (2) wholesale distributors in the Los Angeles area, and (3) individual narcotics retailers located in the Los Angeles area, including the eight defendants involved in this Group I appeal. To prove this conspiracy, and participation therein by the defendant retailers, the Government had to show, among other things, that the defendant retailers agreed to effectuate the described criminal design. Daily v. United States, 282 F.2d 818, 820 (9th Cir. 1960). One way the Government could prove this would be to show that each of the defendant retailers worked directly with the other defendant retailers, as well as the Hernandez headquarters staff and other organization personnel, in promoting the over-all scheme. As we view the evidence, the Government did not, for the most part, prove direct contact and connivance between the defendant retailers. However, even though the defendant retailers did not directly conspire with each other in this over-all undertaking, if each knew, or had reason to know, that other retailers were involved with the Hernandez organization in a broad project for the smuggling, distribution and retail sale of narcotics, and had reason to believe that their own benefits derived from the operation were probably dependent upon the success of the entire venture, the jury could find that each had, in effect, agreed to participate in the over-all scheme. See Blumenthal v. United States, 332 U.S. 539, 557-558, 68 S.Ct. 248, 92 L.Ed. 154 (1947); United States v. Friedman, 445 F.2d 1076, 1080 (9th Cir. 1971); Daily, 282 F.2d at 820. This would be true even though the individual defendants were not aware of the identity, number or location of the other participating retailers. See Friedman, 445 F.2d at 1080. In applying these principles, however, it is important to avoid confusing the similar purposes of numerous separate adventures of like character, with the single purpose of one over-all scheme. Rocha v. United States, 288 F.2d 545, 553 (9th Cir. 1961), quoting from Canella v. United States, 157 F.2d 470, 476-477 (9th Cir. 1946). While the individual defendants may have entered a conspiracy with some of the other indicted co-conspirators, the Government had the burden of connecting each defendant directly or circumstantially with the larger over-all scheme. Daily, 282 F.2d at 821-822. Thus if, at most, the Government proved that a particular defendant purchased narcotics from the Hernandez organization without reason to believe that his ability to do so was because of the existence of an over-all conspiracy involving several retailers, the jury would not be warranted in finding that such defendant had thereby participated in an over-all conspiracy. In substance, this was the holding of this court with regard to defendant Quinn, in Daily v. United States, 282 F.2d 818 (9th Cir. 1960). Even though defendant Quinn in that case knew of the method by which the scheme operated, the Government failed to show, directly or inferentially, that he knew of the existence of other conspirators besides himself and two others. It is true, however, that even if the Government proved, not one overall conspiracy but a series of limited conspiracies involving individual defendant retailers with the core organization, this would not necessarily require reversal. It would show a failure on the part of the Government to prove participation in an over-all conspiracy. But it would leave the question of whether a fatal variance resulted in trying the defendants under the single conspiracy charge whereas the proof showed only limited conspiracies. This was the precise question dealt with in Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), where it was held that the variance in that case was not fatal, and Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), where it was held that the variance in that ease constituted reversible error. A variance is not fatal if the proof is confined to the conspiracy of which the defendant is convicted. Berger v. United States, 295 U.S. at 81, 55 S.Ct. 629. There also lurks in this branch of the case the question of whether, apart from the matter of variance, the prejudice inherent in a trial of many defendants on a broad conspiracy count wherein defendants strongly urged that, at most, limited conspiracies were shown, rendered the denial of the several motions for severance a reversible abuse of discretion. With these considerations and principles in mind we turn to an examination of the record as to each of the eight defendants. Defendant Baxter. Under the evidence considered in the light most favorable to the Government, Baxter had direct contact with Helen Hernandez, Wright, Lannom and Roy Cohn. The Hernandez “customer book” contained references to Baxter as “Bee Bee,” with his coded telephone number and the price per ounce he paid for heroin and cocaine. During a forty-eight-day period in the latter part of 1968, this book reflects the fact that Baxter purchased from the Hernandez organization nine ounces of heroin and one ounce of cocaine, having a sales value of $3,475.00. It was Baxter’s practice to pay for drugs purchased from the Hernandez organization by journeying to Tijuana with the cash, telephoning the Hernandez headquarters and, by appointment, transferring the money to Wright or Lannom at some agreed-upon place in Tijuana. Cohn was the distributor of the narcotics purchased by Baxter. The Government did not produce any direct evidence that Baxter knew any of the other narcotics retailers named in the indictment. Nevertheless the jury could reasonably find that a narcotics smuggling and distribution operation of the size that Baxter knowingly dealt with must have had a substantial number of retail outlets such as his own. Baxter was shown to be an experienced narcotics operator, and the jury could reasonably find from the clear and unequivocal evidence that Baxter must have known that the Hernandez operation was of such a size and character that it must involve a circle of retailers. Just as the participation of other retailers in the general scheme must have been apparent to Baxter, as a knowledgeable retailer, so, too, he must have realized that his own participation in the over-all undertaking substantially contributed to the success of the venture as a whole; or so the jury could have found. Having in view the background evidence and that which pertains specifically to Baxter, as reviewed above, and the general considerations and principles to which reference has been made, we hold the evidence sufficient to establish the existence of the over-all narcotics conspiracy, as charged in the indictment, and Baxter’s participation therein. As to Baxter, then, there was no variance between the indictment and the proof and no abuse of discretion in refusing to sever his trial. Defendant Marrufo. Marrufo was listed in the Hernandez “customer book” by the code name “Chato,” with a specified telephone number . listed to “Jose Banda” at the address where Marrufo was living. According to this record, Marrufo paid three hundred and twenty-five dollars per ounce for the over two pounds (thirty-nine ounces) of heroin he purchased from the Hernandezes during a fifty-two-day period in late 1968, this data being reflected in the Hernandezes’ “customer book.” The sales value of these purchases was $12,675. Thirty-eight telephone calls were made to the Hernandez residence from the telephone listed to “Jose Banda” during the period from September to December, 1968. Marrufo must have been in contact not only with persons at the Hernandez headquarters, but also with Cohn or some other distributor in the Los Angeles area. As in the case of defendant Baxter, we believe the jury could reasonably find that this knowledgeable and experienced retail dealer in narcotics, who had frequent contacts with the Hernandez organization, must have been aware that the operation involved a circle of narcotics retailers of which he was one. The jury was also warranted in finding that Marrufo must have realized that his own extensive participation in the operation contributed substantially to the success of the entire venture, from which venture he personally profited. On the same reasoning which we applied in the case of defendant Baxter, we hold that the evidence of the over-all narcotics conspiracy, and Marrufo’s participation therein, is sufficient to support his conviction on count one. It follows that, as to Marrufo,. there was no variance between the indictment and the proof and no abuse of discretion in refusing to sever his trial. Defendant Ward. Ward had personal telephonic contact with Robert and Helen Hernandez during much of 1968. He was listed in the Hernandezes’ “customer book” under a variety of names, including “Burch,” with a coded telephone number. These records show that Ward purchased over a pound of heroin from the Hernandezes during a forty-four-day period in October and November, 1968, paying a total of six thousand five hundred dollars. Between January 13 and November 2, 1968, Ward sent the Hernandezes Western Union money orders aggregating eleven thousand seven hundred dollars. The method whereby Ward received the narcotics was as described earlier in this opinion with reference to the activity of the wholesale distributors. Ward knew Roosevelt Walker, one of the defendants in the Group II appeal, and, according to the evidence, Ward stated that when he heard of Walker’s arrest “he should have left town.” In view of the size of Ward’s narcotics operations, all of which involved the Hernandez organization, his definite knowledge of Walker’s participation therein, his manner of receiving the narcotics through an efficient distribution system, and the general background facts developed in the evidence, the jury could find that Ward must have been aware of the general conspiracy involving many retailers and that his oWn activity contributed to the success of the over-all scheme. Accordingly, we hold that as to Ward there was no variance between the indictment and the proof and no abuse of discretion in refusing to sever his trial. In view of this determination we need not consider whether, giving application to the concurrent sentence rule, as set forth in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), the concurrent sentence imposed upon Ward because of his conviction on count two of the indictment rendered it unnecessary to consider the sufficiency of the evidence on the conspiracy count. Defendant Beasley. Beasley appears not to have raised, on appeal, the question of the sufficiency of the evidence to prove an over-all narcotics conspiracy, and his participation therein. In any event we believe the evidence was sufficient in these respects. By means of referring to arguments advanced in other briefs, Beasley may have raised the question of whether the district court abused its discretion in denying his motion to sever his trial. We hold there was no such abuse of discretion. Defendant Rico. Rico is listed in the Hernandez “customer book,” together with his coded telephone number and the price per ounce he paid for heroin. The entries in this book reflect the sale of eleven ounces of heroin to Rico with a sales value of $3,575, during a fifty-one-day period late in 1968. Eight Western Union money orders addressed to “Roberto Hernandez,” at the Hernandez residence, were signed by Rico, sometimes under the name “Ramon Acosta.” The latter name was also recorded in the “customer book.” Juan Hernandez’s telephone number was found on a slip of paper found in Rico's wallet when he was arrested. The evidence linking Rico to the overall conspiracy may be somewhat thinner than in the cases of Baxter, Marrufo, Ward and Beasley. Nevertheless, we think it was adequate, having in view the same considerations discussed in connection with these other defendants. We therefore hold that there was no variance between the indictment and the proof in the case of Rico, and there was no abuse of discretion in refusing to sever Rico’s trial. The observations made above with respect to defendant Ward and the concurrent sentence rule are equally applicable to defendant Rico. Defendant Estaban Catarino. While Catarino does not question the sufficiency of the evidence to prove the conspiracy, and his participation therein, he does assert that the trial court erred in refusing to sever his trial. We therefore consider the sufficiency of the evidence tc connect this defendant with a general conspiracy. The Hernandez “customer book” contains coded references to Catarino and his telephone number, together with the price he was to pay for heroin. Seventeen ounces, having a sales value of $5,525, were sold to him by the Hernandez organization during a fifty-one-day period in late 1968. Lannom met Catar-ino on three occasions, at a Tijuana racetrack, to receive payments in cash. On at least two of these occasions, Helen Hernandez asked Lannom to meet Cat-arino for this purpose. Wright received at least three telephone calls from Cat-arino with reference to additional meetings at the racetrack to receive payments. During the period of July, 1968 through January, 1969, Catarino made eleven telephone calls from his Los An-geles home to the Hernandez headquarters, and twenty telephone calls to the Juan Hernandez telephone number. While this is a fairly close case on the evidence, we think the jury, upon consideration of this evidence along with the background facts concerning the general conspiracy, could infer that Catarino must have realized that a wide circle of retailers was being served by the Her-nandezes and that his own benefits derived from the operation were predicated upon the success of the entire venture. Our above-stated reasoning in holding the evidence of conspiracy sufficient as to other defendants is equally applicable here. We therefore hold that there was not, as to defendant Catarino, a variance between the indictment and proof, and there was no abuse of discretion in refusing to sever his trial. Defendant Rodriquez. In the Hernandez “customer book,” Rodriquez is referred to as “Tomate,” and his coded telephone number is recorded, together with a “three hundred seventy-five dollar” price per ounce of heroin. The entries in this book reflect the sale of two pounds of heroin to Rodriquez, with a sales value of ten thousand four hundred dollars, during a sixty-one-day period in late 1968. Rodriquez was shown to have been in contact with Robert and Helen Hernandez, Lannom, Wright and Cohn. On several occasions Rodriquez conversed directly with Robert and Helen Hernandez at a hospital in Tijuana or at their home. During the period of July, 1968 through January, 1969, forty-five telephone calls were made from Rodriquez’ telephone to the Hernandez headquarters, and seventeen telephone calls were made to the Juan Hernandez number in Tijuana. As in the case of the other Group I defendants, we think the extent of Rodriquez’ contact with and utilization of the Hernandez narcotics operation, including his personal associations with several members of that group, entitled the jury to find that he must have been aware that the operation served a circle of retailers such as himself, and that his own benefits from the operation were dependent upon the success of the scheme as a whole. Accordingly, we hold that the Government proved Rodriquez’ participation in the general scheme. It follows that, as to this defendant, there was no variance between the indictment and proof and no abuse of discretion in refusing to sever his trial. Defendant Pipkins. Pipkins does not, in his brief on appeal, specifically argue that the evidence is insufficient to prove a general conspiracy as charged, or his participation therein. However, he does adopt the arguments “made on behalf of all co-appellants whose cases have been consolidated on appeal under the title ‘Hernandez Conspiracy’.” We deem this adequate to put in question the sufficiency of the evidence produced in the Group I trial to support Pipkins’ conviction on count one, but we deem it improper to consider, on this question, the evidence produced in the other trials involving the alleged Hernandez conspiracy. Pipkins’ nickname “Skeeter” appears in the Hernandez “customer book,” together with his telephone number, the prices to be charged him for heroin and cocaine, and the fact that transactions with him would be for cash. The entries in the Pipkins section of this record indicate that twenty-five ounces of heroin and twenty-two ounces of cocaine were sold to this customer, with a sales value of $20,225, during a sixty-eight-day period in late 1968. Fifty-seven negotiated Bank of America money orders, payable to Robert Hernandez, with a total face value of $17,625, and with Pipkins’ handwriting on each, were introduced into evidence. Numerous telephone calls from Los An-geles telephone numbers to the Hernandez headquarters were traced to Pipkins during the period of August through December, 1968. The evidence indicates that, in addition to personnel at the Hernandez headquarters, Pipkins had been in contact with the wholesale distributor, Cohn, and one of the narcotics retailers, Roosevelt Walker. In our opinion, the jury could find that one who had carried on such an extensive narcotics business with the Her-nandezes, and who had the indicated contact with that organization, must have known that he was but one of a circle of narcotics retailers, each of whom benefited by the participation of all in a conspiratorial arrangement embracing the entire group. The evidence introduced in the Group I trial was accordingly sufficient to support the jury verdict that Pipkins knowingly participated in a general conspiracy as charged in the indictment. Hence, as to Pipkins, there was no variance between the indictment and proof and no abuse of discretion in refusing to sever his trial. II. Admissibility of Hernandez Documents Several defendants attack the admissibility of certain key items of evidence in the Government’s ease consisting of records of the Hernandez operation. They include the “customer book” referred to above, a separate notebook kept by Richard Wright for the purpose of explaining to himself what he was recording under the formal system created by Mrs. Hernandez, and other miscellaneous papers and notes. Wright brought all the documents (hereafter referred to as simply “the Hernandez documents”) with him when he defected from the Hernandez fold and turned the records over to Government agents. Defendants base their challenge to the admission of the Hernandez notebooks on several grounds: Wright’s testimony was insufficient to authenticate the records; they were seized in violation of the appellants’ Fourth Amendment rights; admission of the records violated their Sixth Amendment rights to confront and cross-examine Mrs. Hernandez as to the entries she made in the notebooks; and the records do not meet the test as “business records” within the definition of 28 U.S.C. § 1732(a). Only the final ground merits discussion. To meet the standard of section 1732(a), a given document must be “made in [the] regular course of any business” and it must be “the regular course of such business to make such memorandum or record at the time of such act. . . . ” In determining whether a document meets this test, it is important to examine “[t]he content and method of preparation of the [particular] document. . . . ” La Porte v. United States, 300 F.2d 878, 880 (9th Cir. 1962). A review of the evidence in the instant case persuades us that the Hernandez notebooks were prepared pursuant to an inherently reliable standard operating procedure and are within section 1732(a). United States v. Lange, 466 F.2d 1021 (9th Cir. 1972). The principles of efficient accounting apply just as readily to an illicit enterprise as they do in a licit business. Arena v. United States, 226 F.2d 227 (9th Cir. 1955). In Arena, the running accounts of a gambling operation were held to be “business records.” In the instant case, Richard Wright was under a special incentive to keep accurate records: the Hernandezes were harsh with persons out of favor. Several defendants attack the records because the use of nicknames and code names was ambiguous. However, there is sufficient foundation in the rest of the evidence to tie up the records with the named defendants. Wright testified that Mrs. Hernandez issued emphatic instructions when she first trained him that orders were to be accepted only from persons using the code names or nicknames already entered by her in the book. If any new person wanted to establish an “account,” Wright was first to clear it with her. The only entries Wright actually made in the book were specific responses to phone calls from persons who identified themselves under the appropriate names. Later, particular defendants were identified by Hernandez runners, who testified that the defendants were the persons who operated under the code names. Wright’s testimony and the notebooks established the first circumstantial element of this identification. The slight extent that the code name entries vary from the runners’ testimony was a matter of weight for the jurors to assess, rather than a matter affecting the admissibility of the notebooks. La Porte v. United States, supra, 300 F.2d at 880; United States v. Kimmel, 274 F.2d 54, 57 (2d Cir. 1960). The records were also incomplete because Wright removed the pages which might incriminate himself or his friend Lannom, who also defected to the Government. This deficiency in the records does not change the fact that the accuracy of the remaining pages was sufficiently established. Defendants next contend that the notebooks were inherently unreliable because Wright prepared them for the purpose of litigation, after he agreed to help the Government approximately two months before he actually delivered the records. This argument is based on Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943), affirming 129 F.2d 976 (2d Cir. 1942); cf. United States v. De Georgia, 420 F.2d 889, 894-895 (9th Cir. 1969) (Ely, J., concurring). It is true that business records prepared specifically to assist in imminent litigation are unreliable, because they are likely to be self-serving in a way that cannot be scrutinized by cross-examination at trial. However, the test is not the motivation of the employee preparing the record, but the function served by the records in the operation itself. There is no doubt that the Hernandezes continued to depend upon the notebooks, even after the date Wright agreed to cooperate with the Government. The entries made after that date were still prepared in the regular course of the Hernandez enterprise. Finally, defendants argue that, assuming the notebooks were admissible, they should not have been admitted if Wright’s testimony about the same events was also admitted. Mitchell v. American Export Isbrandtsen Lines, Inc., 430 F.2d 1023, 1029 (2d Cir. 1970); cf. Wilke v. United States, 422 F.2d 1298, 1299 (9th Cir. 1970) and 4 Wigmore on Evidence, § 1124, pp. 194-195 (1940). However, this rule applies only if the oral testimony is substantially identical to the written document. Here, the notebooks had independent significance, at least with regard to the entries made by Mrs. Hernandez. Moreover, the entries made by Wright showed details which he could not remember independently, even after refreshing his recollection. This is sufficient to distinguish the use of the notebooks from Wright’s testimony. In sum, no error was committed in admission of the Hernandez documents. III. Admissibility of Telephone Records All of the Group I defendants argue that their telephone records were obtained by the Government in violation of 47 U.S.C. § 605, and in violation of their Fourth Amendment rights. On these grounds they contend that the district court judge who acted on pretrial motions erred in denying their pretrial motions to suppress those records, and the trial judge erred in admitting these telephone records into evidence. The records in question are principally toll and billing records showing the dates and times of long distance telephone calls, the numbers of the calling and receiving telephones, and the names and addresses of the persons to whom the calling telephones were registered. These records do not include any reference to the subject matter or contents of telephone messages. The manner in which the Government obtained these telephone records appears to be accurately described in defendant Estaban Catarino’s brief. Douglas A. McCombs, United States Customs Agent, was in charge of briefing the arrest teams prior to the arrest of most of the defendants on December 17, 1968. On approximately December 12, 1968, he conducted briefings and relayed information to the teams as to what persons were to be arrested. The identification of the defendants was determined by contacting Pacific Telephone and Telegraph Company and obtaining the names and addresses of the subscribers that matched the telephone numbers recorded in the Hernandez “customer book.” McCombs was not able to recall whether the information he received from the telephone company was oral or written, or whether he received it personally, or another agent received it. McCombs also requested the telephone company to supply billing information. It was McCombs’ recollection that, in response to these requests, and in advance of the issuance of any subpoena, the Government received substantially all of the information contained in the exhibits later introduced at the trial. Subsequently, in April, 1969, a grand jury subpoena was issued for these records. In support of their position defendants principally rely upon the first sentence of 47 U.S.C. § 605, as amended June 19, 1968 (82 Stat. 223), quoted in the margin. It will be observed that the first sentence of section 605, as amended, prohibits certain action by any person “receiving, assisting in receiving, transmitting or assisting in transmitting, any interstate or foreign communication by wire or radio . . . .” The evidence in the case before us does not indicate that the Government obtained any telephone toll or billing records from any persons having the duties described in the first sentence of section 605, namely persons receiving, assisting in receiving, transmitting or assisting in transmitting of interstate or foreign communication by wire or radio. It follows that there was no violation of the first sentence of section 605, as amended. See Bubis v. United States, 384 F.2d 643, 646 (9th Cir. 1967). We therefore need not consider whether, in any event, the described Government request of the telephone company for such information as was supplied constitutes “other lawful authority” under section 605, thus fulfilling an exception to the proscription set out in the first sentence of that section. Defendants also rely on the second part of section 605, consisting of all but the first sentence. This part of section 605, as amended June 19, 1968, is quoted in the margin. Prior to the 1968 amendment, this part of section 605 pertained to “any communication,” which would include telephone communication. The 1968 amendment, as indicated in note 16, limited the application of this part of section 605 to “any radio communication.” (Emphasis supplied). It follows that this part of section 605, in the form in effect at the time the Government obtained the telephone records in question, is totally inapplicable to telephone records. Defendants also argue that the divulgence of telephone company toll and billing records prior to the issuance of a subpoena violated their Fourth Amendment rights as declared in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). In Katz, the Court held that what an individual “seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected” under the Fourth Amendment. Id. at 351-352, 88 S.Ct. at 511. But the Fourth Amendment does not provide for a general constitutional right to privacy. Id. at 350, 88 S.Ct. 507. Instead, the test of whether a seizure prior to adherence to judicial processes violates the Fourth Amendment is whether there is an invasion of the defendant’s “constitutionally justifiable expectations of privacy.” United States v. White, 401 U.S. 745, 751, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971). Telephone subscribers are fully aware that records will be made of their toll calls. United States v. Covello, 410 F.2d 536, 542 (2d Cir. 1969). This Court has held that the expectation of privacy protected by the Fourth Amendment attaches to the content of the telephone conversation and not to the fact t that a conversation took place. United States v. Fithian, 452 F.2d 505, 506 (9th Cir. 1971). The defendants have failed to show a violation of their Fourth Amendment rights. IV. Admissibility of Telegraphic Money Orders Defendants contend that telegraphic money orders and money order applications were obtained by the Government in violation of 47 U.S.C. § 605, and that their admission in evidence was therefore reversible error. All of the defendants appear to recognize that if the money orders and applications were obtained pursuant to subpoena, then the requirements of section 605 were met. See United States v. Haili, 443 F.2d 1295, 1299 (9th Cir. 1971). Thus it was necessary for defendants to establish that the Government obtained these documents without the use of subpoenas. We find no record support in the Group I trial for such a factual contention by defendants. The pertinent testimony is that of Mrs. Jane Buelow, Western Union custodian of the money order .records which were admitted. She testified that she had released no information concerning the money orders and applications to any Government agent or agency except upon the presentation of a valid subpoena. Mrs. Buelow also testified that she had sent to the San Diego Western Union office, at its request, confirmation of the existence, but not the details, of certain money orders which she later released under subpoena. She added that she thought the San Diego request had been pursuant to subpoena, but was not certain of this. No other evidence was produced by either side as to whether the records had actually come to Government attention through the San Diego Western Union office and, if so, whether with or without a subpoena. In these circumstances, we hold, the defense failed to satisfy its burden of proving that the records in question had come to Government attention in a manner violative of 47 U.S.C. § 605. See Nolan v. United States, 423 F.2d 1031, 1045 (10th Cir. 1970). V. Searches and Seizures Unlawful search and seizure arguments are presented by defendants Mar-rufo, Catarino, Pipkins and Rodriquez. Each of these, of course, depends upon its particular facts, but certain general principles are clear. Since the searches and seizures here occurred prior to the decision in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), and the standards announced in that case are not retroactive, Williams v. United States, 401 U.S. 646, 651, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971), it is conceded that Chimel is not applicable. Defendants argue, however, that the searches and seizures here violated pre-Chimel standards. In the case of the above defendants, the challenged searches and seizures occurred at their residences and were incident to their arrests. All of these arrests occurred during the early morning of December 17 or 18, 1968. In each instance, there were arrest warrants but no search warrants. Customs agents, accompanied by a deputy sheriff, went to Marrufo’s apartment with warrants for the arrest of Marrufo and Connie Banda, a friend of his. The federal officer knocked loudly on the door and announced loudly his official status and purpose. There was a scurrying noise inside and the deputy, peering through an aperture into the apartment, called out that Marrufo was “flushing.” The officers then broke into the apartment. In the bedroom they arrested Banda while Marrufo struggled with some of them in the bathroom. A container of heroin was retrieved from the toilet. Upon being brought into the living room, Marrufo responded to the nickname “Chato” found in the Hernandez records and was arrested. During this episode the entire apartment was searched and one hundred and sixty packets containing heroin were found on a closet shelf. These narcotics were received in evidence. Estaban Catarino and his wife Martha were arrested by United States customs agents who knocked on their front door and announced that they were federal officers and had an arrest warrant. Receiving no response but hearing movement inside, they forced open the door. Martha was located immediately, arrested and advised of her rights. Estaban was not in sight. Searching for him, the agents spotted an adjacent garage; one of them knocked on the garage door and made a similar announcement. Es-taban then opened the door and was arrested and advised of his rights and of the status of the arresting officer. The entire residence was searched and various objects were seized and introduced in evidence. Pipkins was arrested at his apartment. He admitted the agents after peering at them through a window and being told their position and mission. He was arrested in the living-dining area; thereafter the apartment was searched and various objects connecting Pipkins with the operation were seized and admitted into evidence. Rodriquez was arrested in his room, which appears to have been a single room on the second floor of a building. The agents announced their identity and purpose, knocked twice on a door which apparently opened into an accessway to various rooms including Rodriquez’s and got the impression that someone inside was refusing to open the door. The door was then broken down and the agents proceeded to Rodriquez’s room. The testimony was in conflict as to whether the door was open or closed, but in any event Rodriquez was informed that the agents were federal officers with an arrest warrant. The room was quite small, seven by nine feet. Again there was conflicting testimony as to whether or not, after his arrest, Rodriquez remained in the room while the search was conducted. Nevertheless, several items connecting Rodriquez with the Hernandez operation were seized and put in evidence. As mentioned above, the question before us is whether these searches and seizures were in conformity with pve-Chimel standards. Although there are slight factual variations, the question as to all these defendants is basically whether a search of the entire residence in which the defendant was present, pursuant to a lawful arrest but without a search warrant, was lawful under those standards. This court has recently held that pre-Chimel searches and seizures incident to a lawful arrest are controlled by Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947). Taylor v. Arizona, 471 F.2d 848 (9th Cir. 1972). Contrary to the contention of some defendants, there is no showing that what we have here was “a general exploratory search for merely evidentiary materials.” Harris v. United States, supra, 331 U.S. at 150, 67 S.Ct. at 1101. This concept does not exclude the fruits of a search for evidence which would aid in conviction for a particular crime. Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 306-307, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). A “general exploratory search” of the proscribed type, as delineated by the courts, is one for the purpose of establishing that an unrelated offense has been committed. Many if not most of the details of the Hernandez operation were known to the officers prior to these arrests, and evidence connecting these defendants to it was available. Nor is it decisive that search warrants could have been obtained prior to the arrests, as the Government concedes. Harris, supra, 331 U.S. at 150-151, 67 S.Ct. 1098. That the searches extended beyond the immediate area in which the defendants were arrested does not render it unlawful under pre-Chimel standards. The extent of the search is determined by the nature of the materials sought and where they were likely to be kept, Harris, supra, 152-153, 67 S.Ct. 1098. The materials sought here were narcotics, address and telephone books and the like pertaining to the Hernandez operation, which, as we have seen, was largely conducted by telephone. It could not be assumed that these objects would be left lying about, since they were small and easily concealed. A proper search would have to extend to pants pockets and closet shelves, where certain of the objects were in fact found. In Chimel, the Court recognized that the extensive search there involved would have been lawful under Harris, 395 U.S. at 766, 89 S.Ct. 2034. We conclude that the searches and seizures incident to the arrests of these defendants were lawful and evidence thereby obtained was properly received. YI. Photographic Identification of Baxter Appellant Baxter contends that the trial court erred in failing to exclude the testimony of Wright and Lannom identifying Baxter as the “Bee Bee” referred to in the Hernandez “customer book.” He asserts that this testimony was given subsequent to an impermissibly suggestive pretrial photograph identification procedure and that a reversal is required under Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). The Government correctly points out that no objection was made to the in-court identification at the trial. Therefore, the question is properly before this court only if the failure to exclude the identifications was a plain error or defect affecting substantial rights. Fed.R.Crim.P. 52(b); United States v. Machado, 457 F.2d 1372 (9th Cir. 1972); Davis v. United States, 425 F.2d 673 (9th Cir. 1970). The plain error rule is invoked only in special situations, such as a denial of due process, in which “it appears to be necessary in order to prevent a miscarriage of justice or to preserve the integrity and reputation of the judicial process.” Davis, 425 F.2d at 674. Thus, the question before this court is whether the pretrial procedure by which Lannom and Wright identified a photograph of appellant as “Bee Bee” was so impermissibly suggestive as to create a very substantial likelihood of misidentification. If so, the admission of their eyewitness identifications at the trial constituted a denial of due process of law. On three separate occasions Helen Hernandez directed Lannom to meet a person known as “Bee Bee” to receive some money from him. The first meeting took place in the latter part of August of 1968, the second ten days or two weeks later, and the final meeting occurred five or six weeks after the second meeting. When Wright was working at the Hernandez residence he received three telephone calls from a man who identified himself as “Bee Bee.” Following each call Wright met “Bee Bee” and received money from him. The first meeting occurred on October 21, 1968, the second on November 2, 1968, and the third on December 7,1968. Shortly after leaving the conspiracy and returning to the United States, on December 16, 1968, Lannom and Wright were shown between one hundred and one hundred and fifty photographs. No photograph of Baxter was included and neither Lannom nor Wright identified any of the photographs as that of the man they knew as “Bee Bee.” Baxter was arrested during the latter part of December of 1968. In January of 1969, Lannom was shown a single photograph of Baxter and identified it as a picture of “Bee Bee.” Wright then entered the room and also identified the photograph as a picture of “Bee Bee.” At the trial, Lannom and Wright both made in-court identifications of Baxter as the man they knew as “Bee Bee.” Following a question from the court, Lannom qualified his identification with the statement “unless there is someone I can’t see.” Wright’s identification was unqualified. In Simmons, supra, the petitioner challenged a pretrial photographic identification procedure in which the witnesses were shown only a few snapshots of him, a co-defendant and others. The Court recognized both the dangers of misidentification in showing witnesses only a small number of photographs and the effective and widespread use of photographic identification procedures used in criminal law enforcement. Striking a balance between the requirements of due process and the public interest in the prompt investigation of unsolved crimes, the Court refused to prohibit the use of initial photographic identification as a matter of constitutional right, the Court held Instead, “that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside [as a denial of due process of law] only if the photographic identification procedure was so imper-missibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons, 390 U.S. at 384, 88 S.Ct. at 971. This rule is an application of the holding with respect to one-man lineups in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1947). A claim that an identification procedure is im-permissibly suggestive is to “be evaluated in light of the totality of [the] surrounding circumstances.” Simmons, 390 U.S. at 383, 88 S.Ct. at 970. The Simmons Court suggested two standards by which the permissibility of pretrial photographic identification should be judged. The first is whether the use of photographic identification was necessary in the particular case. Baxter argues that showing Wright and Lannom a single photograph was unnecessary because they had previously viewed, on one occasion, over one hundred photos. However, such an argument applies to the evaluation of the circumstances surrounding the actual identification, not to the question of whether a photographic identification procedure was necessary at all. Most of the courts which have considered the necessity issue have focused on the question of whether the photographic identification was made before or after the arrest of the suspect. If the suspect is not already in custody, the courts have readily found a necessity for the use of photographic identification. Simmons, supra. See also, United States v. Bennett, 445 F.2d 638 (9th Cir. 1971); United States v. Cox, 428 F.2d 683 (7th Cir. 1970). Although Baxter does not raise the point, he was in custody prior to the time Wright and Lannom were shown the single photograph of him. This court has expressly held that a single photograph identification procedure was unnecessary where the defendant was already in custody. United States v. Fowler, 439 F.2d 133 (9th Cir. 1971). However, Fowler expressly distinguished cases such as Baxter’s in which the witness “did not testify as to his pre-trial identification and where the facts amply demonstrated an independent basis for the in-court identification.” 439 F.2d at 134. Thus, the per se exclusionary rule adopted in Fowler as to testimony concerning a pretrial identification does not apply here. See also, Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), in which the per se exclusionary rule was rejected as to testimony of a pretrial identification in which the defendants were the only two suspects in the room. Whether the defendant is in custody is only one part of the necessity standard. In Simmons the Supreme Court also found necessity in the law enforcement officials’ need to quickly determine whether they were on the right track. 390 U.S. at 385, 88 S.Ct. 967. See also, United States v. Cox, 428 F.2d 683, 686 (7th Cir. 1970). This reasoning applies to the present case. If Baxter was not the right man, immediate action to locate the real suspect was necessary. This conclusion does not give law enforcement officials complete freedom to use single photograph identification procedures in every case. First, such procedures would not be necessary where a suspect had already been sufficiently identified by another witness from a larger group of pictures or where substantial evidence without the identification points to that suspect as the criminal. Second, and more important, “necessity is only one factor in the total inquiry.” United States v. Conway, 415 F.2d 158, 163 (3rd Cir. 1969). The other factor to be evaluated is the circumstances surrounding the identification. Simmons, 390 U.S. at 385, 88 S.Ct. 967. The issue is whether there was a very substantial likelihood of irreparable misidentification. Four specific indicators have been identified, three of which apply to this case. See Parker v. Swenson, 332 F.Supp. 1225 (E.D.Mo. 1971) for a summary of the four indicators identified by other courts and used in that case. The first of those indicators which applies to this case is the length of time and the conditions in which the witness observed the defendant. Each meeting between either Wright or Lannom took place in a well-lighted place and the meetings each lasted for at least several minutes. The record does not indicate that Baxter ever wore dark glasses or any disguise. Each witness met Baxter three times. They had an excellent opportunity to observe him. Other courts have found the chance for misidentification minimal even though there was just one meeting for a short period of time. See, e. g., Simmons, supra (five minutes during a bank robbery); United States v. Black, 456 F.2d 1103 (9th Cir. 1972) (bank robbery); United States v. Long, 449 F.2d 288 (8th Cir. 1971) (bank robbery). Compare Mason v. United States, 134 U.S.App.D.C. 280, 414 F.2d 1176 (1969) (no grounds in the record to argue that the witness observed the defendant with any care). The meetings in this case gave the witnesses substantial opportunity for observation because of the nature of the transaction, and at each encounter subsequent to the initial meeting the witnesses recognized Baxter. There was little chance for misidentification. The second indicator is the conduct of law enforcement officials. The likelihood of misidentification increases when they act in such a manner as to focus attention on a single suspect. Baxter contends that the use of a single photograph is enough to show improper conduct by the federal agents in this case. Despite the questionable nature of such a procedure, we agree with the conclusion of several courts that the use of a single photograph identification procedure does not necessarily interject prejudice. United States v. Kilgore, 418 F.2d 225 (9th Cir. 1969); Cox, supra. This is not a case in which the only photograph the witnesses saw was one of the defendant. Compare United States v. Fowler, 439 F.2d 133 (9th Cir. 1971). They were shown hundreds of photographs both before and after viewing the picture of Baxter. Also, there is no evidence in the record in this ease tending to show that the federal agents in any way prompted Wright or Lannom to identify the photograph of Baxter. The third indicator is the “presence of other witnesses at the time of the [actual] . . . identification and the possible prejudicial influence of one witness’ opinion on another’s recollection.” Parker, 332 F.Supp. at 1231. Baxter contends that Wright would be forced to identify the photograph after Lannom had done so because they were partners in crime. Although Lannom was present when Wright identified the photograph as that of Baxter, Wright was not present when Lannom identified it and there is no evidence that Lannom spoke to Wright prior to the latter’s identification. A very substantial likelihood of irreparable misidentification is not shown by these facts. Baxter's other contentions go to the weight of the in-court identifications, not to their admissibility. Thus, we are not persuaded by his arguments based upon the previous felonies of Wright and Lannom and on Wright’s testimony that the person he met in Tijuana had vision problems, while Baxter apparently had none. Questions as to the weight of evidence are properly decided by the jury. Mason v. United States, 134 U.S.App.D.C. 280, 414 F.2d 1176 (1969) is cited by Baxter as showing a substantial likelihood of misidentification where there is strong psychological pressure to make an identification. In that case the witness was a young woman who had been a bank teller only a few months. Her failure to check the defendant’s identification when he made a withdrawal was a violation of her duties. However, Mason is distinguishable from the present case. Lannom and Wright had already-identified over twenty photographs of other defendants prior to their identification of Baxter’s picture. It is doubtful that the fact that they were fugitives and might have had their charges dropped by cooperating with the federal agents would coerce them into identifying one more suspect. Also, Lannom was told that the chances that he would be granted immunity were almost ni