Full opinion text
RENFREW, District Judge: Appellants Pheaster and Inciso were tried before a jury in the United States District Court for the Central District of California and were convicted on all counts of a 12-count criminal indictment. Count One charged appellants, together with other unindicted co-conspirators whose names were unknown to the grand jury, with a conspiracy to kidnap and hold Larry Adell for ransom in violation of Section 1201(c), Title 18, United States Code. The remaining eleven counts charged Pheaster with depositing letters in the mail containing both requests for ransom for the release of Larry Adell (Counts Two, Four, Six, Eight, Ten and Twelve) and extortionate threats to injure Larry Adell (Counts Three, Five, Seven, Nine and Eleven), in violation of the first and second paragraphs, respectively, of Section 876, Title 18, United States Code. Inciso was charged with having aided and abetted the offenses charged in Counts Two through Twelve. Judgments of conviction were entered on November 21, 1974. Pheaster and Inciso were each sentenced to seventy years’ imprisonment on Counts Two through Twelve of the indictment and to life imprisonment on Count One, with the sentences on Count One to run concurrently with the 70-year terms imposed on Counts Two through Twelve. The jurisdiction of this Court to review the judgments of conviction below rests upon Sections 1291 and 1294, Title 28, United States Code. In this appeal, Pheaster and Inciso have asserted a large number of errors by the court below. We have considered all of the arguments advanced by appellants and have found no reversible error. Accordingly, we affirm. I. FACTS This case arises from the disappearance of Larry Adell, the 16-year-old son of Palm Springs multi-millionaire Robert Adell. At approximately 9:30 P.M. on June 1, 1974, Larry Adell left a group of his high school friends in a Palm Springs restaurant known as Sambo’s North. He walked into the parking lot of the restaurant with the expressed intention of meeting a man named Angelo who was supposed to deliver a pound of free marijuana. Larry never returned to his friends in the restaurant that evening, and his family never saw him thereafter. The long, agonizing, and ultimately unsuccessful effort to find Larry began shortly after his disappearance. At about 2:30 A.M. on June 2, 1974, Larry’s father was telephoned by a male caller who told him that his son was being held and that further instructions would be left in Larry’s car in the parking lot of Sambo’s North. Those instructions included a demand for a ransom of $400,000 for the release of Larry. Further instructions regarding the delivery of the ransom were promised within a week. Although the caller had warned Mr. Adell that he would never see Larry again if the police or the F.B.I. were notified, Mr. Adell immediately called the F.B.I., and that agency was actively involved in the investigation of the case from the beginning. Numerous difficulties were encountered in attempting to deliver the ransom, necessitating a number of communications between the kidnappers and Mr. Adell. The communications from the kidnappers included a mixture of instructions and threats, as well as messages from Larry. Before the kidnappers finally broke off communications on June 30,1974, Mr. Adell had received a total of ten letters from the kidnappers, nine of which were typed in a “script” style and one of which was handwritten. In addition, Mr. Adell had received two telephone calls from the kidnappers, one of which was tape-recorded by the F.B.I. In these communications, the kidnappers gave instructions for a total of four attempts to deliver the ransom, but it was never delivered for a number of reasons, and Larry was never released. The instructions for the first delivery, set for June 8th, were nullified by the late delivery of the letter containing them on June 9th. The second delivery failed when, on June 12th, Mr. Adell balked at turning over the money without more adequate assurances that his son would be released. The third delivery on June 23d was aborted, apparently because of the kidnappers’ awareness that the pick-up site was being monitored. A duffel bag containing the ransom money was thrown into the designated spot, but it was never retrieved by the kidnappers. The fourth and final attempt never really began. On June 30th, pursuant to instructions, Mr. Adell went to a designated hotel pay telephone to await further instructions but was never contacted. No further communications were received from the kidnappers, despite Mr. Adell’s attempt to renew contact by messages published in the Los Angeles Times. When it appeared that further efforts to communicate with the kidnappers would be futile, the F.B.I. arrested appellants, who had been under surveillance for some time, in a coordinated operation on July 14, 1974. II. ERRORS ASSERTED BY PHEASTER A. Sufficiency of Count One of the Indictment Appellant Pheaster argues that his conviction under Count One of the indictment must be reversed, because that count fails to state a federal offense and is therefore, incapable of supporting his conviction. Although this argument was not raised on appeal by appellant Inciso, it would, if accepted, apply equally to his conviction under Count One. Count One of the indictment charges that appellants “did willfully and knowingly combine, conspire, confederate and agree together, with each other, and with other co-conspirators whose names are unknown to the Grand Jury to unlawfully kidnap and hold for ransom Larry Adell, the said Larry Adell having been willfully transported in interstate and foreign commerce following his kidnapping, in violation of Title 18, United States Code, Section 1201.” The “natural construction” of the quoted language urged by Pheaster is a charge that “the conspiracy to kidnap [in which appellants were allegedly involved] arose after Larry Adell had been kidnapped and transported in interstate commerce.” (Emphasis added.) The advantage to appellants of this construction is that it removes from their alleged involvement in the kidnapping all reference to interstate transportation of the victim, a necessary element of the substantive offense in Section 1201(a) and also of the conspiracy offense in Section 1201(c). Under this interpretation, the grand jury’s charge concerning appellants is simply that they conspired to kidnap Larry Adell and to hold him for ransom. Stripped of the allegation concerning interstate transportation, the alleged conspiracy to kidnap Larry from the earlier (hypothetical) kidnappers might constitute a state offense but would lack the requisite jurisdictional element of interstate transportation to convert it into a federal offense. Before considering the merits of Pheaster’s argument, it is appropriate that we state the standards that guide our decision. We begin with the requirement or Rule 7 of the Federal Rules of Criminal Procedure that an indictment “shall be a plain, concise and definitive written statement of the essential facts constituting the offense charged.” Any evaluation of a challenged indictment must also take into account the more fundamental requirements imposed by the Sixth Amendment. The judicial interpretations of those requirements provide the framework for our analysis here. A challenge to the sufficiency of an indictment is not a game in which the lawyer with the sharpest eye or the cleverest argument can gain reversal for his client. “ ‘Convictions are no longer reversed because of minor and technical deficiencies which did not prejudice the accused.’ ” Russell v. United States, 369 U.S. 749, 763, 82 S.Ct. 1038, 1046, 8 L.Ed.2d 240 (1962), quoting Smith v. United States, 360 U.S. 1, 9, 79 S.Ct. 991, 3 L.Ed.2d 1041 (1959). A criminal indictment must, however, perform certain essential functions which are of utmost importance to the protection of persons accused of crimes. The Supreme Court has emphasized that the performance of these functions is not to be compromised. Russell, 369 U.S. at 763, 82 S.Ct. 1038. In Russell the Supreme Court drew on its previous decisions in formulating the criteria to be used in evaluating a challenged indictment: “These criteria are, first, whether the indictment ‘contains the elements of the offense intended to be charged, “and sufficiently apprises the defendant of what he must be prepared to meet,”’ and, secondly, ‘ “in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.” [Citations omitted.]’ ” Id. at 763-764, 82 S.Ct. at 1047. Although essentially the same criteria apply to indictments charging conspiracies, certain differences do flow from the very nature of the crime of conspiracy. Because “the conspiracy is the gist of the crime” charged in such an indictment, the Supreme Court has held that “it is not necessary to allege with technical precision all the elements essential to the commission of the offense which is the object of the conspiracy, or to state such object with the detail which would be required in an indictment for committing the substantive offense.” Wong Tai v. United States, 273 U.S. 77, 81, 47 S.Ct. 300, 301, 71 L.Ed. 545 (1927) (citations omitted). Rather, the Court has held that: “In charging such a conspiracy ‘certainty to a common intent, sufficient to identify the offense which the defendants conspired to commit, is all that is’ necessary.” Ibid., quoting Goldberg v. United States, 277 F. 211, 213 (8 Cir. 1921). In Wong Tai the alleged defect in the indictment was that it was insufficiently detailed with respect to the times, people, and places involved. In this Circuit and elsewhere, courts have relied upon Wong Tai to sustain indictments in which elements of the object offense have been not merely imprecisely stated but completely omitted. For example in Stein v. United States, 313 F.2d 518 (9 Cir. 1962), this Court considered an appeal from a conviction under 21 U.S.C. § 174 for trafficking in unlawfully imported narcotics. The conspiracy count of the indictment “failed to allege that the appellant knew that the heroin had been illegally imported” although such knowledge was a necessary element of the substantive offense. Id. at 519. Although we held that the necessary facts could be implied from the indictment, we held alternatively that the omission of such an allegation was not fatal to a charge of conspiracy to commit the substantive offense. Id. at 520-521. See also Brown v. United States, 403 F.2d 489 (5 Cir. 1969), cert. denied, 397 U.S. 927, 90 S.Ct. 932, 25 L.Ed.2d 106 (1970) (indictment sufficient despite failure to allege knowledge by defendant that heroin had been imported into the United States contrary to law as required under 21 U.S.C. § 174); Danielson v. United States, 321 F.2d 441 (9 Cir. 1963) (indictment sufficient despite mingling elements of forgery and uttering under 18 U.S.C. § 495). But cf. Nelson v. United States, 406 F.2d 1136 (10 Cir. 1969) (indictment charging conspiracy to transport altered securities in interstate commerce fatally defective because of failure to allege the acts were accompanied with unlawful or fraudulent intent as required by 18 U.S.C. § 2314). Finally, we must note that the asserted inadequacy of Count One was first brought to the attention of the district court only after all the evidence had been received in an extensive jury trial. Failure of an indictment to state an offense is, of course, a fundamental defect which can be raised at any time. See, e. g., United States v. Clark, 412 F.2d 885, 888 (5 Cir. 1969); Chappell v. United States, 270 F.2d 274, 276 (9 Cir. 1959). However, the very limited resources of our judicial system require that such challenges be made at the earliest possible moment in order to avoid needless waste. Consequently, although such defects are never waived, indictments which are tardily challenged are liberally construed in favor of validity. For example, this Court held that when an indictment is not challenged before the verdict, it is to be upheld on appeal if “ ‘the necessary facts appear in any form or by fair construction can be found within the terms of the indictment.’ ” Kaneshiro v. United States, 445 F.2d 1266, 1269 (9 Cir.), cert. denied, 404 U.S. 992, 92 S.Ct. 537, 30 L.Ed.2d 543 (1971), quoting Hagner v. United States, 285 U.S. 427, 433, 52 S.Ct. 417, 76 L.Ed. 861 (1932). See Wright, Federal Practice and Procedure: Criminal § 123, at 225-226. In our view, the same standard should apply here, where the challenge came in a motion for acquittal after all evidence had been received. Such a long delay in raising the issue suggests a purely tactical motivation of incorporating a convenient ground of appeal in the event the jury verdict went against the defendants. Furthermore, the fact of the delay tends to negate the possibility of prejudice in the preparation of the defense. The Court of Appeals for the Seventh Circuit has applied a stringent standard similar to that stated in Kaneshiro in cases where no pretrial motion attacking the sufficiency of the indictment was made. United States v. Logwood, 360 F.2d 905, 907 (1966). We think that such a standard is appropriate here. Although Count One inexplicably and inexcusably falls far short of a model pleading of a conspiracy offense under Section 1201(c), it is well established that an indictment need not be drafted in the most precise form possible. The issue before us on this appeal is whether, under the standards set out above, Count One is so defective that reversal of the convictions under it must be ordered. Although the question is not a frivolous one, we find that reversal is not mandated. We have no difficulty in rejecting Pheaster’s imaginative but rather farfetched interpretation of Count One. In construing the language of an indictment, courts must be guided by common sense and practicality. United States v. Anderson, 532 F.2d 1218, 1222 (9 Cir. 1976). Pheaster’s “double kidnapping” interpretation of Count One clearly fails that test, especially when the language of the disputed count is read as a whole. Absent an explicit incorporation provision in the charging language, a conspiracy indictment’s specification of overt acts cannot be used to supply the allegation of a critical element completely missing from the charging language. United States v. Knox Coal Co., 347 F.2d 33, 38 (3 Cir. 1965), cert. denied, Lippi v. United States, 382 U.S. 904, 86 S.Ct. 239, 15 L.Ed.2d 157 (1965). Nevertheless, reference to the overt acts is appropriate to confirm an otherwise commonsense interpretation of an allegation which is included in the charging language. A reading of the overt act alleged in Count One confirms that the allegation concerning Larry Adell’s transportation in interstate commerce is to be attributed to appellants and their unnamed co-conspirators and not to another group of kidnappers whose existence is sought to be inferred from the admittedly poor phrasing of Count One. This interpretation of Count One eliminates the foundation on which Pheaster’s argument was built. Although we are convinced that Pheaster’s argument ■ concerning Count One is without merit, our consideration of the indictment has brought to light another argument which is related to the one raised by Pheaster and which we mention for the sake of completeness. The careless drafting of Count One makes it possible to argue that the allegation of conspiracy does not embrace the allegation of the interstate transportation of Larry Adell. That is, Count One might be paraphrased to charge that appellants and others conspired to kidnap Larry and conspired to hold him for ransom and, importantly, that he actually was transported in interstate commerce following his kidnapping pursuant to the conspiracy. So construed, Count One might be seen as the conjunction of a part of an adequate conspiracy charge with another part of an adequate substantive offense charge, thus achieving an inadequate hybrid charge of a non-existent federal crime. Although all of the necessary elements could be found in some form, the failure to adhere consistently either to a conspiracy allegation or to a substantive offense allegation could be argued to be a fatal defect, requiring reversal. Having stated the argument, we reject it. When an objection to an indictment is not timely made, the reviewing court has considerable leeway to imply the necessary allegations from the language of the indictment. See, e. g., Kaneshiro v. United States, supra, 445 F.2d at 1268-1269. If the ambiguous language of Count One is read as an allegation that Larry Adell was transported in interstate commerce, the indictment is sufficient because “the allegation of acts which would amount to commission of the substantive offense was merely descriptive of the conspiracy.” Reno v. United States, 317 F.2d 499, 502 (5 Cir.), cert. denied, 375 U.S. 828, 84 S.Ct. 72, 11 L.Ed.2d 60 (1963). Under the liberal rules of interpretation which are to be applied here, we hold that the necessary elements of a violation of Section 1201(c) can be found in the language of Count One. Referring to the functions that indictments must serve in our criminal justice system, we find that Count One, despite its defects, adequately served those functions in this case. Pheaster has not claimed either before the district court or before us that the language of Count One has in any way prejudiced the preparation of his defense. If such a claim had been made, the facts of this case would tend to belie it. Pheaster was represented by unusually competent and experienced counsel; yet, the challenge to the indictment came only at the end of the trial, after all the evidence had been received. Pheaster’s co-defendant, Inciso, was also convicted under Count One but has not asserted its inadequacy in his appeal. Pheaster’s argument bordered on the formalistic, relying on an extremely strained interpretation of the language of Count One. Finally, although a fatally defective indictment cannot be saved by remedial jury instructions, we note that, if anything, the jury instructions in this case worked to the considerable benefit of appellants. Similarly, no claim has been made to the district court or on appeal that the defective drafting of Count One would in any way impair appellants’ ability to plead their conviction in any subsequent prosecution. The language of Count One speaks in terms of conspiracy, and the count itself is captioned by a reference to the conspiracy provision in 18 U.S.C. § 1201(c). Kaneshiro v. United States, supra, 445 F.2d at 1269. Because Count One can be read to include an allegation of a conspiracy to commit all of the elements of the substantive offense specified in § 1201(a), and because there has been no suggestion that the defective drafting caused any confusion as to the charges that had to be met, we find that Count One of the indictment is sufficient to support the convictions in this case. B. Compliance with the Miranda Requirements Pheaster contends that the district court erred in refusing to suppress certain incriminating statements made by him following his arrest and certain tangible evidence found and seized as a direct result of those statements. In his pre-trial motion to suppress, Pheaster advanced two grounds for suppression: first, that the statements were made involuntarily as a result of physical abuse and threats by the arresting F.B.I. agents, and second, that the arresting agents failed to comply with procedures enunciated by the Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The alleged violation of Pheaster’s rights under Miranda was compounded, combining an alleged failure to give any of the warnings required by that decision with an alleged failure to respect Pheaster’s independent assertion of his desire to have counsel present during his interrogation. A pretrial hearing on the suppression motion was held at which Pheaster and several of the arresting agents gave extensive testimony concerning the circumstances of Pheaster’s arrest and his making of the subsequent statements. Pheaster claimed that, rather than being given the warnings required by Miranda, he had instead been told that he had no rights until the kidnapped boy was safely released. He further claimed that he had been physically abused, both by blows and by the use of intentionally tight handcuffs, and that his life had been repeatedly threatened. The F.B.I. agents who arrested Pheaster denied his story, testifying that he had been advised of his rights under Miranda, that the only force directed against him had been the minimum amount necessary to restrain him at the moment of his arrest, and that no threats had been made against his life. Pheaster’s statements were held to be admissible. In resolving the conflict of testimony, the district court chose to believe the F.B.I. agents. The court rejected Pheaster’s contention that he had made the statements involuntarily, finding that there had been “no coercion, no abuse, no overcoming of the defendant’s will.” R.T. Vol. 4, p. 236. The court also rejected Pheaster’s contention that he had been denied his rights under Miranda, finding that warnings which were “adequate and sufficient under the circumstances” had been given and that “the defendant’s conduct constitute[d] a waiver of the rights of which he was advised and which he had prior knowledge of.” Ibid. As an alternative ground, the court held that Pheaster’s statements “were volunteered and not the result of any custodial interrogation.” Ibid. The only issue here is the correctness of the district court’s ruling on the alleged noncompliance by the F.B.I. agents with the requirements of Miranda. Specifically, Pheaster argues that the warning found by .the district court to have been given was inadequate under Miranda, and that the F.B.I. agents failed to respect his rights under Miranda by continuing to interrogate him after he stated that he wanted to see an attorney. A brief summary of the circumstances of Pheaster’s arrest and his making of the subsequent statements will suffice to frame the issues now before us. Because the district court’s holding that Pheaster was not physically abused or threatened is not challenged on this appeal, we excise those allegations from the following account. Shortly after 6 P.M. on July 14, 1974, four F.B.I. agents went to Pheaster’s apartment to arrest him, having previously secured an arrest warrant. Pheaster was arrested in front of the apartment building. Even as the agents struggled to restrain him, Pheaster stated, “I want an attorney right now.” R.T. Vol. 4, p. 179. The agents identified themselves and informed Pheaster that he was under arrest for extortion in connection with the kidnapping of Larry Adell. After his hands were handcuffed behind his back, Pheaster was taken back into his apartment and seated on the couch. Shortly thereafter, he was formally given his Miranda warning by one of the agents, who, at the suppression hearing, summarized the warning as follows: “I told him that he had a right to remain silent; that if he did not, and spoke, it could be used against him. I told him he was entitled to counsel, and if he could not afford one, the Government would furnish him one.” R.T. Vol. 4, p. 158. The agent admitted that he said nothing to Pheaster about his right to have an attorney present during the interrogation. He further testified that as the warning was being given, Pheaster interrupted to state that he knew his rights and to repeat his demand to see a lawyer. Despite the interruption, the warning summarized above was completed. Pheaster was then told that he would be provided an appointed attorney when he was taken before the magistrate following his booking at county jail. After a short delay while arrangements were made for the care of his young son, Pheaster was taken from his apartment to a waiting F.B.I. car for transportation to county jail. Because of his resistance, it was necessary to use some force to get him into the car. No questioning of Pheaster occurred in the apartment. Once in the car, the agent who was in charge of the arrest engaged Pheaster in a “firm” “one-way conversation”. This conversation consisted primarily of a recitation of the evidence against Pheaster, although Pheaster was asked several times whether he knew where Larry Adell was being held. Approximately fifteen to twenty minutes after the trip to county jail began, Pheaster was told that a fingerprint found on the ninth note from the kidnappers had been positively identified as his. Upon hearing that information, Pheaster stated that he had “something to do” with the kidnapping and began to supply details about the kidnapping scheme, his confederates, and the location of Larry Adell. The agent in charge of the arrest testified that, “Once [Pheaster] admitted implication, which was at the first stop, he was in a generally cooperative, amenable mood.” R.T. Vol. 4, p. 161. At approximately 6:45 P.M. Pheaster was again asked if he was aware of his rights and was reminded that he did not have to speak to the agents. He replied that he knew his rights, but that he had “had such a small part in this that I want, you know, help you get the boy back.” R.T. Vol. 4, pp. 214-215. A number of stops were made on the way to the county jail so that the information supplied by Pheaster could be relayed to F.B.I. headquarters by telephone. At one point Pheaster indicated that the boy was in Las Vegas, and the agents telephoned the F.B.I. to commence an investigation there. In addition, the agents received reports back from F.B.I. headquarters which they relayed to Pheaster in an attempt to verify his story. Telephones were used because of concern that a breach of security might result from a radio transmission. Throughout the evening Pheaster amplified and amended his story. The F.B.I. car was diverted from its route to the county jail when Pheaster said that he would show the agents where he had disposed of the typewriter he had used to type the ransom notes. After the car started toward Long Beach Bay, where Pheaster claimed to have thrown the typewriter, he changed his story and stated that the typewriter was in a storage locker in a laundry room behind his apartment and that the agents could get it. The agents then drove back to Pheaster’s apartment where he led them to the locker he had described. When the locker was forced open, a portable typewriter, a .22 caliber automatic pistol, a knapsack, and a towel were found. Later that night, at approximately 1 A.M., the agents transferred to another car parked at the Edgewater Hyatt, because the first car was almost out of gas and no service stations were open. Pheaster was booked at the Los Angeles County Jail at approximately 3 A.M. on July 15,1974, almost nine hours after his arrest. 1. The Adequacy of the Miranda Warning The question of the adequacy of the Miranda warning to Pheaster after his arrest need not detain us long. Pheaster’s argument here is based upon the admitted failure of the F.B.I. agent to inform him specifically that his right to a government-appointed attorney, about which he was informed, also included the right to have that attorney present during his interrogation. We need not decide whether, in the abstract, this omission from an otherwise complete Miranda warning is a fatal flaw, because it is abundantly clear that Pheaster was completely aware of this right. We recognize that in Miranda the Supreme Court held that “[n]o amount of circumstantial evidence that the person may have been aware of [his right to have an attorney present during interrogation] will suffice to stand in [the] stead [of the warning].” 384 U.S. at 471-472, 86 S.Ct. at 1626. Thus, the Supreme Court’s holding would preclude us from finding that Pheaster had prior knowledge of his right simply because of his almost continuous history of involvement with the criminal justice system. Here, however, we do not rely upon circumstantial evidence, for there is direct evidence from Pheaster’s own mouth that he was aware of his right. As the agent was informing him of his Miranda rights, Pheaster interrupted, insisting that he knew his rights and repeating his earlier demand to see an attorney immediately. To hold on these facts that the disputed evidence must be suppressed because of the alleged defect in the Miranda warning would be to convert a warning to a ritual and, in the truest sense of a hackneyed expression, to exalt form over substance. Needless to say, we decline to do so. 2. Waiver of the Miranda Rights The next and more difficult question for decision is whether Pheaster’s statements made after he demanded to see an attorney but before he was provided one are admissible. Pheaster’s position is built upon the following language in Miranda: “If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” 384 U.S. 474, 86 S.Ct. 1628. The Government argues that by agreeing to talk to the arresting F.B.I. agents on the way to county jail, Pheaster waived his rights under Miranda. In United States v. Hodge, 487 F.2d 945 (5 Cir. 1973), the Court of Appeals for the Fifth Circuit held that a confession obtained under circumstances remarkably similar to those in the instant case was admissible. After having been arrested and given adequate warnings of his rights, Hodge requested to have an attorney. In response to that request, the investigating agent “terminated the interview” but proceeded to explain “the charges and evidence” against Hodge. 487 F.2d at 946. Apparently prompted by the evidence already in the Government’s hands, Hodge then changed his mind and volunteered to make a statement. After waiving his right to counsel, Hodge made a confession which was subsequently introduced at trial. On appeal, Hodge urged the court to hold that “once an accused has invoked his right to have an attorney present, all questioning and discussion for whatever purpose must cease until an attorney is obtained for the accused.” Ibid. In affirming Hodge’s conviction, the court rejected his literal interpretation of Miranda, holding instead that “[a]n arrestee can change his mind after requesting an attorney” so long as the change of mind is “voluntarily and freely made”. Id. at 947. In so holding, the court distinguished United States v. Crisp, 435 F.2d 354 (7 Cir. 1970), cert. denied, 402 U.S. 947, 91 S.Ct. 1640, 29 L.Ed.2d 116 (1971) (a case relied upon by Hodge), because in that case, “the police subjected the defendant to intensive questioning immediately following a refusal to answer.” 487 F.2d at 947 (emphasis added). This key distinction between questioning the suspect and presenting the evidence available against him was also central to United States v. Davis, 527 F.2d 1110 (9 Cir., 1975), a recent decision of this Court involving a waiver of Miranda rights in a different, but closely related, context. In Davis a confession obtained almost immediately after a suspect had been advised of his rights and had indicated a desire to remain silent was held to be admissible. After indicating his desire not to talk to an investigating F.B.I. agent, Davis was shown a bank surveillance photograph of himself participating in the robbery and was asked whether he wanted to reconsider his position. After examining the picture, Davis said, “Well, I guess you’ve got me”, and proceeded to sign a waiver of his rights under Miranda. This Court rejected Davis’ contention that his confession was improperly admitted into evidence, citing the recent decision of the Supreme Court in Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), for the general proposition that “the right to talk or remain silent is the defendant’s, and no mechanical application of Miranda should prevent the informed, voluntary and free exercise of that right.” 527 F.2d at 1111. Turning to the particular facts of the Davis case, this Court held that the confession was properly admitted: “Here, the agent merely asked Davis if he wanted to reconsider his decision to remain silent, in view of the picture; the questioning did not resume until after Davis had voluntarily agreed that it should [see U. S. v. Jackson, 436 F.2d 39, 40-41 (9th Cir. 1970), cert. denied, 403 U.S. 906 [91 S.Ct. 2209, 29 L.Ed.2d 682] (1971)]. The Government has met its heavy burden of showing that Davis’s waiver of his rights to remain silent and to counsel, signed before he confessed, was made knowingly and intelligently. There is no evidence of any psychological or physical pressure on Davis, or of overreaching of any kind.” At 1111 (emphasis added; bracketed material in original). The Supreme Court in Mosley expressly disavowed any intention to discuss the effect of a suspect’s request for an attorney. 423 U.S. at 101 n. 7, 96 S.Ct. 321. However, we find instructive the Court’s treatment of a closely related question: the effect of a suspect’s indication that he desires to remain silent. In Mosley the Court rejected a literal interpretation of Miranda, holding that the exercise of the right to remain silent does not preclude all further questioning. Rather, in the context of the particular facts of Mosley, the Court held that a confession made two hours after Mosley had indicated his desire to remain silent was admissible. The initial interrogation had been terminated when Mosley indicated that he did not want to talk. Two hours later, after giving a new Miranda warning, another officer questioned him about a different crime. After being informed of evidence implicating him in the second crime, Mosley made an incriminating statement which was subsequently introduced at his trial. Although the specific holding in Mosley is not direct precedent for the resolution of this appeal, Mosley does indicate both a recognition that the procedure set out in Miranda is not as clear as the language of that opinion might suggest and a willingness to import a greater degree of flexibility in the application of Miranda to varying factual situations. We have concluded that a waiver of rights under Miranda can occur despite an earlier demand to have an attorney. Although the Hodge decision is terse, we believe that the result reached in that decision is consistent with the willingness to import a greater degree of flexibility and realism in the application of Miranda, which has been recently evidenced in the decision of the Supreme Court in Mosley and the decision of this Court in Davis. The Government, of course, bears a “heavy burden * * * to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Miranda, supra, 384 U.S. at 475, 86 S.Ct. at 1620. Our examination of the record in this case has revealed that the decision regarding waiver was a close one; yet, on balance, we believe that the district court was correct in deciding that the Government had met its “heavy burden” in establishing Pheaster’s waiver. Because it was not possible for the F.B.I. agents who arrested Pheaster to provide him with an attorney at the moment that he demanded one, the key question is whether the failure of the agents to sit mute during the ride to county jail, where an attorney could be provided, mandates the exclusion of Pheaster’s statements. On the particular facts of this case, we are convinced that such exclusion was not mandated. This conclusion would have been significantly easier had there been an express waiver of rights but the absence of such a waiver is not determinative, for this Court has held that in appropriate circumstances a waiver of Miranda rights can be implied rather than express. United States v. Hilliker, 436 F.2d 101, 103 (9 Cir.), cert. denied, 401 U.S. 958, 91 S.Ct. 987, 28 L.Ed.2d 242 (1971); see also United States v. Vigo, 487 F.2d 295, 299 (2 Cir. 1973) (statement after defective Miranda warning held to be volunteered). Although this question is not specifically addressed in Mosley, the recitation of the facts indicates an implied, rather than an express, waiver by Mosley. 423 U.S. at 104, 96 S.Ct. 321. We think that this is a case in which waiver can be implied. It is critical to focus on the fact that Pheaster agreed to cooperate with the agents after he had been in the car for only fifteen to twenty minutes — a point not challenged in his brief. Thus, although he was in the car for a longer period, his cooperation was not the result of lengthy incommunicado detention. This is not a case in which there was an intentional delay in providing an attorney in the hope that the suspect would yield to pressure and recant his demand for an attorney. It is also important to note that Pheaster’s statements came as a result of an objective, undistorted presentation of the extensive evidence against him, particularly the positive identification of his fingerprint on the ninth note. As in Hodge and Davis, the questioning did not really begin until Pheaster had clearly indicated his willingness to cooperate. Finally, Pheaster was reminded early in the evening that he did not have to talk to the agents, but he continued to talk because of his expressed desire to help them find Larry Adell. Under all the circumstances of this case, we conclude that waiver of the Miranda rights, including the earlier demand to see an attorney, was properly found. C. Constitutionality of the Voice Identification Another of the issues raised on appeal by Pheaster is the district court’s failure to exclude the testimony of Officer John W. Turley who identified the tape-recorded voice of one of the kidnappers as that of Pheaster. Pheaster argues that the circumstances of a pretrial identification of the same recording by Officer Turley were so “impermissibly suggestive” as to require the exclusion of the testimony at trial. On July 2, 1974, an F.B.I. agent asked Officer Turley whether he knew Pheaster and whether he could identify his voice. Upon receiving affirmative answers, the agent played for Officer Turley a tape-recorded telephone conversation between Mr. Adell and one of the kidnappers. Officer Turley identified the caller as Pheaster. In seeking this identification, the agent mentioned no other names and played no other recorded voices to Officer Turley. The pretrial identification procedure challenged on this appeal is unusual, involving an auditory rather than a visual identification of a defendant. Although we have not been directed to other cases involving similar circumstances, the standards that we must apply are nonetheless clear. In Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the Supreme Court synthesized its previous decisions involving suggestive identification procedures. Although Neil and the other cases discussed therein involved only visual identifications, the following quotation from Neil clearly indicates that suggestive identification procedures are fungible: “Some general guidelines emerge from these cases as to the relationship between suggestiveness and misidentification. It is, first of all, apparent that the primary evil to be avoided is ‘a very substantial likelihood of irreparable misidentification.’ Simmons v. United States, 390 U.S. [377] at 384 [88 S.Ct. [967] at 971, 19 L.Ed.2d 1247]. While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of ‘irreparable’ it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. It is the likelihood of misidentification which violates a defendant’s right to due process, and it is this which was the basis of the exclusion of evidence in Foster. Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous. But as Stovall makes clear, the admission of evidence of a showup without more does not violate due process.” 409 U.S. at 198, 93 S.Ct. at 381 (footnote omitted). Because the possibility of “irreparable misidentification” is as great when the identification is from a tape-recording as when it is from a photograph or a line-up, we hold that the same due process protection should apply to either method. No litmus paper test is available to evaluate the constitutional adequacy of the identification procedures used in any particular case. Rather, as stated by the Supreme Court in Neil, the “central question [is] whether under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive.” 409 U.S. at 199, 93 S.Ct. at 382. This is, in essence, the test used by this Court in evaluating challenges to identification procedures. United States v. Baxter, 492 F.2d 150 (9 Cir. 1973), cert. denied, 416 U.S. 940, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974). The Supreme Court decision in Neil and our decision in Baxter enumerate a number of factors to be considered in evaluating the “totality of the circumstances” of a specific case. In Baxter this Court gave careful consideration to the proper analysis of a photographic identification procedure claimed to be improperly suggestive. Although not all of the factors mentioned in Baxter apply to the identification of a tape-recorded voice, the general approach and the policy considerations are essentially the same. Baxter establishes a broad two-part analysis, the first part focusing on the necessity for the photographic identification and the second on the particular circumstances surrounding the identification. 492 F.2d at 171. The necessity for the use of a particular identification procedure is a function of the law enforcement problem facing the law enforcement authorities in each case. As the legitimate necessity for a particular identification procedure grows, more acute, the willingness of the courts to tolerate the procedure also increases. The decision of the Supreme Court in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), provides an unusually graphic example of this relationship. The circumstances of the identification in that case were dramatic. The suspect, a black man, was displayed in manacles to the victim of the crime as she lay near death in a hospital bed. Emphasizing that the constitutionality of the identification procedure depended upon the “totality of the circumstances surrounding” the identification, the Court held that the procedure had been “imperative” and was constitutional. The Court explained its decision as follows: “ ‘Here was the only person in the world who could possibly exonerate Stovall. Her words, and only her words, “He is not the man” could have resulted in freedom for Stovall. The hospital was not far distant from the courthouse and jail. No one knew how long Mrs. Behrendt might live. Faced with the responsibility of identifying the attacker, with the need for immediate action and with the knowledge that Mrs. Behrendt could not visit the jail the police followed the only feasible procedure and took Stovall to the hospital room. Under these circumstances, the usual police station line-up, which Stovall now argues he should have had, was out of the question.’ ” 388 U.S. at 302, 87 S.Ct. at 1972; quoting United States v. Denno, 355 F.2d 731 (2 Cir. 1966). In Baxter this Court stated that necessity for a photographic identification typically exists either when the suspect is not in custody or when the law enforcement officials need “to quickly determine whether they [are] on the right track.” 492 F.2d at 171. The facts of the instant case clearly reveal the necessity for a voice identification procedure. The speaker on the tape recording was one of the kidnappers and presumably knew where the victim was being held. Pheaster was not in custody. Although he was obviously suspected of being involved in the plot, confirmation of his involvement was critical so that all available resources could be used most efficiently in the effort to rescue Larry Adell. Having determined that there was abundant necessity for the use of a voice identification procedure, we turn our attention to the second part of the two-part analysis established by Baxter, an examination of the circumstances of the identification. First, we must determine whether the identification procedure here was suggestive or, as we phrased it in Baxter, whether the “conduct of the law enforcement officials” tended to “focus attention on a single suspect.” 492 F.2d at 172. In the instant case, Officer Turley’s pretrial exposure to the tape recording was undeniably suggestive. By asking Officer Turley whether he knew Pheaster and could identify his voice, the investigating agent ran the risk of implanting the suggestion that the voice was in fact that of Pheaster. Certainly a preferable procedure would have been to ask Officer Turley whether he could identify the voice on the tape without naming Pheaster. However, the issue before us is not whether a better procedure was available, but whether the procedure used, under all the circumstances, was constitutionally defective. We have concluded that it was not. In Baxter, we identified “the length of time and the conditions in which the witness observed the defendant” as a major factor in the assessment of a challenged identification. 492 F.2d at 172. The great danger of suggestive identification procedures is that the memory of a witness may be manipulated so that the mental image derived from the identification procedure supplants that derived from the witness’s own experience. This danger is especially great with the fragile and fleeting memory of a crime victim. Courts have recognized, however, that crimes are not often carried out under ideal conditions for observation. For example, in Neil, supra, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401, the Supreme Court held that a one-person “show-up” in which the defendant was viewed alone by a rape victim was not a denial of due process despite the suggestiveness of the procedure and a lapse of seven months between the rape and the first identification. The Supreme Court found that the victim’s observation of her attacker over a period of approximately thirty minutes in dim artificial light and moonlight was an adequate basis for her positive identification of the defendant. Despite the potential for misidentification inherent in the instant case, we are convinced that Officer Turley’s identification was nevertheless reliable. When compared to cases such as Neil the reliability of Officer Turley’s identification is obvious. This is not a case involving the memory of a victim based on one observation under emotionally charged circumstances. Officer Turley testified that he had known Pheaster for a period of fifteen years and had had numerous conversations with him. Furthermore, Officer Turley had spoken to Pheaster approximately a month before his first identification of the kidnapper’s voice on the tape. Officer Turley testified that his in-court identification of the tape-recorded voice was based upon his independent acquaintance with Pheaster and not upon the pretrial identification. Although we do not endorse in all cases the identification procedure used here, we do not believe that under the attendant circumstances Pheaster’s due process rights were violated as a result of it. D. Constitutionality of the Handwriting Exemplars Pheaster argues that the somewhat unorthodox method of obtaining and utilizing exemplars of his handwriting violated his Fifth Amendment right against self-incrimination. The agent who obtained the handwriting exemplars from Pheaster testified that the normal practice for obtaining such exemplars is to have the suspect copy from materials placed before him. In the instant case, the agent dictated the material that Pheaster was to write. The reason that this modified procedure was followed is quite clear. The notes from the kidnappers included a number of rather unusual spelling mistakes, and the material dictated to Pheaster included those words. The fact that a number of the same spelling mistakes appeared both in the notes and in the exemplars was introduced into evidence at the trial. A conventional analysis was also performed to compare the handwriting on the two sources, but the Government expert could only testify that the handwriting on the note from the kidnappers appeared to be disguised. He was unable to state positively that the note from the kidnappers was written by Pheaster. Pheaster acknowledges that the taking and subsequent use of handwriting exemplars for identification purposes does not violate the Fifth Amendment’s protection against self-incrimination. In Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), the Supreme Court reached this conclusion through the following reasoning: “First. The taking of the exemplars did not violate petitioner’s Fifth Amendment privilege against self-incrimination. The privilege reaches only compulsion of ‘an accused’s communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one’s papers,’ and not ‘compulsion which makes a suspect or accused the source of “real or physical evidence” . . . .’ Schmerber v. State of California, 384 U.S. 757, 763-764 [86 S.Ct. 1826, 1833, 16 L.Ed.2d 908]. One’s voice and handwriting are, of course, means of communication. It by no means follows, however, that every compulsion of an accused to use his voice or write compels a communication within the cover of the privilege. A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection. United States v. Wade, supra, 388 U.S., at 222-223 [87 S.Ct. [1926], at 1929-1930, 18 L.Ed.2d 1149], No claim is made that the content of the exemplars was testimonial or communicative matter. Cf. Boyd v. United States, 116 U.S. 616 [6 S.Ct. 524, 29 L.Ed. 746].” 388 U.S. at 266-267, 87 S.Ct. at 1953. Pheaster argues that the instant case is distinguishable from Gilbert in that the handwriting exemplar in the instant case was used to show similar spelling mistakes rather than similar writing characteristics. The admitted distinction is argued to be important, because the use of the handwriting exemplar to show spelling mistakes requires the defendant to give evidence which is “the product of his mind and intellectual processes.” Used in such a way, the handwriting exemplar is said to pass from the realm of an “identifying characteristic” to that of a “communication” protected by the Fifth Amendment. In advancing this argument, Pheaster emphasizes that spelling is a skill acquired by learning. In our view, Pheaster has succeeded in identifying a distinction without a difference. Like spelling, penmanship is acquired by learning. The manner of spelling a word is no less an “identifying characteristic” than the manner of crossing a “t” or looping an “o”. All may tend to identify a defendant as the author of a writing without involving the content or message of what is written. No protected communication is involved. E. Admissibility of Evidence Seized During the Search of Pheaster’s Apartment Although the search of his apartment was conducted pursuant to a search warrant, Pheaster moved before trial to suppress certain tangible evidence seized during that search. On this appeal, he now challenges the district court’s denial of that motion. The first argument advanced by Pheaster is that the search warrant was invalid because of an absence of probable cause to believe that the specified items were on the premises. Pheaster also argues that, even assuming probable cause did exist for the issuance of the search warrant, some of the items seized during the search and subsequently introduced at trial were beyond the scope of the warrant and not within any of the recognized exceptions to the general rule that warrantless searches are per se unreasonable. We find Pheaster’s contention that there was no probable cause for the search of his apartment to be totally unconvincing and undeserving of extended discussion. The items specified in the search warrant were the types of things that a person who had participated in a kidnapping and in an extortion plot might possess. The F.B.I. had very strong reason to believe that Pheaster was involved in the kidnapping of Larry Adell. It is true that no one in the F.B.I. could swear out an affidavit to the effect that they had seen the listed items in Pheaster’s apartment, but that inability does not negate the existence of probable cause. The search of Pheaster’s apartment did not violate the Fourth Amendment’s protection against “unreasonable” searches and seizures. We do not read the decision of this Court in United States v. Bailey, 458 F.2d 408 (9 Cir. 1972), a decision heavily relied upon by Pheaster, to mandate a different conclusion. Rather, the recent decision by this Court in United States v. Spearman, 532 F.2d 132 (9 Cir. 1976), represents what we believe to be the proper, common-sense approach to the question of probable cause for the issuance of a search warrant. We can do no better than to quote Spearman: “We recognize that probable cause to believe a person is guilty of a crime does not always constitute probable cause to search any property belonging to him. However, we have upheld many searches where ‘the nexus between the items to be seized and the place to be searched rested not on direct observation . but on the type of crime, the nature of the missing items, the extent of the suspect’s opportunity for concealment, and normal inferences as to where a criminal would be likely to hide stolen property.’ United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir. 1970) (citations omitted).” 532 F.2d at 133. Having considered the search warrant and the transcript of the testimony of the F.B.I. agents who conducted the search of the apartment, we also reject Pheaster’s second argument. All of the items challenged by Pheaster were either encompassed within the items described in the search warrant or seized pursuant to the plain view” exception. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Quigg v. Estelle, 492 F.2d 343 (9 Cir.), cert. denied, 419 U.S. 848, 95 S.Ct. 86, 42 L.Ed.2d 78 (1974). F. Admissibility of Evidence Seized during the Search of Pheaster’s Automobile Pheaster also challenges the introduction of certain tangible evidence which was obtained during a warrantless search of his automobile shortly after he was arrested. After Pheaster was arrested, his car was driven to an F.B.I. garage where it was carefully searched both inside and out. Our review of the record has not revealed any error on the part of the district court. The law governing warrantless searches of automobiles has been carefully considered in the recent decision of this Court in United States v. McClain, 531 F.2d 431 (9 Cir., 1976), and need not be repeated here. Essentially, there must be probable cause for the search and exigent circumstances justifying the failure to obtain a warrant. In our view, both of these conditions were satisfied in the instant case. Pheaster’s argument that there was no probable cause for the search of his car borders on the frivolous. The F.B.I. had substantial evidence showing Pheaster’s involvement in the kidnapping of Larry Adell. Pheaster had driven the car on a number of occasions during the period after the abduction and before his arrest, and it had been seen in the vicinity of two of the designated drop sites. Clothing or equipment used by the kidnappers or their fingerprints might have been in the car. Furthermore, Pheaster had been observed placing a carrying ease in the trunk of the car. He had obtained the case from a woman with whom he had had a conversation which was apparently related to his efforts to obtain the ransom money. There was abundant probable cause to search the car for that case and also for other evidence relating to the kidnapping which might plausibly be found in the car. United States v. Spearman, supra. Pheaster’s argument that the search cannot be justified under the exigent circumstances exception is also without merit. The car was parked on a public street and was easily accessible to persons who might remove the car or evidence located in it. The F.B.I. did not know the identities of all of the parties to the kidnapping plot but prior to Pheaster’s arrest had determined that Larry Adell was not being held by either Pheaster or Inciso. There was a very real possibility that one of the other participants in the plot might attempt to destroy evidence that might be in the car. Thus, the agents were entitled to impound the car and to search it immediately; they were not required to post a guard around it. Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). An additional factor adding to the exigency of the circumstances was the possibility that the car contained evidence that would enable the F.B.I. to find Larry Adell before, as apparently happened, he was killed by his abductors. Pheaster argues that exigent circumstances did not exist in the instant case, because the information that gave the agents probable cause to search Pheaster’s car was known by them well in advance of their decision to search. It does appear that the agents might have attempted to secure a search warrant for the car at the same time that they obtained the arrest warrant for Pheaster on July 12, 1974, two days before his arrest. Although we believe that whenever possible the better practice is to obtain a search warrant in advance, the failure to do so does not negate other exigencies justifying a warrant-less search of an automobile. On this point, we are in complete agreement with the plurality opinion in the recent Supreme Court decision in Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974), which disposed of a similar argument in the following manner: “Assuming that probable cause previously existed, we know of no case or principie that suggests that the right to search on probable cause and the reasonableness of seizing a car under exigent circumstances are foreclosed if a warrant was not obtained at the first practicable moment. Exigent circumstances with regard to vehicles are not limited to situations where probable cause is unforeseeable and arises only at the time of arrest.” Id. at 595, 94 S.Ct. at 2472. G. District Court’s Procedure of Making a Record of the Exhibits Pheaster argues that the district court’s procedure of making a record of the exhibits marked for identification was improper and constituted reversible error. In the presence of the jury, the court read into the record the number and description of all of the exhibits and handled them in such a way that the jury might be able to see them. We agree that this procedure is highly improper and fraught with the potential for grave prejudice to the defendant, but we have examined the circumstances of the action taken by the district court and are convinced that the defendants were not prejudiced by the action. However, we emphasize that the procedure should not be followed in the presence of the jury. Nothing is gained, and a great amount may be lost. III. ERRORS ASSERTED BY INCISO A. Admissibility of Hearsay Test