Both Jones and Peavey entered stipulated testimony that their banks kept microfilm copies of customers' accounts and of personal checks paid through those accounts "in compliance with Treasury and Banking Regulations issued under the Bank Secrecy Act." 3 The Citizens and Southern Bank had not maintained complete microfilm check records prior to the effective date of the regulations (Record, Vol. II, pp. 35-36); the trial transcript does not reflect whether the Bank of Byron had previously kept such records.

As we have noted, the Supreme Court's decision in California Bankers Ass'n v. Shultz, supra, disposes of Miller's challenge to the constitutionality of the recordkeeping requirements of the Bank Secrecy Act. That decision, how ever, did not place the judicial stamp of approval upon every prosecutorial tactic for obtaining records compiled under the requirements of the Act.

[9] The Supreme Court determined almost 90 years ago that "a compulsory production of a man's private papers to establish a criminal charge against him is within the scope of the Fourth Amendment .." Boyd v. United States, 1886, 116 U.S. 616, 622, 6 S.Ct. 524, 528, 29 L.Ed. 746. The venerable Boyd doctrine still retains its vitality; the government may not cavalierly circumvent Boyd's precious pro

3. Record, Vol. I, pp. 73, 76. The pertinent section of the Bank Secrecy Act, 12 U.S.C.§ 1829b(d), provides:

(d) Each insured bank shall make, to the extent that the regulations of the Secretary so require

(1) a microfilm or other reproduction of each check, draft, or similar instrument drawn on it and and presented to it for payment; and

(2) a record of each check, draft, or similar instrument received by it for deposit or collection, together with an identification of the party for whose account it is to be deposited or collected, unless the bank has already made a record of the party's identity pursuant to subsection (c) of this section.

"The regulations promulgated pursuant to section 1829b (d) essentially require that

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tection by first requiring a third party bank to copy all of its depositors' personal checks and then, with an improper invocation of legal process, calling upon the bank to allow inspection and reproduction of those copies. In upholding the Bank Secrecy Act the divided California Bankers Court determined that the government could take the first of those steps without exceeding constitutional limits. The Court, however, did not choose to abandon 90 years of precedent by proclaiming open season on personal bank records. Indeed, in rejecting the Fourth Amendment claims of bank depositor plaintiffs, the California Bankers majority, in an opinion by Justice Rehnquist, relied heavily upon the proposition that depositors have adequate legal protection from improper government access to their records:

We see nothing in the Act which violates the Fourth Amendment rights of any of these plaintiffs. Neither the provisions of Title I [Recordkeeping Requirements) nor the implementing regulations require that any information contained in the records be disclosed to the Government; both the legislative history and the regulations make specific reference to the fact that access to the records is to be controlled by existing legal process.

416 U.S. at 52, 94 S.Ct. at 1513, 39 L. Ed.2d at 835.5 Surely a purported 758

grand jury subpoena, issued not by the court or by the grand jury, but by the United States Attorney's office, for a date when no grand jury was in session, and which in effect compelled broad disclosure of Miller's financial records to the government, does not constitute sufficient "legal process" within the meaning of the majority opinion.

[10] It is no answer to argue, as does the government on this appeal, that bank officials cooperated fully and without objection; for he whose rights are threatened by the improper disclosure here was a bank depositor, not a bank official, and depositors as well as banks must be accorded the protection of "legal process." See Donaldson v. United States, 1971, 400 U.S. 517, 537, 91 S.Ct. 534, 27 L.Ed. 2d 580 (Douglas, J., concurring); United States v. Kordel, 1970, 397 U.S. 1, 7, 90 S.Ct. 763, 25 L.Ed.2d 1. The trial court should not have admitted into evidence copies of Miller's bank checks or any evidence resulting from investigative leads provided by information from those checks. Without attempting to chart any future course to be followed to validly obtain such evidence, we now hold that defendant Mill

tions of the Secretary of the Treasury will not be made automatically available for law enforcement purposes. They can only be obtained through existing legal process.

H.Rep.No.91-975, 91st Cong. 2d Sess. 5 (1970); 2 U.S.Code Cong. & Admin.News 4395 (1970). See also S. Rep. No.91-1139, 91st Cong., 2d Sess., 10 (1970).

6. A separate opinion filed by two members of the six Justice majority in the California Bankers case provides additional support for this proposition. Justice Powell, for himself and Justice Blackmun, joined the majority opinion, but entered a separate concurring opinion to note his concern over the scope of the reporting provisions of the Act, which confer broad authority on the Secretary of the Treasury to require financial institutions to file reports of domestic monetary transactions. Limiting his approval of these requirements to the boundaries of the current implementing regulations-transactions currency of more than $10,000, 31 C.F.R. 103.22 (1973) - Justice Powell warned that significant extension of the government's power to compel disclosure of financial

in

er is entitled to a new trial free from the taint of evidence improperly асquired.

B. Standing to Challenge the Search of the Pepsico Van. Defendant Miller raises one other very troublesome issue on this appeal. He argues that the trial court improperly overruled, on the basis of lack of standing, his motion to suppress distillery apparatus and raw material seized from a Pepsico rental truck. On the basis of information supplied by an informant that a "blue van type truck would be picking up some kind of illegal stuff to manufacture liquor," Deputy Sheriff Burnham stopped a Pepsico truck, which was occupied by Joseph Brooks and Terry Lee Smith. When Brooks and Smith were unable to produce a key to the back of the van, Deputy Burnham took them and the truck to the county jail, obtained a search warrant, and searched the truck; the search revealed cylinders of bottled gas, a shotgun condenser, two 100 pound bags of wheat shorts, a cap, and 150 five gallon plastic jugs. Defendants Miller, Weeks, and McDuffie all filed motions to suppress the evidence obtained from the Pepsico truck. On April 19, 1973,

transactions would pose substantial constitutional difficulties:

Financial transactions can reveal much about a person's activities, associations, and beliefs. At some point, governmental intrusion upon these areas would implicate legitimate expectations of privacy. More over, the potential for abuse is particular ly acute where, as here, the legislative scheme permits access to this information without invocation of the judicial process. In such instances, the important responsibility for balancing societal and individual interests is left to unreviewed executive discretion, rather than the scrutiny of a neutral magistrate.

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the affidavit in question and the resulting search warrant does [sic] not meet the minimum requirements of the laws of the State of Georgia, Georgia Law 1966, pp. 567-568, as informally codified in Ga.Code Ann. 27-303, and the constitutional requirements as interpreted by the Supreme Court of the United States in the cases of Aguilar v. Texas, 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509; Spinelli v. United States, 393 U.S. 410, 21 L.Ed.2d 637, 89 S.Ct. 584, and United States v. Harris, 403 U.S. 573, 29 L. • Ed.2d 723, 91 S.Ct. 2075, in that said affidavit, among other things, does not contain information in any way sufficient to demonstrate that the Justice of the Peace who issued the search warrant in question was afforded information by which the Justice of the Peace had the opportunity to independently judge the sufficiency of the information furnished by the informer to the Deputy Sheriff. (Record, Vol. I., pp. 78-79).

On the morning the first trial began, the government moved the court to reconsider its order granting defendants' motions to suppress, claiming that defendants Miller, McDuffie, and Weeks lacked "the requisite standing to challenge the illegal search" because they "were neither in the vehicle nor owners of, nor claimants of an interest in the vehicle or the object seized therefrom," (Record, Vol. I, pp. 91, 93-94). The court granted the government's motion and permitted the evidence to be introduced at trial.

In his motion to suppress, defendant Miller stated that he "believes that the Government will attempt to prove either the purchase of or ownership by him of the above described vehicle." (Record, Vol. I, p. 34). The conspiracy count of the original indictment, in Overt Act #9, charged that Miller had purchased the Pepsico van in question on November 22, 1972, from Dixie Truck and Parts Company and that Miller had indi

Aero Corporation. In order to defeat Miller's standing to challenge the search of the van, the government agreed to have Overt Act # 9 deleted from the indictment. At the hearing on the government's motion to reconsider the suppression order, the prosecution took the position that the corporation, not Miller, owned the truck. By arrangement of its evidence at the second trial, however, the government sought to show that Miller exercised control over the use of the van and that the purchase in the name of the corporation was merely a straw purchase by Miller. Other than his allegation that "the Government will attempt to prove ownership," Miller made no claim, either before or during the trial, that he owned the van.

The facts of this case pose the question left unanswered by Brown v. United States, 1973, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208, the Supreme Court's most recent ruling on the requirements for standing to challenge a search, and by Brown's gloss on the Court's earlier decision in Jones v. United States, 1960, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697. In Brown the Court held that, at least when prosecutorial self-contradiction is not a factor,

there is no standing to contest a search and seizure where

the defendants: (a) were not on the premises at the time of the contested search and seizure; (b) alleged no proprietary or possessory interest in the premises; and (c) were not charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure.

411 U.S. at 229, 93 S.Ct. at 1569. Miller alleged, not that he had a proprietary or possessory interest in the premises, but that the government would attempt to prove such an interest; and Miller cannot claim standing on the basis of either standard (a) or standard (c). Therefore, absent the element of prosecutorial self-contradiction in the present case,

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Miller would not be able to challenge the search and seizure of the van.

The Court's earlier Jones decision, however, clearly deemed that missing element to be a critical factor:

[T]o hold that petitioner's failure to acknowledge interest in the narcotics or the premises prevented his attack upon the search, would be to permit the Government to have the advantage of contradictory positions as a basis for conviction. The prosecution here thus subjected the defendant to the penalties meted out to one in lawless possession while refusing him the remedies designed for one in that situation. It is not consonant with the amenities, to put it mildly, of the administration of criminal justice to sanction such squarely contradictory assertions of power by the Government.

362 U.S. at 263-264, 80 S.Ct. at 732.9 The self-contradictory prosecutorial conduct in the present case is within the ambit of the reasoning, if not the strict holding, in Jones. The Court in Brown, however, viewing Jones through the prism of the intervening case of Simmons v. United States, 10 left open the question of whether standing is conferred as a matter of course, even absent any of the three stated indicia, when prosecutorial self-contradiction is demonstrated:

[W]e do not decide that this vice of prosecutorial self-contradiction war

9. Although in the case suh judice ownership of the truck was not an essential element of the offense charged and Miller's proprietary or possessory interest would not have been lawless per se, the government obviously considered Miller's ownership and control over the van to be quite important in establishing his connection with the conspiracy. The distinction clearly does not render the government's trial and pre-trial positions any less contradictory.

10. 1968, 300 U.S. 377, 88 S.Ct. 967, 19 L. Ed.2d 1247. In Simmons the Court held that, when a defendant makes statements in a pretrial hearing to establish standing to challenge a search, that testimony may not

rants the continued survival of 'Jones' "automatic" standing now that our decision in Simmons has removed the danger of coerced self-incrimination. We simply see no reason to afford such "automatic" standing where, as here, [there was no risk to a defendant of either self-incrimination or prosecutorial self-contradiction.

Brown v. United States, supra, 411 U.S. at 229, 93 S.Ct. at 1569.

Given the posture of the case sub judice, we also may defer a decision as to whether the government's duplicitous tactics were sufficient to confer standing upon defendant Miller. Miller is entitled to a new trial because of the trial court's error in admitting copies of his bank checks into evidence. See Part II A, supra. At his new trial Miller may choose to assert his proprietary interest at the suppression hearing. He would thereby establish, under standard (b) of the Brown test, his standing to challenge the search of the van, and would obviate any need for this Court to decide what follows Jones and Brown in this troublesome area of criminal procedure.

[11] C. Continuance, Severance, and Insufficient Evidence. After careful consideration of the record on appeal and the arguments of the parties, we find no merit in Miller's remaining assignments of error. The trial court did not abuse its discretion by denying Miller's motions for continuance 11 and for

be used against the defendant at trial. According to the Brown Court, Simmons removed the most dangerous aspects of the self-incrimination element from the Jones equation.

11. Miller's motion for continuance prior to the second trial was based on his assertion that pretrial publicity and erroneous news reports about testimony and evidence at the first trial would have prevented him from receiving a fair trial before an impartial jury at that time. The second trial was scheduled to begin only six days after the first had ended in a mistrial. Our independent review of the record has revealed neither inherently prejudicial publicity, Shep

severance. See, e. g., Ungar v. Sarafite, 1964, 376 U.S. 575, 84 S.Ct. 841, 11 L. Ed.2d 921 (continuance); McKinney v. Wainwright, 5 Cir. 1974, 488 F.2d 28, cert. denied, 416 U.S. 973, 94 S.Ct. 1998, 40 L.Ed.2d 562 (continuance); Leach v. United States, 5 Cir. 1968, 402 F.2d 268, cert. denied, 1969, 393 U.S. 1082, 89 S. Ct. 864, 21 L.Ed.2d 775 (severance). Finally, we conclude that there was sufficient evidence for the district judge to submit to the jury the questions of defendant Miller's guilt or innocence of possessing an unregistered distillery (Count 2), carrying on the business of a distiller without giving bond (Count 3), and possessing non-tax-paid whiskey (Count 5).

III. JOHN HENRY McDUFFIE

[12, 13] In addition to his Business Records Act claim 12 and his discovery claim, 13 defendant John Henry McDuffie makes two assignments of error on this appeal: 1) that the trial court erred by refusing to allow McDuffie to introduce evidence as to the existence of an illicit distillery not connected with other evidence in the case; and 2) that the trial court erred by admitting evidence of McDuffie's prior indictment and guilty plea for possession of non-tax-paid whiskey. We find no merit in the first claim. We conclude, however, that defendant McDuffie must be granted a new trial because the introduction of evidence of his prior offense violated the "universal rule that evidence of the commission of a wholly separate and independent crime is not admissible

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as a part of the case against the defendant." 2 C. Wright, Federal Practice and Procedure, Criminal § 410, at 123.

This Court has, of course, recognized a number of exceptions to the "universal rule." In the present case the government urges that McDuffie's prior conviction for possession of non-tax-paid whiskey was properly admitted under the "intent" exception. The Fifth Circuit has indeed held that, in certain cases,

evidence of other offenses by the accused is admissible to show his criminal intent as to the offense charged, where the other offenses are similar to and not too remote from that charged, and where intent is in issue as an element of the offense charged.

Weiss v. United States, 5 Cir. 1941, 122 F.2d 675, 682, cert. denied, 314 U.S. 687, 62 S.Ct. 300, 86 L.Ed. 550. The government's rationale, and the one apparently adopted by the court below, is that because evidence of other crimes may be introduced to show intent, because intent is an element in at least two counts of the indictment against McDuffie, and because both the prior crime and the presently alleged offenses involve moonshine whiskey, the earlier conviction must be admissible. (See Record, Vol. III, pp. 286-298-in chambers discussion among court and counsel on government's offer of prior crime evidence).

That analysis, however, fails to take into account the constancy with which this Court has adhered to the view that the "universal rule" against admitting

the

mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.

Irvin v. Dowd, 1961, 366 U.S. 717, 722-723, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751; Hale v. United States, supra, 435 F.2d at 745-746.