353 A.2d 686 (1976)
In the Matter of A. W., Appellant.
No. 10397.
District of Columbia Court of Appeals.
Argued January 30, 1976.
Decided January 30, 1976.
Concurring Opinion February 9, 1976.
*687 W. Anthony Fitch, Washington, D. C., for appellant.
Ted P. Gerarden, Asst. Corp. Counsel, Washington, D. C., for appellee. Louis P. Robbins, Acting Corp. Counsel, Richard W. Barton, and Michael J. Dowd, Jr., Asst. Corp. Counsels, Washington, D. C., for appellee.
Before FICKLING and NEBEKER, Associate Judges, and PAIR, Associate Judge, Retired.

ORDER
PER CURIAM.
This interlocutory appeal came on for consideration on the record from the Superior Court, appellant's memorandum of law and motion for summary reversal of the order of the trial court on appeal herein and the court heard argument of counsel. Upon consideration thereof, it is
Ordered that appellant's motion be denied, and it is
Further ordered, there being no showing of an abuse of discretion by the trial judge, that the order on appeal herein be, and the same hereby is, affirmed.
NEBEKER, Associate Judge (concurring):
We have, by the above order, affirmed the trial court's order of pretrial detention of this 15-year-old juvenile pending trial on a delinquency petition charging heroin possession. In so doing, we have rejected his assertion that a prior conviction for burglary, and a pending charge for tampering with an automobile, cannot form a basis for pretrial commitment under a dangerousness standard. However, there is another aspect to this case which prompts me to write this opinion and to incorporate in it a part of a recent opinion written by Chief Judge Harold H. Greene of the Superior Court of the District of Columbia. See Appendix, infra.
The American society in general, and this jurisdiction in particular, suffers from repetitive criminal acts by malefactors who are on one form or another of post-conviction release. Too often those criminals are on probation or parole granted out of unrealistic or wishful thinking that such release is in the best interest of rehabilitation. Too often, either the safety of the community is ignored in making such judgments or it is put at such low priority as to be insulting to an ordered society.
As in many cases, this defendant has been arrested and charged not once, but twice, with crimes while on probation. To those who would say the presumption of innocence dictates that such release should not be terminated until conviction, I observe that they fail to understand the nature and function of the presumption and the status of a parolee or probationer.
We were told at oral argument that A. W.'s probation officer reported favorably on his probationary performance on the question of release in this case. This is incredible, particularly after the first arrest for tampering. It is also consistent with the shocking and lethargic attitude revealed in the probation officer's failure to seek revocation of probation. It would also seem that the prosecution ought to take action to initiate revocation proceedings.
Chief Judge Greene's opinion addresses this problem in the context of an adult probationer. While he speaks only for himself, I commend that view to the attention of the trial court and to the Parole Board. Briefly, in the future, Chief Judge Greene will *688 combine an initial probable cause preliminary hearing with a preliminary hearing on probation revocation rather than delay the latter step and face questions of bail and potential risk to the community.
In this case, I would remand and require a prompt revocation hearing by the exercise of our supervisory power over the administration of criminal justice. I recognize that such a step might be viewed as an encroachment on sentencing discretion, but I view inaction on revocation as a complete failure to exercise such responsibility at the expense of community security. Cf. Leach v. United States, 118 U.S.App.D.C. 197, 200, 203, 334 F.2d 945, 948, 951 (1964). In any event, a far better way to treat the problem of recidivist parolees and probationers is for the Parole Board and the trial court judges to adopt a policy and rules as Chief Judge Greene has done. I specifically join him in his tempered condemnation of those timid officials with parole and probation authority, who, at great risk and expense to the community, await a conviction (and often an appeal) before discharging their responsibility. The public has every right to expect more from them and it is unfortunate that this court may have to contemplate forcing such sluggish machinery into responsible motion.

APPENDIX

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

Criminal No. 9956-75

UNITED STATES OF AMERICA

v.

WARREN A. PETERS

OPINION
This case involves a proceeding to revoke defendant's probation because of the alleged commission of new offenses for which he has been arrested and indicted by the grand jury.
Concern has not infrequently been expressed about the fact that no action is taken by the authorities when individuals on probation or parole are rearrested for new offenses. On the other hand, it has been suggested by some that probation or parole should never be revoked on the basis of the alleged commission of a new offense until after a criminal trial for and conviction of that offense, and that in the meantime  for weeks or months  the probationer or parolee must be permitted to remain at large.[1]
In practice, most decisions in this Court as to revocation following a probationer's rearrest appear to be deferred until after the trial on the new criminal charges. In the relatively small number of revocations that do occur pretrial, the order of revocation is almost always based on technical violations of probation (such as failure to report to the probation officer) rather than on the new charges.
This practice is troublesome. The Court's real concern in such cases is usually with the danger the probationer might present to the community, as indicated by his rearrest, rather than with the technical violations. Indeed, most of these revocations would never occur were it not for the rearrest, and similarly, most technical violations do not result in revocation unless they are accompanied by a new criminal charge. Under these circumstances, a revocation based on technical violations effectively precludes the probationer from challenging the true grounds for his revocation, and it leaves the judicial system open to a charge of resort to subterfuge.
In my judgment, procedural means should be available which will provide adequate protection to the community, while at the same time ensuring the probationer's right to a fair revocation proceeding. Thus, the delineation of reasonable guidelines for revocation proceedings following a probationer's rearrest is a matter of obvious importance to the administration of *689 justice in the District of Columbia, particularly since as many as one thousand Superior Court probationers are arrested annually on new charges. This case presents an appropriate opportunity for a resolution of this issue.

I
On October 22, 1975, a fire occurred at 1200 Delaware Avenue, S.W., in the District of Columbia. When firemen arrived at the scene, two persons were found stabbed to death in the apartment where the fire occurred. Four men were subsequently arrested, including the defendant, and charged with murder and arson (Crim. No. 83965-75).
At the time of his arrest for this crime, the defendant was on probation from this Court. Specifically, he had been found guilty on April 30, 1975, of assaulting a fireman (D.C.Code § 22-505) and had been sentenced on August 20, 1975, to a term of imprisonment of one to five years. The execution of all but six months of that sentence was suspended, and defendant was placed on probation for a period of five years to follow the six-month period of incarceration. Defendant was given credit for his pretrial incarceration, and he was accordingly released from confinement on August 20, 1975. His probationary term began to run as of that date.
At defendant's presentment following his arrest on the current charges (Crim. No. 83965-75), he was ordered held for five days without bond, pending the initiation of probation revocation proceedings, under the authority of D.C.Code § 23-1322(e). A hearing was held prior to the expiration of the five-day hold, on October 29, 1975, and defendant was advised that his probation might be revoked because (1) he had never reported to the probation authorities following his release,[2] and (2) he had committed the offenses with which he is currently charged.[3] A revocation hearing was scheduled for November 4, 1975.[4]
On October 31, 1975, a preliminary hearing was held on the murder and arson charges. At that hearing, the sole government witness was a police officer, who testified to the eyewitness observations of others concerning the current offenses. At the completion of the hearing, probable cause was found, and the case was referred to the grand jury for its consideration. On December 9, 1975, the grand jury returned an indictment, charging the defendant with murder, armed robbery, arson, and related offenses.
*690 In the course of the probation revocation hearing held on November 4, 1975, the government suggested that the transcript of the preliminary hearing constituted a sufficient basis upon which to revoke the defendant's probation. Defendant, on the other hand, argued that his probation could not and should not be revoked at this time.

II
It is established that a mere arrest for a subsequent offense cannot justify revocation of probation. See United States v. Webster, 161 U.S.App.D.C. 1, 492 F.2d 1048, 1051 (1974), where the court said that "It is not a ground for revocation that a probationer has merely been charged with a crime; on the other hand, it is not necessary that the ground be that the probationer has been convicted of a crime. Correctly stated, the issue is whether he committed a crime." This formulation appears to balance appropriately the interest of the community in protection from what has been characterized as the "revolving door" system of justice brought about by the bail laws (particularly as applied to individuals already on probation or parole), with the right of a defendant, consistent with the presumption of innocence, not to be incarcerated, absent risk of flight or nonappearance, on the basis of an arrest alone.
It is likewise established that a probationer who has been charged with a new crime, although presumed like all defendants to be innocent of that crime, stands in a different position than an accused who is not already under the Court's supervision. See Wright v. United States, supra.
When a probationer is arrested and charged with a new crime, particularly a serious one, society has the right to expect a prompt determination as to whether his probation should be revoked or continued.[5] On the other hand, the probationer has the right to fairness and accuracy in that determination. "Both the probationer . . . and the [government] have interests in the accurate finding of fact and the informed use of discretion  the probationer . . . to insure that his liberty is not unjustifiably taken away and the [government] to make certain that it is neither unnecessarily interrupting a successful effort at rehabilitation nor imprudently prejudicing the safety of the community. . . ." Gagnon v. Scarpelli, 411 U.S. 778, 785, 93 S.Ct. 1756, 1761, 36 L.Ed.2d 656 (1973).
Thus, the question is what procedure is appropriate, short of a verdict after a criminal trial, for determining whether a probationer has violated the law while on probation.

III
In Gagnon, the Supreme Court held that for due process purposes there is no difference between revocation of parole and revocation of probation. Accordingly, said the Court, the procedural requirements for revocation of parole previously established in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1971), are equally applicable to probation revocation proceedings. It follows that we must look initially to Morrissey for the appropriate procedure.
The Court there decided that two hearings must be held before parole may be revoked: an initial hearing, to determine "whether there is probable cause or reasonable ground to believe that the arrested *691 parolee has committed acts which would constitute a violation of parole conditions" (408 U.S. at 485-6, 92 S.Ct. at 2602), and a final hearing, to determine whether the violation occurred, and if so, whether revocation is warranted. 408 U.S. at 487-8, 92 S.Ct. 2593.
Although the initial hearing may be informal, the probationer or parolee must have been given notice both of the hearing and of the alleged violations; he must be apprised of whatever evidence is introduced with respect to the probable cause determination; and he must be allowed to present evidence and to confront adverse witnesses, unless, in the opinion of the judge or hearing officer, there would be a specific risk of harm to any witness as a result of such confrontation. 408 U.S. at 487, 92 S.Ct. 2593.[6]
With respect to the final hearing, there must be (1) written notice to the defendant of the claimed violations, (2) disclosure to the probationer of all facts taken into account against him, (3) an opportunity to be heard and to present evidence, (4) an opportunity to confront and cross-examine witnesses, unless there is "good cause" shown for not disclosing a witness' identity, (5) a neutral hearing body, and (6) a written statement of the facts relied upon for the revocation of parole (or probation). 408 U.S. at 489, 92 S.Ct. 2593.

IV
I am satisfied that the preliminary hearing held October 31, 1975, complied with the Gagnon and Morrissey requirements with regard to the first hearing. The defendant had notice of the charges against him;[7] he had the opportunity to present evidence before an independent fact-finder; and the requirement that there be a written report of the proceeding is satisfied by the transcript of the hearing. Since the preliminary hearing judge (Judge Margaret Haywood) made a determination that disclosure of the identities of the eyewitnesses would present a danger to them, it was proper not to require them to testify at that stage of the proceedings.
The question remains whether the preliminary hearing in the criminal case also satisfied the Gagnon and Morrissey standards with respect to the second stage of probation revocation, that is, whether the Court may now revoke the defendant's probation solely on the basis of the transcript of that hearing. In my opinion, the Court has no such authority.
An affirmative finding upon a preliminary hearing in a criminal case establishes nothing more than probable cause that the defendant committed the particular offense. D.C.Sup.Ct.Crim.R. 5(c)(1). Yet as the Supreme Court made clear in Morrissey, 408 U.S. at 488, 92 S.Ct. at 2603, 33 L.Ed. 2d at 498, the final revocation hearing "must be the basis for more than determining probable cause; it must lead to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation." It follows that the finding of probable cause at the preliminary hearing held with respect to defendant's current charges does not constitute a sufficient foundation, without more, for a revocation of defendant's probation.
The government argues that, irrespective of the finding made at the preliminary hearing, this Court may take judicial notice of the testimony taken at that hearing and make the determination necessary to revoke the defendant's probation on the basis of that testimony. It is said in support of this position that the hearsay evidence of the police officer who testified at that hearing would be sufficient in itself for purposes of the final hearing, and that since such testimony *692 would be substantially identical to that given at the preliminary hearing, it would be wasteful of the Court's time to require him to testify again.
The D.C. Court of Appeals stated recently, in Wright v. United States, supra, 315 A.2d at 841, that probation "must not be revoked except after the exercise of informed discretion based upon a hearing in accordance with due process requirements." Thus, the question is whether this Court could exercise "informed discretion. . . in accordance with due process [standards]" by revoking probation on the basis of testimony given before another judicial officer.
Birzon v. King, 469 F.2d 1241 (2d Cir. 1972), is instructive on this point. There, an individual's parole had been revoked on the basis of a parole officer's report containing information received from anonymous informants. The U.S. Court of Appeals for the Second Circuit held that this procedure violated the parolee's due process rights. In its view, the U.S. Board of Parole should have received the information directly from the informants, though not necessarily in the presence of the parolee, instead of relying solely upon the parole officer's report. Only on that basis, said the court, could the Board have reached its own conclusion about the relative reliability of the informant's statements, and only thus could it have drawn its own conclusions about the claims of potential danger to the informants if the parolee were allowed to confront them (468 F.2d at 1244-45). I agree with the reasoning of the Birzon court and will follow its ruling. It would in my view be inconsistent with due process for this Court to revoke probation (with the consequence of the confinement of defendant for a possible maximum of five years) on the basis of the transcript of the testimony of a police officer, whom this Court did not itself hear, and who did nothing more than to relate the stories of others who were not produced.
If the government wishes to present the testimony of the police officer who testified at the defendant's preliminary hearing, it will be necessary to provide the defendant, at the actual revocation hearing, at a minimum, with a further opportunity to cross-examine the officer regarding that testimony, particularly since the opportunity to examine the officer at the preliminary hearing was too limited to satisfy the Morrissey requirements (408 U.S. at 489, 92 S.Ct. at 2604, 33 L.Ed.2d at 499).[8] Moreover, as will be discussed infra (p. 695), it may well be that at the final revocation hearing the prosecution will have to produce also the witnesses to the event who were not present at the preliminary hearing.

V
While the Gagnon and Morrissey decisions establish minimum due process requirements, they left the task of establishing specific procedures to legislative or judicial decision (Morrissey, supra, 408 U. S. at 488, 92 S.Ct. at 2604):
We cannot write a code of procedure; that is the responsibility of each State. Most States have done so by legislation, others by judicial decision usually on due process grounds. Our task is limited to deciding the minimum requirements of due process.
The establishment of such procedures by this Court, in the absence of legislative direction or authoritative precedent from the D.C. Court of Appeals, is especially appropriate because of the uncertainty that *693 exists generally in this jurisdiction on this subject. That uncertainty is vividly demonstrated by this proceeding which has already been the subject of four separate hearings, and in which at least one additional hearing will now have to be held. See also, the discussion at pp. 688-689, supra. While, of course, I have no authority to specify what procedures should be followed in the Superior Court generally with respect to such matters, the following represents my view as to the procedure most consistent with the purposes of the Supreme Court decisions referred to above, and it is the procedure I expect to follow hereafter. Moreover, to the extent that administrative measures are involved (see, e. g., notes 12 and 17 infra, and the discussion at pp. 693-694), I will effect the necessary assignments and issue the appropriate instructions to non-judicial personnel to implement this procedural pattern.
First. Revocation proceedings are begun by probation officers from the Social Services Division of this Court. However, under the law only the U. S. Attorney is authorized to initiate a five-day hold. Thus, if the five-day-hold-probation-revocation procedure is to be meaningful, cooperation between the Social Services Division and the U. S. Attorney is essential.[9]
When a five-day hold is requested by the prosecutor, that request presumably expresses the interest of that official in the detention of the defendant, either because the prosecutor believes the accused to be a danger to the community or because he regards him as a poor risk for reappearance in Court. D.C.Code § 23-1322(e). Accordingly, at least in cases where the revocation proceeding is initiated by way of the five-day hold procedure, it is the U. S. Attorney, through his assistants, who should present the pro-revocation position at the subsequent revocation hearings.[10] This is particularly appropriate since the hearings, discussed infra, require the presentation of evidence and the use of other legal skills not necessarily possessed by probation officers. The probation officer charged with the supervision of the defendant, and in appropriate cases the officer's supervisor, may of course be expected to be witnesses in the revocation proceeding.
Whenever the U. S. Attorney requests a five-day hold pursuant to D.C.Code § 23-1322(e), he should be prepared at the same time to state in open Court the alleged violations of probation upon which revocation of the defendant's probation will be sought. The Social Services Division of this Court will be expected to cooperate by having the appropriate probation officer available for consultation with the U. S. Attorney. Further, the defendant should be advised that an initial hearing will be held, as discussed infra, for the purpose of determining whether there is probable cause to believe that he committed the alleged probation violations. See 408 U.S. at 486-7, 92 S.Ct. 2593.
Second. In the event that a five-day hold is ordered and revocation proceedings are initiated, a combined hearing should be held prior to the end of that five-day period[11] before the judge who placed the defendant on probation.[12] This hearing would be both a preliminary hearing on the new charge, and the initial probation revocation hearing contemplated by the Morrissey *694 and Gagnon decisions. At that hearing, the probationer may testify on his own behalf and he may produce other relevant evidence.[13] Information bearing upon the grounds for the ultimate revocation must be presented, but that information may consist of hearsay. Moreover, if the judge determines that an informant would be subject to risk of harm if his identity were disclosed, he need not be produced for cross-examination. Morrissey, supra, 408 U.S. at 487, 92 S.Ct. 2593.
Based on the information before him, the judge should make a determination, independent of his determination concerning probable cause with regard to the new criminal charge,[14] as to whether there is probable cause to believe that the probationer violated the conditions of his probation. Morrissey, supra, 408 U.S. at 487, 92 S.Ct. 2593. Whenever he finds such cause, the judge should state his reasons and indicate on what evidence he relied in making his determination. 408 U.S. at 487, 92 S. Ct. 2593.[15]
If probable cause is found, the judge may order the probationer held without bail beyond the period of the five-day hold pending the final determination as to revocation, provided that he makes a specific finding that the safety of the community requires detention. Such detention, as part of a revocation proceeding, is consistent with A.B.A. Standard § 5.3 Relating to Probation, supra note 5, and it was explicitly approved by the Supreme Court in Morrissey where the Court said (408 U.S. at 487, 92 S.Ct. at 2603):
Such a determination [at the first hearing, that there is probable cause the probationer has violated the terms of his probation] would be sufficient to warrant the parolee's [or probationer's] detention [. . .] pending the final decision.
Third. The final revocation hearing should again be held before the probationary judge,[16] or if he is unavailable, before such judge as the Chief Judge may designate[17] either by general assignment or by specific designation. Although the probationer has the right to a prompt final hearing, particularly if he has been ordered detained,[18] that hearing should be stayed pending his trial on the criminal charges when the probationer requests such postponement.[19]
At the final revocation hearing, the probationer has the right (1) to disclosure of all facts used against him for revocation purposes, (2) to be present and to present witnesses and documentary evidence, and (3) to confront and cross-examine adverse witnesses. Morrissey, supra, 408 U.S. at *695 489, 92 S.Ct. 2593.[20] However, should the U. S. Attorney proffer that such confrontation would subject a witness to undue and unusual danger, the Court should hear such representation in camera, and make a determination whether there is "good cause" to deny the probationer the opportunity to confront and cross-examine the witness, and if so, state why such "good cause" exists.[21]
Since the probationer's right to confront and cross-examine adverse witnesses is constitutionally mandated (408 U.S. at 489, 92 S.Ct. 2593), the standard of "good cause" for denial of this right, referred to in both the Morrissey and Gagnon decisions, would only be met where the government presents specific facts, such as threats by the probationer to other witnesses, which show that a confrontation would present a clear danger to the witness. The fact that the witness will also testify at the probationer's criminal trial could not, alone, justify a denial of the probationer's constitutional rights to confront his accuser. As Mr. Justice Brennan, concurring in Morrissey, supra, (408 U.S. at 491, 92 S.Ct. 2593 at 2605) stated, "For each hearing the [probationer] is entitled to . . . confront and cross-examine adverse witnesses, unless it is specifically found that a witness would thereby be exposed to a significant risk of harm."
Whenever the Court determines that a witness would be subjected to such undue and unusual danger that the probationer may not confront and cross-examine him, it should hear that witness' testimony in camera, and make an independent determination on the record as to the relative reliability of the informant's statement and those of the probationer and his witnesses (Birzon v. King, 469 F.2d 1241, 1244-45 (2d Cir. 1972), as well as of the weight to be given to the statements of the informant.
Should the Court find that the probationer violated the conditions of his probation, it will then have to determine further whether the probation should be revoked in the interests of justice, pursuant to D.C. Code § 24-104. The probationer "must have an opportunity to be heard and to show, if he can . . . that circumstances in mitigation suggest that the violation does not warrant revocation." Morrissey, supra, 408 U.S. at 488, 92 S.Ct. at 2603.[22]

VI
These procedures in my judgment protect the public safety by permitting the detention of a probationer for a limited period beyond the time of the five-day hold and by establishing a process for the revocation of probation short of a trial on the criminal charge, while at the same time they protect probationers from unwarranted revocations based either on mere arrests or on evidence lacking the requisite reliability.
*696 This case will be set down for a hearing in accordance with this opinion for December 18, 1975, at 9:45 a. m.
                        Harold H. Greene
                          Chief Judge
December 12, 1975
NOTES
[1]  Unless, of course, he is detainable for other reasons.
[2]  That charge was subsequently dropped when it was determined that defendant had not been specifically instructed to report to the probation authorities following his release.
[3]  ". . . we consider it to be without question, that there is implied within every grant of probation a condition that the probationer not violate the law while on probation." Wright v. United States, 315 A.2d 839 at 842, n. 7 (D.C.App.1974). See also Roberson v. Connecticut, 501 F.2d 305, 308 (2d Cir. 1974), where the court said, "[i]t is universally held that the commission of a felony violates a condition inherent in every probation order."
[4]  Bond was set at $100,000 on the current charges of murder and arson, and at $1,000 surety on the charge of probation violation. The high money bond on the new charges was based primarily upon defendant's prior record of abscondances from the Cedar Knoll institution while he was incarcerated there as a juvenile and his failure to appear for a trial in 1973, and secondarily on the gravity of the current charges and the fact that he was on probation at the time of the commission of the alleged offenses. In the absence of an established record of unreliability with respect to appearance such as has been found with respect to this defendant, a high money bond could obviously not be justified. Jones v. United States, D.C.App., 347 A.2d 399 (1975). Thus, while in this case the defendant may, as a practical matter, have been removed from the community pending trial by the high money bond itself, in the ordinary case, where there is no demonstrable risk of flight, an individual charged with extremely serious offenses allegedly committed while he was on probation or parole could validly be held, if at all, only on the basis of a five-day hold followed by a revocation of his probation or parole. See Briscoe v. United States, No. 5800 (D.C.App. May 11, 1971).
[5]  The American Bar Association Project on Standards for Criminal Justice takes the position that a proceeding to revoke probation solely upon the alleged commission of another crime ordinarily should not be initiated prior to the disposition of that charge. ABA Project on Standards for Criminal Justice, Standards Relating to Probation, § 5.3 (Approved Draft, 1970). However, the Standard also calls for pretrial detention without bail and without the initiation of revocation proceedings upon a finding of probable cause that another crime has been committed by the probationer, a practice which this Court has no statutory authority to follow.
[6]  Further, a verbatim record must be made of the hearing or a written summary by the presiding official. Morrissey, supra, 408 U.S. at 487, 92 S.Ct. at 2593.
[7]  This notice was given to the defendant at the first revocation hearing held October 29, 1975, discussed supra.
[8]  At the preliminary hearing, the Court sustained several objections made by the government to questions asked during the cross-examination of Officer McCloskey. This was appropriate because the preliminary hearing is limited in scope (see D.C.Sup.Ct.Crim.R. 5(c)(1)). However, as noted, a final revocation hearing is concerned with issues going beyond the question of probable cause. Accordingly, cross-examination that is properly excludable at a preliminary hearing on the theory that it is not relevant to the issue of probable cause may well not be subject to such exclusion at a final revocation hearing, under the Morrissey requirements.
[9]  A five-day hold which is not followed by the appropriate determination as to whether revocation proceedings should be initiated serves only to detain the defendant for five days, in a manner contrary to the purpose of the statute.
[10]  The U. S. Attorney's traditional view has been that he has no formal responsibilities with respect to probation revocation proceedings. But see 28 U.S.C. § 547(1).
[11]  Unless the defendant agrees to a hearing at a later date.
[12]  In the event that the judge who granted probation is unavailable, the hearing should be held before the judge assigned to the Preliminary Hearing Branch. D.C.Code § 11-908(a); Superior Court Criminal Rule 106.
[13]  The probation revocation portion of the hearing, however, would normally be brief because of its preliminary nature.
[14]  Although the standards for probable cause may be identical for both purposes in many cases, the admissibility of evidence for the purpose of the finding with respect to revocation may be different from that concerning the probable cause determination with respect to the new criminal charge. See Morrissey, supra, 408 U.S. at 489, 92 S.Ct. 2593.
[15]  "[B]ut it should be remembered that this is not a final determination calling for `formal findings of fact and conclusions of law.' No interest would be served by formalism in this process; informality will not lessen the utility of this inquiry in reducing the risk of error." Morrissey, supra, 408 U.S. at 487, 92 S.Ct. at 2603 (citation omitted).
[16]  Presumably, the probationer's counsel in his current criminal case will represent him with respect to the revocation hearing as well. See Gagnon, supra, 411 U.S. at 790, 93 S.Ct. 1756.
[17]  D.C.Code § 11-908(a); Superior Court Criminal Rule 106.
[18]  Morrissey, supra, 408 U.S. at 488, 92 S. Ct. 2593. It may be desirable for the Court to specify maximum time limitations by Rule of Court.
[19]  For a discussion of the reasons why such a stay might be appropriate, see the commentary following § 5.3, ABA Project on Standards for Criminal Justice, Standards Relating to Probation (Approved Draft, 1970).
[20]  "What is needed is an informal hearing structured to assure that the finding of a [probation] violation will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the [probationer's] behavior." Moreover, "[w]e emphasize there is no thought to equate this second stage of parole revocation to a criminal prosecution . . . the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial." Morrissey, supra, 408 U.S. at 484, 489, 92 S.Ct. 2593, 2604.
[21]  If necessary, the statements of the reasons for the determination might be ordered sealed.
[22]  When probation is revoked solely on the basis of the commission of a new offense, and the probationer is subsequently acquitted of that offense after a trial, the Court might well consider, upon application by the probationer, whether to set aside its order of revocation. Although the standard of proof at the trial of a criminal charge is greater than at the revocation hearing, "it would be unseemly for the probation court to conclude counter to the result of a criminal trial, that an offense has occurred and that it could provide the basis for revocation." ABA Project on Standards for Criminal Justice, Standards Relating to Probation, § 5.3 Commentary at 64 (Approved Draft, 1970).


                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 17 2015

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS

                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 11-10623

              Plaintiff - Appellee,              D.C. No. 4:09-cr-02073-CKJ-
                                                 GEE-2
  v.

ALEX JOSEPH PEDRIN, Jr., AKA Alex                MEMORANDUM*
Pedrin, Jr.,

              Defendant - Appellant.

                    Appeal from the United States District Court
                             for the District of Arizona
                    Cindy K. Jorgenson, District Judge, Presiding

                       Argued and Submitted March 13, 2015
                            San Francisco, California

Before: NOONAN, W. FLETCHER, and CHRISTEN, Circuit Judges.

       Alex Pedrin, Jr., appeals his conviction for conspiracy to possess with intent

to distribute 40 to 50 kilograms of cocaine, and the 210-month sentence imposed

by the district court. We have jurisdiction under 28 U.S.C. § 1291. He challenges

his conviction and sentence on eleven grounds. We resolve one issue, Pedrin’s

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
contention that his conviction resulted from “outrageous government conduct,” in a

concurrently filed opinion, and the remaining ten here. We affirm.

      1. Pedrin first argues that the district court abused its discretion in denying

his request that the jury be instructed on withdrawal from a conspiracy. We

disagree. Even if a withdrawal instruction were available to a defendant convicted

under 21 U.S.C. § 846, which we doubt, see United States v. Shabani, 513 U.S. 10,

17 (1994), the district court did not abuse its discretion in concluding that there

was no evidence that would support such an instruction in Pedrin’s case. The

evidence clearly demonstrates that Pedrin committed an “overt act” in furtherance

of the conspiracy: he obtained supplies and recruited co-conspirators. No rational

jury could have concluded otherwise.

      2. Pedrin next argues that the district court abused its discretion in admitting

prior “bad act” evidence under Federal Rule of Evidence 404 — specifically, the

testimony of co-defendant Terry Bombard, who testified that Pedrin had previously

robbed drug stash houses. We disagree. First, Bombard’s testimony helped prove

a material element of 21 U.S.C. § 846, Pedrin’s “intent to commit the underlying

offense.” United States v. Herrera-Gonzalez, 263 F.3d 1092, 1095 (9th Cir. 2001).

Second, the testimony was sufficiently reliable. See United States v. Johnson, 132

F.3d 1279, 1283 (9th Cir. 1997) (“This reliability threshold is not a high one, and

                                           2
the testimony of a single witness can be sufficient.”). Finally, the danger of unfair

prejudice, though real, did not substantially outweigh the probative value of the

testimony. See United States v. Hardrick, 766 F.3d 1051, 1055 (9th Cir. 2014).

      3. Pedrin next argues that the district court abused its discretion in admitting

the opinion testimony of Agent Richard Zayas, the ATF agent who orchestrated the

operation. Assuming without deciding that Agent Zayas’s testimony should not

have been admitted, we hold it was “more probably harmless than not.” United

States v. Freeman, 498 F.3d 893, 905 (9th Cir. 2007). Unlike in Freeman, and in

other cases in which we have expressed concern about the “dangers inherent in

permitting investigating police officers . . . to testify as both percipient and expert

witnesses,” United States v. Anchrum, 590 F.3d 795, 803 (9th Cir. 2009), Zayas’s

opinion testimony in this case was brief and isolated. Any risk of prejudice,

moreover, was mitigated by the district court’s curative instruction.

      4. Pedrin next argues that the government violated his Fifth and Sixth

Amendment rights by deporting co-defendant Omar Perez, who now claims he

would have testified on Pedrin’s behalf, before his trial. Assuming that this

argument is properly before us, we reject it on the merits. Although the

government may not deport a noncitizen who it knows can provide exculpatory

evidence for a criminal defendant, to make out a constitutional violation, the

                                            3
defendant must show that the government acted in “bad faith.” United States v.

Leal-Del Carmen, 697 F.3d 964, 969–70 (9th Cir. 2012). Here, Pedrin presents no

evidence that Perez told anyone that he was willing to offer exculpatory testimony

before he was deported. “When the government doesn’t know what a witness will

say, it doesn’t act in bad faith by deporting him.” Id. at 970.

      5. Pedrin next argues that the district court abused its discretion in denying

his motions for a mistrial based on two instances of alleged prosecutorial

misconduct. We disagree. Even assuming that the prosecutor’s statements were

inappropriate, the district court did not abuse its discretion in concluding that,

“considered in the context of the entire trial,” the statements were not “likely to

have affected the jury’s discharge of its duty to judge the evidence fairly.” United

States v. Henderson, 241 F.3d 638, 652 (9th Cir. 2000). Further, the district court

could reasonably have concluded that the errors could be cured by providing

appropriate instructions to the jury, which it did. See United States v. Cardenas-

Mendoza, 579 F.3d 1024, 1029–30 (9th Cir. 2009).

      6. Pedrin next argues that there was insufficient evidence to support his

conviction. We disagree. In reviewing the sufficiency of the evidence, we ask

“whether ‘after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime

                                           4
beyond a reasonable doubt.’” United States v. Nevils, 598 F.3d 1158, 1163–64

(9th Cir. 2010) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

Here, a rational jury could easily have concluded that Pedrin (1) agreed to rob the

stash house, an “illegal objective”; and (2) intended to possess with intent to

distribute 40 to 50 kilograms of cocaine. See Herrera-Gonzalez, 263 F.3d at 1095.

The jury heard audio recordings of Pedrin agreeing to participate in the conspiracy,

and heard testimony from Bombard that he had previously committed similar

crimes. This was more than enough to satisfy the deferential Jackson standard.

      7. Pedrin’s final argument regarding his trial is that cumulative error

rendered it fundamentally unfair. See United States v. Inzunza, 638 F.3d 1006,

1024 (9th Cir. 2011). We disagree. At most, the district court made a single

isolated error in permitting Zayas to offer opinion testimony, and the prosecutor

made two inappropriate statements. We find no cumulative error that would

require reversal.

      8. With respect to his sentence, Pedrin first argues that the district court

erred by relying on the weight of the fictitious cocaine to set his base offense level.

We conclude the district court did not err. The commentary to the Sentencing

Guidelines specifically instructs that in a drug conspiracy in which the agreed-upon

quantity and the actual quantity differ, “the agreed-upon quantity of the controlled

                                           5
substance shall be used to determine the offense level unless . . . the amount

delivered more accurately reflects the scale of the offense.” U.S.S.G. § 2D1.1 cmt.

5. It further specifies that, “in a reverse sting, the agreed-upon quantity of the

controlled substance would more accurately reflect the scale of the offense because

the amount actually delivered is controlled by the government, not by the

defendant.” Id.

      9. Pedrin next argues that the district court plainly erred in not instructing

the jury on sentencing entrapment, and that it abused its discretion in not departing

downward on the basis of sentencing entrapment. “Sentencing entrapment occurs

where ‘a defendant, although predisposed to commit a minor or lesser offense, is

entrapped in committing a greater offense subject to greater punishment.’” United

States v. Briggs, 623 F.3d 724, 729 (9th Cir. 2010) (quoting United States v.

Staufer, 38 F.3d 1103, 1106 (9th Cir. 1994)). The district court did not abuse its

discretion in denying Pedrin a downward departure on the basis of sentencing

entrapment. There was no evidence that Pedrin expressed hesitation or reluctance

about the scheme, nor that he expressed concern regarding the quantity of drugs at

issue. See United States v. Black, 733 F.3d 294, 312–13 (9th Cir. 2013). For

similar reasons, we reject Pedrin’s argument that the district court plainly erred by

not providing an instruction to the jury on sentencing entrapment. Even if Pedrin

                                           6
would have been entitled to such an instruction under United States v. Cortes, 757

F.3d 850, 864–65 (9th Cir. 2014), he did not request one at trial, and given the

discretionary nature of the decision to provide a jury instruction, we conclude there

was no plain error.

      10. Pedrin finally argues that the district court imposed a substantively

unreasonable sentence. We disagree. “[I]n the overwhelming majority of cases, a

Guidelines sentence will fall comfortably within the broad range of sentences that

would be reasonable in the particular circumstances.” United States v. Laurienti,

731 F.3d 967, 976 (9th Cir. 2013) (internal quotations omitted). Here, the district

court imposed a below-Guidelines sentence of 210 months, taking into account the

unusual nature of the sting operation and the impact of Pedrin’s family history.

There was no abuse of discretion.

      AFFIRMED.

      NOONAN, Circuit Judge, dissents.

                                          7


290 B.R. 134 (2003)
In re Sandra TUCKER, Debtor.
Sandra Tucker, Plaintiff,
v.
Ameriquest Mortgage Company, Defendant.
Bankruptcy No. 02-20052-172, Adversary No. 02-2005-172.
United States Bankruptcy Court, E.D. Missouri, Northern Division.
February 13, 2003.
*135 Timothy H. Battern, P.C., St. Louis, MO, for Debtor/Plaintiff.
John V. LaBarge, Jr., St. Louis, MO, Chapter 13 Trustee.
Michael D. Doering, Kansas City, MO, for Defendant.

MEMORANDUM
JAMES J. BARTA, Chief Judge.
The matter before the Court is the Plaintiff/Debtor's request to set aside a pre-petition foreclosure sale, and to reinstate the Note and Deed of Trust under the terms of her Chapter 13 Plan. The Debtor has argued that, under Missouri law, the foreclosure sale was not completed before the Chapter 13 Petition was filed, because the Trustee's Deed had not yet been recorded.
The Defendant, as the pre-petition purchaser of the real estate and the holder of the Trustee's Deed delivered to it pre-petition by the alternate successor trustee, claims to be the legal and equitable owner of the property. The Defendant's pending motion for relief from the automatic stay to permit the recording of the Trustee's Deed and to gain possession of the property, is being determined separately consistent with the findings and conclusions here.
This is a core proceeding pursuant to Section 157(b)(2)(G) and (O) of Title 28 of the United States Code. The Court has jurisdiction over the parties and this matter pursuant to 28 U.S.C. Sections 151, 157 and 1334, and Rule 81-9.01 of the Local Rules of the United States District Court for the Eastern District of Missouri.
The Parties have agreed to submit the issue to the Court on the pleadings and legal memoranda. On consideration of the record as a whole the Court finds and concludes that, under Missouri law, and in the circumstance presented here, the foreclosure sale had been completed prior to the filing of the bankruptcy petition, such that the Debtor is precluded from attempting to cure or waive any defaults on the Note through a Chapter 13 plan.
The Parties stipulated to the following facts:
1) that the Plaintiff/Debtor executed and delivered a Note and Deed of Trust to the Defendant on the real property at issue;
2) that the Plaintiff/Debtor defaulted in making payments on the Note;
3) that the Defendant notified the Plaintiff/Debtor of its intent to foreclose and made proper demand for payment in accordance with the Note, Deed of Trust and applicable law;
4) that the foreclosure sale was scheduled for February 4, 2002 and that the Plaintiff/Debtor received timely, actual notice of the sale;
5) that on February 4, 2002, the Defendant was the successful bidder at the foreclosure sale;
6) that the foreclosure sale was properly conducted in all respects pursuant to the *136 terms of the Note and Deed of Trust and applicable law;
7) that on February 4, 2002, the duly appointed alternate successor trustee under the Deed of Trust executed and delivered to the Defendant his Trustee's Deed whereby all rights, title and interest in and to said property were transferred to the Defendant;
8) that on February 5, 2002, the Plaintiff/Debtor filed a petition commencing a bankruptcy case under Chapter 13; and
9) that the Trustee's Deed had not been recorded when the bankruptcy petition was filed. (File Document No. 10).
The Plaintiff/Debtor did not dispute the Defendant's allegation that the Plaintiff/Debtor did not provide notice of an intent to redeem the real estate in accordance with Mo.Rev.Stat. § 443.410. The Debtor's Chapter 13 plan was confirmed by an Order dated May 3, 2002. Under the confirmed plan, the Defendant is to be paid the pre-petition arrearage on the mortgage over a 36 month period through the Plan, and the Debtor is to make the post-petition mortgage payments directly to the Defendant outside the Plan. The Plan anticipates that the Debtor will prevail in this Adversary Proceeding, will cure any default through the plan, and will thereafter continue regular post-petition payments to the Defendant.
The Plaintiff/Debtor's Complaint, as originally filed, alleged lack of notice of default, lack of notice of the foreclosure sale, inadequate price, and failure to comply with applicable law in conducting the sale as the basis for setting aside the foreclosure sale. (File Document No. 1). The joint stipulation of facts resolved those allegations in the Defendant's favor. In her reply brief, the Debtor stated that the "issue before the Court is the effect of filing of a Chapter 13 Bankruptcy petition between the time a sale of foreclosure is called and the recording of the Trustee's Deed." (File Document No 13).
Based on an examination of the pleadings, the confirmed Chapter 13 Plan and the legal memoranda, the Court will address the slightly narrower issue of whether the filing of a Chapter 13 petition between the time of delivery of a Trustee's Deed to the purchaser following an otherwise valid foreclosure sale, but prior to the recording of the Trustee's Deed, operates to invalidate the sale and to reinstate the Note and Deed of Trust.
Property of the estate consists of, with certain limited exceptions as provided by 11 U.S.C. § 541(b) and (c), all legal and equitable interests of the debtor in property as of the commencement of the case. 11 U.S.C. § 541(a). Property interests are created and defined by state law, unless some federal interest requires a different result. Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 918, 59 L.Ed.2d 136 (1979), United States v. Landmark Park & Associates, 795 F.2d 683 (8th Cir.1986). Missouri law has long provided for power of sale provisions to be included in a deed of trust. These provisions permit a non-judicial foreclosure of a debtor's interest in real property in accordance with applicable state statutes. See Mo.Rev.Stat. § 443.290 (1939).
Under Missouri law, a power to sell under a deed of trust is a matter of contract between the mortgagor and mortgagee under the terms and conditions expressed in the instrument. Graham v. Oliver, 659 S.W.2d 601, 603 (Mo.Ct.App.1983). A valid trustee's foreclosure sale transfers all legal and equitable interests in the property to the purchaser at the sale, subject only to a statutory right of redemption if reserved by the debtor as provided by the statute. Mo.Rev.Stat. § 443.290 (1939). A foreclosure sale is *137 complete at the end of the auction. Martin v. Lorren, 890 S.W.2d 352, 357 (Mo.Ct.App.1994) citing In re Brown, 75 B.R. 1009 (Bankr.E.D.Pa.1987). The Trustee's Deed conveys valid title to the grantee until such title is set aside. Manard v. Williams, 952 S.W.2d 387, 392 (Mo.Ct.App.1997), Roberts v. Murray, 232 S.W.2d 540, 546 (Mo.1950).
A power of sale foreclosure is an auction held pursuant to statute. See Mo.Rev.Stat. Ch. 443. At the auction, the acceptance of the bid by the trustee constitutes an executory contract of sale. See Ferguson v. Soden, 111 Mo. 208, 19 S.W. 727 (1892). The purchaser becomes the equitable owner of the real property and has a right to a Trustee's Deed upon the payment of the bid price to the Trustee. See Majors v. Maxwell, 120 Mo.App. 281, 96 S.W. 731, 732 (1906). The delivery of the Trustee's Deed evidences the transfer. It is not the sale, but the final step in the sale. Schmidt, et al. v. City of Tipton, et al, 89 S.W.2d 569, 572 (Mo.Ct.App.1936). The deed relates back to the contract. As between the parties, the title is considered to have vested from the time the contract was made. Schmidt, 89 S.W.2d at 572.
Missouri statutes also provide that when the holder of the debt purchases the property at the foreclosure sale, the debtor may reserve a right of redemption by giving written notice at the sale or within ten days before the advertised date of the sale to the person making or who is to make the sale. Mo.Rev.Stat. § 443.410. The debtor must redeem the property within one year and must post a bond within 20 days. Mo.Rev.Stat. § 443.410-443.440. If the property is purchased by a third party at the sale, the right of redemption is foreclosed. Dickey v. Barnes, 427 S.W.2d 732 (Mo.Ct.App.1968).[1] The Eighth Circuit Court of Appeals has held that, in the Chapter 12 context, a statutory right of redemption could not be enlarged by a Chapter 12 Plan. Justice v. Valley National Bank, 849 F.2d 1078 (8th Cir.1988). Similarly, the Bankruptcy Appellate Panel of the Eighth Circuit has held that permitting a debtor to enlarge statutory redemption rights through a Chapter 13 Plan was impermissible. In re Froehle (Tax 58 v. Froehle), 286 B.R. 94 (8th Cir. BAP 2002).
The Plaintiff/Debtor did not cite any basis in Missouri law to support the argument that the foreclosure sale here was not complete when the petition was filed. In view of the specific Missouri case law cited above, the Court is unwilling to accept as persuasive or controlling, the Plaintiff/Debtor's citation to case law from States other than Missouri that discuss non-Missouri law.
The Court finds and concludes that for purposes of this determination, the foreclosure sale was complete under Missouri law prior to the filing of the Chapter 13 petition. The filing of the petition did not invalidate the sale or reinstate the Note and Deed of Trust. By separate order the Court will deny the Plaintiff/Debtor's request to set aside the foreclosure sale.
NOTES
[1]  Missouri courts also recognize an equitable right of redemption which may be imposed by a court to return parties to their pre-foreclosure positions as a condition to the setting aside of an irregularly conducted foreclosure sale. Kennon v. Camp, 353 S.W.2d 693, 695 (Mo.1962). Such a situation has not been suggested here.


                                                                                United States Court of Appeals
                                                                                Fifth Circuit
                                                                                F I L E D
                                 IN THE UNITED STATES COURT OF APPEALS
                                                                                June 11, 2003
                                                    FOR THE FIFTH CIRCUIT
                                                                                Charles R. Fulbruge III
                                                                                Clerk

                                                                 No. 01-31406

HOWARD LAMAR RAY,
                                                                                Petitioner-Appellant,

                                                                        versus

BURL CAIN,

                                                                                Respondent-Appellee.

                                         Appeal from the United States District Court
                                            for the Western District of Louisiana
                                                   USDC No. 99-CV-198

Before KING, Chief Judge, and HIGGINBOTHAM and STEWART, Circuit Judges.

PER CURIAM:*

           Howard Lamar Ray (“Ray”) appeals the dismissal of his 28 U.S.C. § 2254 application. The

district court held that Ray failed to establish a prima facie case of discrimination in the selection of

grand jury forepersons in Lincoln Parish, Louisiana. Ray argues that the district court utilized an

incorrect time period in determining that he failed to establish a prima facie case of discrimination.

Ray contends that a review of the grand jury forepersons selected in Lincoln Parish between 1977

and1991, the year he was indicted, clearly shows prima facie evidence of discrimination.

           *
            Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
       Ray, who is white, has standing to bring a constitutional claim of discrimination against the

selection of black grand jury forepersons. See Campbell v. Louisiana, 523 U.S. 392, 400 (1998);

Peterson v. Cain, 302 F.3d 508, 512 (5th Cir. 2002). Despite the Respondent’s protestations to the

contrary, Ray’s claim is not procedurally barred from federal habeas review because the state court

decided his case on the merits. See Bledsue v. Johnson, 188 F.3d 250, 256 (5th Cir. 1999).

       Racial discrimination in the selection of a grand jury or its foreperson violates a defendant’s

Fourteenth Amendment right to equal protection of the laws. See Rose v. Mitchell, 443 US. 545,

551-54 (1979); Guice v. Fortenberry, 661 F.2d 496, 498-99 (5th Cir. 1981) (en banc). To support

such a claim, the pet itioner must establish a prima facie case of discrimination with regard to the

selection of a grand jury foreperson. See Rideau v. Whitely, 237 F.3d 472, 485 (5th Cir. 2000). To

establish a prima facie case, the petitioner must:

       (1)     establish that the group against whom discrimination is asserted is a
               recognizable, distinct class, singled out for different treatment;
       (2)     prove the degree of underrepresentation by comparing the proportion of the
               group in the total population to the proportion called to serve, here as
               foreman, over a significant period of time; and
       (3)     support the presumption thus created by showing that the selection procedure
               is susceptible to abuse or is not racially neutral.

Id. When the petitioner has established a prima facie case, the burden shifts to the State to rebut the

presumption.

       The district court found that Ray established the first and third of these elements. The district

court, however, found that Ray failed to establish the degree of underrepresentation in the selection

of blacks to serve as grand jury forepersons. In reaching this conclusion, the district court considered

the United States Census Bureau statistics for Lincoln Parish for the years 1970, 1980, 1990, and

2000 and the lists of grand jury forepersons, including their race, from 1975 to 2000. The district

                                                     2
court determined that in the 45 grand juries empaneled in Lincoln Parish from March 10, 1975,

through March 13, 2000, t here had been at least eight black forepersons, resulting in a 21.96%

disparity between the percentage of black persons in the population and the percentage of black grand

jury forepersons. The district court further held, however, that the 1990 to 2000 time period was the

pertinent time period. From 1990 to 2000, five of the grand jury forepersons were black, resulting

in a racial disparity of only 13.42%. The district court then determined that the standard deviation

during the 1990-2000 time period was approximately 1.5. Finally, the district court held that the 1.5

standard deviation and the racial disparity of 13.42% did not constitute a degree of

underrepresentation indicative of racial discrimination against black persons in the selection of grand

jury forepersons in Lincoln Parish.

       Ray argues that the relevant time period is the 15 year period from 1977 to and including

1991, the year he was indicted. From 1977 to 1991, Ray contends that only two black forepersons

were selected. We agree with Ray that the district court utilized the incorrect time period in

determining the degree of underrepresentation of blacks serving as grand jury forepersons. The

district court offered no support for selecting the 1990-2000 time period, and this Court finds none

in the jurisprudence of the Supreme Court or this Court. The cases involving discrimination in the

selection of grand jury forepersons establish that the relevant time period is that leading up to the

indictment in question. See e,g.,Rideau, 237 F.3d at 488 (utilizing the time period from 1954 to 1961

in a case where the defendant was indicted in 1961); Castenda v. Partida, 430 U.S. 482, 495-96

(1997) (holding that the petitioner established a prima facie case of discrimination in grand jury

selection by showing that, in the eleven year period prior to his 1972 indictment, only 39% of the

persons summoned for grand jury service were Mexican American despite the fact that Mexican

                                                  3
Americans comprised 79% of the county’s population); Rose, 443 U.S. at 570 (utilizing the time

period from 1951 to 1973 in a case where the defendant was indicted in 1972).

       The district court’s judgment is VACATED and the matter REMANDED for the district

court to consider the evidence of discrimination in the time period before and including Ray’s 1991

indictment.

VACATED and REMANDED.

                                                4


256 S.E.2d 571 (1979)
R. E. SAYRE and Edna Sayre
v.
STEVENS EXCAVATING COMPANY.
No. 13986.
Supreme Court of Appeals of West Virginia.
July 3, 1979.
*572 Larry L. Skeen, Ripley, for appellant.
Oliver D. Kessel, Ripley, for appellees.
CAPLAN, Chief Justice:
Plaintiffs, R. E. Sayre and Edna Sayre, in October 1975, filed their complaint in the Circuit Court of Jackson County, charging Stevens Excavating Company, the defendant, with wilfully, unlawfully and without permission of the owners, entering in, upon and across the lands of plaintiffs, destroying a line fence, taking and carrying away large quantities of rock, dirt, timber, etc., all to the great damage of plaintiffs. Plaintiffs asked for compensatory and punitive damages.
Defendant moved to dismiss the action and answered. In its motion to dismiss defendant asserted that: 1) the complaint failed to state a claim against defendant; 2) the court lacked jurisdiction of the subject matter and over the defendant; 3) the action was barred by the statute of limitations; 4) the action was barred by laches and estoppel; and 5) that neither it nor any of its agents or employees illegally entered upon plaintiffs' land and averred that any entry made by defendant was under authority of law. In the answer, defendant asserted that it was without sufficient information to form a belief as to the truthfulness of the allegations contained in the complaint and demanded strict proof thereof.
After interrogatories were submitted and answered, plaintiffs moved for summary judgment asking the court to adjudicate *573 "the location of the property line of the plaintiffs." The affidavit of plaintiff R. E. Sayre was submitted in support of the motion. The defendant filed a motion wherein the court was asked to dismiss and discharge the complaint because even if the court were to find that plaintiffs' land had in fact been "entered upon by the West Virginia Department of Highways and appropriated for the construction of a public highway, nevertheless the plaintiffs sole and exclusive remedy is to institute a petition seeking a writ of mandamus" against the State to require it to institute an eminent domain proceeding against the plaintiffs in order to resolve plaintiffs' claim of title to the subject property. Defendant, in the alternative, moved to strike and dismiss that portion of plaintiffs' complaint seeking exemplary and/or punitive damages on the ground that even if plaintiffs do in fact prove ownership of the land in question, the entry by defendant and its employees was without malice and under a reasonable mistake of fact.
Defendant filed an answer to plaintiffs' motion for summary judgment and moved to bring into this proceeding, as third party defendants, Golden Skeen and Charles L. and Maude E. Havlicek, persons who allegedly conveyed the subject property to the state. Affidavits of Michael L. Norman, a right of way agent for the West Virginia Department of Highways and Pearley D. Pifer, a licensed surveyor for the Department of Highways, were submitted with the defendants' answer. In his affidavit, filed in support of the defendants' answer to plaintiffs' motion for summary judgment, Norman avers that the Department of Highways acquired the subject realty from Golden Skeen and Charles L. and Maude E. Havlicek. The affidavit of Pifer avers he surveyed the Skeen's and Havlicek's properties, "which is affected by construction of" the road project in Jackson County, and that he found that "the property boundaries for said parcels were essentially as shown on the West Virginia Department of Highway plans . . . [and] that the right of way boundaries of [Parcels 12 and 13] did not go beyond their property lines." Pifer further asserted that "he checked the boundary of R. E. Sayre and Edna Sayre . . . and that the right of way line for the right of way take for the construction of Project No. . . did not reach the boundary line of said R. E. Sayre and Edna Sayre." Pifer filed a subsequent affidavit wherein he notes an error in one of the calls in the Havlicek-Department of Highways deed. He asserts that the error is being corrected but that it does not effect the Department of Highways survey plans which he claims are correct. He further avers that "none of the 2.38 acres [the subject of this action] lies without the boundaries of [the Skeen and Havlicek parcels] and further the 2.38 acres lies totally within the boundaries of real estate acquired by the West Virginia Department of Highways by the deeds from Charles L. Havlicek and Maude E. Havlicek, his wife, and Golden Skeen, single". Pifer, in another affidavit, subsequent to those above referred to, averred that he surveyed the Sayre property and that no part of the Sayre property was involved in the take by the Department of Highways.
The trial court, taking all of the above into consideration, ruled that there was a genuine issue of material fact, namely, "whether the 2.38 acres involved here lies within or without the boundaries of the lands acquired by the Department of Highways upon and over which the defendant was authorized and directed to proceed with the construction of a public road". The court refused plaintiffs' motion for summary judgment. The defendant thereafter moved for leave to join as third party defendants, Golden Skeen, Charles L. and Maude E. Havlicek, and the Department of Highways, alleging them to be indispensable parties and that they may be liable to defendant should plaintiffs prevail. A search of the record fails to disclose any ruling on this motion.
This Court concurs in the ruling of the trial court wherein the court denied plaintiffs' motion for summary judgment. We do not agree, however, that the issue is "whether the 2.38 acres involved here lies *574 within or without the boundaries of the lands acquired by the Department of Highways. . ." In our opinion the issue is whether the 2.38 acres, from which the rock was taken, is within the right of way as shown by the Department of Highway maps furnished to the defendant. The fact that the 2.38 acre tract is owned by the plaintiffs, if it is, is of little consequence if the contractor had been furnished plans by the Department of Highways that demonstrated that the rock was obtained from an area described to be within the right of way. If the contractor were operating within the boundaries described in the plans and specifications furnished it by the Department of Highways, it would be entitled to the immunity of the state. The remedy of the true owner of the damaged property would be mandamus to compel eminent domain proceedings by the state.
In Bailey v. S. J. Groves & Sons Co., W.Va., 230 S.E.2d 267 (1976), we said in Point 2 of the Syllabus: "In an action for trespass brought against a private contractor for damage to real property occasioned while the contractor is engaged in the construction of a public facility under contract with the State, it must be shown that the contractor independently committed an actionable trespass, i. e., that he acted intentionally, negligently or employed a dangerous instrumentality, in order that the property owners may recover." The contractor in Bailey was afforded state immunity because it had constructed the highway in strict compliance with and in conformity to the design, plans and specifications prepared by the State Department of Highways and was not guilty of any negligence in the course of its activities. The damage to the property owners in Bailey was caused by the failure of the state to provide for proper drainage from the right of way. Due to the design of the drainage system, larger than anticipated quantities of water were cast upon the property of the plaintiffs causing the damages complained of by them. The design was the product of the state, not the contractor who constructed the highway in strict compliance therewith.
In the instant case, if the rock were taken from within the right of way boundaries as depicted on the right of way plans, then the contractor would be operating within the ambit of the state's immunity and unless the contractor was guilty of some intentional or negligent trespass, independent of the contract, he would enjoy immunity from suit.
Unfortunately, in the instant case the verdict of the jury did not decide whether the rock taken was within the right of way as shown on the Department of Highways maps. The jury verdict was:
We the jury find for the Plaintiffs' R. E. Sayre and Edna Sayre, his wife, to be the rightful owner of the land in question. We award the following to the Plaintiffs'.

    Compensatory damages        $21,675.00
    Punitive damages             10,000.00
                                 _________
                                $31,675.00

The jury merely decided ownership of the subject land and awarded damages to plaintiffs. The jury verdict did not establish the location of the 2.38 acre tract, merely the ownership thereof. As heretofore indicated, ownership of the property alone does not establish the right of recovery. This case must be reversed and remanded for the purpose of determining whether or not the subject property is within the boundaries of the state's right of way as shown upon the State Department of Highways maps. If the jury finds the subject property to be outside the right of way boundaries established by the state and that plaintiffs do in fact own the subject property, the plaintiffs could prevail.
In the trial of this case, the defendant sought to have the jury instructed that "unless you find by a preponderance of the evidence that plaintiffs were and are the true owners of the acreage in question which plaintiffs claim to own and which plaintiffs claim was damaged by defendant, and unless you further find from a preponderance of the evidence that said acreage in question lies outside the boundaries of the U.S. Route 33 road project and outside the boundaries of the West Virginia Department of Highways plans and specifications *575 for same, then you must return a verdict in favor of the defendant and not award plaintiffs any damages as plaintiffs must seek compensation from the State of West Virginia and not from defendant." This instruction which was refused, attempted to present the defendant's theory of the case.
It is well settled that each party is entitled to have his theory of the case presented to the jury if there is evidence to support such theory. McMillen v. Dettore, W.Va., 242 S.E.2d 459 (1978); Becher v. Spencer, 114 W.Va. 75, 170 S.E. 900 (1933); Barna v. Gleason Coal Co., 83 W.Va. 216, 98 S.E. 158 (1919); and Snedeker v. Rulong, 69 W.Va. 223, 71 S.E. 180 (1911). See also W.Va. Code, 1931, 56-6-19; 10A M.J. Instructions § 21. Conversely, it is error to give such instruction unless there is evidence in support thereof. Cochran v. Appalachian Power Co. W.Va., 246 S.E.2d 624 (1978); Cross v. Noland, 156 W.Va. 1, 190 S.E.2d 18 (1972); Newsom v. Meade, 102 W.Va. 489, 135 S.E. 604 (1926); State v. Barker, 92 W.Va. 583, 115 S.E. 421 (1922).
We are of the opinion that there was evidence in the instant case to support an instruction reflecting the defendant's theory. The right of way map furnished the contractor clearly indicated a rock formation on the alleged state right of way. There was testimony offered by the defendant indicating that the rock quarry from which the rock was taken was located 230-240 feet from the centerline of the proposed highway. The map further showed the right of way extended a distance of 1100 to 1200 feet from the said centerline. It necessarily follows that if the right of way extends for a distance of 1100-1200 feet, and the quarry from which the rock was taken was only 230-240 feet from the centerline, the rock quarry would be within the boundaries of the right of way as shown on the map. This was the theory of defendant and as there was evidence to support such theory, the instruction should have been given.
In summary, we reverse the judgment of the trial court and remand the case for a new trial. The plaintiffs in order to prevail, must prove ownership of the damaged property and further must prove that the damaged property lies outside the boundaries of the right of way as delimited by the right of way map of the Department of Highways.
As the case is reversed and a new trial granted the defendant, we deem it unnecessary to discuss or comment on the other assignments of error.
Reversed; verdict set aside and new trial awarded.


                                     COURT OF APPEALS FOR THE
                                FIRST DISTRICT OF TEXAS AT HOUSTON

                                           ORDER ON MOTION

Cause number:             01-13-00664-CV
Style:                    Tuttle Enterprises, Inc. and Watson & Taylor Management, Inc.
                          v Ray Truitt and Annie Truitt
Date motion filed*:       February 14, 2014
Type of motion:           Motion for extension of time to file the reporter’s record
Party filing motion:      Court reporter
Document to be filed:     Reporter’s record

If motion to extend time:
       Original due date:                   August 27, 2013
       Number of prior extensions:            0             Current Due date: August 27, 2013
       Date Requested:                      March 16, 2014

Ordered that motion is:
             Granted
              If document is to be filed, document due: March 17, 2014
                      The Court will not grant additional motions to extend time
             Denied
             Dismissed (e.g., want of jurisdiction, moot)
         In her motion, the court reporter informs the Court that the parties made
         payment arrangements for paying the reporter’s fee for preparing the reporter’s
         record on February 14, 2014. Accordingly, we grant the motion.

Judge's signature: /s/ Sherry Radack
                   

Panel consists of ____________________________________________

Date: February 25, 2014

November 7, 2008 Revision