The defendant was convicted by a jury of attempted robbery, was sentenced, and appeals.

(1) Was defendant's motion to stay proceedings under 28 U.S.C.A. § 1867, filed the day of trial, and his oral motion for inspection of juror questionnaires, properly denied?

(2) Was the juror Garrido able to read, write and understand the English language sufficiently to fill out her juror questionnaire form?

(3) Did the indictment charge an offense so that the motion in arrest of judgment was properly denied? We affirm.

* Defendant moved on the day of trial to stay the proceedings under 28 U.S.C. § 1867. No motion was made earlier by the defendant to inspect or secure access to the jury records.

Defendant's motion to stay proceedings was 'on the ground of a substantial failure to comply with the provisions of 28 U.S.C. § 1865(b) in selecting the petit jury.' The motion was apparently pursuant to 28 U.S.C. § 1867(a). No sworn statement of facts was filed as required by 28 U.S.C. § 1867(d).

At the argument on the motion it appeared that defense counsel desired to see and use on voir dire juror questionnaires to establish that the jurors, under 28 U.S.C. § 1865, were 'unable to read, write, and understand the English language with a degree of proficiency sufficient to fill out satisfactorily the juror qualification forms.'

During the argument, defense counsel made an oral motion for inspection of the juror questionnaires.

Defense counsel, in his argument, conceded he had known of possible disqualification of jurors for failure to understand the English language long before (and more than seven days before) the motion as provided in 28 U.S.C. § 1867(a).1

Thereafter, the court permitted defense counsel to use the questionnaires of two jurors--Saicon and Garrido. The court then changed its ruling and held untimely an oral motion for inspection. The court denied further ues of the juror questionnaires.2

'In criminal cases, before the voir dire examination begins, or within seven days after the defendant discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier, the defendant may move to dismiss the indictment or stay the proceedings against him on the ground of substantial failure to comply with the provisions of this title in selecting the grand or petit jury.' The trial court's rulings were correct.

Although 28 U.S.C. § 1867(a) does not control the time for such a motion, the motion here was clearly untimely under the procedures used in trial courts for the processing and trial of cases. The decision in such a situation rests in the sound discretion of the court.

The court was not required to consider his oral motion. But the denial of the motion was not error. The case had been set for trial long before. The morning of trial the jurors and witnesses were present and the case was ready to proceed. The denial of the motion to inspect as untimely was not an abuse of discretion.

Secondly, the defendant did not accompany his written motion for a stay with the sworn statement of facts.

First, the defendant's motion was made more than seven days after the discovery of the purported grounds for the motion, the time limit set forth in the section.

'Upon motion filed under subsection (a) . . . of this section, containing a sworn statement of facts which, if true, would constitute a substantial failure to comply with the provisions of this title, the moving party shall be entitled to present in support of such motion . . . any relevant records and papers not public or otherwise available used by the jury commissioner or clerk, and any other relevant evidence. . . .' (Emphasis supplied).

United States v. Beatty, 465 F.2d 1376 (9 Cir. 1972), relied on by defendant, does not control this case. That case involved subsection (f) of 28 U.S.C. § 1867, which provides in part:

'(f) The contents of records or papers used by the jury commissioner or clerk in connection with the jury selection process shall not be disclosed, except pursuant to the district court plan or as may be necessary in the preparation or presentation of a motion under subsection (a), (b), or (c) of this section, until after the master jury wheel has been emptied and refilled . . . and all persons selected to serve as jurors before the master wheel was emptied have completed such service. The parties in a case shall be allowed to inspect, reproduce, and copy such records or papers at all reasonable times during the preparation and pendency of such a motion (under subsections (a), (b) or (c)).'

Beatty moved for such inspection and the motion was denied; hence the reversal in Beatty, supra.

The statutory scheme is plain. The defendant, under subsection (f) of 28 U.S.C. § 1867, is entitled to inspect and copy the jury record. Beatty, supra.

The defendant needs this information in order to make his motion to stay or dismiss under subsection (a), 28 U.S.C. § 1867, and to support his motion by the sworn statement of facts or affidavit required by subsection (d).

To the extent that United States v. Guzmon, 468 F.2d 1245 (2 Cir. 1972), aff'g, 337 F. Supp. 140 (S.D.N.Y.1972), United States v. Deardorff, 343 F. Supp. 1033 (S.D.N.Y.1971), and United States v. Grey, 355 F. Supp. 529 (D.C.W.Okl.1973) hold that a defendant is not entitled to discovery under subsection (f) of 28 U.S.C. § 1867 for the purpose of making and supporting his motion under subsection (d), we disagree with these cases.

After the opinion was filed in this case, the Supreme Court decided that an applicant is entitled to discovery under § 1867(f). Test v. United States, 420 U.S. 28, 95 S. Ct. 749, 42 L. Ed. 2d 786 (43 U.S.L.W. 4207, 1975). Although noting that § 1867(f) 'does limit inspection to 'reasonable times", the Court found it unnecessary to consider the timeliness of the application because the issue had not been raised by the petitioner in that case. Id. at 30, 95 S.Ct. at 750 (43 U.S.L.W. at 4208 n. 4).

There is no merit to defendant's contention concerning the qualifications of juror Garrido to serve. The record does not show her unqualified under 28 U.S.C. § 1865(b)(2). She understood and answered questions in English. She had filled out her questionnaire in English although she omitted answering the question 'What is the extent of your education?' Her husband helped her answer some of the questions. Counsel asked 'Did you have troubleunderstanding the questions?' Answer: 'Yes, I don't finish high school.' The court interrupted with its ruling in note (2), supra. Since neither the written motion to stay nor the oral motion to inspect were proper under the statute, there was no error.

The court denied a challenge for cause. This was not error. There is nothing in the record to show that the defense was later prevented from interrogating jurors (without the use of the juror questionnaires) on their ability to understand English.

The indictment, although by no means an example of good pleading, stated an offense under Guam Penal Code § 211, and the motion in arrest of judgment was properly denied.

'Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.'

'On or about the 15th day of October, 1973, in the Territory of Guam, Thomas Palomo did commit the offense of attempted robbery, and that the said Thomas Palomo did knowingly and feloniously attempt to take the personal property in the possession of another, (to-wit: in the possession of the Istimewa Restaurant, Tammuning, Guam) in the presence of, and against the will of the manager (of said restaurant) by means of force or fear, to-wit . . . in violation of . . ..' (Brackets inserted).

The motion for arrest of judgment must be based on the record, to-wit: the indictment, the plea, the verdict and the sentence. It cannot be based on the evidence, as suggested by the Government. United States v. Sisson, 399 U.S. 267, 280-282, 90 S. Ct. 2117, 26 L. Ed. 2d 608 (1970); Wright, Federal Practice and Procedure, § 571, at 545.

We cannot sustain the indictment on the grounds suggested by Guam--on 'the facts of the case,' 'the reporter's transcript,' or 'the extant circumstances.'

However, the words shown in brackets above can be disregarded as surplusage. The indictment thus read contains the statutory elements of the offense. It advised the defendant of the charge, and in no way prejudiced his ability to conduct his defense. See United States v. Kartman, 417 F.2d 893, 894 (9 Cir. 1969); Himmelfarb v. United States, 175 F.2d 924, 936-937, (9 Cir. 1949), cert. den., 338 U.S. 860, 70 S. Ct. 103, 94 L. Ed. 527.

No showing of any prejudice has been made and the error, if any, was harmless.

The judgment is affirmed.