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Caselaw Access Project

2024-08-24T03:29:51.129235

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Joseph FISCHER, Appellant, v. Hon. William T. CAHILL, Governor of New Jersey, et al. No. 72-1554. United States Court of Appeals, Third Circuit. Submitted Feb. 6, 1973. Decided March 1, 1973. Joseph Fischer, pro se. George F. Kugler, Jr., Atty. Gen. of New Jersey, Trenton, N. J., Virginia L. Annich and Michael S. Bokar, Deputy Attys. Gen., for appellees. Before BIGGS and GIBBONS, Circuit Judges, and HUYETT, District Judge. OPINION OF THE COURT PER CURIAM: Appellant, a state prisoner, filed a pro se complaint claiming violations of his civil rights. The district court permitted the filing of the complaint in forma pauperis, directed that no summons issue, and dismissed before any responsive pleadings were filed, apparently on the authority of Rule 12(b)(6), Fed.R.Civ.P. The inartistieally drafted complaint asserts (1) damages arising from the use of improper medication prescribed by the New Jersey State Prison Medical Department, and (2) a violation of appellant’s civil rights by the members of the New Jersey Parole Board in that they denied his parole without a statement of reasons. With respect to the medication contention, dismissal was proper, since by a most generous reading the complaint can only be construed as a tort claim for malpractice. The only jurisdiction asserted is under the Civil Rights Act, 42 U.S.C. § 1983, and a tort claim for malpractice is not cognizable under that jurisdiction. E. g., Nettles v. Rundle, 453 F.2d 889 (3d Cir. 1971); Isenberg v. Prasse, 433 F.2d 449 (3d Cir. 1970). Moreover, with respect to the prescription of the medication no person is named as a defendant, but only the New Jersey Prison Medical Department. That state agency may not be sued under 42 U.S.C. § 1983 since it is not a person. United States ex rel. Gittlemacker v. County of Philadelphia, 413 F.2d 84 (3d Cir. 1969), cert. denied, 396 U.S. 1046, 90 S.Ct. 696, 24 L.Ed.2d 691 (1970). The charges against the members of the Parole Board are another matter. Affording the complaint the generous construction required by Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), it may be- construed as alleging that appellant seeks declaratory relief, injunctive relief, and possibly damages, with respect to the failure of the Parole Board to give reasons for its adverse action. No jurisdictional amount is required, Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972), although an extravagant amount is here pleaded. In New Jersey a rejected applicant for parole is entitled to a statement of reasons. Monks v. New Jersey State Parole Board, 58 N.J. 238, 249, 277 A.2d 193, 199 (1971). Cf. Mosley v. Ashby, 459 F.2d 477 (3d Cir. 1972) (per curiam). A claim of denial of such a statement, minimally at least, can be construed on this record as setting forth a denial of the equal protection of the laws. On this appeal the brief for the appellees suggests that reasons may in fact have been given, but there is nothing of record to establish the facts. We have had all too frequent occasion to reverse district court orders which have, without compliance with the procedural requirements of the Federal Rules of Civil Procedure, dismissed prisoner Civil Rights Act complaints. See, e. g., Marshall v. Brierley, 461 F.2d 929 (3d Cir. 1972); Mayberry v. Prasse, 449 F.2d 1266 (3d Cir. 1971) (per curiam); Bethea v. Reid, 445 F.2d 1163 (3d Cir. 1971), cert. denied, 404 U.S. 1061, 92 S.Ct. 747, 30 L.Ed.2d 749 (1972). Rarely, if ever, will the total judicial effort required for the disposition of such complaints be reduced by disregarding, in such eases, the rules which afford to litigants generally the opportunity to require the filing of a motion or responsive pleading and to be heard in opposition before their complaint is dismissed. Such a course will undoubtedly reduce the total impact of unnecessary litigation in this field. The judgment of the district court will be affirmed as to the medical contention, and reversed as to the Parole Board contention and the cause remanded for further proceedings in compliance with the Federal Rules of Civil Procedure. . In ¡i letter to the Clerk of this Court dated January 12, 1973, appellant stated that he desired to withdraw all of the complaints except that concerning parole.

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2024-08-24T03:29:51.129235

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UNITED STATES of America, Appellee, v. Robert NOCERINO, Appellant. No. 557, Docket 72-2328. United States Court of Appeals, Second Circuit. Argued Jan. 31, 1973. Decided Feb. 21, 1973. Certiorari Denied June 11, 1973'. See 93 S.Ct. 2785. Caren S. Brutten, The Legal Aid Society, New York City (Robert Kasanof, The Legal Aid Society, New York City, of counsel), for appellant. George G. Bashian, Jr., Asst. U. S. Atty., E. D. N. Y., Brooklyn, N. Y. (Robert A. Morse, U. S. Atty., E. D. N. Y., and L. Kevin Sheridan, Asst. U. S. Atty., E. D. N. Y., Brooklyn, N. Y., of counsel), for appellee. Before ANDERSON, FEINBERG and MULLIGAN, Circuit Judges. PER CURIAM: This is an appeal from a judgment of the United States District Court, Eastern District of New York, convicting the appellant, Nocerino, of possession of various stimulant and depressant drugs without a prescription (21 U.S.C. § 331 (q)(3)(B), as amended (Supp. IV 1968) (repealed 1970)) and with intent to sell (21 U.S.C. § 331(q) (3) (A), as amended (Supp. IV 1968) (repealed 1970)). The judgment of conviction was rendered on September 6, 1972 after a trial before Hon. John F. Dooling, Jr., District Judge, and a jury. Appellant was sentenced to a term of four years for possession with intent to sell and given a concurrent one year sentence for possession without a prescription. There is no issue on this appeal with respect to Noeerino’s conviction of possession with out a prescription. The sole question is whether the evidence produced at trial was sufficient for the jury to find beyond a reasonable doubt that the appellant intended to sell the 17,000 capsules of barbiturates and amphetamines which were in his possession. We find that there was and accordingly affirm. The issue is indeed narrow, because although Section 331(q)(3)(A) makes punishable the “possession for sale, delivery, or other disposal to another,” Nocerino was only charged with possession for “sale,” an oversight which resulted in this appeal. Appellant urges that cases such as United States v. Ortiz, 445 F.2d 1100 (10th Cir.), cert. denied, 404 U.S. 993, 92 S.Ct. 541, 30 L.Ed.2d 545 (1971), and United States v. Cerrito, 413 F.2d 1270 (7th Cir. 1969), cert. denied, 396 U.S. 1004, 90 S.Ct. 554, 24 L.Ed.2d 495 (1970), which involve affirmances of convictions based on the possession of large quantities of drugs, are not in point here because the indictments in those cases were in the disjunctive, charging possession for sale, delivery or other disposal. While this is true and while no case has. been found involving the precise point before us, we believe that Judge Dooling properly denied defendant’s motion for a judgment of acquittal and that there was sufficient evidence for reasonable men to be convinced beyond reasonable doubt that the appellant possessed the drugs here for the purpose of sale. United States v. Taylor, 464 F.2d 240 (2d Cir. 1972). The jury was meticulously charged that Nocerino had to intend to sell them personally. There was no claim then or now that the jury which made this determination was confused or misled by the failure of the indictment to embrace the statutory language of some other disposal not involving a consideration. The facts adduced before the jury indicated that Melvin Birch, a registered pharmacist and a co-defendant below, had been receiving large quantities of depressants and stimulants at his pharmacy. An investigation of his records disclosed an extreme shortage in the majority of the drugs audited. This fact prompted the surveillance of his home. On the evening of January 28, 1971, agents observed Birch carrying a 16" x 18" x 14" package out of the store to his car which he drove home. At 6 :00 P.M. on January 29, 1971, agents saw a yellow Corvette drive up to Birch’s home and pull into his driveway. A package transfer took place and when the Corvette was intercepted, the driver Nocerino was found to have a cardboard box containing seventeen plastic bottles of 17,000 amphetamines and barbiturates. A jury in the Eastern District of New York is normally not unsophisticated. It would have been unreasonable for them to have found that Nocerino intended to consume all of these pills himself or distribute them as gifts to friends. These were not bonbons but drugs, acquired not in the pharmacy but in the pharmacist’s garage. In view of the vast amount of drugs here involved and the recognition that their sale is enormously profitable, it is reasonable in our view to conclude beyond a reasonable doubt that the person apprehended with them in his possession under the circumstances outlined, intended to sell them himself. While it is possible that he was a messenger or courier, the jury was told specifically that this was not sufficient. As we have recently held “[w]e in no way subscribe to the doctrine that ‘where the Government’s evidence is circumstantial it must be such as to exclude every reasonable hypothesis other than that of guilt’. . . ” United States v. Taylor, 464 F.2d 240, 244 (2d Cir. 1972). Affirmed. . See also United States v. Knight, 395 F.2d 971, 975 (2d Cir. 1968), cert. denied, 395 U.S. 930, 89 S.Ct. 1776, 23 L.Ed.2d 249 (1969) discussing the rebuttable statutory presumption of intent to sell or distribute arising from the transportation of a quantity of obscene matter (18 U.S.C. § 1465 (1970)).

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2024-08-24T03:29:51.129235

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UNITED STATES of America and Richard C. Pfeiffer, Special Agent, Internal Revenue Service, Petitioners-Appellees, v. Berry L. KESSLER, Secretary, Brittany Builders, Inc., Respondent-Appellant. No. 72-1454. United States Court of Appeals, Sixth Circuit. Argued Dec. 1, 1972. Decided March 2, 1973. Joseph F. Dillon, Raymond, Fletcher & Dillon, Detroit, Mich., for respondent-appellant. Charles Anderson, Atty., Tax Div., Dept, of Justice, Washington, D. C., for petitioners-appellees; Scott P. Cramp-ton, Asst. Atty. Gen., Meyer Rothwacks, John P. Burke, Attys., Tax Div., Dept, of Justice, Washington, D. C., on brief; William W. Milligan, U. S. Atty., W. Robinson Watters, Asst. U. S. Atty., Columbus, Ohio, of counsel. Before WEICK, PECK and KENT, Circuit Judges. PER CURIAM. This is an appeal from an order of the District Court enforcing an Internal Revenue summons, Title 26 U.S.C. § 7602, requiring the respondent to produce certain books and records of an alleged Ohio corporation. A brief review of the proceedings in the District Court is appropriate. The petition for enforcement of the summons was filed on September 27, 1971. On the same day an order was issued requiring the respondent to show cause why the summons should not be enforced. After various interim proceedings an order was entered on December 3, 1971, which provided in part: “For these reasons, it is Ordered that respondents be allowed reasonable discovery of petitioner’s agents and witnesses prior to the adversary hearing in this cause, * * * and it is Further Ordered that said discovery be completed by December 20, 1971, * * App. pgs. 46a & 47a. Thereafter, and on December 13, 1971, the petitioners filed a motion “For Temporary Suspension of Discovery or Protective Order.” On December 15, all counsel appeared in the Court’s chambers and had extensive argument as to which Government Agents should be deposed and the timing of the depositions. During the course of the December 15 hearing, the Court said at one point: “Now, let me return, then, so that there will be no question. I am not determining that Mr. Dillon may not at any time expand these depositions. At the moment, I am going to permit him to take the depositions of Miss Leggett, Mr. Deal and Mr. Pfeiffer * * * ” App. pg. 142a. Later during the same hearing the Court said: “Well, Mr. Dillon, let me go into this for just a moment. I am satisfied to permit you to take Mr. Pfeif-fer’s deposition twice. Is there any reason why that can’t be done in just that fashion, that you take two depositions of Pfeiffer, if you so choose, before you take Leggett and Deal ?” App. pg. 154a. The first deposition of Mr. Pfeiffer, Special Agent, Internal Revenue Service, was taken December 23, 1971, and the parties again met with the Court on January 26, 1972. In the period between the taking of Mr. Pfeiffer’s deposition and the proceedings in the Court’s chambers, on January 26, 1972, certain briefs relating to issues of law were filed with the Court. During the proceedings on January 26, the trial court had the following to say, in part: “* * ]y[r- Dillon is correct that we agreed to permit two depositions. As I recall, Mr. Dillon had indicated that the first deposition he really didn’t care what the answers were, but he would take those answers and interrogate further in the second deposition. * * *, but I think in fairness to Mr. Dillon, if I am imposing a burden, I should give him an opportunity to meet the burden. So, I am going to allow the second deposition to be taken. As a matter of fact, I would ask that it be taken promptly.” App. pg. 159a. After the hearing on January 26, arrangements were made to take the second deposition of Special Agent Pfeiffer on February 19, 1972. This date was accelerated to February 3, 1972, but on February 1, 1972, it was adjourned because petitioners’ counsel would be unavailable on February 3, 1972. Without any motion or notice, and without consulting with counsel, the Court, on February 18, 1972, 338 F. Supp. 420, handed down an opinion and order granting enforcement of the summons and requiring the respondent to appear within 30 days for the purpose of making available the materials requested by the summons. We do not reach any issue relating to alleged errors in the trial court’s opinion and order. We hold that when a trial court informs counsel for a party that discovery- will be permitted and orders the other party to submit to such discovery, the court may not, without warning or hearing, change its mind and terminate the litigation. This does not fit our concept of fairness and due process. It may very well be that the District Court’s enforcement of the summons is correct under the circumstances of this case in view of the defenses asserted. Counsel for the respondent are entitled to be heard on all proper issues and we suggest that in the future the hearings be in the courtroom. Reversed and remanded for further proceedings.

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Leuna Creekmore STEPHENS, Plaintiff-Appellee, v. CITY OF DAYTON, TENNESSEE, Defendant-Appellant. No. 72-1864. United States Court of Appeals, Sixth Circuit. Argued Jan. 31, 1973. Decided March 2, 1973. Jeffrey L. Cleary, Sizer Chambliss, Chattanooga, Tenn., for defendant-appellant; William B. Luther, Chattanooga, Tenn., on brief; Luther, Anderson & Ruth, Chattanooga, Tenn., of counsel. Harry Berke, Chattanooga, Tenn., for plaintiff-appellee; Berke, Berke & Berke, Chattanooga, Tenn., of counsel. Before McCREE, MILLER and KENT, Circuit Judges. PER CURIAM. This is an appeal from a judgment, in a personal injury action, for $42,400, reduced from a jury verdict of $52,400 by a remittitur of $10,000, to which the ap-pellee agreed. The case was originally tried in November, 1971, and a jury verdict in favor of the appellee was returned in the amount of $7,000. Thereafter, and on November 17, 1971, by order of the District Court, counsel for the appellee was granted permission to interview the jurors. Subsequently one juror made an affidavit, which was attached to the appellee’s motion for a new trial, in which the juror stated that another juror had, during the deliberations, volunteered a statement that the juror had observed the appellee on the parking lot, near the Federal Court building, and that she walked unattended in the parking lot much better than in the courtroom. The trial court later examined the juror who testified to the same effect as set forth in the affidavit. Thereafter, the trial court granted the motion for new trial. On the second trial, in April, 1972, the jury returned a verdict in the amount of $52,400 in favor of the appellee. Appellant filed a motion for leave to interrogate the jury which motion the same trial judge denied on authority of McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300 (1915); Gault v. Poor Sisters of St. Frances Seraph of Perp. Ador., 375 F.2d 539 (6th Cir. 1967); Womble v. J. C. Penney Co., 431 F.2d 985 (6th Cir. 1970). In the opinion and order denying the appellant the right to interview jurors the Court said in part: “This is an embarassment to the Court, because the plaintiff was allowed to interrogate members of an earlier jury herein; and, jurors should not generally be exposed to such intrusions [citations omitted], “Although perhaps appearing on the surface to be comparatively unfair to the parties herein, this Court believes that it’s original error in judgment *' should not now be compounded.” In the footnote the Court stated “If the Court were making the same judgment today on application of the plaintiff, on the present showing of the defendant, the request would be denied.” Neither party to this lawsuit, in the initial request for authority to interrogate the jury, suggested that it was aware of any grounds or purpose for such an interrogation. Clearly, the desire to interrogate in each instance was what is commonly known as a fishing expedition in an effort to find material with which to impeach the verdict by the testimony of a juror. The appellee contends that the affidavit and testimony of the juror on the first trial is sufficient ground to justify the new trial. We disagree. The question of impeachment of a jury verdict by one of the jurors was before the Supreme Court of the United States in McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300 (1915). The Court said at page 267, 35 S.Ct. at page 784: “For while by statute in a few jurisdictions, and by decisions in others, the affidavit of a juror may be received to prove the misconduct of himself and his fellows, the weight of authority is that a juror cannot impeach his own verdict. The rule is based upon controlling considerations of a public policy which in these cases chooses the lesser of two evils. When the affidavit of a juror, as to the misconduct of himself or the other members of the jury, is made the basis of a motion for a new trial, the court must choose between redressing the injury of the private litigant and inflicting the public injury which would result if jurors were permitted to testify as to what had happened in the jury room.” The same issue was before this Court only recently in Womble v. J. C. Penney Co., 431 F.2d 985 (6th Cir. 1970). Where this Court said at page 989: “The general rule is that jurors may not impeach their verdict (McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300 (1915)), but the rule does not preclude inquiry into any extraneous influences brought to bear upon the jury in order to show what the influences were and whether they were prejudicial. Gault v. Poor Sisters of St. Frances, 375 F.2d 539 (6th Cir. 1967); Stiles v. Lawrie, 211 F.2d 188 (6th Cir. 1954). Contrary to appellant’s contention, federal and not state standards control in determining whether or not extraneous influences have so prejudiced jury consideration of the issues as to warrant reversal. Gault v. Poor Sisters of St. Frances, supra, 375 F.2d at 549; 6A J. Moore, Federal Practice ¶ 59.08 [4], at 3814 (2d ed. 1966). The District Court found that the alleged misconduct of the jury did not involve elements of extraneous influences, and went on to find that the jury used the quotient only as a point for discussion in arriving at a fair verdict, that several of the comments made by jurors during deliberation were statements of general experience background and did not amount to additional evidence supplementary to that introduced during the trial.” We hold, as the trial court recognized, that it was an abuse of discretion for the trial judge to authorize counsel for a party to interrogate the jurors in an effort to impeach the jury verdict. We find no extraneous influence sufficient to justify the order setting aside the verdict of the jury which sat on the first trial. Under such circumstances we have no alternative except to require that the judgment from which this appeal is taken be set aside and order the ease remanded to the trial court for entry of judgment on the verdict returned in the first trial. Reversed.

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Caselaw Access Project

2024-08-24T03:29:51.129235

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Major William L. MULLER, Jr., Petitioner-Appellee, v. Melvin LAIRD as Secretary of Defense, et al., Respondents-Appellants. No. 72-1185 Summary Calendar. United States Court of Appeals, Fifth Circuit. Jan. 31, 1973. William S. Sessions, U. S. Atty., Henry Valdespino, San Antonio, Tex., for respondents-appellants. Gerald H. Goldstein, San Antonio, Tex., for petitioner-appellee. Before BELL, DYER and CLARK, Circuit Judges. Rule 18, 5th Cir.; see Isbell Enterprises, Inc. Part I (5th Cir. 1970). v. Citizens Casualty Co. of N. Y., 431 F.2d 409, PER CURIAM: It may well be the height of irony that this conscientious objector claim is raised by a high-ranking veteran after four years of the finest collegiate training at the Military Academy at West Point, a tour of duty in Viet Nam and extensive post-graduate studies as an officer in the regular army. Nevertheless, during his final months of graduate study at the University of Missouri and following the publication of orders assigning him to another tour of duty in Viet Nam, Major William L. Miller declared himself to be conscientiously opposed to war in any form. The district court found that the denial of conscientious objector status to Major Miller was without basis in fact and the respondents do not appeal from this determination. Therefore, we limit our comments to the district court’s determination that it had jurisdiction in this cause which we affirm. Although Major Miller had signed out in the personnel register of his unit pursuant to orders requiring him to report to Viet Nam prior to the filing of the instant petition, the district court concluded that petitioner was still subject to the custody of the Commanding General of the Fifth United States Army at the time of filing his habeas corpus petition. The district court relied on the following factual circumstances to establish this jurisdiction: first, petitioner did not complete his outprocessing from his former unit; second, petitioner’s financial records remained under the custody of the Fourth United States Army (which was merged with the Fifth United States Army); third, petitioner was physically present and quartered at Fort Sam Houston, Texas, on the date the original Petition for Writ of Habeas Corpus was filed, and while he was so present he was subject to the rules and regulations of Fort Sam Houston; and fourth, the headquarters of the Fifth United States Army subsequently issued and published special orders to petitioner reassigning him from Viet Nam to Fort Sam Houston, Texas. The Government contends that Miller’s custodian on the crucial date was Headquarters, Department of the Army, Washington, D. C., since he was in transit between two duty stations. We reject, as did the district court, this fictitious, limited concept of custody. The district court’s opinion clearly demonstrates that Miller had had and retained significant and meaningful contacts with the Fifth United States Army and that its Commanding Officer, General Underwood (or his successors), exercised a sufficient degree of authority, control, and responsibility as to Major Miller so as to make such commandant a proper “custodial” respondent in this habeas action. See Carney v. Laird, 462 F.2d 606 (1st Cir. 1972); Miller v. Chafee, 462 F.2d 335 (9th Cir. 1972); Feliciano v. Laird, 426 F.2d 424 (2d Cir. 1970); Cf. Strait v. Laird, 406 U.S. 341, 92 S.Ct. 1693, 32 L.Ed.2d 141 (1972). In addition, the district court relied on Strait to conclude that the Department of the Army, by enlisting the aid of Fifth United States Army and Fort Sam Houston, had sufficient contacts to give the Department of the Army “presence” in Texas with respect to jurisdiction in this case. See Hoover v. Kern, 466 F.2d 543 (5th Cir. 1972); Still v. Commanding Officer, 463 F.2d 991 (5th Cir. 1972). We hold that the district court properly determined that it had jurisdiction to bear and determine Major Miller’s habeas petition. The judgment of the district court is in all respects Affirmed. . The district court’s findings of fact and conclusions of law are set out at 352 F.Supp. 1037.

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Caselaw Access Project

2024-08-24T03:29:51.129235

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HOME INSURANCE COMPANY, a New York corporation, Plaintiff-Appellant, v. Gene B. BURNS, dba Mr. Geno, etc., et al., Defendants-Appellees, Tom Barrett, Party-Defendant Appellee. Nos. 71-1109, 71-1253. United States Court of Appeals, Ninth Circuit. Feb. 6, 1973. Lee E. Esch, of Jennings, Strouss & Salmon, Phoenix, Ariz., for appellant. Thomas W. Murphy, of Murphy, Pos-ner & Franks, Phoenix, Ariz., Wilson, McConnell & Moroney, Phoenix, Ariz., Filler, Paytas, Shannon, Fleming & Ste-phensen, Phoenix, Ariz., for appellee. Before BROWNING and GOODWIN, Circuit Judges, and JAMESON, District Judge. Honorable William J. Jameson, Senior United States District Judge, District of Montana, sitting by designation. PER CURIAM: On August 14, 1970, Home Insurance Company, plaintiff-appellant, filed an in-terpleader action against Gene B. Burns, dba Mr. Geno, and creditors of Burns who claimed proceeds of an insurance policy issued by plaintiff to Burns, and deposited $26,061.84 with the registry of the court. On October 5, 1970 the court entered an order requiring in-terpleader, enjoining defendants from instituting actions with respect to moneys due Burns from plaintiff, discharging plaintiff from further liability and setting October 26, 1970 for hearing plaintiff’s application for attorney fees. On or about September 23, 1970 Burns was adjudicated a bankrupt. On October 26, 1970 an order was entered allowing defendant-appellee, Tom Barrett, Trustee in Bankruptcy, to intervene. On November 25, 1970, pursuant to a motion filed by the Trustee on November 5, 1970, an order was entered setting aside the October 5, 1970 order; referring the case to the Referee in Bankruptcy for determination of “the rights and priorities of the parties”; directing payment to the Referee of the funds deposited with the clerk; and granting “summary judgment for the defendant” trustee. There was no reference in this order to plaintiff’s claim for attorney fees or anything in the record to indicate that the court ever ruled upon this claim. On December 10, 1970 plaintiff filed a notice of appeal from the November 25, 1970 order. On December 30, 1970 the Trustee filed a “reply”, stating that he had “no objection that the court restore the injunction provisions contained in the order of October 5, 1970, and incorporates same in a formal written judgment.” A proposed judgment was submitted by the Trustee, which was entered by the court on January 18, 1971. This judgment granted the Trustee’s motion for summary judgment, directed the registry of the court to pay the $26,061.84 to the appropriate officer in bankruptcy, and enjoined the “interpleaded claimants” 'from instituting any suit pertaining to this sum, “without prejudice to the rights of the claimants to determine the amount and priority of their claims in the bankruptcy proceedings.” On January 21, 1971 plaintiff appealed from this judgment. Appellant contends that the order of November 25, 1970 should be reversed, “with instructions that this case be reinstated as a federal interpleader suit wherein plaintiff may obtain the relief usually granted plaintiffs in similar actions”, including the recovery of reasonable attorney fees. Appellee trustee argues that the judgment of January 18, 1971 gave appellant “the relief it was seeking, that is, a permanent injunction.” We agree with appellant that the issue of the allowance of attorney fees should have been determined by the district court in the interpleader action and that the case must be remanded for that determination. After that issue is determined, the district court may, in its discretion, enter an appropriate order discharging appellant from further liability, award reasonable attorney fees, if found proper, and then transfer the ease and balance of the fund, less any attorney fees and costs which may be allowed, to the Bankruptcy Court, where the rights and priorities among the inter-pleaded claimants may properly be determined. Reversed and remanded for further proceedings consistent with this order and opinion. . Tbe complaint alleged that Burns had filed a proof of loss alleging a loss under the policy “in an amount exceeding $26,061.84”, which had been compromised for $26,061.84. . In a memorandum filed November 24, 1970 the Trustee stated that Burns had made a claim against appellant for $37,-478.05 and argued that he had been given no opportunity to determine the fairness of the compromise settlement of the claim. . Memoranda were filed on October 26, 1970 in support of plaintiff’s claim for attorney fees and in opposition to their allowance. The record does not disclose any hearing on this claim pursuant to the October 5, 1970 order. . It is questionable whether the district court had authority to enter the judgment of January 18, 1971 by reason of plaintiff’s prior appeal from the November 25, 1970 order. See Taylor v. Wood, 458 F.2d 15, 16 (9 Cir. 1972). In view of our disposition of the case, it is unnecessary to consider further the various procedural irregularities discussed in appellant’s brief. . It is apparent from the brief of appellee trustee that he now concedes that inter-pleader was proper and that a permanent injunction and order discharging appellant from further liability may properly be entered. In other words, the sole remaining issue between appellant and the trustee is the allowance of attorney fees. . Since the district court has made no finding or order with respect to attorney fees, we express no opinion on the propriety of allowing fees in this case, but call attention to the general i-ule in this circuit as set forth in Schirmer Stevedoring Co. Ltd. v. Seaboard Stevedoring Corp., 306 F.2d 188, 194-195 (9 Cir. 1962). See also 3A Moore’s Federal Practice paras. 22.16(2), 3143-62.

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UNITED STATES of America, Appellee, v. Ronald JOURNEY, Appellant. No. 72-1703. United States Court of Appeals, Eighth Circuit. Submitted Feb. 16, 1973. Decided March 1, 1973. No brief was filed by appellant. Daniel Bartlett, U. S. Atty., and Wesley D. Wedemeyer, Asst. U. S. Atty., St. Louis, Mo., on brief for appellee. Before LAY and BRIGHT, Circuit Judges, and NICHOL, District Judge. Sitting by designation. PER CURIAM. This is an appeal from the denial of post-conviction relief sought by a federal prisoner under 28 U.S.C. § 2255. The petitioner asserts that his plea of guilty was not voluntary on the grounds that there were extraneous coercive circumstances which motivated his plea. The district court denied petitioner a hearing because his petition was too vague and was stated in conclusory terms. We affirm. In addition to the conclusory nature of the petition, other reasons appear on appeal which justify denial of relief. The circumstances stated in petitioner’s brief on appeal allege different facts and conclusions than stated in his petition; additionally, petitioner has failed to allege facts which, if true, would entitle him to relief. Procunier v. Atchley, 400 U.S. 446, 91 S.Ct. 485, 27 L.Ed.2d 524 (1971). Many extrinsic circumstances may serve as motivation for a defendant to enter a plea of guilty and forego a jury trial. However, where the record demonstrates that a factual basis exists for the plea, that at the time of the guilty plea the defendant admitted that it was voluntarily and freely given without promises, and that Federal Rule of Criminal Procedure 11 was given full compliance, the petitioner then faces an uphill climb to overcome the consequences of the plea. As we observed in Langdeau v. South Dakota, 446 F.2d 507, 509 (8 Cir. 1971): “Petitioner’s deliberate choice to waive trial cannot be easily eradicated years after the event. Many considerations may influence a defendant to plead guilty. However, these influences cannot serve to set aside a guilty plea made where counsel is present and the defendant is shown to be capable of making a deliberate and knowing decision.” Judgment affirmed. . In the present case, petitioner was represented by counsel at the time his guilty plea was made.

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UNITED STATES of America, Plaintiff-Appellee, v. William Edward COULTER, Defendant-Appellant. No. 72-2897. United States Court of Appeals, Ninth Circuit. Feb. 5, 1973. Rehearing Denied March 15,1973. John J. Cleary (argued), of Federal Defenders, Inc., San Diego, Cal., for defendant-appellant. Thomas M. Coffin, Asst. U. S. Atty. (argued), Catherine Chandler, Stephen G. Nelson, Asst. U. S. Attys., Harry D. Steward, U. S. Atty., San Diego, Cal., for plaintiff-appellee. Before CHAMBERS and TRASK, Circuit Judges, and BYRNE, District Judge. The Honorable William M. Byrne, Senior United States District Judge for the Central District of California, sitting by designation. CHAMBERS, Circuit Judge: Coulter was charged with and convicted of the robbery of a savings and loan association, during which a person’s life “was put in jeopardy.” We affirm. The “stickup” was done by a confederate, Murtagh, in the presence of Coulter. A shoe salesman next to the savings and loan building spotted the getaway car and took its license number, which led to Coulter’s apprehension. Prior to the trial, Verdugo, the salesman, received from the savings and loan company a $700.00 reward. Upon arrest, Coulter, after being adequately advised of his rights, made an oral statement, but refused to sign a written waiver. The indictment in this case charged that Coulter and Murtagh violated 18 U.S.C. § 2113(a) and (d) by holding up a federally insured savings and loan association and, in the course of that holdup, putting in jeopardy the life of the teller they robbed. Section 2113(d) would permit the charging of assault as well as putting life in jeopardy; however, the indictment here did not charge assault. Nevertheless, the trial judge instructed the jury on assault. Coulter’s counsel did not object to the instruction, and in fact agreed to giving it. Coulter suggests that such an instruction is erroneous since it has the effect of broadening the indictment returned by the grand jury. Coulter invites us to follow the lead of the third circuit and find that such error is reversible as “plain error” where no objection is raised at trial. United States v. Roach, 321 F.2d 1 (3d Cir. 1963). We decline the invitation. First, since this error was one of several that the court in Roach found to be reversible, we are not positive that the ease would have been reversed on that point alone. More fundamentally, however, we do not agree with the reasoning of that case. The third circuit relied on Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1961). In Stirone an objection was made at trial. Further, the distinction between “putting a life in jeopardy” and “assault” is not a difference of great magnitude. Assault as used in § 2113(d) requires “an intent to, and in fact generating a reasonable apprehension in a victim .” plus “a threat or attempt to inflict bodily harm coupled with the present ability to commit violent injury upon the person of another.” Bradley v. United States, 447 F.2d 264, 273 (8th Cir. 1971). Putting life in jeopardy, on the other hand, requires “a holdup involving the use of a dangerous weapon actually so used during the robbery that the life of the person being robbed is placed in an objective state of danger.” Wagner v. United States, 264 F.2d 524 (9th Cir. 1959). The distinction between “assault” and “put life in jeopardy” as used in § 2113(d) is elusive and overlapping. In fact, the latter may well include the former, a question we do not decide. What we do decide is that the inclusion of an assault instruction where only putting life in jeopardy is charged in the indictment was not plain error on the facts of this case. There was sufficient evidence that Coulter’s partner used a gun to get the money. The teller’s testimony, together with Coulter’s statement to the FBI that Murtagh used a gun, are sufficient to support the verdict. The finding that Coulter’s statement was given voluntarily was correct beyond a reasonable doubt. See United States v. Glasgow, 451 F.2d 557 (9th Cir. 1971). Since Verdugo had already received his reward before trial and it was not contingent on conviction, there was no abuse of discretion in limiting cross-examination.

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Charles Thomas BUCHANNON, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Florida Division of Corrections, Respondent-Appellee. No. 72-3590 Summary Calendar. United States Court of Appeals, Fifth Circuit. March 9, 1973. Charles Buehannon, pro se. Robert L. Shevin, Atty. Gen., Nelson Bailey, Asst. Atty. Gen., Tallahassee, Fla., Fredrie J. Scott, Asst. Atty. Gen., W. Palm Beach, Fla., for respondent-ap-pellee. Before BELL, GODBOLD and IN-GRAHAM, Circuit Judges. Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I. PER CURIAM: The district court denied the petition of Buehannon, a Florida state prisoner, for a writ of habeas corpus. We affirm. The appellant was convicted upon trial by jury of robbery and assault with intent to commit first degree murder and was sentenced to concurrent terms of 35 and 20 years, respectively. The conviction was affirmed on direct appeal. Buchannon v. Wainwright, Fla.App. 1970, 239 So.2d 608. In his habeas petition filed below, appellant alleged several grounds for relief. First he alleged that he was initially arrested pursuant to a justice of the peace warrant, but after a preliminary hearing it was found there was no probable cause for the arrest and he was released. Subsequently the state attorney filed an information against appellant, he was again arrested, and proceeded to trial without a preliminary hearing. Appellant contends he was illegally rearrested and was illegally denied a second preliminary hearing. The contentions are without merit. The state was obviously within its rights to file an information after appellant was initially released. There is nothing in the state law which requires a preliminary hearing after an information has been filed. Also, appellant has no constitutional right to a preliminary hearing. Jackson v. Smith, 5th Cir. 1970, 435 F.2d 1284; Scarbrough v. Dutton, 5th Cir. 1968, 393 F.2d 6. Appellant contended that his convictions are invalid because he was prosecuted on a bill of information and not on an indictment. The states are free to proceed on an information since the indictment clause of the constitution is not applicable to the states. Gaines v. Washington, 1928, 277 U.S. 81, 48 S.Ct. 468, 72 L.Ed. 793; Hurtado v. California, 1884, 110 U.S. 516, 4 S.Ct. 111, 292, 28 L.Ed. 232; Henderson v. Cronvich, 5th Cir. 1968, 402 F.2d 763. He also contended that the trial court erred in admitting conflicting testimony and admitting evidence regarding a pistol owned by appellant. A state court’s rulings on admissibility of evidence do not present grounds for federal review. Lisenba v. California, 1941, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166; Pleas v. Wainwright, 5th Cir. 1971, 441 F.2d 56; Williams v. Wainwright, 5th Cir. 1970, 427 F.2d 921. Appellant contended that his sentence is excessive because his co-defendants received lower sentences. This likewise presents no grounds for federal habeas corpus relief. United States v. Harbolt, 5th Cir. 1972, 455 F.2d 970; Rodriquez v. United States, 5th Cir. 1968, 394 F.2d 825. He also alleged that a determination of the voluntariness of his confession was not made by the trial court. The district court found that no confession or statement was introduced as evidence against him. A review of the trial transcript reveals no clear error in that finding. Finally, appellant contended that housewives and 18-20 year olds were excluded from his jury. Appellant stated only a conclusion, offering no factual allegations to support that conclusion. There being no merit to appellant’s contentions, the judgment below is affirmed. Affirmed.

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ESTATE of Mae ELLIOTT, Mrs. J. E. Crabtree, a/k/a Mary Kathryn Crabtree, Executrix, et al., Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. No. 72-1999. United States Court of Appeals, Fifth Circuit. March 21, 1973. Joseph H. Staley, Jr., Peter A. Franklin, III, Dallas, Tex., for petitioners-appellants. Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Gilbert E. Andrews, Attys., Tax Div., Dept, of Justice, Lee H. Henkel, Jr., Acting Chief Counsel, William D. Brackett, Daniel B. Rosenbaum, Attys., I. R. S., Washington, D. C., for respondent-appellee. Before WISDOM, BELL and COLEMAN, Circuit Judges. PER CURIAM: This is an appeal by the taxpayer from a decision of the Tax Court. Estate of Mae Elliott, et al. v. Commissioner of Internal Revenue, 1971, 57 T.C. 152. Any doubt concerning the question presented was resolved adversely to appellants by the supervening Supreme Court decision in United States v. Chandler, 410 U.S. 257, 93 S.Ct. 880, 35 L.Ed.2d 247. Affirmed.

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UNITED STATES of America, Plaintiff-Appellee, v. Marion H. MacKENZIE et al., Defendants-Appellants. No. 71-1925. United States Court of Appeals, Ninth Circuit. March 28, 1973. Michael K. Halley (argued), Halley & Halley, Reno, Nev., John W. Diehl, Diehl & Recanzone, Fallon, Nev., for defendants-appellants. David V. Seaman, Atty. (argued), Dept, of Justice, Washington, Patrick L. Gray III, Asst. Atty. Gen., Civil Div., Russell Chapin, Chief Gen., Claims Div., Bart M. Schouweiler, U. S. Atty., Reno, Nev., Walter H. Fleischer, Dept, of Justice, Washington, D. C., for plaintiff-appellee. Before KOELSCH and CARTER, Circuit Judges, and HARRIS, District Judge. Honorable George B. Harris, Senior Judge, United States District Court, San Francisco, California, sitting by designation. PER CURIAM: We adopt the opinion of the district court, reported in 322 F.Supp. 1058 (D.C. D.Nev.1971) as the opinion of this court, and affirm the judgment. In our view, the only real issue on appeal consisted of the trial judge’s determination that the disparity between the fair market value of the real property and the sale price, reflected in the government’s successful bid, was not so great as to shock the conscience and require denial of confirmation of the foreclosure sale. Thus, the sole question was, did that determination constitute an abuse of discretion? As indicated by oup decision affirming the judgment, we cannot say that the answer is “yes.”

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60 CCPA The UNITED STATES, Appellant, v. ACEC ELECTRIC CORPORATION, Appellee. No. 5475, C.A.D. 1091. United States Court of Customs and Patent Appeals. March 8, 1973. Harlington Wood, Jr., Asst. Atty. Gen., Andrew P. Vance, Chief, Customs Section, Patrick D. Gill, New York City, for the United States. Siegel, Mandell & Davidson, New York City, attorneys of record, for appellee; Allan H. Kamnitz, Brian S. Goldstein, New York City, of counsel. Before MARKEY, Chief Judge, RICH, BALDWIN and LANE, Judges, and CLARK, Justice, (Ret.), sitting by designation. CLARK, Justice This is an appeal from the decision and judgment of the United States Customs Court, Second Division, sustaining appellee’s protest against the assessment of duty at 10 percent ad valorem on merchandise described as a clutch motor used on industrial sewing machines and classified under item 672.25 of the Tariff Schedules of the United States (TSUS) as “Other” parts of sewing machines. Appellee successfully claimed that the merchandise is classifiable under item 682.40, TSUS, as motors of over Vio but under 200 horsepower and dutiable at 8.5 percent ad valorem. We reverse. The pertinent portions of the statutes involved are: Tariff Schedules of the United States: General Headnotes and Rules of Interpretation : * X X X X X- 10. General Interpretative Rules. For the purposes of these schedules— X X X X X X (ij) a provision for “parts” of an article covers a product solely or chiefly used as a part of such article, but does not prevail over a specific provision for such part. Schedule 6, Part 4: Part 4 headnotes: 1. This part does not cover— * * * * * -X- (vi) articles and parts of articles specifically provided for elsewhere in the schedules. Classified under: Schedule 6, Part 4, Subpart E: Sewing machines and parts thereof, . . .: X -X X- X- X X- Parts: x x x- x- x- Item 672.25 Other ... 10% ad val. Claimed under: Schedule 6, Part 5: Generators, motors, motor-generators, . . . : * X- X X X- X Motors: X X X X- X X Item 682.40 Of over Vm but under 200 horsepower..........8.5% ad val. The imported item is an electric motor with flywheel to which is securely affixed a clutch mechanism. Together the elements form a single operating unit. In operation the motor runs continuously while the clutch mechanism allows a drive pulley to be engaged and disengaged. The parties do not dispute that the sole use to which the assemblage is put is as the power source for industrial sewing machines. However, appellee contends that the unit is merely a special purpose motor and that General Interpretative Rule 10(ij) dictates that the motor be classified under item 682.40, supra, notwithstanding the fact that it can properly be considered to be a part of a sewing machine. Appellant, on the other hand, insists that the addition of the clutch mechanism to the electric motor makes it more than a motor and that classification under item 672.25, supra, as part of a sewing machine would be proper. We believe that the merchandise is more than a motor and should be classified under item 672.25. We believe United States v. A. W. Fenton Co., 49 C.C.P.A. 45, C.A.D. 794 (1962) and ServoTek Products Co. v. United States, 416 F.2d 1398, 57 C.C.P.A. 13, C.A.D. 969 (1969) are controlling here. In Fenton the imported article, which was the principal part of an electric floor polisher, was an electric motor with two drive shafts that propel the brushes of the polisher. The frame of the polisher maintains the essential parts of the motor in assembled relationship and supports the gearing assemblies. It also provides a skirt that surrounds the brushes in the assembled machine. The handle of the polisher is attachable and held to the frame by a pair of built-in lugs. This court found: The article does include a motor. It also includes gears and it clearly is designed for a special purpose. But the additional features it includes do more than make it a special type of motor. They dedicate it to one particular use as a part of a floor polisher. Since it is more than a motor, it is not properly classifiable as a motor for tariff purposes. In Servo-Tek the imported article consisted solely of an electric motor with an attached gear train which converted the high armature speed (3600 rpm) to a usable speed at the output shaft (18, 40 or 90 rpm) and increased the torque. It had no elements unrelated to the function of the motor which was to provide power. In this respect, the importation differed from that in Fenton which included the specially designed frame, an element unrelated to the transmission of mechanical energy. Nevertheless, it was concluded that the Servo-Tek motor and gear train were more than a motor as they made up “a unitary piece of composite machinery which contains a motor as an element and a gear train speed-reduced as another element.” The Customs Court distinguished these two cases on the basis that: * * * in the sewing machine trade which services industrial type sewing machines, a motor is considered to be one of the type involved herein. While there is also a continuous running motor which is used with machines having a built-in clutch, the purchaser would have to specify his need for a continuous running motor. Therefore, in the commerce and industry involved herein, the imported clutch motor is considered a motor. In addition the clutch does not affect the speed or torque of the mechnical output. There are no features, which are nonmechanical, which form part of the article to which it is to supply power. The design of the case of the motor is such as to house the clutch which is fully integrated with the motor. The removal of the dutch portion, by virtue of the design, would leave the motor useless. It is in effect a special purpose motor but nonetheless a motor. It is true that Fenton does suggest that a “special type” motor might still be classified as a motor. However, here the article imported has two elements forming a unitary piece of composite machinery, i. e., a motor and a clutch. If the article in Fenton was more than a motor, we believe the one here would also be. Furthermore, this ease is on all fours with Servo-Tek where the motor and the gear train were a unitary piece of machinery. Although appellee’s own witness described the imported article as an electric motor to which is coupled a clutch brake mechanism, it makes much of the fact that, unlike the gear train speed-reducer of Servo-Tek, the clutch mechanism here does not affect the speed or torque of the motor. This is a distinction without a difference. In fact, the similarities between the situation here and that of Servo-Tek loom larger than the distinctions. In each case the imported article comprises what is conced-edly an electric motor with means which allow its output to be more efficiently harnessed. In each case the motor and attachment form a composite unit. Nor do we think that the Customs Court’s heavy reliance on the testimony that the article here was regarded as “a sewing machine motor” in that trade is of any relevance. In our view, this tag is too parochial. To carry any weight with us, it would have to be shown that commercial circles in general so regarded clutch motors and, in effect, that Congress adopted this view when it enacted the TSUS. To view it otherwise would invite classification on an industry-by-industry basis which would lead to much confusion. In this case we are convinced that the record does not offer evidence of sufficient probative value to support the lower court’s decision in view of our previous holdings. In reaching this decision, we have considered appellee’s argument and the Customs Court’s opinion insofar as both rely upon the Explanatory Notes to the Brussels Nomenclature, Section XVI, heading 85.01, to support their conclusion that the tei'm “motors” would include a clutch motor. However, those notes do not dictate a different result since we believe that item 682.40 was intended to encompass that which was regarded as a motor under the Tariff Act of 1930. Under the Act, that which might be regarded as a motor (under paragraph 353) could still be classified elsewhere as a part of some other machine. It was the intent of the TSUS to change this situation and allow classification under an eo nomine provision even though there exists a competing parts provision. We do not see that a broader definition of “motor” was indicated than that applied in the Fenton and Servo-Tek cases decided under the 1930 Act. Here we have concluded that classification was not proper under item 682.40 because a clutch motor is more than a motor and hence not a motor for tariff purposes. We therefore conclude that the instant article is properly classifiable under item 672.25. Accordingly, the judgment is reversed. Reversed. Tom C. Clark, Associate Justice of the United States Supreme Court (Ret.), sitting by special designation. . 66 Cust.Ct. 390, C.D. 4220 (1971), reh. den. July 13, 1971. . See Tariff Commission, Tariff Classification Study, Explanatory Notes to Schedule 6, Part 5 at p. 303 (1960).

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Application of WORLD’S FINEST CHOCOLATE, INC. Patent Appeal No. 8846. United States Court of Customs and Patent Appeals. March 15, 1973. Charles A. Laff, Lynn R. Kipnis, Chicago, Ill. (Pendleton, Neuman, Williams & Anderson, Chicago, Ill.), attys. of record, for appellant. S. Wm. Cochran, Washington, D. C., for Commissioner of Patents. Fred W. Sherling, Washington, D. C., of counsel. Before MARKEY, Chief Judge, RICH, BALDWIN and LANE, Associate Judges, and WATSON, Judge, United States Customs Court, sitting by designation. LANE, Judge. This appeal is from the decision of the Trademark Trial and Appeal Board sustaining the examiner’s refusal to register a design trademark for “candy.” The design depicts a wrapped bar of candy and is shown below: For purposes of our opinion, we presume familiarity with the board’s opinion at 166 USPQ 63 (1970) and, therefore, the underlying facts here involved. We reverse. The principal issue before us is whether or not the board was correct in concluding that the package design “cannot qualify as a mark entitled to registration” notwithstanding de facto distinctiveness. ■ As we see it, the primary position of the Patent Office in the present case is that there is a vital interest in preserving the public right to copy the package sought by World’s Finest to be registered; an interest which overrides the distinctiveness that package may have in fact acquired. The Patent Office feels that the right to package a candy bar in inner and outer wraps in the manner utilized by appellant is one which must not be foreclosed indefinitely by proprietary trademark rights. In In re Deister Concentrator Co., 48 CCPA 952, 289 F.2d 496, (1961), this court held a design in the form of a substantially rhomboidal outline applied to “ore concentrating and coal cleaning tables” not to be a recognizable trademark. Finding that the outline, which was in the shape of the deck of the table, was in its essence dictated by utilitarian or engineering considerations, the court reasoned that “absent patent protection, the public has the right to copy the shape and enjoy its advantages.” 48 CCPA at 968, 289 F.2d at 505. The court refused to accord legal significance to the evidence of de facto distinctiveness or “secondary meaning,” explaining that the basis for such a refusal is not a conclusion that the alleged mark cannot or does not indicate source, but rather a recognition of a more compelling interest in preventing its monopolization — “of preserving the public right to copy.” 48 CCPA at 966, 289 F.2d at 504. We do not agree that the package design here is so functionally oriented within the sense of In re Deister that, assuming de facto distinctiveness, a private right to use it exclusively should be denied in favor of a more pressing public interest in copying. We think competitors can readily meet the demand for packaged candy bars by use of other packaging styles, and we find no utilitarian advantages flowing from this package design as opposed to others as was found in the rhomboidally-shaped deck involved in Deister. See In re Mogen David Wine Corp., 51 CCPA 1260, 1269-1270, 328 F.2d 925, 932-933 (1964) (Rich, J. concurring). In other words, although the package design sought to be registered may have utilitarian function, we do not regard it as primarily functional. Cf. In re Shenango Ceramics, Inc., 53 CCPA 1268, 362 F.2d 287 (1966); Best Lock Corp. v. Schlage Lock Co., 56 CCPA 1472, 413 F.2d 1195 (1969). It therefore is a trademark capable of being registered. We have thus far assumed that de facto distinctiveness has been proved. Appellant submitted evidence for that purpose, and neither the board nor solicitor appear to have contested the sufficiency of that evidence per se. However, the examiner attached to his Answer “two candy bars which * * * [in his] opinion * * * are indistinguishable” in shape from appellant’s packaged candy bars. The examiner felt that those bars demonstrate “that there is nothing distinctive in applicant’s packaging * * Both the board and solicitor have relied to some extent upon the material added by the examiner. The board utilized the attachments to arrive at the conviction that other manufacturers were availing themselves of the right to make and package candy bars previously protected by a design patent owned by appellant. The solicitor adopts the examiner’s reasoning that the attachments prove lack of distinction and couples that viewpoint with the contention that “appellant does not deny that other manufacturers are producing chocolate bars shaped and packaged in a form indistinguishable from that of appellant’s candy.” With respect to the candy bars made of record by the examiner in the form of photocopies, appellant argued the following in a reply brief to the board: We are unable to determine the actual shape of the packages in question from the Xerox copies. Nor were we able to obtain duplicates of these chocolate bars on the open market in the available time. But the shape of these bars is irrelevant to the issues here, because no inference as to the common practices in the industry can be drawn from the mere existence of two wrappers of unknown origin and history. There is no evidence as to the length of time or the extent of use of • these wrappers. For all this record shows, these products could have first come into existence within the last few months and may no longer be in use. These wrappers could have been copied from applicant’s package in an effort to capitalize on the good will which applicant’s mark has acquired over its many years of use. Imitation of applicant’s package lends weight to applicant’s position that its package is inherently distinctive or, at least, that it is recognized by the public as an indication of source. The printed record before us includes the photocopies of the two candy bar packages, but we are in agreement with appellant that those copies neither make it clear that the candy bars are “indistinguishable” from appellant’s nor provide a firm basis for drawing any inference with respect to common packaging practices in the trade. We do not find them to be of probative value as to any issue involved herein. The board’s reference to appellant’s now-expired design patent fails to lend support to a finding of either no distinctiveness in fact or nonregistrability even if de facto distinctiveness is present. The mere existence of design patent rights is independent of, and immaterial to, the ownership of trademark rights. In re Mogen David Wine Corp., 51 CCPA 1260, 328 F.2d 925 (1964); In re Mogen David Wine Corp., 54 CCPA 1086, 372 F.2d 539 (1967). Finally, the solicitor’s contention that appellant does not deny that other manufacturers are producing candy bars' of shape and package design identical to appellant’s is not supported by any concession or suggestion of one on the part of appellant. The solicitor does make reference to a specific page in the appellant’s main brief, but we find nothing thereon which could reasonably support the solicitor on this point. We do not think appellant has to make such a denial under penalty of prejudice to its position. The proceedings before the Patent Office were based on appellant’s belief that the package design sought to be registered is distinctive of its goods. Evidence has been submitted in support of that belief. Appellant need not undertake the burden of ascertaining whether or not other manufacturers are producing “indistinguishable” packaged candy bars, at least in the absence of some probative evidence, to the effect that they are. We find no challenge to the evidence offered by appellant for the purpose of proving de facto distinctiveness and no probative evidence or concession to the contrary. Accordingly, we hold that on the record before us the package design does in fact identify appellant’s goods and distinguish them from those of others. During oral argument, the solicitor invited attention to our decision in In re General Tire & Rubber Co., 56 CCPA 867, 404 F.2d 1396 (1969). In that case, the design trademark consisted of three narrow white concentric rings on the dark sidewall surface of a tire. We concluded that through long familiarity with whitewalls as tire ornamentation, the public would consider a three-ring whitewall as just a refinement of a general ornamental concept rather than a trademark. No evidence of distinctiveness had been submitted. The General Tire case is inapposite here in view of our finding that appellant’s package design identifies and distinguishes the goods to which it is applied. See In re Data Packaging Corp., 59 CCPA 453 F.2d 1300 (1972). For the reasons stated above, we conclude that appellant is here entitled to registration. The decision of the board is therefore reversed. Reversed. . Trademark application Serial No. 256,703 filed October 19, 1966.

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Application of John P. GLASS. Patent Appeal No. 8787. United States Court of Customs and Patent Appeals. Feb. 22, 1973. John F. A. Earley, Philadelphia; Pa., James W. Dent, Washington, D. C., attorneys of record, for appellant. S. Wm. Cochran, Washington, D. C., for the Commissioner of Patents; Jere W. Sears, Washington, D. C., of counsel. Before MARKEY, Chief Judge, and RICH, ALMOND, BALDWIN and LANE, Judges. ALMOND, Judge. This is an appeal from the decision of the Patent Office Board of Appeals affirming the rejection of claims 30, 31, 34, 35, 39, 44, 45, 47-50 and 52-57 of appellant’s application entitled “Method and Apparatus for Making Fibers.” We affirm in part and reverse in part. Appellant’s invention relates to an apparatus for making crystalline fibers from materials such as silica, aluminum oxide and carbon. Figure 1 of the application is reproduced below: The apparatus of the drawing comprises a chamber 11 in which a, vapor of the fiber-forming material is generated and maintained. Because of the nature of the suitable materials, this requires high temperatures. In one embodiment, a vaporizer 33 is used to generate the vapor, and heating elements 15 within the chamber walls are used to obtain a temperature within the chamber sufficient to maintain the vapor state. The fibers are formed by crystallization of the material employed directly from the vapor state. The crystallization takes place at the ends of fibers 23 as they are withdrawn from the chamber through orifice 21 by reel 26. In order for crystallization to occur, a cool zone 19 is established within the chamber. This is accomplished by directing a current of cool gas 18 by means of conduits 37 into the chamber through the orifice. When the fibers are derived from carbon, vaporizer 33 need not be used. Instead, a hydrocarbon gas such as methane or acetylene can be admitted directly to the chamber, for example, through conduit 37. The high temperature within the chamber cracks the gas into hydrogen and carbon. The carbon becomes the source material for the fibers. The fiber ends are fanned out by impressing an electrostatic charge upon them. This allows all the fiber ends to be individually exposed to the vapor of crystallizable material within the cool zone. Electrical circuit 24 is used to meásure the electrostatic capacitance of the fibers to ground and operate reel 26 to withdraw the fibers from the chamber at a controlled rate. Claims 30, 34 and 35, reproduced below, are representative of those on appeal: 30. In apparatus for making fibers, a chamber, means for forming a plurality of elongated fibers by condensing fibrous crystals from a vapor stage of fiber-producing material in the chamber, and means for electro-statically charging the fibers to fan out the ends of the fibers so that the ends are separated and individually exposed to vapor. 34. In apparatus for making fibers, a chamber having growing fibers having ends in the chamber, means for applying sufficient electrostatic charge to the fibers to keep their ends separated, means for gathering the fibers together at a location spaced away from the fiber ends to form a strand, and means for withdrawing the strand from the chamber. 35. In apparatus for making fibers, apparatus for controlling the length of the fibers comprising means for applying an electrostatic charge to growing fibers in a growing zone, and means for withdrawing the fibers from the growing zone when the value of the electrostatic charge reaches a predetermined level. All the claims stand rejected under 35 U.S.C. § 103 as being obvious in view of a single prior art reference, a patent to Childs. Childs discloses an apparatus for spinning a sliver of rayon. Figure 1 of that apparatus is shown below: The apparatus provides a chamber 1 into which a heated solution of rayon in acetone is injected through spinneret 4. As the solution emerges from the spinneret, it enters an electrostatic field which serves to separate the rayon as fine filaments from the solution. The electrodes that create the field are the spinneret itself and electrode 17. Spinning solution is charged to the spinneret from supply tank 11 by means of conduit 12, control valve 13, gear pump 14 and filter 5. The filter is surrounded by a heating jacket to warm the spinning solution prior to its injection into the chamber. Warm air enters the chamber at 2 and exits at 3, carrying with it the separated solvent. The fine filaments of rayon are attracted to the tail of the sliver S as it is withdrawn from the chamber over guide roll 19. In sustaining the examiner, the board discussed claim 30 only. Although this rejection was nominally sustained under 35 U.S.C. § 103, we think it clear that the board regarded claim 30 as being fully met by Childs within the meaning of 35 U.S.C. § 102. The board summarized its position as follows: We think the situation here is one in which the claims before us are only nominally in apparatus form equivalent to claiming any and all means for carrying out the portions of the process to which they allude, and thus are nothing more than a paraphrase of the method, similar to the situation presented in In re Taylor, * * * [52 App.D.C. 249, 285 F. 983 (D.C.Cir. 1923)]. Certainly they present no structural differences over the apparatus of Childs, [Emphasis added.] The board equated the chamber, fiber-forming means, and electrostatic charging means of claim 30 with Childs’ chamber, spinneret and associated charging means, and electrodes, respectively. We disagree with the board’s decision relative to claim 30 whether it be construed under § 102 or § 103. In particular, we cannot agree that the spinneret and associated charging means of Childs are the equivalent of the claimed element “ * * * means for forming a plurality of elongated fibers by condensing fibrous crystals from a vapor stage of fiber-producing material * * * » The board rationalized its equation of Childs’ spinneret to the fiber-forming means of the claim in the following manner: * * * the “means for forming a plurality of elongated fibers” is met by spinneret b of this patent operating in conjunction with its associated charging means. Patentee solidifies his material to fibers from a liquid phase and not “by condensing fibrous crystals from a vapor stage of fiber producing material,” but we have been given no reason why his fiber forming means cannot operate in this way, depending upon the proper selection of materials and process conditions. It appears, in fact, that the present dis-' closure provides the fiber-forming vapors by means of an only diagrammatically illustrated “vaporizer 33,” which apparently may be heated, or by a conduit 37 which projects hydrocarbons through the orifice 21 onto the chamber. In the former case, the nature of the vaporized material and of the “condensing” action are not disclosed; in the latter case, the hydrocarbon is decomposed to deposit carbon. It is apparent from this and the exemplary materials of page 9, lines 3-4, that the concept of fiber formation “by condensing fibrous crystals from a vapor stage of fiber-producing material” is an extremely extensive one and that any and all means for accomplishing it could hardly exclude the fiber-forming means in Childs. We cannot agree with this interpretation of the claim language. The disclosure and the claim itself make it clear that the “condensing” action referred to by the board involves crystallization of the fiber from material in the vapor state. • The exemplary materials from which crystalline fibers can be made are silica, aluminum oxide and carbon. The features common to each of these are that they are high-melting inorganic solids. It is our view that the board engaged in unwarranted speculation when it concluded that Childs’ apparatus could form fibers in the manner claimed if a proper selection of material and process conditions was made. At the very least, Childs would seem to have to describe elements which would be capable of converting a vapor of some material itself capable of forming a crystalline fiber into such a fiber even though those elements are disclosed as having other functions. From our analysis of Childs we think that the apparatus disclosed there is incapable of forming crystalline fibers by vapor condensation from inorganic materials such as silica, aluminum oxide or carbon. Furthermore, from the record before üs we can find no basis for the board’s conclusion that any material the Childs’ apparatus can handle is capable of forming a crystalline fiber. Certainly neither the board nor the solicitor has suggested the material or the conditions which would be employed in the Childs’ apparatus to make crystalline fibers. Unsupported speculation as to the qualities of that apparatus can form no basis for rejecting claim 30. We have not been persuaded by our own analysis of the reference or the arguments made that the claimed combination is an obvious one. As indicated above, we do not think that the Childs’ apparatus can be used to make crystalline fibers from a vapor of fiber-forming material. Furthermore, it is our view that the use to which that apparatus is put and its apparent capabilities would not suggest to one of ordinary skill in the art obvious modifications of the apparatus which would allow it to be employed for making crystalline fibers. Such modifications as would be required are apparent only in retrospect having advantage of appellant’s own disclosure. Having concluded that appellant’s claim 30 would not be obvious in view of Childs, we reverse the board’s decision as to that claim. This holding also dictates reversal of the decision as to claims 31, 44, 45, 47-50 and 52-57, all of which in one way or another claim means for making crystalline fibers. Claims 34 and 35 stand on a different footing than claim 30. Neither was discussed by the board but, as the examiner pointed out in the Examiner’s Answer, they are not limited to an apparatus having means for forming crystalline fibers from a vapor state. We affirm the board’s decision relative to claim 34. That claim, in effect, calls for a chamber, electrostatic charging means, means for gathering the fibers and means for withdrawing the strand from the chamber. We think equivalent elements are found in Childs. Appellant has not shown that the corresponding elements in Childs do not actually possess the same characteristics as his apparatus and since he has failed to do so, we are required to affirm the rejection. In re Ludtke, 441 F.2d 660, 58 CCPA 1159 (1971). We reverse the board’s decision as to claim 35. An element in claim 35 is “means for withdrawing the fibers from the growing zone when the value of the electrostatic charge reaches a predetermined level.” The specification makes it clear that this is done so as to synchronize the rate of fiber withdrawal with that of fiber formation. Childs possesses no similar element nor is there any basis to conclude that the electrostatic charge used should be related to the rate of withdrawal of the sliver. We find, therefore, no basis for the rejection under 35 U.S.C. § 103. This holding relative to claim 35 dictates reversal of the decision sustaining the rejection of claim 39 as well. For the foregoing reason, we affirm the board’s decision sustaining the rejection of claim 34 and reverse that decision as to claims 30, 31, 35, 39, 44, 45, 47-50, and 52-57. Modified. . Serial No. 480,018 filed August 19, 1965. . U. S. No. 3,338,570, issued January 4,1944.

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Application of Laurent SEIGNEURIN. Patent Appeal No. 8832. United States Court of Customs and Patent Appeals. March 22, 1973. James H. Littlepage, Washington, D. C., attorney of record, for appellant. Keith V. Rockey, Chicago, Ill., (McDougall, Hersh, Scott & Ladd, Chicago, Ill.), of counsel. S. Wm. Cochran, Washington, D. C., for the Commissioner of Patents. Fred E. McKelvey, Washington, D. C., of counsel. Before MARKEY, Chief Judge, and RICH, ALMOND, BALDWIN, and LANE, Judges. RICH, Judge. This appeal is from the decision of the Patent Office Board of Appeals affirming the examiner’s rejection of claims 1-5, all of the claims of appellant’s application serial No. 721,600, filed April 16, 1968, for a patent on a “Process for Preparing Fluoro-Halogen-ated Propane Derivatives and Use Thereof.” All appealed claims are directed to the process for preparing. We reverse. The Invention The invention is a process of preparing fluoroehloropropane by reacting fluoro or fluoro-chloro ethylene with chlorinated methane in the presence of a catalyst consisting of gallium chloride, gallium bromide, or mixtures thereof. Claim 1 is representative, all other claims being dependent thereon and adding limitations thereto so that claim 1 is the broadest claim: 1. In the process of preparing fluoro-chlorinated propane compounds by the reaction of a compound selected from the group consisting of fluori-nated and fluoro-chlorinated ethylene compounds with chlorinated methane compounds, the improvement which comprises catalyzing the reaction with a catalytic compound selected from the group consisting of gallium chloride, gallium bromide and mixtures thereof. Admittedly known in the prior art is the process as above described except that the catalyst is preferably aluminum chloride (Aids), a Friedel-Crafts catalyst, or some other catalyst in that category such as boron trifluoride, zinc chloride, or ferric chloride. Appellant’s specification says, It is well known to obtain halogenated propane derivatives by condensation of halogenated methane derivatives with ethylene derivatives in the presence of such catalysts as BF3, ZnCl2, FeCl3, and preferably A1C13. Drawbacks of the prior art process using the preferred A1C1S are described in the specification as follows (our emphasis)': However, the use of aluminum chloride catalyst leads to the formation of the desired fluoro halogenated propane derivative in admixture with other reaction products from which it is difficult and expensive to separate and in which the desired end product is secured in low yields. * * * Another drawback resulting from the use of aluminum chloride stems from the ready exchange of halogens during the catalytic reaction between the chlorine atoms of the aluminum chloride and fluorine atoms of the initial fluorinated compound or the fluorinat-ed reaction product * * Explaining the last-mentioned drawback, appellant’s brief states that “the A1C13 catalyst is converted to a mixed halide, frequently A1C12F, and, consequently, is difficult to regenerate to restore the catalyst back to the form of A1C13.” Appellant alleges that by using gallium chloride or gallium bromide as catalyst instead of aluminum chloride the drawbacks are overcome in that the desired product is obtained in greater yield, higher purity, and in a state from which the desired product can be easily separated and the gallium catalyst can be recovered more readily. The Rejection The references relied on are: British Patent 581,254 Oct. 7, 1946 Ulich et al., Z. Elektrochemie, 41, 7b, 1935, article entitled in translation "Reaction-Kinetic Tests in Friedel-Crafts Ketone and Hydrocarbon Synthesis," pages 509-514. The rejection, which is fully stated only in the examiner’s final rejection, appears in essence in the following extracts therefrom: Claims 1-5 are rejected as unpat-entable [under] 35 U.S.C. 103 over the British patent in view of Ulich et al. The former discloses a reaction which differs from that instantly claimed only in the Friedel-Crafts (F-C) catalysts employed and the latter discloses gallium chloride to be a better F-C catalyst than A1C13 in a particular F-C reaction, thus teaching that gallium chloride is not only a FC catalyst, but possibly superior to A1C13 in [a] reaction employing F-C catalysts. * * * Applicant has merely followed the teaching in the British patent of the use of “any other Friedel-Crafts catalyst” by employing yet another F-C catalyst shown to be better than A1C13 in the art. Unlike other variables found in chemical reactions, the number of F-C catalysts is quite small so that no patenta-bility or unobviousness is involved in finding that gallium chloride gives superior results. In affirming, the board, in a brief opinion, expressed full agreement with the examiner’s reasoning, finding that the advantages and improvements emphasized by appellant would be “expected.” OPINION Appellant’s brief reduces the issue we must decide to a simple single proposition: “whether or not it would be obvious in view of the teachings of the Ul-ich publication to employ gallium chloride as a catalyst in the process disclosed by the British patent.” It seems to be assumed that if the use of gallium chlo-ide is obvious the use of gallium brom-mide is likewise and eontrarywise if one is unobvious so is the other. The same assumption applies to mixtures of the two. There is no doubt that the process of the appealed claims is a Friedel-Crafts type of reaction and that gallium chloride is a recognized Friedel-Crafts catalyst, having been disclosed as such by Ulich in 1935. There also can be no doubt that appellant has taught the art certain advantages of using gallium chloride as the catalyst in his particular reaction, which advantages are neither disclosed in or suggested by the references. The Patent Office Solicitor’s brief contains the following admission (references to record omitted): The objective evidence shows that when carbon tetrachloride (CC14) is reacted with l,2-difluoro-l,2-dichloro-ethylene (CFC1 = CFC1) in the presence of an aluminum chloride or gallium chloride catalyst, under optimum conditions, and the desired product (C3F2CI6) is recovered, that the yield of desired product is higher in the case where gallium chloride is used as the catalyst. What appellant’s “objective evidence” shows is that under the described conditions yield of C3F2CI6 using the gallium chloride is 6.5 times the yield using the hitherto preferred aluminum chloride catalyst. There is nothing in either reference to suggest such an advantage. The British reference expressly states that the “preferred catalyst is aluminum chloride.” Although Ulich disclosed gallium chloride to be a Friedel-Crafts catalyst in 1935 and, according to the examiner, showed it “to be better than AICI3 in the art,” what the British patent says about other F-C catalysts some 8 years later is that “any other Friedel-Crafts catalyst, such as boron trifluoride, zinc chloride or ferric chloride, may also be used.” Nevertheless, in spite of this knowledge of other F-C catalysts, aluminum chloride is preferred. Gallium chloride is not mentioned. That was still the preference of the art for appellant’s type of reaction when he filed his application 20 years after the convention filing date of the British patent, which belongs to Imperical Chemical Industries, Ltd. Ulich was not concerned with appellant’s type of reaction or the production of any compound containing fluorine. The Patent Office brief does not accurately characterize the Ulich article in saying it is “a report on comparisons between the use of aluminum chloride and gallium chloride in two Friedel-Crafts reactions.” The comparison between those two catalysts was merely incidental to the main purpose of the investigations reported which, in the authors’ own words, was this (translation from the German): Reaction-kinetic test methods have as yet hardly been applied to the large and important group of organic catalytic reactions named after Friedel and Crafts. In the hope of contributing to the clarification of the mysteries which still cloak these reactions, we have conducted a few measurements of this type which constitute only a first step into this extensive field but have already produced a few results worth reporting. We limited ourselves to the reactions between: I. benzoyl chloride and benzene, and II. n-propyl chloride and benzene and investigated both, using A1C13 and GaCL as catalysts. We examined the chronological progress of the reactions by measuring at constant pressure the volume increase which accompanied the HC1 development. In contrast to the characteristic hydrogen chloride (HC1) development of the Ulich research, it is noted at this point that appellant’s reactions liberate no HC1. It is also noted that both reaction I and reaction II involve the addition of an organic group to an aromatic nucleus, benzene, whereas no aromatic nucleus is involved in appellant’s reactions. For these and other reasons it appears to us that the work Ulich was doing was not such as would produce any information relevant to the elimination of the drawbacks found in the preparation of fluoro halogenated propane derivatives using aluminum chloride catalyst with which appellant was concerned. Ulich’s reaction I is described in detail under the heading “The Ketone Synthesis.” The bulk of the description concerns work using A1C13. What was done with GaCl3 is briefly described in a single concluding paragraph as follows: GaCls as catalyst, which was also used in the form of the compound GaCl3 • C6H5C0C1 promotes the reaction even more than A1C13. However, within a short time a yellow compound is precipitated whereby the reaction is delayed considerably. The composition of this compound has not yet been clarified. We do not think this can be characterized as an unqualified recommendation of gallium chloride as superior to aluminum chloride even in the Ulich ketone synthesis and it is certainly no suggestion that it would be advantageous to replace the “preferred” A1C13 in the process of the British patent with GaCl3. The Ulich reaction II is “The Hydrocarbon Synthesis” and it was carried out in “a carbon disulfide solution; i. e., to 20 cc CS2 varying quantities of benzene (0.2 to 3 cc) propyl chloride (0.2 to 1 cc) and a catalyst were added.” This shows the scale on which the Ulich investigation was conducted. Appellant’s reaction does not take place in a carbon disulfide solution, nor does that disclosed in the British patent. As in reaction I, one of the reactants is benzene which neither the British patent nor appellant uses. The paragraph containing the disclosure on which the examiner principally relied, parts of which are repeated later in the Ulich article, reads: More exact assertions can be made regarding the mechanism of the reactions catalyzed by gallium chloride. The use of GaCl3 is of great advantage in reaction-kinetic measurements, because GaCl3, in contrast to A1C13, is readily soluble in carbon disulfide and other solvents of a lower dielectric constant. Thus, a homogenous system is available from the beginning. It is possible that this would also have a favorable effect for some of the preparatory operations with the aid of the Friedel-Crafts reaction, and we should, therefore, like to call the attention of all organic chemists to this catalyst(²). To this must be added that GaCl3, in the cases examined by us, even exceeds A1C13 in activity. However, it is a disadvantage that this high activity is easily and greatly impaired through impurities as well as reaction products. [Emphasis ours.] The footnote (2) refers to the fact that “the Ga metal is now available at prices which correspond approximately to those of platinum.” In this connection the Patent Office brief has invited our consideration of the general discussion of Friedel-Crafts reactions in Kirk-Othmer, Encyclopedia of Chemical Technology, 1st ed., 1951, Yol. 6, pages 883-891, from which we have noted with interest that aluminum chloride was then selling for 11 cents a pound and that the article nowhere refers to gallium chloride or any other gallium catalyst, notwithstanding Ulich’s 1935 disclosures. Upon full consideration of Ulich we are unable to find therein the apparently unqualified recommendation to use gallium chloride in place of aluminum chloride which the Patent Office seems to see. We find, on the contrary, a disclosure of greater activity immediately qualified by disadvantages, laboratory tests involving different reactants than appellant’s in a different system in which the drawbacks referred to in appellant’s specification are not involved. We are therefore of the view that Ulich would not suggest to one of ordinary skill in the art to use, in the process of the British patent, gallium chloride as the catalyst in place of the preferred aluminum chloride or the other not preferred Friedel-Crafts catalysts which that patent mentions. In other words, we do not find that the Patent Office has made out a prima facie case of obviousness. That concludes the matter and the decision of the board is reversed. Reversed. . This application is stated to be a continuation of an earlier copending application, serial No. 313,444, filed October 3, 1963, and the rejection herein is a first-action final. . According to Example 1 of the specification this catalyst recovery is by washing the reaction product with hydrochloric acid solution, separating the solution by decantation, submitting it to low tension electrolysis, and recovering the gallium content in a metallic state on the cathode. It is then chlorinated with gaseous chlorine to obtain gallium chloride to be reused as catalyst.

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Application of Henry L. PISTILLI. Patent Appeal No. 8883. United States Court of Customs and Patent Appeals. March 22, 1973. Rehearing Denied April 26, 1973. Andrew R. Klein, Philadelphia, Pa., attorney of record, for appellant. S. Wm. Cochran, Washington, D. C., for the Commissioner of Patents; John W. Dewhirst, Washington, D. C., of counsel. Before MARKEY, Chief Judge, and RICH, ALMOND, BALDWIN, and LANE, Judges. LANE, Judge. This appeal is from the decision of the Patent Office Board of Appeals, adhered to on reconsideration, affirming the examiner’s rejection of claims 7, 8, 9 and 11 of appellant’s application entitled “Vibration Dampener Support for Lenticular Devices” as unpatentable over the prior art under 35 U.S.C. § 103. We affirm. The claims on appeal are directed to a structure carried on the body of a user for supporting a camera or binoculars at eye level. The application states: An objective of this invention [is a support] which may allow the body to dampen some vibrations from outside the body but is also capable of dampening vibrations generated within the body such as those due to breathing. Figure 1 of appellant’s application drawing is illustrative of the invention. The support includes a telescoping rod having upper and lower portions 13 and 10. The upper end of rod portion 13 is provided with a support or holder adapted to mount a “lenticular” device, which appellant defines as “a device capable of being focussed [sic] * * such as binoculars (shown) or a camera. Rod portion 10 terminates at its lower reduced end 14 in a ball 15 loosely fitted in a socket member 11. The socket member is riveted to a backing plate 18 which is supported on the user’s belt 12 through structure including two flexible flaps 16 and 16a provided with snap fastener elements 17 for attachment to the belt. The rod is further supported at another point by a flexible band or strap 25 attached to a clamping collar 22 which is adjustable along rod portion 10 to a selected position or height above the belt. Appellant states in his brief: [A] portion of the band 25 extends from a mid-point on the rod 10, over the shoulder of the user (thereby dampening vertical vibrations, since the band is under tension in that area) whereas a second band portion extends around some of the wearer’s body under one arm on the side opposite the shoulder strap location (thus extending transversely across a portion of the chest to dampen lateral vibration) . In his application, appellant further states: [I] t is believed to be within the scope of my invention or my broadest claim for two separate bands to be used, although the illustrated embodiment using only one band is preferred. Claim 11, the sole independent claim on appeal, reads (with subparagraphing ours) as follows: In an apparatus for supporting a lenticular device such as a camera or field glasses from the body without a tripod, said apparatus including an upstanding belt-supported rod long enough to bring said device to about the level of the wearer’s eyes and including a first flexible band portion extending over a wearer’s shoulder, and a second band portion secured to said rod at a mid-portion, extending around some of the wearer’s body under an arm on an opposite side of the wearer’s body from the first mentioned band portion, the combination therewith of the improvement for dampening vertical and lateral vibrations of said rod due to the wearer’s body, said improvement including each band portion being secured to said rod adjacent a mid-portion thereof, the first band portion being secured to said rod at a small enough angle to oppose substantially some of the longitudinal vibrations in said rod, the second mentioned band portion forming a much larger angle to said rod for opposing lateral vibrations in said rod, whereby all vibrations of the wearer’s body are opposed. Dependent claims 7 and 8 recite additional features of the support for the lower end of the rod. Claim 9 adds to claim 11 a recitation of “yieldable” fastener means on the upper end of the rod that “clampingly” engages the lenticular device. The board affirmed the rejection of claims 7, 8, 9 and 11 under 35 U.S.C. § 103 as obvious from Wheeler alone or in view of Neuburger. Wheeler discloses a camera support similar to appellant’s with a telescoping rod. The rod is pivotally mounted at its lower end on a support member attached to the user’s belt and a band extending around the user’s body furnishes additional support. The reference device differs from appellant’s device as claimed primarily in that its support bánd is secured to an upper portion of the rod instead of to its midportion. Neuburger relates to a device for supporting field glasses on the body of the user. It shows clamping means at the end of a support rod for the field glasses, which means need be considered only with respect to appealed claim 9. OPINION Both Wheeler and Neuburger disclose means similar to appellant’s for supporting lenticular devices at the eye level of the user. The principal issue before us is whether modification of Wheeler to locate the point of attachment of the shoulder-underarm band at a midportion of the telescoping rod would have been obvious to a person having ordinary skill in the art. The board held that it would, stating: [T]he claimed and argued differences and alleged advantages in the attachment of the belt [(band)] ends at the mid-point of the rod, rather than at the point disclosed in Wheeler, involve an obvious redistribution of the weight to a more comfortable position and an obvious redistribution of forces according to elementary mechanics, without resulting in anything unobvious or unexpected. The board further concluded: [T]he dampening of vibrations in Wheeler’s and appellant’s devices is primarily effected by the application of tension to the shoulder-underarm belt by forward movement of the rod, rather than by the exact angularity of the ends of said belt with the rod. In reaching its ultimate conclusion of obviousness, the board considered an affidavit showing of appellant under Rule 132. That affidavit apparently purports to disprove the examiner’s view that “the attachment of the strap means at the midpoint of the rod would [not] have any material [sic] different results over Wheeler.” The board regarded the showing as unconvincing. We find no error in the board’s conclusions. The location of the strap attachment at a midpoint on the rod is, in our view, a structural choice which would have been obvious to one of ordinary skill in the art. Different people would be likely to find different locations of the strap more comfortable and any distinction in effects of the location of the attachment would appear to be obvious. We find nothing in the arguments or affidavit evidence to persuade us that any unobvious improvement in vibration effects would result from the use of the claimed device. As to the yieldable clamping means for a lenticular device additionally recited in claim 9, we fully agree that Neu-burger demonstrates that the use of that feature in Wheeler would be obvious. For the foregoing reasons, the decision of the board is affirmed. Affirmed. . Serial No. 683,556 filed November 16, 1967. . U.S. Patent No. 817,207 issued April 10, 1906. . U.S. Patent No. 1,018,771 issued February 27, 1912.

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00 CCPA The UNITED STATES, Appellant, v. BAYLIS BROTHERS COMPANY, Appellee. Customs Appeal No. 5413. United States Court of Customs and Patent Appeals. March 20, 1973. PER CURIAM. Appellant, the United States, filed a motion on February 23, 1973, informing us (1) that the parties agree that, contrary to the stipulation before us at the time of our opinion dated November 11, 1971, 451 F.2d 643, the thread employed in the smocked dress fronts was not of American origin and (2) that the parties by stipulation dated September 20, 1972 stated that the only American dress fronts are the fabric pieces, the value of which is $65.47. Accordingly, the aforesaid stipulation of September 20, 1972, is accepted as stating the facts controlling this appeal and our opinion dated November 11, 1971, is modified to the extent that all references to the thread as being of American origin are hereby deleted. Further, this appeal is hereby remanded to the Customs Court so that appropriate relief can be granted under these circumstances. Remanded.

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Application of Robert E. DOLLINGER and Robert H. Kallenberger. Patent Appeal No. 8761. United States Court of Customs and Patent Appeals. March 15, 1973. Donald J. Quigg, L. Malcolm Oberlin, Louis N. French, Philip R. Cloutier, Bartlesville, Okl., of record, for appellants. S. Wm. Cochran, Washington, D. C., for the Commissioner of Patent; John W. Dewhirst, Washington, D. C., of counsel. Before MARKEY, Chief Judge, and RICH, ALMOND, BALDWIN and LANE, Judges. LANE, Judge. This is an appeal from the decision of the Board of Appeals, adhered to on reconsideration, sustaining the rejection of claims 29, 30, 31, 38, 39 and 41-44 (hereafter referred to as the rejected claims) and dismissing the appeal as to claims 33-37 and 40 (hereafter referred to as the dismissed claims) of appellants’ application entitled “Method and Apparatus for Producing Carbon Black.” All of the claims involved in this appeal are process claims. We affirm the decision of the board. The Subject Matter Claim 29 is representative of the rejected claims and, with subparagraphing ours, is as follows: In a process for producing high structure carbon black, the steps which comprise injecting a hydrocarbon feed stream axially into a first generally cylindrical zone, injecting a first gas stream containing air into said zone and passing it along the outer portion thereof in a direction concurrent with the flow of said feed, passing the resulting streams successively through generally cylindrical second and third zones, the diameter of the second zone being substantially greater than that of the first and third zones, introducing a second gas stream produced by burning fuel with air into the outer portion of said second zone, the volume of air in said first gas stream being at least 15 per cent of the combined volume of air in the first and second gas streams, adding sufficient heat with said gas streams to heat the feed to a carbon black forming temperature as it traverses said zones, and recovering carbon black from the gas stream leaving the third zone. The other rejected claims depend from claim 29 and impose various limitations on the process defined therein. Figure 1 of appellants’ specification illustrates the apparatus used: In their brief, appellants explain the claimed subject matter as follows: The claims involved in this appeal * * * define processes for producing carbon black of increased structure by introducing at least 15% of the process air in a generally axial direction through a first generally cylindrical zone along with a hydrocarbon feed. The hydrocarbon and air flow through an enlarged second zone into a smaller third zone. The remainder of the process air (85% or less) is introduced into the enlarged second zone along with fuel. The resulting heat of combustion converts the hydrocarbon feed to carbon black which is recovered at the end of the third zone. With reference to Figure 1 of the drawing * * *, the hydrocarbon feed is injected axially through a nozzle 48 into a first generally cylindrical zone 12. Air is injected axially into zone 12 through a conduit 26 and passes concurrently with the hydrocarbon feed into an enlarged cylindrical second zone 14 and then through a third zone 18 which is of smaller diameter than zone 14. The first gas stream recited in the claims may consist of the air axially introduced into conduit 26, or it may be a mixture of the air and fuel gas which is introduced through a conduit 34. This fuel gas serves to increase the yield of carbon black. The remainder of the process air is introduced in admixture with fuel through a tunnel 16 which communicates with zone 14. This portion of the air enters the outer region of zone 14 as the second gas stream recited in the claims, which is produced by burning fuel with air. The heat produced by combustion converts the hydrocarbon feed to carbon black which is recovered at the downstream end of the third zone 18. The term "structure” refers to the tendency of the individual carbon black particles to form chain-like agglomerates. Structure is measured by the amount of oil which can be absorbed on a given mass of carbon black. A high oil absorption value means that the black has high structure. Such blacks have superior extrusion properties when compounded with rubber, and are easier to mix with the rubber. The processes defined by the claims involved in this appeal produce carbon black having a high structure. In this appeal, the issues raised with respect to the rejected claims are different than those raised with regard to the dismissed claims. We consider the two sets of claims seriatim. The Rejected Claims Rejections of these claims under both 35 U.S.C. § 112 and 35 U.S.C. § 103 have been sustained by the board. Since we agree with the board that the claims are unpatentable for obviousness, we need not reach any § 112 issues. Several alternative § 103 rejections were affirmed by the board. The only ones we need consider are the following: (1) Claims 29, 30, 31, 39, 41 and 43 as unpatentable over Krejci et al. (hereafter Krejci); (2) Claims 38 and 42 as unpatentable over Krejci in view of Peters; (3) Claim 44 as unpatentable over Krejci in view of Helmers. Krejci discloses the manufacture of high structure carbon black by a method very similar to appellants’. Krejci explains that the prior art commonly used so-called “tangential flame” processes wherein a carbonaceous reactant and an oxidizing or combustion gas are introduced axially into a generally cylindrical multi-zone reaction chamber. Tangential flame processes sometimes include the use of a small stream of air, called "jacket air,” which keeps the feed line cool to prevent premature carbon black formation therein. Krejci discovered that the structure of carbon blacks could be made higher by the substitution of free oxygen for at least some of the jacket air. The examiner’s uncontroverted characterization of the Krejci process is as follows : [A process comprising] a hydrocarbon feed stream * * * injected axially into a first cylindrical zone, a gas stream containing free oxygen injected into said zone along the outer portion thereof in a direction concurrent with the flow of said feed, the streams passed into a second zone having a diameter greater than the diameter of the first zone, oxygen-containing combustion gases introduced tangentially into said second zone establishing a mass of hot gases surrounding the admixture introduced from the first zone, the admixture and surrounding mass of hot gases passed into a third cylindrical zone having a diameter less than the diameter of said second zone, and separating carbon black from the gaseous effluent from said third zone. Appellants assert that Krejci differs from the claimed process in that there is neither disclosure nor suggestion of the requirement that at least 15% of the total air be introduced in the first zone. Upon careful review of the record before us and arguments of counsel, we conclude that the process set forth in the claims to which rejection (1), supra, applies would have been prima facie obvious from Krejci and that appellants’ assertion of unexpected results has not been established by any evidence of record including an affidavit of coinventor Dollinger offered for the purpose of proving that assertion. One of ordinary skill in the art would readily recognize that Krejci envisions some distribution of the oxygen-containing gases introduced in the first and second zones. Since the jacket gas introduced into the first zone “can be a mixture of air and added free oxygen * * * [containing] at least 33, preferably at least 50, volume percent of free oxygen” while the oxygen-containing element of the combustion mixture introduced in the second zone may be air, a division of the total air injected in the system is disclosed. The board regarded a specific example of the Krejci disclosure as suggesting the proportional distribution of air claimed by appellants. A considerable portion of appellants’ argument is directed to contesting the board’s conclusions based on this example, and the solicitor has challenged the assumptions upon which appellants’ contentions are based. We see no reason to focus on the controversial example. We agree with the more general observations of the solicitor to the effect that the thrust of the Krejci disclosure is that high oxygen content in the first zone jacket gas leads to improved structure and that a high relative proportion of air in the first zone gas stream is, prima facie, an obvious mode of insuring high oxygen content in that stream: We are of the view that the selection of an optimum proportion of first stream air content to total air content would be obvious to one of ordinary skill in the art and find nothing in Krejci which would steer one away from the use of at least 15% air in the first stream. Cf. In re Sebek, 465 F.2d 904, 59 CCPA-(1972). The Dollinger affidavit purports to prove that the use of air at a first stream to total proportion of 15% yields carbon black of higher structure than that obtained by the procedure set forth in the aforementioned Krejci example wherein the proportion of air in the first stream was 7.9%. The examiner did not find it convincing of nonobviousness for various reasons, including the fact that the structure achieved at 15% falls within the broad disclosure of Krejci. The examiner concluded, and the board agreed, that no unexpected results were demonstrated. We agree with the Patent Office conclusions with respect to appellants’ affidavit evidence. We think it could be reasonably expected from Krejci that a higher proportion of air in the first stream would result in higher structure. The degree of oil absorption, which is a measure of structure, obtained by appellants at 15% is within the purview of that which is attainable through the Krejci process. Appellants’ evidence also fails to establish any significance in the 15% figure. Although appellants consider that the examiner specifically requested a comparison between products obtained by their process and that resulting from Krejci’s example and are distributed by the examiner’s failure to be convinced of patentability by the comparison once it was presented, a fair reading of the examiner’s rejection does not indicate that he was suggesting that such evidence would necessarily rebut the rejection he had made. In any event, the evidence must, of course, be persuasive, and it is not. For the stated reasons, we find no error in the decision of the board sustaining the principal rejection (1) based on Krejci alone. Rejections (2) and (3), supra, differ in that Peters and Hel-mers, respectively, were added in response to various limitations imposed in the claims to which those rejections apply. Appellants have advanced no separate argument concerning those rejections except to contend that neither Peters nor Helmers fills the voids appellants find in Krejci. In view of our conclusions with respect to the rejection based on Krejci, we likewise find no error in the board’s decision sustaining rejections (2) and (3). The Dismissed Claims The board dismissed the appeal as to claims 33-37 and 40 of appellants’ application. Claim 33 reads as follows: 33. The process of claim 31 wherein the volume of the first gas stream is 15 to 60 per cent of the combined volumes of the first and second gas streams. The examiner expressed the following rejections in his Answer: Claims 33-37 and 40 are indefinite and lack basis in the specification as to the volume of the “first gas stream” being 15-60 percent of .the combined volumes of the “first and second gas streams”. It is noted that the disclosure on page 6, lines 12-16 of the specification relates to the volume of air used in the process and not to the gas streams recited in the present claims which obviously are not limited only to air. * * * * *■ -x- Claims 33-37 and 40 are rejected under 35 U.S.C. 132 as drawn to new matter as to the volume of the first gas stream being 15 to 60 percent of the combined volumes of the first and second gas streams which lacks basis in the original disclosure. It is again noted that the disclosure on page 6, lines 12-16 of the specification relates to the volume of air used in the process and not to the gas streams recited in the present claims which obviously are not limited only to air. In its original decision, the board stated the following: At the hearing, counsel for Appellants admitted that claims 33 through 37 and 40 are in error in referring to 15-60% of the gas streams, instead of air streams. Accordingly, the appeal is dismissed as to claims 33 through 37 and 40. Appellants requested reconsideration asserting that counsel had not made such a concession, or at least could not recall it, and urging that the board review the propriety of the examiner’s rejection of the relevant claims on the merits. However, the board adhered to its action dismissing the claims and stated: The dismissal was based upon an oral statement by counsel at the hearing, conceding that the rejection was proper. Appellants seek to withdraw that concession and ask for a decision on the merits of the rejection. Appellants' sole argument in their brief is that these claims refer to volumes of air. The Examiner’s answer points out that they refer only to gas. No reply brief was submitted. As it appears that appellants agree with the Examiner that these claims should refer to air, instead of to gas, there is no issue here requiring adjudication. Accordingly, the appeal remains dismissed as to these claims. It is not here asserted by appellants that the underlying rejections are erroneous or that the facts assumed by the board to have been admitted are in any event untrue. Appellants merely urge that the board erred in dismissing the appeal, and they request we reverse and remand the case to the board. The position of the solicitor is that the dismissal of the involved claims was “not a ‘decision’ which this court has jurisdiction to review. In re James, 57 CCPA 1371, 432 F.2d 473 (1970).” Quoting from James, the solicitor contends that the board here was not acting “in any statutory capacity, reviewing, on its merits, an adverse decision of the examiner,” but was rather “acting only under authority of the rules — as an agent of the Commissioner * * The statutory jurisdiction of this court to review “decisions” of the board, 35 U.S.C. § 141, depends in turn on the statutory jurisdiction of the Board of Appeals to review “adverse decisions of examiners * * 35 U. S.C. § 7; see also 35 U.S.C. § 134. We may inquire into whether or not the board reviewed, in the present case, an adverse decision of the examiner relating to matters involved in the rejection of claims. See In re Hengehold, 440 F.2d 1395, 1404, 58 CCPA 1099, 1111 (1971). Compare Pat.L.Persp. § A.12 (1970 Dev. A.12-3). We do not agree with the implicit suggestion of the solicitor that the mere label “dismissal” would necessarily exclude board action from the purview of “decision” within the meaning of § 141. What the board did is the pertinent fact regardless of the tag placed on its action. In the present case, it is apparent that the board did not review the decision of the examiner with respect to the dismissed claims, but instead determined that appellants had acquiesced therein on the basis of an alleged oral concession and, at least in part, the nature of appellants’ argument in their brief before the board which has not been placed in the transcript of record certified to this court. We have been offered neither evidence nor substantial argument which would tend to support a finding of error in the board’s refusal to review the examiner’s action. Moreover, appellants have not indicated to us any reason for believing the examiner to have been incorrect in his action. Under the circumstances here present, we are not disposed to review the board’s dismissal of these claims. The appeal as to claims 33-37 and 40 is accordingly dismissed. The decision of the board with respect to claims 29, 30, 31, 38, 39 and 41-44 is affirmed. Affirmed. . Serial No. 560,493 filed June 27, 1966, as a continuation-in-part application of Serial No. 515,104 filed December 20, 1965. . U.S. Patent No. 3,355,247 issued November 28, 1967, on an application filed May 25, 1964. . U.S. Patent No. 2,800,394 issued July 23, 1957. . U.S. Patent No. 2,967,090 issued January 3, 1961.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

In the Matter of SOUTHERN LAND TITLE CORPORATION, Debtor. In re SOUTHERN LAND TITLE CORPORATION and the Five Flags Building, Inc. Appeal of Albert J. WARD, Jr., Trustee, No. 71-1891. United States Court of Appeals, Fifth Circuit. March 19, 1973. John Pat Little, Charles J. Schwartz, Jr., New Orleans, La., for Ward. Carl W. Cleveland, C. Ellis Henican, Jr., New Orleans, La., for Henican, James, and Cleveland. James J. Morrison, James J. Morrison, Jr., New Orleans, La., for Debtor Corp. Clem H. Sehrt, Peter J. Butler, Moise S. Steeg, Jr., New Orleans, La., for ap-pellee. Before WISDOM, GOLDBERG and MORGAN, Circuit Judges. WISDOM, Circuit Judge: Albert J. Ward, Jr., is the Trustee in bankruptcy for the debtor corporations, The Five Flags Building, Inc. and Southern Land Title Corporation. He appeals from the decision of the district court in a reclamation action against 225 Baronne Street, Inc. In this action the trustee sought the return of the building in New Orleans known as “225 Baronne” to Five Flags and the land on which the building is situated to Southern Land Title. The trustee alleged that the sale of the bankrupt’s property within one year before the filing of the petition in bankruptcy was a voidable preference under section 67, sub. d(2), and section 70, sub. e(l), of the Bankruptcy Act. Five Flags is a wholly owned subsidiary of Southern Land Title Corporation. Five Flags Building, Inc. and Southern Land Title were two of the holdings in the so-called “Sam Recile Empire.” As is the case with some empires, Sam Re-cile’s had a spectacular rise and a swift decline. It was financed through the influence of Louis J. Roussel. Roussel was a member of the Board and Executive Committee of the National American Bank, and admittedly controlled the said Bank. Mr. Roussel personally, along with his family, or with nominees, owned almost fifty percent of the widely held stock of the Bank, and owned or controlled the majority of stock of Empire Land, Republic Petroleum Corporation, Universal Drilling Company, Bankers Union Life Insurance Company, and Gulf Natural Gas Corporation. These companies, along with the National American Bank, provided much of the financing of the debtor corporations and others in the “Recile Empire”. According to the trustee, Roussel knew of the financial distress of the Recile Empire, including especially the troubles of the debtors corporations, and he manipulated the whole situation so as to put the 225 Baronne Building beyond the reach of creditors to protect himself and the National American Bank. The trustee considers that both the transferor and transferee were in bad faith. The evidence in the record in support of the trustee’s position does not compel this Court to hold that the trial judge’s findings were clearly erroneous. The district court denied reclamation, We affirm. I. In 1964, Five Flags obtained a loan of $2,350,000 from the National American Bank on the condition, among others, that it pledge non-interest bearing certificates of deposit totaling $1,500,000 with the Bank. Five Flags pledged the certificates, and they remained in the Bank’s custody until April 1965 when Philip James, as president of Five Flags, obtained the release of the proceeds. The Bank credited the proceeds to Five Flags’ checking account but received no additional security to replace the certificates. In February 1965, the Bank demanded payment on the remaining principal due on the loan, which was then in default, and noted that the non-interest bearing certificates of deposit required by the loan agreement had never been replaced. Negotiations ensued, but the record indicates that on April 13, 1966, there was still owing a principal balance of $923,579.74 on the original loan. The Bank, however, finally withdrew its demand for immediate payment and agreed to an additional loan of $526,420.26 to Five Flags in return for its consent to several conditions expressed in a letter dated April 15, 1966, from Clem H. Sehrt, the president of National American Bank. On June 1, 1966, the loan of $1,450,000 from National American Bank was still unpaid. On June 17, in accordance with Sehrt’s letter of April 15, and the previous understanding between Sehrt and Philip James, a collateral mortgage in the amount of $1,450,000 on the 225 Baronne Street Building was executed in favor of National American Bank and was recorded on June 20. There were two prior, unpaid mortgages on the property. In August 1966, C. Ellis Henican succeeded Sam Recile as president of Southern Land Title Corporation. Roussel put two officers of the National American Bank on the Five Flags’ five-man board of directors. According to Heni-can, Roussel had become “disenchanted” with Recile, partly “because he no longer liked Mr. Recile, having been a very close associate of Recile from the inception”; partly because “he felt that the debts of the corporation were not being properly taken care”; and partly because somebody of “ [Henican’s] age and maturity and standing in the community should come forward and stabilize” the corporation. The corporation’s financial problems continued, and Five Flags soon defaulted on both the second and third mortgages on the 225 Baronne Building. Five Flags was unable to pay even the principal sum of $25,000 due monthly on the Bank’s mortgage. As of September 21, 1966, Five Flags was delinquent from April 1, 1966, on the interest due the Bank on its loan and was delinquent on the $25,000 principal payments due for July, August, and September 1966. Despite these financial difficulties, Henican believed that the debtor corporations could be rehabilitated and that the proper way to accomplish this was to sell as much of the assets as possible in order to reduce the company’s debt. Henican was also of the opinion that the rental income from 225 Baronne was being diverted to Southern Land and other entities and that this was a major factor in Five Flags’ default on the second and third mortgages encumbering the property. Accordingly, Henican offered to sell the 225 Baronne Building to Louis Roussel. Rousell, along with several others, then formed 225 Baronne Street, Inc. On September 21, 1969, 225 Baronne Street, Inc. paid $15,750,000 for the building and the land. 225 Bar-onne Street, Inc. also paid an additional sum of $256,457.05 to National American Bank for the credit of Five Flags. These funds represented the credit received by 225 Baronne Street, Inc. on its purchase of the second mortgage encumbering the property. On December 7, 1966, Southern Land Title and Five Flags filed a voluntary petition for corporate reorganization under Chapter X of the Bankruptcy Act. The district court dismissed the petition on February 3, 1967. An hour later ten creditors of the debtor corporations filed an involuntary petition for corporate reorganization. The trustee later requested a hearing pursuant to sections 21 and 167 of the Bankruptcy Act. 11 U.S.C. §§ 44 and 567. By stipulation of the parties, this proceeding was converted into a summary-plenary proceeding for reclamation in which the central issue was whether the trustee could reclaim from 225 Baronne Street, Inc. the title of the land and building at 225 Baronne Street. After a lengthy trial, the district court on September 9, 1970, issued its decision denying reclamation, 316 F.Supp. 1059. The trustee appeals from that decision. II. The trustee’s first contention is that the sale of the land and building at 225 Baronne to 225 Baronne Street, Inc. is a voidable preference under section 67, sub. d(2)(a), (b), and (c) of the Bankruptcy Act. 11 U.S.C. § 107, sub. d(2)(a), (b), and (e) These subclauses provide that certain transfers made by the debtor within one year prior to the filing of a petition in bankruptcy are presumed to be fraudulent, regardless of actual intent, if made without fair consideration. As defined in subclause (d) (1) (e) (1), consideration given for the property of a debtor is fair “when, in good faith, in exchange and as a fair equivalent therefor, property is transferred or an antecedent debt is satisfied. . . .”11 U.S.C. § 107, sub. d(l)(e)(1). Thus, fair consideration requires both (1) a fair equivalent, and (2) good faith on the part of the transferee. Cohen v. Sutherland, 2 Cir. 1958, 257 F.2d 737, In re Messenger, D. C.E.D.Pa.1940, 32 F.Supp. 490; 4 Collier on Bankruptcy fl 67.33 (J. Moore, ed. 1967). As to the first requirement, the district court found that 225 Bar-onne Street, Inc. paid $15,750,000 to Five Flags for the Baronne Building and the land thereunder and paid an additional $256,457.05 to the National American Bank for the credit of Five Flags. The later sum represented the credit received by 225 Baronne Street, Inc. on its purchase of the second mortgage encumbering the property. The district court concluded that these amounts were a fair equivalent of the property transferred, and the trustee has not presented any evidence controverting that finding. As to the second requirement, the district court found that the transfer was made in good faith. The trustee contends, however, that Louis J. Roussel and the other shareholders and directors of the transferee, 225 Baronne Street, Inc., knew in August 1966 that Southern Land Title and Five Flags were in severe financial distress and that they acted in bad faith to further their own financial interests and those of National American Bank at the expense of the general creditors of the bankrupt corporations. The trustee asserts that the directors of 225 Baronne Street, Inc. were either directors of National American Bank, members of an advisory board of one of its branches, or business associates of Roussel, the Bank’s principal shareholder. The trustee further contends that Roussel controlled and dominated both the Bank and 225 Baronne Street, Inc.; that the Bank’s outstanding loans to Five Flags gave Roussel a controlling influence over the bankrupt; and that Roussel used his influence to force the sale of the 225 Baronne Building to 225 Baronne Street, Inc., a corporation formed by Roussel for that specific purpose. 'The trustee would conclude that actions of Roussel and the directors of 225 Baronne Street, Inc. were in bad faith and were designed to enrich themselves and the Bank unjustly at the expense of the general creditors of the bankrupt. Whether the transfer in the present case was made in good faith is a question of fact. Mayo v. Pioneer Bank & Trust Co., 5 Cir. 1959, 270 F.2d 823, rehearing denied, 274 F.2d 320, cert. denied 362 U.S. 962, 80 S.Ct. 787, 4 L.Ed. 2d 877. Wide latitude must be given to the trier of fact in resolving such questions. The immense record in this case reflects the district court’s efforts to ferret out the relevant facts and to resolve differences in testimonial and documentary evidence. We have examined the record and carefully considered the district court’s findings in light of the clearly erroneous standard. We conclude that the district court’s findings are not clearly erroneous. The evidence .indicates, and the district court found, that no officer or director of 225 Baronne Street, Inc. was ever furnished a financial statement indicating the condition of Five Flags or Southern Land Title in 1966. Nor was any such statement made available to the officers and directors of the debtor corporations. What information was available, however, indicated that the debtor corporations were not insolvent. As the district court found, in August 1966 both Henican, the president of Southern Land Title, and James, the president of Five Flags, believed that the rental income from the 225 Baronne Building was being diverted for improper purposes and that this was a major factor in Five Flags’ default on the second and third mortgages encumbering the subject property. As noted, Henican was convinced that the debtor corporations could be rehabilitated financially by selling as much of the assets as possible to reduce, the debt. His appraisal of the financial condition of Five Flags was communicated by letter to both 225 Baronne Street, Inc. and the National American Bank. None of the officers and directors of 225 Baronne Street, Inc. knew or had reasonable cause to suspect that Five Flags and Southern Land Title were insolvent — at least in terms of the sufficiency of the evidence in the record. We must conclude, therefore, as did the district court, that the trustee has failed to show any evidence of bad faith and that the transfer was made for fair consideration within the meaning of section 67 sub. d(2)(a), (b), and (c). 11 U.S.C. § 107, sub. d(2)(a), (b) and (c). III. The trustee’s second contention is that the sale of the Baronne Building is a voidable preference under section 67, sub. d(2)(d), 11 U.S.C. § 107, sub. d(2)(d). This section provides that even if the consideration is fair, a transfer of property is fraudulent if “made or incurred with actual intent as distinguished from intent presumed in law, to hinder, delay, or defraud either existing or future creditors.” In determining the applicability of section 67, sub. d(2)(d), it is necessary to examine both the intent of the bankrupt and the intent of the transferee. A fraudulent intent on the part of either party enables the trustee to avoid the transfer. 4 Collier on Bankruptcy 67.37 (J. Moore, ed. 1967). With respect to the intent of the transferor, Five Flags, the trustee contends that both Henican and James, the presidents of Southern Land Title and Five Flags respectively, were guarantors on loans made by National American Bank to Five Flags and were therefore dominated by Louis Roussel. In addition, the trustee points out that two other directors of Five Flags, William La-Rose and Jennings L. Courville, were the Bank’s Executive Vice President and Vice President, respectively, as well as directors of the Bank. On the basis of these associations between the directors of Five Flags and National American Bank, the trustee argues that the sale of the Baronne Building was intended to enhance the personal financial condition of Henican and James and to insure that Roussel’s and the Bank’s interests would be preferred over those of the general creditors of the debtor corporations. With respect to the intent of the transferee, 225 Baronne Street, Inc., the trustee reiterates the general contentions made in relation to the alleged bad faith on the part of its directors. After examining the record, we agree with the district court that there was no intent “to hinder, delay, or defraud either existing or future creditors.” The debtor corporations entered into the transaction for the purpose of rehabilitating themselves financially, and neither Henican nor James voted for the sale to defeat creditors of Five Flags or to prefer the National American Bank or Roussel to the detriment of the other creditors. The board of Directors of Five Flags, of course, included two officers of National American Bank. Courville and LaRose, who were elected to insure that the rental from 225 Baronne was applied to the debts of Five Flags. But there is no indication that these two men voted to defraud the creditors or to prefer the Bank. As the district court stated: [Although the Board of Directors of Five Flags Building, Inc., consisted of five members acting independently, Henican, by letter dated September 14, 1966, advised Louis J. Roussel and associates, that he, Philip E. James and Middleton Wootten, constituted a majority of the Board, and regardless of the actions of the other two members [Courville and LaRose], the Board would vote for the sale of said property. The act of sale in question with reference to The Five Flags Building, Inc., was not passed pursuant to any vote of its Board of Directors, but was passed pursuant to a Unanamous Consent of its sole shareholder, Southern Land Title Corporation. Furthermore, we note that it was Heni-can, not Roussel, who proposed the sale of the 225 Baronne Building, and the trustee’s argument that Henican and James were dominated by Eoussel finds no support in the record. We conclude that there was no fraudulent intent on the part of Five Flags or Southern Land Title. In considering the intent of 225 Bar-onne Street, Inc., the district court found that 225 Baronne Street, Inc. paid a fair equivalent for the land and building; that 225 Baronne Street, Inc. was not in a position to control or domináte the bankrupt; and that 225 Baronne Street, Inc. had no intent to defraud or hinder other creditors. In addition, the court held that the National American Bank had a valid third mortgage on the Baronne Building; that it was entitled to protect its interest when the property was sold; and that it, too, had no intent to defraud or hinder other creditors. The record supports these findings. As to the other alleged wrongdoings of Jennings Courville and the overline situation between the Bank and Southern Land Title, the district court held that these transactions were irrelevant to the present transaction, and we reaffirm that decision. We conclude that the sale of the 225 Baronne Building is not a voidable preference under section 67, sub. d(2)(d) of the Bankruptcy Act. IV. The trustee’s final contention is that the transaction in the present case is voidable under section 70, sub. e(l), of the Bankruptcy Act, 11 U.S.C. § 110, sub. e(l), which provides: “A transfer made or suffered or obligation incurred by a debtor adjudged a bankrupt under this [Act] which, under any Federal or State law applicable thereto, is fraudulent as against or voidable for any other reason by any creditor of the debtor, having a claim provable under this [Act], shall be null and void as against the trustee of such debtor.” This section permits the trustee to avoid any transfer of the bankrupt’s property fraudulent under state law. Articles 1978 and 1984 of the Louisiana Civil Code are the only sections of state law directly relevant to the present case. Article 1978 provides: No contract shall be avoided by this action but such as are made in fraud of creditors, and such as, if carried into execution, would have the effect of defrauding them. If made in good faith, it cannot be avoided, although it may prove injurious to the creditors; and although made in bad faith, it cannot be rescinded, unless it operates to their injury. La.Civ.Code art. 1978. For a transfer to be fraudulent under this article, the presence of two elements is essential: (1) bad faith, and (2) injury to the creditors. Neither requirement is satisfied in the present case. The district court found that a fair equivalent was paid for the property and that both parties acted in good faith. Since we affirm those findings, the trustee is entitled to no relief under article 1978. Article 1984 provides that “every contract shall be deemed to have been made in fraud of the creditors, when the obligee knew that the obligor was in insolvent circumstances, and when such contract gives to the obligee, if he be a creditor, any advantage over other creditors of the obligor.” La.Civ. Code, art. 1984. Again, the trustee has failed to prove that the sale was fraudulent under the statute. The district court found that the officers of 225 Baronne Street, Inc. were not furnished with a financial statement of Five Flags or Southern Land Title and that they were unaware of the insolvency of the bankrupt corporations. The trustee has not shown that finding to be clearly erroneous. Furthermore, there is no indication that either 225 Baronne Street, Inc. or National American Bank received any undue advantage as a result of the sale of 225 Baronne. The record in this case does not carry the fresh air of spring, the scent of sweet olive in bloom, and the pleasing thought of young innocents at play. Instead, the record conveys an impression of the principals as tough-minded, sophisticated businessmen accustomed to taking care of their interests. Unfortunately for the debtor corporations and the general creditors, on the cold record before us, the trustee has not shown that the transferor — transferee sophisticates in this case executed a sale that was a voidable preference under section 67, sub. d(2), (a), (b), (c), and (d), or under section 70, sub. e(l) of the Bankruptcy Act. The decision of the district court has to be affirmed under the clearly erroneous rule. . After the sale of the building, which was the sole asset of Five Flags Building, Inc., and the disbursement of the proceeds of said sale, the following debts were due and remain unpaid: National American Bank, $556,167.34; Unsecured creditors, $25,836.79; Assessment for Federal Taxes, $656,-424.00; Assessment for Interest and Penalties on Federal Taxes, $196,927.20 . Although the district court made no finding on this specific point, the record indicates that the Bank’s loan was secured in part by a pledge of all the outstanding common stock of Five Flags. The third mortgage executed in favor of the Bank was intended to prevent the debtor corporation from diluting the value of the stock by insuring that no additional prior liens could be placed on the 225 Baronne Street Building, Five Flags’ sole asset. . The trustee’s appeal was originally joined in by the debtor corporations and their chief executive officers, C. Ellis Henican and Philip James. All appeals except the trustee’s have since been voluntarily dismissed. . Section 67, sub. d (2), 11 U.S.C. 107, sub. d(2), provides: (2) Every transfer made and every obligation incurred by a debtor within one year prior to the filing of a petition initiating a proceeding under this title by or against him is fraudulent (a) as to creditors existing at the time of such transfer or obligation, if made or incurred without fair consideration by a debtor who is or will be thereby rendered insolvent, without regard to his actual intent; or (b) as to then existing creditors and as to other persons who become creditors during the continuance of a business or transaction, if made or incurred without fair consideration by a debtor who is engaged or is about to engage in such business or transaction, for which the property remaining in his hands is an unreasonably small capital, without regard to his actual intent; or (c) as to then existing and future creditors, if made or incurred without fair consideration by a debtor who intends to incur or believes that he will incur debts beyond his ability to pay as they mature; or (d) as to then existing and future creditors, if made or incurred with actual intent as distinguished from intent presumed in law, to hinder, delay or defraud either existing or future creditors. . Whether fair consideration has been given for a transfer must depend-, on all the circumstances of the case. Fairness in every case is largely a question of fact, as to which considerable latitude must be allowed to the trier of the facts. 4 Collier on Bankruptcy ¶ 67.38 (J. Moore ed. 1967), p. 508. See Roth v. Fabrikant Bros., Inc., 2 Cir. 1949, 175 F.2d 665. . These articles are part of Louisiana’s revocatory action. See generally, La.Civ. Code arts. 1963-1989; Comment, The Eevocatory Action, 9 Tulane L.Eev. 422, 436 (1935).; Slovenko, Treatise on Creditors’ Eights under Louisiana Civil Law 215, 923 (1968).

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Charles Wendell COFFEE, Plaintiff-Appellee, v. The PERMIAN CORPORATION et al., Defendants-Appellants. No. 72-1814. United States Court of Appeals, Fifth Circuit. Feb. 20, 1973. Certiorari Denied May 29, 1973. See 93 S.Ct. 2736. Clark, Circuit Judge, concurred in part and dissented in part and filed opinion. F. H. Pannill, W. B. Browder, Jr., Midland, Tex., for defendants-appellants. Charles E. Galey, Lubbock, Tex., for plaintiff-appellee. Gerald Huffaker, Tahoka, Tex., for Layman. Before MORGAN, CLARK and IN-GRAHAM, Circuit Judges. LEWIS R. MORGAN, Circuit Judge: In this case Charles Wendell Coffee brought suit against the Permian Corporation and several of its directors alleging a violation of § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) and Rule 10b-5 of the Securities Exchange Commission, 17 C.F.R. 240.-10b-5. Coffee claimed that defendants, as majority stockholders, engaged in a scheme to defraud him of the value of his stock in the J. B. Knight Company, Inc., by liquidating Knight Company when its stock had a value of approximately $20.00 per share. A jury found in favor of Coffee and defendants appeal on the grounds that the evidence was insufficient to support a finding of fraudulent plan of liquidation; that the evidence was insufficient to support the jury’s finding that some, but not all, of the defendants knowingly participated in the fraudulent scheme; that there was no proper proof of the value of plaintiff’s stock at liquidation; and that the court erred in allowing judgment for exemplary damages. Having considered all these assignments of error, we affirm the judgment below. FACTS On March 31, 1965, Coffee purchased 1,000 shares of stock in the J. B. Knight Company which was at that time principally owned by Mr. J. B. Knight and members of his immediate family. Shortly thereafter, Permian Corporation completed an agreement with Knight Company whereby Permian purchased 50% of Knight Company stock and agreed to furnish Knight Company with the necessary capital to finance the building and selling of farm irrigation systems. The financing was accomplished through a wholly owned Permian subsidiary, the Cambrian Finance Company. After the agreement was signed several members of the board of directors at Permian also became members of the board at Knight Company and Cambrian. Due to a number of factors, Knight Company began losing money in its farm irrigation business and it became necessary to secure additional operating funds in addition to those already being received from Cambrian. Actual loans and loan commitments, all of which were guaranted by Permian, were obtained from the Midland National Bank. In June of 1966, Cambrian decided to go out of business and as a result the company was dissolved and its paper discounted for a total loss of $55,000.00. At a special board of directors meeting this loss was shifted to Knight Company by causing Knight Company to execute a note to Permian for the amount of the loss. Coffee was never informed of this transaction. In August of 1966, appellant W. R. Davis, as president and chief executive officer at Permian, forced Mr. J. B. Knight to resign as president of the Knight Company by threatening to send Knight Company into bankruptcy by calling in all the demand notes held by Permian. Davis and appellant C. R. Herpich, a board member at both Permian and Knight Company, selected A. L. Bennett as the new president of Knight Company. In November of 1966, Permian merged into Occidental Petroleum Corporation and shortly thereafter, on de-cember 27, 1966, the Knight family sold its stock back to the Knight Company and received a note in return. The Knight shares were then cancelled and Permian’s ownership in Knight Company increased to 80.02%. During the month of August 1967, several of the board members indicated a desire to liquidate the Knight Company. At that point the company showed a profit of over $50,000.00 for the first seven months of 1967, and the financial statement listed the indebtedness to Permian and Midland National Bank as long-term liabilities. The balance sheet reflected a shareholder’s equity of $1,116,055.00. None of the above information was ever disclosed to Coffee. However, the financial statement of September 30, 1967, was presented to Coffee and this statement noted the indebtedness to Permian as a current liability. Shifting the indebtedness from a long-term to a current liability resulted, of course, in a drastic reduction in the amount of working capital reflected on the financial statement. Knight Company called a meeting of its creditors, and on October 23, 1967, the directors showed the creditors the September 30th financial statement as evidence of the company’s financial condition. Subsequently, and without allowing the shareholders to vote as required by Texas law, Knight Company was liquidated. At some time during the liquidation process Permian purchased outstanding Knight Company accounts totaling $628,993.00 at a discount, paying only $390,230.05 for these accounts. In the meantime, the Knight family was paid less than 50% of the face value of its note which was executed when the family’s stock was sold back to the Knight Company. Permian’s parent company, Occidental, received a $115,000.00 tax benefit as a result of the Knight Company liquidation. Plaintiff Coffee filed suit in federal district court on July 7, 1969, claiming that Permian Corporation and certain of its directors had engaged in a scheme to defraud him of the value of his stock in violation of the federal securities laws and the Texas statutes dealing with the rights of minority shareholders. Initially, the district court dismissed the complaint on the ground that plaintiff did not allege facts sufficient to demonstrate that he was a purchaser or seller of securities within the ambit of § 10(b)(5), supra. This court reversed, however, and held that plaintiff’s complaint alleging the liquidation of Knight Company gave him standing as a seller of securities. Coffee v. Permian Corporation, 5 Cir. 1970, 434 F.2d 383. On remand a trial was had before a jury which found in favor of plaintiff by returning answers to several interrogatories which will be discussed later. I Defendants’ principal assignment of error is that there was insufficient evidence before the jury to support a finding that they engaged in a scheme to cheat Coffee out of the value of his stock. Proof of a scheme to defraud failed, defendants claim, because there was no evidence that either Permian or the individual defendants took over the Knight Company assets after liquidation or that the defendants ever received any sort of financial gain or profit as a result of the liquidation. In our view this argument would, if accepted as a principle of law by this court, lead to results completely contrary to the intent and spirit of the Securities and Exchange Act of 1934, supra. We would be holding in effect that, regardless of the amount of evidence revealing a scheme to defraud, the perpetrators of the scheme could not be made to reimburse a minority stockholder unless the manipulative plan was successful and carried to its completion after liquidation. The flaw in such a proposition is immediately apparent. The interest of the minority stockholder, which is protected by the Securities Exchange Act, is not at all affected by whether or not the fraudulent plan actually brings a profit to the defrauding shareholders after the corporation is wrongfully liquidated. If the plan to dissolve is fraudulent the damage to the minority stockholder occurs at liquidation, and Congress could not have intended the right of recovery to depend, as a matter of law, on what happens after that point. Assuming the majority stockholders devised a fraudulent plan and liquidated the corporation, there exist any number of reasons why they might choose not to follow through and take their intended profit after the minority shareholders have been deprived of the value of their stock. For example, the majority stockholders might suddenly fear discovery of the plan and legal prosecution; or changing market conditions could render the initial scheme unprofitable. But regardless of the reason, the defrauded stockholder has suffered a loss and it is clear that his right of recovery cannot be foreclosed by whatever action the perpetrators of the scheme do or do not take after liquidation. What we hold, then, is that while lack of profit is certainly an element for the trier of the fact to consider, the plaintiff stockholder’s proof is not insufficient, as a matter of law, simply because there is an absence in the evidence of any gain on the part of the individuals who are charged with engaging in the scheme to defraud. II Having established that plaintiff Coffee need not necessarily prove gain by the defrauding stockholders, the next question is whether the evidence presented at trial was sufficient to support the jury’s verdict under the standards announced in Boeing Company v. Shipman, 5 Cir., En Banc, 1969, 411 F.2d 365. In that case this court set up the test to be applied in considering the sufficiency of the evidence: On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence — not just that evidence which supports the non-mover’s case —but in the light and with all reasonable-inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motion is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury. The motions for directed verdict and judgment n. o. v. should not be decided by which side has the better of the case, nor should they be granted only when there is a complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question. However, it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses, 411 F.2d at 374, 375. A review of the record on this appeal reveals ample, indeed overwhelming, evidence from which reasonable men might infer that the defendants engaged in a scheme to defraud Coffee of the value of his stock. Evidence was introduced which, taken in the light most favorable to the jury’s verdict, revealed the following: The Knight Company stock had a value at liquidation of approximately $20.00; the defendants concealed pertinent information about the company’s financial condition by changing certain debts from long-term to current liabilities; the liquidation was effected without the usual shareholders’ vote and opportunity for dissent and appraisal which the defendants knew was required under Texas state law; a loss incurred by a subsidiary controlled by defendants was secretly shifted to the Knight Company; the defendant Permian Corporation was at all pertinent times a major creditor of Knight Company and by the time of trial the only creditor; Permian Corporation purchased Knight Company debts at a discount; Permian’s parent corporation, Occidental, received a tax benefit as a result of the Knight Company liquidation. The jury obviously believed, and not unreasonably so, that at the time of liquidation the defendants in their dual capacity as creditors and majority shareholders planned to force the minority stockholders out of the corporation without paying them the value of their stock. Although this plan was not completed, the defendants brought about the liquidation for their own personal gain, and as majority stockholders they were under a fiduciary duty to act in the best interest of the minority shareholders. Therefore, in light of the evidence presented at this trial, and applying the standards enunciated in Boeing Company v. Shipman, supra, it was within the province of the jury to reach a conclusion in favor of the plaintiff. Ill Federal law is not clear concerning exemplary damages in 10b-5 lawsuits, but that need not trouble us here. By way of pendent justification a violation of state law is also present and it is well established that exemplary damages may be awarded if allowable under state law when a state law violation is joined with the 10b-5 complaint. Young v. Taylor, 10 Cir. 1972, 466 F.2d 1329. See also Herpich v. Wallace, 5 Cir. 1970, 430 F.2d 792. After careful and thorough research there is no doubt that exemplary damages are allowed in Texas for a violation of this type where the jury finds they should be awarded. Hughes v. Halliday, 471 S.W.2d 88 (Tex.Civ.App. 1971), Collins v. Miller, 443 S.W.2d 298 (Tex.Civ.App.1969), V.A.T.S. Bus. & C. § 27.01 (formerly Article 4004 V.A. T.S.). We note that in this case the district court charged the jury as to exemplary damages in terms of fraud, breach of fiduciary duty, and the elements which must be present under Texas law to justify these exemplary damages. We feel that there was ample evidence before the jury for it to find both a violation of state law and that exemplary damages were proper for such violation. Appellant Permian raises various other suggestions of error and insufficiency. We have carefully reviewed the trial record and find these assertions without merit. Therefore, the opinion of the district court is Affirmed. CLARK, Circuit Judge (concurring in part and dissenting in part): After the verdict in this case the judge who tried it observed that had he been the fact finder he would have reached a different result. My study of this record leaves me with the same impression. Therefore I cannot say that the evidence of fraud in this case in any way approached the “overwhelming” mark recorded by the majority opinion. Nevertheless, this study does convince me that the case was properly submitted to the jury to determine the basic issue of 10b-5 liability. I therefore concur in that portion of the result reached by the majority opinion which would affirm that action. The majority held that “. . . majority stockholders . . . [have] a fiduciary duty to act in the best interest of the minority shareholders.” Such a rule overstates my conception of this legal duty. While a majority shareholder’s dealings with a corporation are subject to rigorous scrutiny for basic fairness, an inherently fair transaction should be upheld even though it not be in the best interest of the minority. For example, a majority shareholder should not be precluded from collecting a valid debt which the corporation owes to him, though it obviously would be in the minority’s best interest for him to fore-go collection. I respectfully dissent from the award of exemplary damages. First, I do not believe that such an award can be upheld in this ease as a pendent Texas law claim. The record shows that the jury was charged only in terms of a 10b-5 cause of action. Since that is the case that was presented, I would hold it was the only case decided. Second, my view on pendent jurisdiction indicates that I must reach the question the majority pretermits — does I0b-5 allow the award of exemplary damages? This dissent is an inappropriate place for extended reasoning. Suffice it to say that I would generally follow the reasoning of the Second and Tenth Circuits in concluding that this provision will not support such an award. See deHass v. Empire Petroleum Co., 435 F.2d 223 (10th Cir. 1970); Green v. Wolf Corp., 406 F.2d 291 (2d Cir. 1968), cert. denied, 395 U.S. 977, 89 S.Ct. 2131, 23 L.Ed.2d 766 (1969). . Art. 5.10, Tex.Bus.Corp.Act, V.A.T.S. . Art. 5.11, Tex.Bus.Corp.Act. . Arts. 5.10-5.13, Tex.Bus.Corp.Act.

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UNITED STATES of America, Plaintiff-Appellee, v. Noah W. CROSS, Defendant-Appellant. Nos. 72-2290, 72-2349. United States Court of Appeals, Fifth Circuit. March 30, 1973. Norman Magee, Ferriday, La., for defendant-appellant. Donald E. Walter, U. S. Atty., R. Perry Pringle, Asst. U. S. Atty., Shreveport, La., for plaintiff-appellee. Before WISDOM, GEWIN and COLEMAN, Circuit Judges. PER CURIAM: Noah Cross, Sheriff of Concordia Parish, Louisiana, was convicted on two counts of perjury. 18 U.S.C. § 1621. The basis for this conviction was his testimony before a federal grand jury that he had never received any payoff for allowing the Marville Lounge in Con-cordia to conduct prostitution and gambling activities. On appeal Cross makes these contentions : (1) A new trial should have been granted on the basis of new evidence discovered subsequent to the verdict of guilty. (2) The court erred in refusing to challenge for cause prospective juror Milford W. Crumpler, who stated that he would give more credibility to an FBI agent than to any other witness. (3) There was insufficient evidence ■ from two credible witnesses to deny Cross’ motion for directed verdict of acquittal at the close of the government’s case and motion for new trial at the close of the whole case. (4) The Government knowingly used perjured testimony of J. D. Richardson and Truman E. Sanford in this case. Richardson, one of the operators of the lounge, testified that he had agreed to pay Cross $200 a week for protection. Sanford testified that he was with Richardson on two occasions when Richardson made payoffs to Cross. (5) The trial court erred in permitting testimony describing the activities of the Marville Lounge. (6) In the circumstances, the trial court improperly questioned a juror regarding an alleged contact by a deputy sheriff. There is no merit to these contentions. With respect to the fourth contention, we note that this was a perjury case; that Cross was not tried and convicted of violating the anti-racketeering statute, 18 U.S.C. § 1962, as was Richardson. The credibility of both Richardson and Sanford was challenged: their testimony before two previous grand juries was different from their testimony at Cross’ trial. Although credibility is a question for the jury to decide, the use of such witnesses in a trial for perjury suggests that the Court scrutinize the record for corroborative evidence. Here there was evidence in the record to corroborate Richardson’s and Sanford’s testimony and this evidence was sufficient to persuade the jury that indeed Cross was guilty as charged. The judgment is affirmed.

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UNITED STATES of America, Plaintiff-Appellee, v. James E. WILLIAMS, Defendant-Appellant. No 72-3119 Summary Calendar. United States Court of Appeals, Fifth Circuit. March 2, 1973. E. Louis Adams, Albany, Ga., Court-appointed, for defendant-appellant. William J. Schloth, Macon, Ga., for plaintiff-appellee. Before WISDOM, AINSWORTH and CLARK, Circuit Judges. Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I. PER CURIAM: James E. Williams was convicted of a violation of 18 U.S.C. § 371 under an indictment alleging a conspiracy (a) to defraud the United States Government by stealing, forging, and negotiating United States Treasury checks in violation of 18 U.S.C. § 495 and (b) to steal state welfare checks from the United States mails in violation of 18 U.S.C. § 1708. Williams contends on appeal that the government failed to prove either that the conspirators stole and forged Treasury checks or that the state welfare checks which were cashed were stolen from the mails. To sustain a conviction under 18 U.S.C. § 371, the prosecution must demonstrate an unlawful agreement and at least one independent act in furtherance of the agreement. It need not show that the conspirators committed the substantive crime which is charged in the indictment as the object of the conspiracy. Yates v. United States, 354 U.S. 298, 334, 77 S.Ct. 1064, 1084, 1 L.Ed.2d 1356, 1384 (1957). Nor is it necessary to substantiate each of the overt acts alleged in the indictment. Bradford v. United States, 413 F.2d 467 (5th Cir. 1969). Assuming arguendo that the evidence in the present case was insufficient to establish the specific violations of 18 U.S.C. § 495 and 18 U.S.C. § 1708 alleged in the indictment, it was amply sufficient to establish both the conspiracy alleged and numerous overt acts in furtherance of that unlawful agreement. The appellant’s conviction is Affirmed.

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In the Matter of SUN OIL COMPANY, as owners of the M/T MAUMEE SUN, Petitioner-Appellee, v. Peter J. GOVOSTES et al., Claimants-Appellants. No. 484, Docket 72-1754. United States Court of Appeals, Second Circuit. Argued Feb. 27, 1973. Decided Feb. 27, 1973. Wilbur E. Dow, Jr., New York City, for claimants-appellants. Frank J. Maley, New York City (Men-des & Mount, and Wilbur H. Hecht, New York City, on the brief), for petitioner-appellee. Before KAUFMAN, ANDERSON and MANSFIELD, Circuit Judges. PER CURIAM: One of the bases for the trial court’s decision in denying a salvage award to members of the crew of the American Pilot for services provided after her collision with the Maumee Sun, was the fact that the Pilot rendered no voluntary aid to the Sun, but was, instead, acting out of concern for her own safety. In Re Sun Oil Co., 342 F.Supp. 976 (S.D.N.Y.1972). This finding, although disputed by the appellants, was supported by substantial evidence. The appellants further argue that a settlement between the owners of the two vessels for a salvage award of $4,000 to the owner of the Pilot is dis-positive on the liability question. There is no merit in this contention. Settlements are not to be used to establish liability against a party in other suits arising out of the same occurrence, Seaboard Shipping Corp. v. Jocharanne Tugboat Corp., 461 F.2d 500, 505 (2 Cir. 1972); Hawthorne v. Eckerson Co., 77 F.2d 844, 847 (2 Cir. 1935). Because the finding and conclusion of the district court that there was no voluntary aid were sufficient to support the judgment, it is unnecessary to consider the question of whether or not the Stand By Act, 33 U.S.C. § 367 also would preclude recovery on the part of the crew. The judgment is affirmed.

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UNITED STATES of America, Plaintiff-Appellee, v. Jay HERRERA, Defendant-Appellant. No. 73-1321. United States Court of Appeals, Fifth Circuit. Feb. 28, 1973. Rehearing Denied April 3, 1973. Jay Herrera, pro se. •Anthony J. P. Farris, U. S. Atty., Houston, Tex., for plaintiff-appellee. Before GEWIN, COLEMAN and MORGAN, Circuit Judges. PER CURIAM: The United States moves to have the appeal dismissed pursuant to Local Rule 20. We grant the motion and dismiss the appeal. Appellant filed a motion in the district court seeking to obtain a copy of his trial transcript in order to examine it to prepare an attack on his conviction collaterally. The district court denied the motion on grounds that the transcript is not available for a “fishing expedition.” This appeal followed. This Court has consistently held that a federal prisoner is not entitled to obtain copies of court records at the government’s expense to search for possible defects merely because he is an indigent. Cowan v. United States, 5th Cir. 1971, 445 F.2d 855; Brown v. United States, 5th Cir. 1971, 438 F.2d 1385; Bennett v. United States, 5th Cir. 1971, 437 F.2d 1210; Skinner v. United States, 5th Cir. 1970, 434 F.2d 1036. Therefore, the appeal is hereby dismissed. Appeal dismissed . If upon the hearing of any interlocutory motion or as a result of a review under Rule 17, it shall appear to the court that the appeal is frivolous and entirely without merit, the appeal will be dismissed without the notice contemplated in Rule 18. See Nevels v. McCall, 5th Cir. 1969, 407 F.2d 390, and United States v. Minor, 5th Cir. 1971, 444 F.2d 521. . It is appropriate to dispose of this case summarily. See Groendyke Transport, Inc. v. Davis, 5th Cir. 1969, 406 F.2d 1158.

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HOOVER, INC., Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. No. 72-1775. United States Court of Appeals, Sixth Circuit. Argued Feb. 9, 1973. Decided Feb. 27, 1973. James Clarence Evans, Charles Carter Baker, Jr., Nashville, Tenn., for petitioner-appellant. Scott P. Crampton, Asst. Atty. Gen., Tax Div., Lee H. Henkel, Jr., I. R. S., Richard Farber, Washington, D. C., for respondent-appellee. Before PECK and KENT, Circuit Judges, and YOUNG, District Judge. Honorable Don J. Young, United States District Judge for the Northern District of Ohio, sitting by designation. ORDER This is an appeal from the Tax Court’s holding that the appellant in substance acted merely as a conduit by which its controlling shareholder, as guarantor of a loan, paid the debt owed by John L. Burns, Inc. to a bank, and, therefore, the appellant taxpayer was not entitled to any deduction arising out of the transaction. Clearly, our review of tax court decisions is the same as the standard applied in the review of District Court decisions. Kunz v. C. I. R., 333 F.2d 556 (6th Cir. 1964). In its opinion (T.C. Memo. 1972-54), the Tax Court stated: “Also, petitioner and Hot Mix, both wholly owned by Hoover, were guarantors of this debt [the debt which gave rise to the claimed deductions].” To this extent the Tax Court’s opinion is clearly erroneous. It appears affirmatively that the petitioner-appellant was not a guarantor of the debt in question. In all other respects we conclude that we cannot find the Tax Court’s findings of fact to be clearly erroneous. The law was properly applied. Now, therefore, it is ordered that the decision of the Tax Court be and it is hereby affirmed.

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Robert Benjamin HAYNIE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. No. 72-3527 Summary Calendar. United States Court of Appeals, Fifth Circuit. March 2, 1973. Robert Haynie, pro se. John L. Briggs, U. S. Atty., Harvey E. Schlesinger, Asst. U. S. Atty., Jacksonville, Fla., for respondent-appellee. Before BELL, GODBOLD and IN-GRAHAM, Circuit Judges. Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I. PER CURIAM: Appellant pleaded guilty to an indictment and to informations which charged him in a total of seven counts with multiple violations of 18 U.S.C.A. § 2314 (interstate transportation of falsely made and forged securities). He was sentenced to five years on each of the seven counts with the sentences to run concurrently. He could have received a maximum sentence of seventy years. This appeal is from the denial of a motion to vacate the sentences. Appellant alleged that the district court had sentenced him in reliance upon a pre-sentencing report that contained a record of three constitutionally infirm prior state convictions. He urged that in light of these alleged infirmities, he was entitled to be resentenced under the holding of United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). The district court denied relief summarily. We vacate and remand for further proceedings. The claim alleged fits well within the teaching of United States v. Tucker, supra, as construed by this court in Lipscomb v. Clark, 5 Cir., 1972, 468 F.2d 1321 [1972]; and as extended to non-maximum sentence cases in Russo v. United States, 5 Cir., 1972, 470 F.2d 1357 [1972]. The district court did not have the benefit of these decisions at the time judgment was entered. The case must be reconsidered on remand in light of these decisions and handled pursuant to the procedure outlined in Lipscomb v. Clark. Vacated and remanded with direction.

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Erma W. HINES, Plaintiff-Appellant, v. CENLA COMMUNITY ACTION COMMITTEE, INC., Defendant-Appellee. No. 72-1845. United States Court of Appeals, Fifth Circuit. Feb. 6, 1973. Rehearing En Bane Denied April 10, 1973. Wisdom, Circuit Judge, filed dissenting opinion and dissented from the denial of rehearing. Chris J. Roy, Alexandria, La., for plaintiff-appellant. Louis Berry, Daniel E. Broussard, Jr., Alexandria, La., for defendant-appellee. Before WISDOM, BELL and COLEMAN, Circuit Judges. COLEMAN, Circuit Judge: The plaintiff, Erma W. Hines, Executive Director of the Cenia Community Action Committee, Inc. (hereinafter called CCAC), was dismissed from her employment by a 14-13 vote of the Board of Directors of CCAC which occurred on February 28, 1972. CCAC was organized as a community action agency to combat poverty in Rapides Parish, Louisiana, under Section 210 of the Economic Opportunity Act of 1964, Title 42, U.S.C. § 2790 et seq. CCAC was incorporated under Louisiana law as a private nonprofit corporation. The plaintiff appealed her dismissal concurrently to the Regional Counsel of Region VI of the Office of Economic Opportunity, to the Board of the Personnel Committee of CCAC, to the Coordinator of Urban Development of Region VI, and to the Administrative Committee of CCAC. In her letter of appeal, the plaintiff claimed her termination was “null and void ab initio”, since she was entitled as an employee of CCAC to an administrative appeal under the Personnel Policies Manual of CCAC as well as under Region Vi’s Guide to Grantee Personnel Management. Mrs. Hines claimed that under these provisions, she was required to be given (1) one month’s time to bring her job performance up to the proper standards, (2) corrective counseling, (3) written charges, and (4) an opportunity for a hearing. Henry C. Gillian, Deputy Director for Region VI of the Office of Economic Opportunity, replied in writing that the appeal procedures cited by the plaintiff did not apply to the executive director, since the executive director is “directly answerable to the board, and the board has the power to hire and fire [him], and there is no higher authority than the board to whom the director can appeal.” The plaintiff then filed suit in the United States District Court for the Western District of Louisiana. The amended complaint asserted jurisdiction under 28 U.S.C.A. § 1331. It was charged that plaintiff had been “arbitrarily, capriciously, and without cause dismissed and/or terminated from her position.” The plaintiff also stated that because she had no written notice of unsatisfactory work and no opportunity to appeal any adverse action taken against her she had been denied “due process of law” under § 2796(a) of the Economic Opportunity Act. Further, the plaintiff sought to enjoin CCAC from advertising for a new director and employing a new director until the rights, of the petitioner had been fully determined. The defendant, CCAC, filed a motion to dismiss in' that (1) the complaint failed to state a claim against the defendant upon which relief could be granted; (2) the service of process was improper; and (3) the court lacked federal question jurisdiction because the case did not arise under the Constitution, laws, statutes, and treaties of the United States, nor did it involve citizens of diverse states. The District Court granted the motion to dismiss for lack of jurisdiction over the subject matter. It did not pass on the other reasons assigned for dismissal. The stated reasons for the dismissal were that: 1. The mere fact that a claim had its origin in federal law did not necessarily confer jurisdiction upon the federal courts; 2. The statute upon which the plaintiff relies, 42 U.S.C. § 2796(a), did not actually constitute a grant of the right which she sought to enforce, i. e. nothing in the Act indicated that it accorded anyone any rights with regard to employment; 3. Plaintiff alleged no facts to indicate that she was discharged as retribution for her exercising any constitutionally protected rights; and 4. The mere fact that a corporation had been set up to receive and to dispense federal funds did not make it a public entity nor did it make the plaintiff a public employee. We affirm the judgment of the District Court. The Law The plaintiff contends that general federal question jurisdiction exists under 28 U.S.C. § 1331(a) because her claim “arises under” either a federal statute or under the Constitution of the United States. A. Jurisdiction Arising Under a Federal Statute. Plaintiff asserts two bases for federal question jurisdiction as arising under a federal statute. First, it is argued that the construction of a federal statute, 42 U.S.C. § 2796, is involved; that 42 U.S.C. § 2796 gave plaintiff certain rights as an employee of the Office of Economic Opportunity because that section ordered the Director of the Office of Economic Opportunity to prescribe rules regarding personnel policies. Plaintiff asserts that CCAC’s “Personnel Policies Manual” and Region Vi’s “Personnel Guide” were created in direct compliance with the “federal command found in 42 U.S. C. § 2796,” hence whether 42 U.S.C. § 2796 requires the formulation of personnel rules involves the construction of a federal statute. Plaintiff argues that federal jurisdiction exists, based on Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936), because her claim will be supported if the federal statute is given one construction and defeated if it receives another. Second, plaintiff states that she is a beneficiary of the Economic Opportunity Act under the rationale of the decisions in Gomez v. Board of State Employment Services, 5 Cir., 1969, 417 F.2d 569; Cook v. Ochsner Foundation Hospital, 319 F.Supp. 603 (E.D.La.1970); and Euresti v. Stenner, 10 Cir., 1972, 458 F.2d 1115. The plaintiff asserts that as a beneficiary of the Economic Opportunity Act, she could sue a local community action agency in federal court for its failure to accord to her rights provided in the Economic Opportunity Act. 1. Construction of a Federal Statute A suit to enforce a right which takes its origin in the laws of the United States is not necessarily, or for that reason alone, one arising under those laws, for a suit does not so arise unless it really and substantially involves a dispute or controversy respecting the validity, construction, or effect of such a law, upon the determination of which the result depends. Shulthis v. McDougal, 225 U.S. 561, 569, 32 S.Ct. 704, 706, 56 L.Ed. 1205. See also Annot.: 12 A.L.R.2d 5, 20 (1950). This rule of Shulthis v. Mc-Dougal has as its basic premise the idea that the “[federal] right to be established is decisive (emphasis added) [and] not the source of the authority to establish it.” Puerto Rico v. Russel & Co., 288 U.S. 476, 483, 53 S.Ct. 447, 449, 77 L.Ed. 903 (1933). In the present case, plaintiff’s right to employment by a private corporation is not based on a federal statute. “Federal jurisdiction may be invoked to vindicate a right or privilege claimed under a federal statute, [but] [i]t may not be invoked where the right asserted is nonfederal, merely because the plaintiff’s right to sue is derived from federal law.” Id. The plaintiff’s claim must be founded directly upon federal law. Gully v. First National Bank in Meridian, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936); Bell v. Hood, 327 U.S. 678, 681, 66 S.Ct. 773, 775, 90 L.Ed. 939 (1946) and Johnston v. Byrd, 5 Cir., 1965, 354 F.2d 982, 984. In short, the statute which the plaintiff seeks to invoke creates no explicit right of action to enforce her right to employment by CCAC. See T. B. Harms Co. v. Eliscu, 2 Cir., 1964, 339 F.2d 823, 827. We do not agree that we have here a federal statute which requires construction. A case arises under federal law if rights claimed by one party may be defeated by one construction of the statute and sustained by opposite construction, Gully v. First National Bank of Meridian, supra, 299 U.S. at 112, 57 S.Ct. 96. Construction of a statute so as to sustain federal jurisdiction does not mean that the “case will necessarily turn upon an interpretation of the statute, but simply that the complaint must set forth a cause of action of which federal law is an essential ingredient, and which may, therefore, properly involve a construction of that law.” McGoon v. Northern Pacific Railway Co., 204 F. 998, 1001 (D.C.N.D.1913). See also International Ass’n of Machinists v. Central Airlines, Inc., 5 Cir., 1961, 295 F.2d 209, 218 n. 23. The Economic Opportunity Act was not an ingredient of the plaintiff’s claim; for the Act provided simply the impetus for the contract upon which the suit was brought. See Gully v. First National Bank in Meridian, supra, 299 U.S. at 114, 57 S.Ct. 96; Chaskin v. Thompson, 9 Cir., 1944, 143 F.2d 566 and eases cited therein; and Toledo, P. & W. RR v. Brotherhood of Railway Trainmen, 7 Cir., 1942, 132 F.2d 265, 268. Quite clearly, this case involves only private contractual rights. When a controversy between the parties may be decided under local law without the necessity of interpreting a federal statute, there is no federal jurisdiction. Cabana Management, Inc. v. Hyatt Corp., 5 Cir., 1971, 441 F.2d 862, 864. 2. Beneficiary Theory under Rationale of Gomez v. Board of State Employment Services In Gomez v. Florida State Employment Services, supra, the Court said that the plaintiffs could “obtain relief through the Federal Court only if damage was done to a federal right that the Federal Courts are empowered to protect.” Gomez v. Florida State Employment Service, supra, 417 F.2d at 575. The Court went on to say: The existence of the federal right . turns on whether the Wagner-Peyser Act, 29 U.S.C.A. § 49 et seq., and the regulations of the Secretary of Labor promulgated pursuant to the Act bestow rights that the workers may assert, and if so, whether the Wagner-Peyser Act and the regulations created a federal remedy We start with the proposition that there can be no doubt that the regulations of the Secretary of Labor were intended to protect the interest of the workers . A civil remedy may be given to those protected by statutes or regulations by implication. In the present case the Economic Opportunity Act does not give the plaintiff a contract right for an alleged breach of an employment contract. Nor do we think that a contractual remedy can be implied or inferred from the Act since employees of these community action agencies were not the intended beneficiaries of the Act. The beneficiaries of the Act are poverty stricken individuals and families. The basic purpose of community action agencies is stated in 42 U.S.C. § 2781. Employees of community action agencies are not mentioned as beneficiaries of the Act in this Congressional statement of purpose. See Euresti v. Sten-ner, supra, 458 F.2d at 1118. B. Jurisdiction under Constitution of the United States Plaintiff contends that she had been “denied due process of law guaranteed her by the Fifth and Fourteenth Amendments of the Federal Constitution, when a grantee agency of the Office of Economic Opportunity deprived her of her position as a permanent employee without notice and a hearing.” 1. Jurisdiction Based on the Fifth Amendment CCAC did not become a public corporation merely because it received federal funds. Mitchell v. Boys Club of Metropolitan Police, D.C., 157 F.Supp. 101, 107 (D.C.D.C.1957). The distinction between a public corporation and a private corporation that has a charitable purpose was made in the case of the Trustees of Dartmouth College v. Woodward in the concurring opinion of Justice Story: “When, then, the argument assumes, that because the charity is public, the corporation is public, it manifestly confounds the popular, with the strictly legal, sense of the terms * * * When the corporation is said, at the bar, to be public, it is not merely meant that the whole community may be the proper objects of the bounty, but that the government have the sole right, as trustee of the public interest, to regulate, control and direct the corporation, and its funds and its franchises, at its own will and pleasure. Now such an authority does not exist in the government, except where the corporation, is in the strictest sense, public; that is, where its whole interests and franchises are the exclusive property and domain of the government itself.” 17 U.S. (4 Wheat.) 518, 636, 4 L.Ed. 629 (1819). The Office of Economic Opportunity did not control the activities of CCAC so as to make CCAC a public corporation. See 42 U.S.C. § 2790(a)(2) and (b). We reached this same conclusion in Robles v. El Paso Community Action Agency, Project Bravo, Inc., 5 Cir., 1972, 456 F.2d 189, where we said; As a community action agency, the El Paso Community Action Agency Project Bravo, Inc., receives federal assistance by grant from the Office of Economic Opportunity to carry out a community action program pursuant to the provisions of the Economic Opportunity Act of 1964, Title 42, U.S.C. § 2790 et seq. It receives at the same time funds from county agencies, local merchants, private citizens, school districts, and the City of El Paso. Once federal funds are granted for the purposes of such program, the El Paso Community Action Agency Project Bravo, Inc., is required to carry out its program in accordance with the terms of the federal funds grant and the general and special conditions that may be laid down as the terms on which federal funds will be made available. These terms and conditions include requirements that funds be spent only for purposes specified in the approved application, requirements for accountability by means of internal fiscal controls, regular financial reports, and independent audits, and assurances against . . . discriminatory treatment of beneficiaries on grounds of race or color. Such terms and conditions do not give the Office of Economic Opportunity the right to direct the manner of carrying out the approved program, nor do they give the Office of Economic Opportunity the right to select or discharge Project Bravo employees. Robles v. El Paso Community Action Agency, Project Bravo, Inc., supra at 190-191. Since CCAC was not a public corporation controlled by the federal government, the plaintiff could not be a federal employee. Therefore, CCAC as a private employer had complete freedom of action and was not bound by the due process clause of the Fifth Amendment. See Cafeteria and Restaurant Workers Union v. McElroy, 367 U.S. 886, 897, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). 2. Jurisdiction Based on the Fourteenth Amendment [T]he right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to secure, Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 10, 60 L.Ed. 131 (1915). See also Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923). This right applies only to jobs held in public employment. See Perry v. Sin-derman, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972) and especially see the concurring opinion of Burger, C. J., in Perry v. Sinderman, supra at 603, 92 S.Ct. 2694. Since the plaintiff in the present case was not employed by the state and .there was no state involvement in her employment, procedural safeguards guaranteed by the Fourteenth Amendment did not apply to her private contractual employment. See Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). The judgment of the District Court is affirmed. WISDOM, Circuit Judge (dissenting): I respectfully dissent. On the face of the complaint a federal question is present within the ambit of 28 U.S.C. § 1331. The district court had subject matter jurisdiction. Whether the complaint stated a cause of action is a different question. Whether, on the merits, the plaintiff is entitled to relief under the provisions of 28 U.S.C. § 2796(a) is a different question. The majority fuses these three questions into one. The result is to submerge the federal jurisdiction issue. See Gully v. First National Bank, 1936, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 72; Bell v. Hood, 1946, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939. And see Gomez v. First National Bank, 5 Cir. 1969, 417 F.2d 569. Cenia Community Action Committee, Inc., domiciled in Rapides Parish, enjoys the domestic benefits of a Louisiana charter. But it is not a private, unfettered corporation in any real sense. Cenia owes its birth and continued existence to the beneficence of the United States government. In return, it is subject to the control of the federal government through the Office of Economic Opportunity under 42 U.S.C. § 2781 et seq. As appears from the complaint, Cenia was organized for the purpose of qualifying as a grantee community action agency of the OEO under 42 U.S.C. § 2781. Congress adopted the Equal Opportunity Act to combat poverty, to create jobs, to disburse money for the reduction or elimination of poverty, all on a national scale. To insure federal supervision and uniformity, OEO divided the country into regions and adopted guidelines. Cenia, for example, is directly responsible to Region VI of OEO in Dallas, Texas. It must comply with the guidelines and policies formulated by Region VI in Dallas. In the event of any conflict between the policies and practices of Cenia with those of Region VI or federal legislation (as interpreted by OEO), Cenia must yield. In accordance with OEO Guidance VI 6900-1, “ Guide to Grantee Personnel Management,” Cenia promulgated a “Personnel Policies Manual” incorporating to a great extent provisions of OEO Regulations. This manual provides explicit safeguards for disciplinary action against an employee and also an appellate administrative review by Region VI in Dallas. The plaintiff, Mrs. Hines, attempted to appeal her dismissal as Executive Director of Cenia by a letter to the Regional Counsel in Dallas. The Deputy Regional Counsel replied, not stating that Region VI had no jurisdiction over Cenia but stating that: Where the director himself is terminated, that action is by the board itself, which has the power to do so, and there is no place from there to appeal. We do not interfere with an agency’s personnel policies, even though the Regional Office reserves the right to approve all CAA personnel policies. As a practical matter, the CAP appeal procedures simply would not apply to the director because of the above reasons. Mrs. Hines contends that under 28 U.S. C. § 2796(a) and the interpretation placed by Region VI in its Guide to Grantee Personnel Management, as well as by Cenla’s own Manual, she is entitled to all the protection of any employee. She asserts, therefore, that she was denied due process as well as the rights accorded her under the Economic Opportunity Act and all the OEO regulations under that Act. All of this appears on the face of the complaint. There is far more federal involvement here than there is in a parking garage or a Hill-Burton hospital. See Burton v. Wilmington Parking Authority, 1961, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45; Simkins v. Cone Mem. Hosp., 4 Cir. 1963, 323 F.2d 959. Moreover, ours is a Court which puts substance above form, facts above needless fictions, and national interest above all. Congress provided $811,300,000 for community action agencies similar to Cenia. Congress does not give away that kind of money without strings. Here there are federal statutes, rules, regulations, agency policies, and practices — so many federal strings that it is both naive and obdurately parochial for the Court to conclude that Cenia was a purely private corporation and that no federal law was involved. Justice cannot be done in this case without construing the Equal Opportunity Act and the federal regulations under it which control the policies and practices of the grantee community action agencies. The only thing that is not federal in this case was the charter. At issue is a federal question for the district court to recognize and decide. PER CURIAM: A member of the Court in active service having requested a poll on the reconsideration of this cause en banc, and a majority of the judges in active service not having voted in favor of it, rehearing en banc is denied. WISDOM, Circuit Judge, dissenting: I dissent from the Court’s denial of a rehearing for the reasons stated in my dissent to the original opinion of the panel. . The plaintiff admits that her dismissal was not racially motivated. Plaintiff does not allege that this court had jurisdiction under 28 U.S.C. § 1343. . 28 U.S.C. § 1331(a) states: The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States. . 42 U.S.C. § 2796 states: (a) Each community action agency shall observe, and shall (as appropriate) require or encourage other agencies participating in a community action program to observe, standards of organization, management and administration which will assure, so far as reasonably possible, that all program activities are conducted in a manner consistent with the purposes of this subchapter and the objective of providing assistance effectively, efficiently, and free of any taint of partisan political bias or personal or family favoritism. Each community action agency shall establish or adopt rules to carry out this section, which shall include rules to assure full staff accountability in matters governed by law, regulations, or agency policy. Each community action agency shall also provide for reasonable public access to information, including but not limited to public hearings at the request of appropriate community groups and reasonable public access to books and records of the agency or other agencies engaged in program activities or operations involving the use of authority or funds for which it is responsible. And each community action agency shall adopt for itself and other agencies using funds or exercising authority for which it is responsible, rules designed to establish specific standards governing salaries, salary increases, travel and per diem allowances, and other employee benefits; to assure that only persons capable of discharging their duties with competence and integrity are employed and that employees are promoted or advanced under impartial procedures calculated to improve agency performance and effectiveness; to guard against personal or financial conflicts of interest; and to define employee duties of advocacy on behalf of the poor in an appropriate manner which will in any case preclude employees from participating, in connection with the performance of their duties, in any form of picketing, protest, or other direct action which is in violation of law. (b) The Director shall prescribe rules or regulations to supplement subsection (a) of this section, which shall be binding on all agencies carrying on community action program activities with financial assistance under this subchapter. He may, where appropriate, establish special or simplified requirements for smaller agencies or agencies operating in rural areas. These special requirements shall not, however, affect the applicability of rules governing conflicts of interest, use of position or authority for partisan or nonpartisan political purposes or participation in direct action, regardless of customary practices or rules among agencies in the community. The Director shall consult with tlie heads of other Federal agencies responsible for programs providing assistance to activities which may be included in community action programs for the purpose of securing maximum consistency between rules or regulations prescribed or followed by those agencies and those prescribed under this section. . See infra our discussion of whether OOAC was a private corporation. . No questions arise in this case that would require federal courts to apply a uniform rule of federal common law. See Ivy Broadcasting Co. v. American Tel. & Tel. Co., 2 Cir., 1968, 391 F.2d 486, 491. . 42 U.S.C. § 2781 states: Congressional statement of purpose (a) This subchapter provides for community action agencies and programs, prescribes the structure and describes the functions of community action agencies and authorizes financial assistance to community action programs and related projects and activities. Its basic purpose is to stimulate a better focusing of all available local, State, private, and Federal resources upon the goal of enabling low-income families, and low-income individuals of all ages, in rural and urban areas, to attain the skills, knowledge, and motivations and secure the opportunities needed for them to become fully self-sufficient. Its specific purposes are to promote, as methods of achieving a better focusing of resources on the goal of individual and and family self-sufficiency— (1) the strengthening of community capabilities for planning and coordinating Federal, State, and other assistance related to the elimination of poverty, so that this assistance, through the efforts of local officials, organizations, and interested and affected citizens, can be made more responsive to local needs and conditions; (2) the better organization of a range of services related to the needs of the poor, so that these services may be made more effective and efficient in helping families and individuals to overcome particular problems in a way that takes account of, and supports their progress in overcoming, related problems; (3) the greater use, subject to adequate evaluation, of new types of services and innovative approaches in attacking causes of poverty, so as to develop increasingly effective methods of employing available resources; (4) the development and implementation of all programs and projects designed to serve the poor or low-income areas with the maximum feasible participation of residents of the areas and members of the groups served, so as to best stimulate and take full advantage of capabilities for self-advancement and assure that those programs and projects are otherwise meaningful to and widely utilized by their intended beneficiaries; and (5) the broadening of the resources base of programs directed to the elimination of poverty, so as to secure, in addition to the services an assistance of public officials, private religious, charitable, and neighborhood organizations, and individual citizens, a more active role for business, labor, and professional groups able to provide employment opportunities or otherwise influence the quantity and quality of services of concern to the poor. (b) It is further declared to be the purpose of this subchapter and the policy of the Office of Economic Opportunity to provide for basic education, health care, vocational training, and employment opportunities in rural America to enable the poor living in rural areas to remain in such areas and become self-sufficient therein. It shall not be the purpose of this subchapter or the policy of the Office of Economic Opportunity to encourage the rural poor to migrate to urban areas, inasmuch as it is the finding of Congress that continuation of such migration is frequently not in the best interests of the poor and tends to further congest the already overcrowed slums and ghettos of our Nation’s cities. . See the discussion of the “right” and not the “privilege” to public employment in Board of Regents v. Roth, 408 U.S. 564, 571 n. 9, 92 S.Ct. 2701, 33 L.Ed.2d 548.

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LAKE CITY STEVEDORES, INC., Plaintiff-Appellee-Cross Appellant, v. EAST WEST SHIPPING AGENCIES, INC., Defendant-Appellant-Cross Appellee. No. 72-1366. United States Court of Appeals, Fifth Circuit. March 5, 1973. Brunswick G. Deutsch, New Orleans, La., Donald F. Mooney, New York City, for plaintiff-appellee-cross-appellant. E. F. Barnett, Lake Charles, La., for defendant-appellant-cross-appellee. Before RIVES, WISDOM and RO-NEY, Circuit Judges. WISDOM, Circuit Judge: In this case a stevedoring company seeks to recover from a subagent of a ship-charterer the value of services rendered to the ship. The district court held that although the defendant acted as an agent for a disclosed principal it bound itself for fifty percent of the stevedoring charges. We reverse on this issue. I. The plaintiff-appellee in this case, Lake City Stevedores, Inc. is engaged in the business of providing stevedoring services and acting as agent for ships in Lake Charles, Louisiana. The defend- ' ant-appellant, East West Shipping Agencies, Inc., is a New York Corporation in the business of furnishing various services to ship owners, operators, and others involved in the carriage of goods by sea. The present dispute arises from a contract negotiated by East West for its principal, Merchants Maritime Agency, Inc., for Lake City to provide services to the S.S. LA GRANDE ABETO while in the Port of Lake Charles between January 29, 1970, and February 4, 1970. Merchants Maritime, Inc. was, in turn, general agent for Phoenix Maritime Co., Ltd., the time-chartered owners of the vessel. In November 1969 Merchants Maritime, as general agent for the vessel LA GRAND ABETO, appointed East West Shipping Agencies, Inc., as subagent for the United States East and Gulf Coast ports. On January 15, 1970, the operations vice-president of East West, A. F. Elia, called the general manager of Lake City, M. C. Hall, to ask whether Lake City would act as agent and stevedore for the ship while it docked in the Port of Lake Charles, and if so what its charges would be. The information requested by East West was provided by Lake City in a letter of the same day. Later conversations occurred and East West verbally appointed Lake City as agent and stevedores on January 20, 1970. Initially, Lake City requested a .deposit of 60 percent of the estimated expenses, but after negotiations agreed to accept 50 percent. East West informed Merchants Maritime of that condition and was given permission to agree to that term. Merchants Maritime advised East West that, as was the usual procedure, a cheek for the estimated deposit would be forewarded immediately. By letter of January 21, 1970, East West confirmed the verbal appointment of Lake City and agreed to send 50 percent of the stevedoring costs involved with the balance of funds to be paid upon receipt of all stevedoring invoices. Attached to that letter was a copy of the charter party which revealed that Merchants Maritime Agency, Inc., was the agent for Phoenix Maritime Co., Ltd., the time-chartered owners. When the vessel arrived at Lake Charles on January 29, 1970, the steve-doring advance had not yet been paid, Lake City provided services to the ship from January 29, 1970, to February 4, 1970. The stevedores loaded the ship with 4500 long tons of rice destined for DaNang, South Vietnam. During that period frequent calls were made between Lake City and East West concerning the overdue advance. Finally, the ship sailed without any payment having been made to Lake City. For security, Lake City refused to release the bills of lading until a guarantee of payment would be made. On March 11, 1970, East West quoted to Lake City a message which had been sent by Merchants Maritime the previous day. On March 10, 1970, Merchants Maritime had stated in a letter to East West: “This is to confirm that stevedore’s expenses will be paid out of the captioned vessel’s freight.” In addition to forwarding the guarantee of Merchants Maritime, East West requested Lake City to: “Please confirm your agreement to the above in order to resolve the situation. . . .” That same day Lake City acknowledged receipt of the East West message which quoted the “telex received from Merchants Maritime Agency, Inc., relative payment guaranteed of total disbursements. . . .” Lake City immediately released the bills of lading to East West. East West then forwarded them to Merchants Maritime. Though presumably Merchants Maritime received payment for the freight, neither Lake City nor East West was paid. The plaintiff commenced this suit on August 18, 1970, contending that East West had bound itself to pay the value of the services rendered to the ship which amounted to $38,801.73. The district court concluded that East West was an agent for a disclosed principal and therefore was not bound as a principal for the full value of the services. Though East West was only an agent, the court concluded, it bound itself personally for 50 percent of the stevedoring charges by agreeing in its letter of January 21, 1970, to forward that amount to Lake City. The stevedoring charges were $34,458.41. Judgment therefore was rendered in favor of Lake City for $17,229.21. II. At the outset we consider that portion of the district court’s opinion holding that East West was not a principal to the contract, and we affirm that conclusion. The copy of the charter party, attached to the letter of January 21, 1970, clearly revealed in its first paragraph that Merchants Maritime was the general agent for the time-chartered owners. The charter party further stated in clause 17 that “loading expenses are for the vessel’s account.” Moreover, on January 29, the day the ship arrived in port, East West telexed Lake City requesting information as to the status of the ship. East West stated: “Owners pressing this info.” This acknowledgement by East West, before the commencement of work by Lake City clearly informed Lake City that East West was acting for another. Though Lake City disputes that it was aware of the agency relationship at that time, it is uncontested that it was aware of the agency relationship before it released its ultimate security, the bills of lading. The district court concluded that Lake City actually became aware of the agency relationship as early as during the loading process before Lake City had completed performance. For these reasons we conclude that the district court correctly decided that both parties were aware that East West was an agent acting within the scope of its authority. Thus, East West was not a principal to the contract. III. Though the district court held that East West was not a principal, it held that East West had become personally responsible for 50 percent of the steve-doring charges and that this responsibility arose from East West’s letter of January 21, 1970, in which it was stated: “As arranged we will forward a check for approximately 50% of the stevedor-ing costs involved and balance of funds will be paid upon receipt of agency proforma and all invoices on stevedoring.” One who acts in the capacity of an agent for a disclosed principal is not liable for claims arising out of a contract executed by the agent on behalf of his principal. Strachan Shipping Co. v. Alexander Eccles & Co., 5 Cir. 1928, 25 F.2d 361; Valkenburg, K.-G. v. The S.S. Henry Denny, 7 Cir. 1961, 295 F.2d 330; E.I. Dupont de Nemours & Co. v. Barge Carriers, 1944, D.Fla., 55 F.Supp. 728; Restatement of Agency 2d, §§ 320, 328 (1958); 2 Williston On Contracts, § 288 (1959). An agent may however bind himself if he conducts himself in such a way as to indicate an intent to be bound. Whitney v. Wyman, 1880, 101 U.S. 392, 25 L.Ed. 1050; Castor v. Coppock, 8 Cir. 1954, 211 F.2d 136; See United States Shipping Board Merchant Fleet Corp. v. Harwood, 1929, 281 U.S. 519, 50 S.Ct. 372, 74 L.Ed. 1011. In the absence of an unambiguous contract, all relevant extrinsic evidence may be ,considered in determining whether an agent has sufficiently indicated an intent to become personally bound. Strachan Shipping Co. v. Alexander Eccles & Co., 5 Cir. 1928, 25 F.2d 361; Restatement of Agency 2d, § 323 (1958). Here, weighing all verbal and written communication, we conclude that East West did not express an intent to be personally bound for payment of 50 percent of the stevedoring charges. The letter by East West of January 21 did not unequivocally state that East West intended to be bound personally; rather, its words “as arranged” referred to discussions in prior telephone conversations. The testimony is in conflict as to what point in time East West explicitly stated that it would await receipt of funds from Merchants Maritime before forwarding payment • to Lake City. Mr. Allen Elia of East West testified that he told Lake City early in their negotiations that he was awaiting an advance from Merchants Maritime. He further testified that at the time of loading, when Lake City inquired why the advance had not been forwarded, he informed Lake City that he had not yet received the advance from Merchants Maritime. In conflict with this is the testimony of Mr. Monty Hall of Lake City who testified that he was not aware of the agency relationship until after he had fully performed. Still, Lake City does not dispute that it received a copy of the charter party prior to performance. This put Lake City on notice of the agency relationship and created an inference that East West would not be responsible as a principal unless clearly expressing such an intention. Restatement of Agency 2d, § 320 (1958); W. Seavey, The Law of Agency § 70(d), at 120 (1964). “The intent developed is alone material, and when that is ascertained it is conclusive. Where the principal is disclosed, and the agent is known to be acting as such, the latter can not be made personally liable unless he agreed to be so.” Whitney v. Wyman, 1880, 101 U.S. 392, at 396, 25 L.Ed. 1050, at 1052. United States Shipping Board Merchant Fleet Corp. v. Harwood, 1929, 281 U.S. 519, 50 S.Ct. 372 65, 74 L.Ed. 1011; Marcus Loew Booking Agency v. Princess Pat. Limited, 7 Cir. 1944, 141 F.2d 152; Walford v. McNeill, 1939, 69 App.D.C. 247, 100 F.2d 112; American Guild of Musical Artists v. Atlanta Municipal Theater Inc., 1971, N.D.Ga., 322 F.Supp. 1154; Mid-Continent Tel. Corp. v. Home Tel. Co., 1970, N.D.Miss., 319 F.Supp. 1176. Furthermore, there was no valid business reason for East West to bind itself. It had nothing to gain and everything to lose by doing so. Lake City never directly requested a personal guarantee and none was ever offered. East West had been appointed as Gulf Coast agent only two months prior to the appointment of Lake City. East West was itself unfamiliar with the reliability and stability of Merchants Maritime. The record contains no clear expression of intention by East West to accept personal responsibility. On the contrary, the defendant resisted any implication of that intention and protected its position as a mere conduit of funds. In March 1970, when payment was long overdue, Lake City requested a guarantee of payment before releasing the bills of lading. Without offering any guarantee of their own, East West forwarded the verbatim guarantee of Merchants Maritime, which Lake City accepted. The earlier agreement of East West for the mere transmission of partial payment through itself as an agent is not, without more, sufficent to indicate an intention to be personally bound. Nor is it sufficient that Lake City, a subsubagent, might ordinarily have relied upon a subagent, such as East West, to collect and forward funds due for services rendered to the principal. That an agent acts as surrogate or substitute for a disclosed principal does not per se bind the agent, because it is the essence of agency that an agent act as a principal but not be bound as one. For these reasons we conclude that East West did not demonstrate an intention to be bound for 50 percent of the stevedoring charges. IV. Because we have concluded that the plaintiff is not entitled to recover from the defendant, the issue of judicial interest is moot. The judgment of the trial court is affirmed in part and reversed in part. The case is remanded for further proceedings not inconsistent with this opinion. . Lake City, is proceeding against Merchants Maritime but in another jurisdiction (S.D.N.Y.70 Civ. 5346). . Even when a party signs his own name to a contract with a notation “agent”, if he has been in the habit of expressing, in that way, his representative capacity in dealing with a third party, it would be presumed that the intent of the parties was not to bind the agent personally, Metcalf v. Williams, 104 U.S. 93, 26 L.Ed. 665.

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NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WHITE KNIGHT MANUFACTURING COMPANY, Respondent. No. 72-2030. United States Court of Appeals, Fifth Circuit. March 1, 1973. Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Washington, D. C., Charles M. Paschal, Jr., Director, Region 15, N. L. R. B., New Orleans, La., Avrum M. Goldberg, Atty., N. L. R. B., Washington, D. C., for petitioner. John W. Brahm, Stanley S. Jaspan, Milwaukee, Wis., for respondent. Before GEWIN, BELL and GOD-BOLD, Circuit Judges. GEWIN, Circuit Judge: This case arises out of a representation election held May 5, 1971 among certain employees of White Knight Manufacturing Company to determine whether they desired to be represented for collective bargaining purposes by Textile Workers Union of America, AFL-CIO. The election was held pursuant to a “stipulation for certification upon consent election”, by secret ballot among the employees of a stipulated unit. None of the ballots was challenged. Out of 180 eligible voters, 92 voted for the union and 85 against. Only three eligible persons failed to vote. Following’timely objections to the election by the Company, the Regional Director conducted an administrative investigation and recommended that the Union be certified. The Board affirmed, finding that “The [Company’s] exceptions raise no material or substantial issues of fact or law which would warrant reversal of the Regional Director’s . . . recommendations or would require a hearing.” The Company thereafter refused to bargain collectively causing the Union to file an unfair labor practice charge with the Board under §§ 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. § 151 et seq. On motion for summary judgment, the Board ruled that the refusal to bargain violated the Act. Accordingly it ordered the Company to cease and desist from the unlawful conduct found and affirmatively required the Company to bargain collectively with the Union as the employees’ exclusive representative. The Board now seeks enforcement of that order and we conclude that enforcement should be granted. In its objections, White Knight alleged four grounds for setting the election aside, each one involving threats of physical harm to certain of its employees because of their opposition to the Union campaign. The incidents described were claimed to have destroyed the laboratory conditions necessary to a free and fair election. White Knight now asserts that the Board committed reversible error by refusing to. invalidate the election and by failing to direct a hearing on its objections. We reject both of these contentions. We begin with a discussion of the validity of the Board’s order. In reaching a decision on this issue, we must be mindful of the fact that Congress has vested the Board with broad discretion in dealing with matters relating to representation proceedings. Considerable weight, therefore, must be accorded to the Board’s findings with judicial review limited to ascertaining only their reasonableness. N. L. R. B. v. Laney & Duke Storage Warehouse Co., 369 F.2d 859, 864 (5th Cir. 1966). Whether this court would reach the same conclusion as the Board is immaterial so long as the Board’s finding that the election was conducted fairly is supported by substantial evidence on the record as a whole. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456, 462 (1951). The decisive factor in such cases is not whether improprieties occurred during the campaign, but rather whether the challenged conduct produced such a climate of tension and coercion that the employees were effectively precluded from making a free choice. N. L. R. B. v. Singleton Packing Corp., 418 F.2d 275, 281 (5th Cir. 1969). The burden of proof is on the objecting party. As this court observed in N. L. R. B. v. Golden Age Beverage Co., 415 F.2d 26, 30 (5th Cir. 1969): “This is a heavy burden; it is not met by proof of mere misrepresentations or physical threats. Rather, specific evidence is required, showing not only that the unlawful acts occurred, but also that they interfered with the employees’ exercise of free choice to such an extent that they materially affected the results of the election.” White Knight initially argues that the Board erred because in reaching its decision it placed an improper reliance on the absence of an agency relationship between the Union and the objectionable conduct. We disagree. Even a cursory reading of the Board decision indicates that a number of other relevant factors were taken into account such as: (1) the Union’s prompt action in calming a supporter who had been involved in heated personal disputes with two co-workers because of differences of opinion about the Union; (2) its public disapproval of the use of anonymous phone calls as a means of influencing the outcome of the election; and (3) its repudiation of the use of violence in connection with any of its activities. In our judgment, the lack of Union agency was not given conclusive or disproportionate weight by the Board and consequently we must reject White Knight’s contention in this regard. Equally without merit is the argument that the Board failed to consider the cumulative impact of the challenged conduct on the outcome of the election. As the objecting party, it was incumbent upon White Knight to come forward with specific evidence showing that the atmosphere surrounding the campaign was so coercive that the employees were prevented from exercising a free choice. In our opinion, the record is devoid of such evidence. White Knight’s objections described a series of incidents which, notwithstanding the closeness of the vote, were simply insufficient to justify setting the election aside. At the worst, these incidents amounted to nothing more serious than verbal excesses and isolated attempts to harass non-union employees, none of which had any demonstrated influence on the outcome of the election. Indeed, whatever impact they may have had, it was far from pervasive; for by the Company’s own admission only six out of a total of 180 eligible voters were allegedly victimized. And there is no apparent indication that even any of these six were so intimidated by this conduct that they were unable to vote their personal preferences in the election. Hence, it is clear that there was nothing wrong about the Board’s conception of the evidence; White Knight merely failed to meet its burden of proof. The various other grounds upon which the Board rested its decision have been mentioned earlier in this opinion. We are compelled to conclude that the Board’s refusal to invalidate the election was correct in all respects and supported by substantial evidence in the record as a whole. White Knight’s second claim of error is that the Board’s failure to conduct a hearing constituted a denial of due process. At the outset, it should be noted that there is no statutory requirement for a post election hearing in representation proceedings. Under the Board’s Rules and Regulations, 29 C.F.R. 102.69(c), such a hearing is required only when' it appears that the objections to the election raise “substantial and material” factual issues. This court has held on more than one occasion that this administrative procedure comports with the due process requirements of the Constitution. See, e. g., N. L. R. B. v. Smith Industries, Inc., 403 F.2d 889, 892 (5th Cir. 1968); N. L. R. B. v. Air Control Products, Inc., 335 F.2d 245, 249 (5th Cir. 1964). In order to establish the need for a hearing, the objecting party must present evidence which would constitute a prima facie showing sufficient to warrant setting the election aside. United States Rubber Co. v. N. L. R. B., 373 F.2d 602, 606 (5th Cir. 1967). In essence this means that “there must be ‘specific evidence of specific events from or about specific people’ in support of allegations having a basis in law sufficient to overturn the election.” N. L. R. B. v. Golden Age Beverage Co., 415 F.2d 26, 33 (5th Cir. 1969). The Board’s denial of a hearing in this case turned largely on the fact that White Knight failed to make a prima fa-cie showing that the election should be set aside and hence failed to raise substantial and material issues of fact. The Board took the approach that even if the alleged incidents took place, White Knight failed to show any adverse effect on the atmosphere necessary to the conduct of a free and fair election. The fact that only three persons out of 180 eligible voters failed to vote plus the fact that the results of the election were very close, considering all of the surrounding conditions and circumstances, lends little support if any to the contention that laboratory conditions were destroyed or that an aura of tension, fear and coercion pervaded the election. This conclusion is further supported by the fact that not a single ballot was challenged; and the election was by secret ballot. While an opportunity to examine and observe witnesses might have been helpful in determining the impact of the challenged conduct on the election, the need for such a procedure is still left to the sound discretion of the Board. From our review of the record in this case, we think that the Board exercised this discretion properly. The Board’s order will be enforced. . Upon motion of counsel for the General Counsel for summary judgment after the case had been transferred to the Board, the Company was directed to show cause why the motion for summary judgment should not be granted. The Company did not file a response to the order to show cause or otherwise oppose the motion. See Fones v. N.L.R.B., 431 F.2d 417, 420 (5th Cir. 1970); N.L.R.B. v. Crest Leather Mfg. Co., 414 F.2d 421, 423 (5th Cir. 1969). . Initially there were seven objections to the election. The Regional Director found all to be groundless. Only four of them were reasserted before the Board and hence are properly reviewable by this court. They are summarized as follows: (1) in response to a hypothetical question, a Union official told a non-union employee that if there was ever a strike, he would do everything in his power to keep her from working. (2) A union supporter was heard by co-workers on two occasions to say that she was going to beat up another employee (apparently nonunion). (3) Several non-union employees received anonymous phone calls threatening them in connection with the upcoming election. (4) A foreign substance was thrown on the rear window and trunk of a non-union employee’s automobile. . Although the absence of Union agency is not to be given conclusive effect in cases such as the instant one, it is, nevertheless, a factor which can properly be considered by the Board in reaching its decision. The rule is well established that where the challenged conduct is not attributable to either of the parties it can be given less weight than if the conduct were attributable to the parties themselves. Bush Hog v. N.L.R.B., 420 F.2d 1266, 1269 (5th Cir. 1969); N.L.R.B. v. Staub Cleaners, Inc., 418 F.2d 1086, 1088 (2d Cir. 1969).

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UNITED STATES of America, Appellee, v. Charles Cary CHUDY, Appellant. No. 72-1704. United States Court of Appeals, Ninth Circuit. March 7, 1973. Theodore E. Orliss (argued), Los An-geles, Cal., for appellant. David M. Fox, Asst. U. S. Atty. (argued), Elliott H. Kajan, Richard J. Trattner, Eric A. Nobles, Asst. U. S. Attys., and William D. Keller, U. S. Atty., Los Angeles, Cal., for appellee. Before MERRILL and GOODWIN, Circuit Judges, and SKOPIL, District Judge. The Honorable Otto R. Skopil, Jr., United States District Judge for the District of Oregon, sitting by designation. SKOPIL, District Judge: Appellant was indicted on five counts of violating selective service regulations, 50 U.S.C. App. § 462. The jury acquitted him of the first two but convicted him of the third. The Government dismissed the last two. The third count charged the appellant with failing to keep his local board advised of the address where mail would reach him during the period of July 13, 1970, to January 7, 1971. On February 16, 1966, appellant registered with his local board in Downey, California. On April 4, 1966, he gave the board his current mailing address, and R. C. Bryant, his grandfather, as the person other than a member of his household who would always know his address. In November of 1969, the appellant left for Hawaii. In May, 1970, the draft board sent out a number of letters to different people trying to find him. The board received replies stating appellant was often with his sister, Mrs. Bernard Wylie, 1130 Hassinger Street, Apartment No. 2D, Honolulu, Hawaii, and included the sister’s telephone number. In the interval, on May 18, 1970, the appellant completed a current information questionnaire and delivered it to the Honolulu draft board. It was received by his own board in California on May 20. He gave his address as Apartment No. 21, 264 Kaiulani, Honolulu, Hawaii. He indicated the person who would always know his address was his sister, Sandy Wylie, of 1120 Hassinger Street. He also gave the address of his employer, Kai Kahini, Hawaii Real Estate, Waikiki Suite 206, 667 Ala Moana, Honolulu, Hawaii. On July 6, 1970, his board sent to the Kaiulani Street address an order to report for a physical examination. This order was returned by the post office. On July 14, the board sent a letter to appellant and another letter to his sister, both addressed to Apartment No. 20, 1130 Hassinger Street, Honolulu. The letter to appellant was returned to the board, although the one to his sister was not. On August 13, 1970, the board sent another letter to the sister requesting information about appellant. .There was no response to this letter. Also on August 13, the board wrote the manager of the Kaiulani Street apartment, appellant’s mother and his grandmother. The only response was from the two relatives who indicated they did not know appellant’s whereabouts and did not know anyone who did. On November 12, 1970, appellant was classified 1-A, and a letter informing him was sent to the Kaiulani Street address. It was returned by the post office. On November 23, another communication was sent to the Kaiulani Street address. It, too, was returned. On De-cember 29, 1970, the board sent an order to report for induction to the Kaiulani Street address, and it was returned. On February 23, 1971, appellant wrote the board inquiring about his draft status and gave a new address. Count III of the indictment is based upon 32 C.F.R. § 1641.3, which provides in pertinent part: “It shall be the duty of each registrant to keep his local board advised at all times of the address where mail will reach him.” There is no question that appellant did not and could not receive mail at the Kaiulani Street address during the period charged in the indictment. By his own testimony, he was there only a few weeks after having given the address to the draft board. The failure to furnish the draft board with a home address does not constitute a violation of the regulation with which the appellant was charged. United States v. Munns, 457 F.2d 271 (9th Cir. 1972). A registrant is not required to report his every move to the board. He is required to provide a suitable means for being reached by the board. Bartchy v. United States, 319 U.S. 484, 63 S.Ct. 1206, 87 L.Ed. 1534 (1943); United States v. Ebey, 424 F.2d 376 (10th Cir. 1970). The board never attempted to contact the appellant or his sister at the 1120 Hassinger Street address furnished by him. Instead, all mail went to the 1130 Hassinger Street address. It is impossible to conclude that mail would not have reached him at the 1120 Hassinger Street address in the absence of any evidence that mail was, in fact, sent to that address. There was uneontradicted evidence that appellant was in frequent contact with his sister during this period. The Government contends that since it relied on the 1130 number supplied by others, it was excused from trying the 1120 number furnished by the appellant himself. We reject this proposition. After the order to report for induction mailed to the appellant’s home address was returned, the local board was required to contract the person who would always know the registrant’s address, or his employer. During the period covered by the indictment, 32 C.F.R. § 1642.41(b) was in effect. It provides in pertinent part: “In endeavoring to locate and to secure the compliance of a delinquent prior to reporting him to the United States Attorney, the local board should contact the delinquent and the ‘employer’ or ‘person who will always know’ the delinquent’s address, . or any other person likely to know his whereabouts.” The board must make some compliance with this regulation. United States v. Buckley, 452 F.2d 1088 (9th Cir. 1971); cf. Kokotan v. United States, 408 F.2d 1134 (10th Cir. 1969). Here, the board did not attempt to contact either person at the addresses given by defendant. The board did contact other persons likely to know defendant’s whereabouts; however, these efforts appear to be legally insufficient. Ward v. United States, 344 U.S. 924, 73 S.Ct. 494, 97 L.Ed. 711 (1953), reversing per curiam 195 F.2d 441 (5th Cir. 1952). See also Venus v. United Stated, 368 U.S. 345, 82 S.Ct. 384, 7 L.Ed.2d 341 (1961), reversing per curiam 287 F.2d 304 (9th Cir. 1960). The court below instructed the jury that the law required appellant to furnish the board with his home address. While this is true, the reference is to a different regulation, 32 C.F.R. § 1641.7(c), the violation of which was not charged in the indictment. United States v. Munns, supra; United States v. Neilson, 471 F.2d 905 (9th Cir. 1973). It is possible that the jury may have been confused by this instruction. The judgment is reversed. . The jury acquitted defendant of failing to provide the draft board with the address where mail would reach him during this period. . The sister did not testify. . This regulation, along with the rest of part 1642, was revoked effective Decem-ber 10, 1971, 36 Fed.Reg. 23383 (1971).

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UNITED STATES of America, Appellee, v. Edward J. FISCH, Ivan L. Glasscock, Appellants. Nos. 72-2007, 72-2068. United States Court of Appeals, Ninth Circuit. Feb. 16, 1973. Certiorari Denied May 29, 1973'. See 93 S.Ct. 2742. Edward V. Brennan (argued), of Ferris, Weatherford & Brennan, San Diego, Cal., Philip A. DeMassa (argued), San Diego, Cal., for appellants. Thomas M. Coffin, Asst. U. S. Atty. (argued), Stephen G. Nelson, Asst. U. S. Atty., Harry D. Steward, U. S. Atty., San Diego, Cal., for appellee. Before TRASK and CHOY, Circuit Judges, and TALBOT SMITH, District Judge. Honorable Talbot Smith, Senior District Judge, Eastern District of Michigan, Sitting by Designation. PER CURIAM: The case before us involves eavesdropping, not by the use of electronics or artificial means, but in the traditional “listening at the keyhole” sense. The convicted defendants were in a motel room and the agents listened from an adjoining room as the operation was discussed. The principal argument of appellants is that their right of privacy was thus invaded. The appellants were charged in a four count indictment with, count one, conspiring to import, count two, importing, count three, conspiring to possess with the intention of distributing, and count four, possessing with the intention of distributing approximately 70 pounds of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 846, 952, 960 and 963. After trial to the Court, appellant Fisch was found guilty on all four counts, and appellant Glasscock on counts one, two and three, but not guilty on count four. The case below is reported sub nom. United States v. Perry, 339 F.Supp. 209 (S.D.Cal., 1972). The modus operandi was somewhat unusual. The marijuana was dropped from an airplane onto an area west of Vulcan Mountain, near the Santa Ysabel Indian Reservation. The drop area was marked by flares. These flares were observed by a retired California Division of Forestry ranger, Mr. Tobin, who stopped to investigate. As he approached, he observed two cars nearby, and two men. One asked if he was from the garage. He answered that he was not and inquired as to their “problem.” He was told they had a flat tire and trouble underneath the car. Unable to observe any flat, he took the license numbers of the cars, obtained the names of the men, Glasscock (appellant herein) and Thorpe, and suggested that they might obtain mechanical assistance at the Santa Ysabel Standard station. After telling them to extinguish the flares, he left the area. On the following day, September 24, this information was given to Deputy Sheriff Gene Cowley, of the San Diego County Sheriff’s Office. At the same time Deputy Cowley received another report. This, from Wayne and Larry King, residents of the Santa Ysabel Indian Reservation, was delivered by one of the Santa Ysabel Mission Tribe, Anthony Taylor. The message was that a red and white airplane had been observed circling in the area of Vulcan Mountain and that it had dropped two objects during one of its passes. This had occurred at about the same time that Tobin had encountered the burning flares. In patrolling the area of the aircraft drop immediately thereafter, Cowley observed the same Ford van previously described to him by Tobin travelling very slowly down the highway. The back end of the van was dirty and the license could not be read. A tail light was defective. Cowley stopped the van and asked the occupants (Glasscock and Thorpe) to produce identification. Indiana driver’s licenses were produced, as well as a California registration, Glass-cock stating that they had borrowed the van from a Sacramento friend, James Nash. As Cowley was running a name check on the occupants, he asked permission to check the van further, which was given by Glasscock, the driver. Under the right front seat Cowley observed an aerial navigation map. It was opened to expose the Julian Omni station on Vulcan Mountain, and on it a line had been drawn from the Vulcan site northwest, intersecting Highway 79 at the point of the suspected air drop, near where the van had been observed by Ranger Tobin on the previous evening. Upon the completion of the name check the van was released. Later that day Cowley was informed that Larry and Wayne King, who had observed the plane circling the day before, making the drop, had found a duf-fle bag containing 13 kilos of marijuana on top of Vulcan Mountain. This bag had been turned over to Border Patrol Agents in the area. Two days later a second duffle bag was found by the tribesman, Anthony Taylor. A few minutes after making the find Taylor encountered three unidentified males who told him they were there for fishing. He told them they were trespassing on Indian land and the bag was delivered to Deputy Cowley. Again, on September 28, 1971, Deputy Cowley observed the Ford van parked off the highway near the area of the drop. No one was observed nearby but the engine was warm. Upon resuming patrol, he later observed the van on the highway. The license plate was still dirty and the tail light still defective. Glasscock showed Cowley a receipt for work done on the van and he was merely warned, not cited, upon his promise to make the necessary repairs. It was ascertained at this time also that the men were staying at the Holiday Inn Motel, Mission Valley. This information had been requested by Cowley’s superiors and was transmitted to them. Deputy Sheriff Perkins was then assigned to the Holiday Inn, Mission Valley. He learned from the motel clerk that Glasscock and Thorpe were registered in Room 514. Perkins requested an adjoining room but none was available, so he registered in 508. Upon the Deputy’s request, and upon being informed that a smuggling investigation was underway, the motel clerk moved Glasscock and Thorpe to room 506 (adjacent to 508), upon the excuse that others had prior reservations on their room. Aural surveillance was then begun. An attempt was made to use a suction cup electronic device but it was defective and nothing intelligible could be heard from it so its use was abandoned. All relevant conversations were heard by the naked ears of the officers. Some of the conversation was so loud that it was heard by an agent sitting on the bed in the middle of the room, specifically in part, the questioning of Fisch, the pilot, by Glasscock as to his speed when he made the drop. Other parts were heard by listening prone at the door, lying some six or eight inches away from a crack between door and carpet, leaving “room for your notebook to take notes.” There was talk of drug usage, of the “specific deal,” the problems they had had, the “trouble finding the stuff in the area” and how “they had been hassled by the Sheriffs in the area, and the Indians and the Ranger.” Glasscock indicated that the next time “they were going to do a little bit more research into the area.” He also telephoned one “Don” for help in locating the marijuana, arrangements being made for three more men to assist in the search. In short, there was ample disclosure and admission of the criminal smuggling operation then and there under execution. Arrests of the occupants of Room 506 were made immediately after the telephone call to “Don,” and of the three men upon their arrival. Against this overwhelming array of evidence, the appellants assert to us, as defendant Fisch puts it, that there has been a “gross invasion of privacy,” or in the words of appellant Glasscock, a “sad and shocking disregard for appellant’s constitutional right of privacy.” In addition, complaint is made of the stop and search of the Ford van on the morning of the 24th, and of the information and evidence obtained as a result of the second stop of the Ford van on September 28. We will consider the vehicle questions before proceeding to the privacy issue. On the morning of September 24, it was obvious that activities of a highly suspicious nature were underway. By this time the passes of the circling airplane were known to Cowley, the drops from the plane, the flares burning in the field, and the presence of Glasscock and Thorpe, with their non-observable flat tire. Consequently, when Cowley, patrolling in the area of the observed drop, encountered the same van as had Tobin the day before, proceeding very slowly down the highway with its license plate obscured and a defective tail light, he was under a duty to stop the car. The occupants were questioned, identities sought to be established, names were obtained and a “name check” was made. While waiting for the results of the check, permission was asked and, the trial court found, granted to “look inside and check your van.” The reason for the search was Cowley’s reasonable unease about the situation presented. “The registered owner wasn’t either occupant,” he stated. “They were from Indiana. The van was registered in California, and they didn’t have any written permission to have the vehicles, and I wanted to look further.” The limited search made disclosed the aircraft navigation map marked as described above. When the “names came back checked all right” the men were released. With respect to the stopping of the Ford van, the validity of the detentions and actions involved is governed by the State law, subject, of course, to constitutional standards. Wartson v. United States, 400 F.2d 25 (9th Cir. 1968), cert. denied 396 U.S. 892, 90 S.Ct. 184, 24 L.Ed.2d 166 (1969). The California Vehicle Code, § 2805, provides in part: A member of the California Highway Patrol may inspect any vehicle . . . on a highway . . . for the purpose of locating stolen vehicles, investigating the title and registration of vehicles . . . Under the applicable state law, the validity of a temporary detention by a peace officer for investigation and questioning is summarized in the case of People v. Henze, 253 Cal.App.2d 986, 61 Cal.Rptr. 545 (1967). Required is a rational suspicion on the part of the officer that something out of the ordinary is taking place, that there is “some indication” to connect the person under suspicion with such activity, and, of course, that such activity is related to crime. The Federal constitutional standard is found in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The ultimate question for resolution in each instance is whether the action taken by the officer was appropriate, tested not by the hunch of the officer, seasoned though he may be, but by an objective standard, namely whether the facts available to the officer at the moment of the seizure (or search) would warrant a man of reasonable caution in the belief that the action taken was appropriate to the situation there presented. Looking to both the State and the Federal standards, it is obvious that they have been amply met. Something unusual, suspicious indeed of criminal activity, was taking place in this area and Glasscock and Thorpe were involved in it. The stop and search of the Ford van was justifiable and lawful. All statements and evidence resulting from the detention were properly admissible. We have discussed the above issues at some length in deference to the zeal of counsel. It should be observed, however, that we find nothing in the record that would warrant our reversal of the District Court’s finding that Glasscock, in fact, consented to the limited search made. We turn now to the second stop of the Ford van, that on September 28. By this time it was known that the packages dropped from the plane contained marijuana. Glasscock and Thorpe were still roaming around in the area with their fishing gear. Their vehicular defects were still uncorreeted. Under the totality of the circumstances there was now probable cause for arrest. The most vigorous representation to us at this point is that the real reason for the stop was to obtain the local address of the suspects. Under these circumstances we are not disposed to weigh the motives of the officers, to categorize, as appellants would have us do, into principal and secondary reasons for the stop, some of which are concededly good, others allegedly bad. There was in fact at this point reasonable grounds for further inquiry, questioning as to continued presence in the area, residence therein, reasons for not bringing the vehicle into compliance with the law, and other relevant and pertinent inquiries. There was nothing arbitrary, capricious, or unlawful in the officer’s actions at this point. The holding in Wilson v. Porter, 361 F.2d 412 (9th Cir. 1966), is peculiarly applicable at this point: We take it as settled that there is nothing ipso facto unconstitutional in the brief detention of citizens under circumstances not justifying an arrest, for purposes of limited inquiry in the course of routine police investigations. Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960); Busby v. United States, 296 F,2d 328 (9th Cir. 1961). A line between reasonable detention for routine investigation and detention which could be characterized as capricious and arbitrary cannot neatly be drawn. But due regard for the practical necessities of effective law enforcement requires that the validity of brief, informal detention be recognized whenever it appears from the totality of the circumstances that the detaining officers could have had reasonable grounds for their action. A founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing [361 F.2d at 415]. It is our conclusion, also, with respect to the second stop of the Ford van, that it was lawful and that all statements and any evidence obtained therefrom are admissible. Coming now to privacy, there are several things this case is not, and it would be well to note them at this point. We have no telephone tap here. We have no bugging by electronic means. We have no trespass. The officers were exercising their investigative duties in a place where they had a right to be and they were relying upon their naked ears. So using their natural senses, they heard discussion of criminal acts. What was heard, however, was expressed by speakers who insist that they were justifiably relying upon their right of privacy, who sought to keep their conversation private, who “did not expect that law enforcement officers would be located just a few inches away from the crack below the door connecting the two adjoining rooms,” and who thus conclude that “If one justifiably relies on his privacy any eavesdropping constitutes a search and seizure within the meaning of the Fourth Amendment.” It is true, as appellants point out, that Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), holds that “The Fourth Amendment protects people not places,” but this is not a rule of decision. Actually it is the Court’s expression of the rationale of decision, that the property concepts so long governing, substantially, decision as to unreasonable search no longer control. In short, this particular phrase, which is cited to us again and again, expresses little more than a rejection of the trespass rule. It does not tell us what people are protected, when they are protected, or why they are protected. But it is clear from Katz that for' suppression of overheard speech the speaker must have “justifiably relied” on his privacy. As the concurring opinion of Mr. Justice Harlan makes clear, the concept of justifiable reliance involves both subjective and objective aspects. There must, first of all, have been a reliance on, an actual and reasonable expectation of, privacy. But beyond the individual’s expectations, the needs of society are involved. The individual’s subjective, self-centered expectation of privacy is not enough. We live in an organized society and the individual’s expectation of privacy must be justifiable, “one that society is prepared to recognize as ‘reasonable.’ ” The statements before us fail of suppression on both aspects. As Mr. Justice Harlan points out, concurring, “ [Statements that he exposes to the ‘plain view’ of outsiders are not ‘protected’ because no intention to keep them to himself has been exhibited.” Here the conversations complained of were audible by the naked ear in the next room. True the listening ear was at the keyhole, so to speak, but another listening ear was also, at one time, on the bed in the middle of the room, where was heard the pilot’s story. Appellants would have us divide the listening room into privileged or burdened areas, and the conversation into degrees of audibility to, we presume, the normal ear, thus a remark heard on the bed arguably admissible, but not those heard at the door, a loud remark admissible, arguably one uttered in “normal” tones, but definitely not one whispered. We find no precedent for a categorization involving such hair-splitting distinctions and we are not disposed to create one. Listening at the door to conversations in the next room is not a neighborly or nice thing to do. It is not genteel. But so conceding we do not forget that we are dealing here with the “competitive enterprise of ferreting out crime.” The accomplishment of the move of the defendants’ room to one more accessible for surveillance violated no constitutional right of the appellants. They could, had they wished, refused the transfer. The officers were in a room open to anyone who might care to rent. They were under no duty to warn the appellants to speak softly, to put them on notice that the officers were both watching and listening. Their means of observation was not improper. In fact, they did not, with their naked ears, “intrude” upon the appellants at all. If intrusion there was it was, at times, the other way around, as anyone who has weathered the night in a motel room as the occupants next door partied and argued will bear ready witness. The objection aspect of justifiable reliance, that the expectation be one recognized as reasonable by the current society, bars the bizarre, the freakish, and the weird expectations. A recent perceptive study poses the hypothetical of two narcotics peddlers who have chosen to rendezvous for an illegal transaction in a desolate corner of Central Park in the middle of the night and are surprised by a passing patrolman’s haphazard illumination of their transaction. Their expectation of privacy was undoubtedly reasonable. Yet whether their expectation would be constitutionally enforced would depend upon the social considerations involved, or, in the words of Mr. Justice Harlan, whether “the expectation be one that society is prepared to recognize as ‘reasonable.’ ” The test applied as to society’s tolerance of the search rests, as it has for years, upon “the facts and circumstances — the total atmosphere of the case.” There is no ready formula, “each case is to be decided upon its own facts and circumstances.” What we undertake, actually, is a balancing process, a weighing of the social factors involved. Or, as Judge Duniway put it in the pre-Katz case of Smayda v. United States, 352 F.2d 251 (9th Cir. 1965), cert. denied 382 U.S. 981, 86 S.Ct. 555, 15 L.Ed.2d 471 (1966), “The public interest in its privacy, we think, must, to that extent, be subordinated to the public interest in law enforcement.” Here, on the one hand, there is no doubt that society invests a hotel room, transient though its occupancy may be, with that special character of intimacy justifying its characterization as a private place. Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); Lanza v. New York, 370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384 (1962), cited in United States v. Hitchcock, 467 F.2d 1107 (9th Cir. 1972). The “place,” though its ownership or possession no longer controls, remains as an element for our consideration under the Katz ruling. We consider, as well, the non-trespassory origin of the information received, the absence of artificial means of probing, with their potentialities for the wide-spread dissemination of total revelation, the gravity of the offense involved, here the smuggling of contraband. The type of information received from the aural surveillance is a factor to be considered in attempted delineation of the limits “of what society can accept given its interest in law enforcement,” whether society can “reasonably be required to honor that expectation [of privacy] in all cases.” The degree of probable cause before us is high, there being reasonable cause for the police to believe that the room in question was being used in aid of a criminal venture. Upon balance, appraising the public and the private interests here involved, we are satisfied that the expectations of the defendants as to their privacy, even were such expectations to be considered reasonable despite their audible disclosures, must be subordinated to the public interest in law enforcement. In sum, there has been no justifiable reliance, the expectation of privacy not being “one that society is prepared to recognize as ‘reasonable.’ ” Affirmed. . This section of the Code has been held to apply to peace officers generally. People v. Brown, 4 Cal.App.3d 382, 84 Cal.Rptr. 390 (1970). . Katz v. United States, supra, at 351, 88 S.Ct. at 511. . Id., at 353; 88 S.Ct. 507. . Id., at 361, 88 S.Ot. at 516. . Id. See also, Ponce v. Craven, 409 F.2d 621 (9th Cir. 1969). . “ [I] t would seem rather arbitrary to draw a constitutional line between the whisper and the shout.” People v. Guerra, 21 Cal.App.3d 534, 98 Cal.Rptr. 627 (1971). . Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). . “The enforcement of the criminal law is not, however, a mere sporting game, and the hunters, as well as the hunted, have their problems.” United States v. Jones, 140 U.S.App.D.C. 70, 433 F.2d 1176 (1970), cert. denied 402 U.S. 950, 91 S.Ct. 1613, 29 L.Ed.2d 120 (1971). . Pope, J., concurring in Smayda v. United States, 352 F.2d 251 (9th Cir. 1965). . Sometimes phrased as “reasonable and legitimate expectation of privacy,” United States v. Missler, 414 F.2d 1293 (4th Cir. 1969). . “From Private Places to Personal Privacy: A Post-Katz Study of Fourth Amendment Protection,” 43 N.Y.Univ.L.R. 968 (1968). . 389 U.S. at 361, 88 S.Ct. at 516. . United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950). . Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931). . See also Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), giving (in a search warrant situation) “full recognition to the competing public and private interests.” See, also, State v. Smith, 37 N.J. 481, 181 A.2d 761, cert. denied 374 U.S. 835, 83 S.Ct. 1879, 10 L.Ed.2d 1055 (1963), quoted in People v. Berutko, 71 Cal.2d 84, 77 Cal.Rptr. 217, 453 P.2d 721 (1969), “But it is the duty of a policeman to investigate, and we cannot say that in striking a balance between the rights of the individual and the needs of law enforcement, the ITourth Amendment itself draws the blinds [to the window] the occupant could have drawn but did not” (Italics 77 Cal.Rptr. 222, 453 P.2d 726). . “As the Court’s opinion states, ‘the Fourth Amendment protects people not places.’ The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a ‘place.’ ” 389 U.S. at 361, 88 S.Ot. at 516, Harlan, J., concurring. . See Fried, “Privacy,” 77 Yale L.J. 475 (1968). . Remington, “Criminal Justice Administration,” 73, “Each of the methods which police may use in collecting evidence of crime has its own problems — problems of effectiveness, of intrusiveness, of interference with innocent people, of susceptibility to regulation. The seriousness of the criminal conduct may affect the degree to which people will tolerate intrusive detection techniques.” . 82 Harv.L.R. 63 (1968). . Cf., Smayda v. United States, supra. . Katz v. United States, supra, 389 U.S. at 353, 88 S.Ct. 507. . Id., at 361, 88 S.Ct., at 516, Harlan, J., concurring.

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UNITED STATES of America, Plaintiff-Appellee, v. Carson Eugene TYLER, Defendant-Appellant. No. 72-3045 Summary Calendar. United States Court of Appeals, Fifth Circuit. March 5, 1973. Rehearing Denied March 29,1973. John McGuigan, Atlanta, Ga., for defendant-appellant. John W. Stokes, U. S. Atty., Eugene A. Medori, Jr., Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee. Before WISDOM, AINSWORTH and CLARK, Circuit Judges. Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I. PER CURIAM: Carson Tyler was convicted after a jury trial in federal district court of receiving and possessing property with a value in excess of $100 which had been stolen from a federally insured savings and loan association, in violation of 18 U.S.C. § 2113(e). The stolen property in question consisted of unsigned travelers’ checks with a face value of $4,000. The prosecution attempted to prove at the trial that Tyler was instrumental in arranging and carrying out the transfer of the stolen checks to one Harvey Allen Ward, who then passed them to John Harold. Harold cashed several of the checks for their face value of $400. Tyler contends on this appeal that: (1) the evidence was insufficient to show that the stolen property had a value in excess of $100; (2) the trial court erred in failing to instruct the jury on the standard to be used in measuring value; (3) the evidence was insufficient to show that he had possessed the stolen property. We affirm the conviction. The burden of proving the value of the stolen property was, of course, on the government. United States v. Bryant, 4 Cir. 1971, 454 F.2d 248. Tyler stresses that he did not cash the checks, and that there is no evidence that he himself expected to realize any profit from them. He argues that the checks had no fixed value whatever until the person cashing them actually signed them. He asserts that, as far as he knew, the parties to whom he allegedly supplied the checks might have intended to sell them on the underworld market, or otherwise dispose of them, for a sum of less than $100. Value may be proved by circumstantial evidence. Jalbert v. United States, 5 Cir. 1967, 375 F.2d 125. The evidence of value in this case was sufficient to support the jury’s verdict. The travelers’ cheeks had a fixed face value, and thus at least a potential worth, of well in excess of $100. This in itself is persuasive evidence that their value exceeded $100. See Churder v. United States, 8 Cir. 1968, 387 F.2d 825, 833. Moreover, the conduct of the parties to this transaction strongly suggested that all of them understood that the checks would be cashed for their face value. Harold, who actually cashed the checks, expected to realize between $1,500 and $1,800 from his activities. In view of the evidence introduced by the government that Tyler met with Ward and arranged the transfer of the checks to Harold, and that Harold was to contact Tyler after he disposed of the checks, the jury could have concluded justifiably that Tyler, as well as the other parties, knew that the checks would be worth more than $100. See United States v. Bullock, 5 Cir. 1971, 451 F.2d 884; Jalbert v. United States, supra. Tyler also objects to the trial court’s failure to instruct the jury as to what standard — face value or possible value on the thieves’ market — they should apply in assessing the value of the checks. He failed to raise this objection below, however. Given the clear evidence that the checks in fact had and were considered by all parties as having a value of more than $100, the court’s failure to give specific instructions on measuring value was not plain error. United States v. Devall, 5 Cir. 1972, 462 F.2d 137, 143. Tyler’s contention that he never possessed the stolen checks required him to explain the presence of one of his fingerprints on the back of one of the checks. At the trial he introduced two witnesses, the Feins, who testified that the checks were handed to Tyler at a party, apparently in fun, and that he immediately handed them back. Tyler also seeks to explain testimony that he physically carried the package of cheeks to Ward by asserting that he was an innocent messenger. On the basis of all the evidence, however, the jury could reasonably conclude that Tyler was something more than an innocent participant in this transaction. The jury was free to disbelieve the testimony of the Feins and draw an inference of actual possession from the presence of Tyler’s fingerprint on the cheek. Stoppelli v. United States, 9 Cir. 1950, 183 F.2d 391, cert. denied, 1950, 340 U.S. 864, 71 S.Ct. 88, 95 L.Ed. 631. Furthermore, given the testimony that Tyler had pre-arranged the actual transfer of the cheeks with Ward and that Harold was to contact Tyler after disposing of the checks, the jury had adequate evidence on which to base a finding of constructive possession. See United States v. Virciglio, 5 Cir. 1971, 441 F.2d 1295; Feinstein v. United States, 8 Cir. 1968, 390 F.2d 50, 54, cert. denied sub nom. Jackson v. United States, 1968, 392 U.S. 943, 88 S.Ct. 2327, 20 L.Ed.2d 1405. The judgment of the district court is affirmed.

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The HOME INDEMNITY COMPANY, Plaintiff-Appellee, v. TWIN CITY FIRE INSURANCE COMPANY and Parker G.M.C. Truck Sales, Inc., Defendants-Appellants. No. 71-1671. United States Court of Appeals, Seventh Circuit. Argued Nov. 30, 1972. Decided March 9, 1973. Emerson Boyd, E. Davis Coots, Indianapolis, Ind., for defendants-appellants. Evan Steger, Indianapolis, Ind., for plaintiff-appellee. Before HASTINGS, Senior Circuit Judge, CAMPBELL, Senior District Judge, and MORGAN, District Judge. Honorable William J. Campbell, Senior District Judge, Northern District of Illinois, and Honorable Robert D. Morgan, Chief Judge, Southern District of Illinois, are sitting by designation. HASTINGS, Senior Circuit Judge. The Home Indemnity Company (Home) brought this diversity declaratory judgment action against Twin City Fire Insurance Company (Twin City), Parker G.M.C. Truck Sales, Inc. (Parker Truck), Oley Thorpe and Mary Cook. It sought thereby to determine whether Home or Twin City insured Rex L. Imlay, the driver of a certain 1966 Mack tractor at the time it was involved in an accident in Indianapolis, Indiana. This question, in turn, is answered by determining who owned the Mack truck at the time of the accident. Home was the liability insurance carrier for Imlay’s employer, Bodge Lines, Inc. (Bodge), which was engaged in the trucking business. Frank A. Price was president of Bodge, and Imlay was employed as a mechanic. Twin City was the liability insurance carrier for Parker Truck, which was engaged in the business of selling new and used trucks. Parker Truck employed Joseph A. Burke as a salesman and William Amos as a truck driver. Sometime prior to March 24, 1969, Burke contacted Price for the purpose of selling Bodge a new 1969 G.M.C. Model 30T tractor. These negotiations contemplated that, as part of the purchase price, Bodge would trade to Parker Truck a 1966 Mack tractor which it owned, the certificate of title to which was held by a lien holder in Chicago. It was further agreed as a part of the negotiations that Bodge might remove some new tires from the trade-in Mack truck and replace them with used tires. On March 24, 1969, prior to 10:00 A.M., Bodge and Parker Truck, through their representatives, Price and Burke, respectively, came to an oral agreement concerning the purchase price which Bodge was to pay Parker Truck for the new 1969 G.M.C. tractor, and that Parker Truck would pay the lien balance owed on the trade-in vehicle. At about 10:00 A.M., Burke went to the premises of Bodge, at which time Price, on behalf of Bodge, executed a conditional sales contract for the purchase of the new 1969 tractor; and an invoice for the same was delivered to Bodge. By this time Bodge had the new 1969 tractor in its possession. The exchange of tires on the trade-in vehicle had not yet been accomplished. At about 1:00 P.M. the same day, Burke and Amos went to the Bodge premises to pick up the trade-in vehicle and transport it to the premises of Parker Truck. Imlay advised them he had not yet completed the exchange of tires. Burke said he would not be able to return that day, and Imlay then volunteered to drive the trade-in vehicle to the premises of Parker Truck after he had completed the exchange of the tires. Burke said that would be all right. Imlay completed the exchange of tires at the Bodge premises and about 4:30 P.M. was driving the Mack trade-in to the Parker Truck premises. En route he was involved in an accident with defendants Oley Thorpe and Mary Cook. The Mack tractor, damaged in the collision, was later removed to the Parker Truck premises. Parker Truck subsequently had it repaired at its own expense, paid the balance owing to the lien holder, received the certificate of title and resold the repaired Mack tractor. Parker Truck made no claim that the damage to the trade-in vehicle required an adjustment to the contract. All of the foregoing facts were found by the trial court and are fully supported by the record before us. They are not clearly erroneous. Rule 52(a), Federal Rules of Civil Procedure, Title 28, U.S.C.A. Defendants Oley Thorpe and Mary Cook have filed actions seeking recovery of damages for alleged personal injuries and property damage as the proximate result of the alleged negligent operation of the 1966 Mack tractor by Imlay. The instant cause was submitted to the trial court upon a joint stipulation, without a hearing, upon the pleadings, the depositions of Imlay, Burke and Price and the respective insurance policies of Home and Twin City. The stipulation further provided: “ * * * the sole issue for determination is whether said plaintiff or said defendant insures one Rex Imley for his liability, if any, arising out of an accident which occurred on March 24, 196S and out of which said accident claims have been presented by defendants Oley Thorpe 'and Mary Cook. “ * * * there is a single issue of fact which will be determative [sic] of this question, to wit: Was the vehicle driven by said Rex Imley, at the time of the accident in question, ‘owned’ by Bodge Lines, Inc. (insured by The Home Indemnity Company), or by Parker GMC Truck Sales, Inc. (insured by Twin City Fire Insurance Company) ?” Defendants Oley Thorpe and Mary Cook disclaimed any interest in the action and declined to participate. The trial court, upon consideration of the record as stipulated and briefs by the parties in lieu of oral argument, found the facts as above set out favorable to Home. The court further found that the trade-in Mack tractor was owned at the time of the collision by Parker Truck and that ownership was acquired at the time of the execution of the contract the morning of March 24, 1969, as a partial payment by Bodge for the new G.M.C. truck. The court further found that the arrangement between Burke and Imlay for the delivery of the Mack tractor was made at a time when the vehicle was owned by Parker Truck and was not authorized by Bodge. The court finally concluded that Imlay was not insured by Home but rather was insured by Twin City, and it rendered judgment favorable to Home and adverse to Twin City. Twin City and Parker Truck alone have appealed. We affirm. The burden of appellants’ appeal is their contention that the trial court erred as a matter of law in finding that the title to the trade-in vehicle had passed from Bodge to Parker Truck before the vehicle left the premises of Bodge. They rely upon certain sections of the Uniform Commercial Code as authority for their claim. Whether this challenged action of the trial court was a conclusion of law, a finding of fact or a mixed question of law and fact is not determinative of this appeal, and we shall not fashion a label for it. The parties stipulated and agreed “that there is a single issue of fact which will be determative [sic] of this question, to wit: Was the vehicle driven by said Ray Imley, at the time of the accident in question, ‘owned’ by Bodge Lines, Inc. (insured by The Home Indemnity Company), or by Parker GMC Truck Sales, Inc. (insured by Twin City Fire Insurance Company) ?” (Emphasis added.) It is undisputed that the purchase and sale of a motor vehicle is a transaction involving goods governed by Article 2 of the Uniform Commercial Code, Ind.Code § 26-1-2-101, et seq. (1971). We are concerned here with the sale of the new G.M.C. truck by Parker Truck to Bodge and the trade-in of the Mack tractor by Bodge to Parker Truck. Each party to the transaction is the “seller” of the goods it is to deliver. U.C.C. § 2-304(1), Ind.Code § 26-1-2-304(1) (1971), provides: “The price can be made payable in money or otherwise. If it is payable in whole or in part in goods each party is a seller of the goods which he is to transfer.” Hence, both parties agree that Bodge is the “seller” of the trade-in vehicle. Again, the parties agree that the place for delivery of the trade-in vehicle is governed by U.C.C. § 2-308, Ind.Code § 26-1-2-308 (1971), which provides, in relevant part: “Unless otherwise agreed * * * the place for delivery of goods is the seller’s place of business or if he has none his residence * * Hence, “unless otherwise agreed,” the place for delivery of the trade-in vehicle was Bodge’s place of business. Concerning the passage of title, U.C.C. § 2-401(2), Ind.Code § 26-1-2-401(2) (1971), provides: “Unless otherwise explicitly agreed title passes to the buyer [Parker Truck] at the time and place [Bodge’s place of business] at which the seller [Bodge] completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place * * * ” Relevant to the tender of delivery of the trade-in vehicle, appellants cite U.C.C. § 2-503(1), Ind.Code § 26-1-2-503 (1) (1971), which states, in relevant part: “Tender of delivery requires that the seller put and hold conforming goods at the buyer’s disposition and give the buyer any notification reasonably necessary to enable him to take delivery.” Based upon the foregoing sections of the Uniform Commercial Code, appellants advance the following line of reasoning. When Parker Truck sought delivery of the trade-in vehicle at Bodge’s place of business, the trade-in unit was not prepared for tender of delivery because the substitution of the used tires for the new tires had not been accomplished. At that time the parties orally agreed through their respective employees, Burke and Imlay, to change the place of delivery from Bodge’s place of business to Parker Truck’s. Since Bodge was unwilling to tender the trade-in vehicle at that time the “otherwise” agreement of § 2-308 was made. Finally» appellants argue, since Bodge had not completed the physical delivery of the vehicle at the time of the accident, and since the accident occurred while the tractor was being operated by an employee of Bodge en route to Parker Truck’s premises, in performance of the changed agreement as to delivery, title had not passed to the buyer but remained in the seller. Hence, appellants conclude, Home was obligated to defend and pay on behalf of Imlay any liability found against him. We disagree. The trial court found as a fact that when Burke and Amos called at Bodge’s for the trade-in vehicle to take delivery and transport it to the premises of Parker Truck they were told by Imlay that he had not completed the tire exchange; that Burke said he could not return that day; that Imlay then volunteered to drive it for them when it was ready; and that Burke said that would be all right. We cannot fault this finding of fact. Imlay was driving as a volunteer to accommodate Burke and Amos, rather than as a Bodge employee under a new agreement as to place of delivery which would have affected ownership of the vehicle. Further, our reading of Price’s deposition indicates that he never authorized Imlay or any other employee to make delivery of a truck at any place other than Bodge’s premises. As earlier set out, the trial court found as undisputed facts that, after the accident in question, the damaged trade-in vehicle was removed to the premises of Parker Truck; it was repaired by Parker Truck at its own expense; Parker Truck paid the balance owing on it to the lien holder and later resold the repaired tractor; and no adjustment was made to the contract between the parties because of the damage sustained by that vehicle. Burke’s . deposition shows that when asked whether any such adjustment had been made, he replied, “No, we had already made the deal.” It seems clear to us, as it was to the trial court, that Parker Truck by its own course of conduct placed its mark of approval on the meaning of the agreement of the parties by completing its performance in a manner consistent with the transfer of ownership to it prior to the accident in question. We have examined the authorities cited by appellants concerning passage of title and ownership upon or after physical delivery of goods sold. We are not persuaded that they are inconsistent with the result reached here. This case is limited to and controlled by the factual situation present here. We hold that the factual findings of the trial court are not clearly erroneous and that the conclusions reached below are proper and correct. In short, we have determined that the correct result was reached, and the judgment appealed from is affirmed. Affirmed.

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Earl ROBINSON, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. No. 72-1140. United States Court of Appeals, Tenth Circuit. Argued and Submitted Aug. 22, 1972. Decided March 9, 1973. Duncan J. Cameron, Denver, Colo., for plaintiff-appellant. Bruce E. Miller, Asst. U. S. Atty., Topeka, Kan. (Robert J. Roth, U. S. Atty., with him on the brief), for defendant-appellee. Before SETH, HOLLOWAY and BARRETT, Circuit Judges. HOLLOWAY, Circuit Judge. Appellant was convicted in April, 1968, on a guilty plea in the district of Kansas to a charge of bank robbery and putting in jeopardy the lives of bank officers by use of dangerous weapon. 18 U.S.C.A. § 2113(a), (d). The court found that appellant was 19 years of age and suitable for handling under the Federal Youth Corrections Act, 18 U.S.C.A. §§ 5005-5024. The court also found that appellant might not be able to derive maximum benefit from treatment prior to the expiration of six years from the date of conviction, 18 U.S.C.A. § 5010(c), and committed him to the custody of the Attorney General for treatment and supervision for 18 years or until discharged by the Federal Youth Corrections Division. 18 U.S.C.A. § 5017(d). In November, 1971, appellant moved to vacate his sentence under 28 U.S.C.A. § 2255 on several grounds discussed below. The trial court concluded that the files and records showed conclusively that appellant was entitled to no relief and dismissed the action in December, 1971, without a hearing. This appeal from that judgment is essentially grounded on contentions that appellant was not properly advised of the consequences of his plea; that counsel was ineffective; that the sentence imposed was contrary to the Youth Corrections Act’s procedural provisions and intent; that there was no factual basis or proper finding for the sentence under the Act; and that his sentencing and processing and his incarceration at the penitentiary at Marion, Illinois, were and are unlawful under the Act. We agree with the trial court’s conclusion that the contentions did not entitle appellant to relief and affirm. First, appellant argues that neither the trial court nor his counsel advised him properly of the consequences of his guilty plea. Therefore he says the plea and conviction are invalid under Rule 11, Fed.R.Crim.P. On brief before us the appellant relies heavily on the trial court’s failure to advise him of possible sentencing under the Youth Corrections Act. His § 2255 motion alleged that he was told “he would receive the (Youth Act) understood to be, a six (6) year maximum. [Sic]” The arraignment record does not show mention of sentencing under the Youth Corrections Act before the plea was accepted. Our record shows no reference to such sentencing until the sentencing proceeding about a month after the plea. It was then first brought up in the statement on appellant’s behalf by his attorney just before sentence was imposed. The attorney asked the court “ . . .to give some very sober consideration to placing this lad under the provisions of the Youth Corrections Act.” Nevertheless, the arraignment record shows that before the guilty plea was accepted the trial court had personally addressed the appellant to ask if he understood a plea of guilty admitted the facts alleged in the count, waived the right of trial by jury and subjected him to punishment within the limits fixed by law, to which appellant answered “Yes.” He was also asked whether he understood that the maximum term of imprisonment which might be imposed for violation of “the statutes cited in Count I” (the bank robbery statute) could be imprisonment for as much as 25 years, and appellant answered: “Yes, sir.” The court next inquired whether any lesser punishment had been held out to appellant if he should plead guilty; whether there had been any promise or inducement whatsoever; and whether appellant had been threatened or abused. Appellant personally answered “no” to all these questions. He also acknowledged knowing what he was charged with and that he had done the acts alleged in the indictment. After these responses the plea of guilty was accepted. Rule 11, Fed.R.Crim.P., makes clear the trial court’s duty, among other things, of addressing the defendant personally and determining that a guilty plea is made voluntarily with understanding of the nature of the charge and consequences of the plea. One consequence the defendant must be advised of is the maximum sentence that may be imposed on a plea of guilty. Harper v. United States, 368 F.2d 53 (10th Cir.); Chapin v. United States, 341 F.2d 900 (10th Cir.). Where a defendant is sentenced under the Youth Corrections Act to a term potentially longer than the maximum represented to the defendant prior to the plea, such sentence is invalid. Chapin v. United States, supra at 901; see also Harper v. United States, supra, 368 F.2d at 56. While the arraignment record shows no mention of the Youth Corrections Act before the plea was accepted, appellant was clearly advised by the court of the maximum sentence of 25 years. It is this maximum possible sentence that must be brought home to the defendant. Under either the Youth Corrections Act or the bank robbery statute, the 25-year sentence was the absolute maximum sentence that the court could have imposed. See 18 U.S.C.A. § 5010(c); 18 U.S.C.A. § 2113(d). The ease bears some similarity to Mordecai v. United States, 137 U.S.App.D.C. 198, 421 F.2d 1133, cert. denied, 397 U.S. 977, 90 S.Ct. 1098, 25 L.Ed.2d 272. There the defendant was advised of a possible sentence under the Act but was not warned nor was he aware that a sentence under it could extend for as long as the period of imprisonment otherwise authorized by law. The court acknowledged that the defendant may well have reasonably assumed that a sentence under the Act would not extend substantially beyond his youth. He was actually sentenced to 20 years under § 5010(c). Nevertheless the court pointed out that he had no guarantee that he would be sentenced under the Act and could have been sentenced to a straight term of imprisonment of up to 45 years. Since he understood he could be sentenced either to a substantial term of imprisonment or to confinement under the Act, Rule 11 was held to have been complied with. We are likewise satisfied that the Rule was complied with here. The appellant clearly was aware of the nature of the charge and maximum possible sentence. These facts also make untenable the claim that counsel had misinformed the appellant. Appellant acknowledged he understood that the maximum term of imprisonment that could be imposed was 25 years and that his plea subjected him to punishment within the limits fixed by law. Thus appellant was sufficiently aware of the consequences of the plea. Secondly, appellant contends he was denied effective assistance of counsel. He says his attorney failed to explain the consequences of his plea before it was entered and that the attorney also failed to advise the trial court that the offense was his first felony conviction before sentence was imposed. We have referred to the record of the arraignment and sentencing proceedings above. They conclusively show that appellant was aware of the maximum sentence and that his plea subjected him to such punishment before his plea was accepted. Regardless of the source of his information, appellant can claim no prejudice from an alleged lack of such information from his attorney. The complaint that appellant’s counsel failed to advise the court that this was his first felony offense is equally unpersuasive. The sentencing transcript shows that a pre-sentence report was reviewed by the court and also examined by appellant’s counsel before the sentencing proceeding. The trial court referred to numerous details in the report and the history of appellant’s conduct. No reference was made to any prior felony conviction by the court. The attorney’s statement on appellant’s behalf pointed out that appellant had cooperated with the authorities by testifying in another case. He also mentioned that appellant had had family problems. The attorney urged that he should be considered for a sentence under the Youth Corrections Act instead of a long-term sentence such as at Leavenworth Penitentiary. After this statement by his counsel there was no objection nor attempt by appellant to add any further information. The retained attorney’s representation of appellant in no way appears inadequate. The specific allegations made would not, in view of this record, show that the representation was a sham or mockery, depriving appellant of his constitutional right to assistance of counsel. See Bruner v. United States, 432 F.2d 931, 933 (10th Cir.). The remaining conclusory averments of ineffectiveness of counsel did not suffice to compel an evidentiary hearing. See Anderson v. United States, 367 F.2d 553, 554 (10th Cir.), cert. denied, sub nom. Reese v. United States, 386 U.S. 976, 87 S.Ct. 1172, 18 L.Ed.2d 137. Thus the charge of inadequacy of counsel was properly rejected by the trial court. Third, appellant maintains the 18-year sentence imposed was contrary to the Youth Corrections Act’s procedural provisions and intent. Appellant argues that his 18-year sentence is contrary to the Act’s purposes of treatment and supervision for youth offenders. No authority is submitted that the statute was in any way violated by the sentence imposed. The Act expressly provides that a finding may be made that the youth offender may not derive maximum benefit from treatment prior to expiration of six years from conviction and that on such a finding, the sentence may be “ . . . for any further period that may be authorized by law for the offense . . . .” 18 U.S.C.A. § 5010(c). We see no reason to hold the sentence unlawful in view of the plain terms of the statute. Appellant also contends that there was no factual basis in the presentence report for the finding under § 5010(c) that appellant might not derive maximum benefit from treatment within the six-year period. He says 18 U.S.C. A. § 5014 required sending him to a classification center for study and a report before such a determination by the court. § 5014 expressly refers to “[ejvery committed youth offender” in prescribing such procedures and thus its mandatory provisions do not apply until after a sentence committing a youth offender under the Act. 18 U.S.C.A. § 5010(e) does provide a discretionary procedure for temporary commitment for observation and study before sentencing, but such a procedure is not required. We feel that the statutory finding under § 5010(c) was a part of the sentencing function since it is plainly a prerequisite for the specific sentence imposed. And since the sentence was within the maximum range of punishment allowed by law, the finding is not subject to review. See Smith v. United States, 273 F.2d 462, 467 (10th Cir.), cert. denied, 363 U.S. 846, 80 S.Ct. 1619, 4 L.Ed.2d 1729; United States v. Kellerman, 432 F.2d 371, 376 (10th Cir); see also United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 30 L.Ed.2d 592. In any event appellant’s contentions would lack substance here. The trial court obtained a pre-sentence report. And the court stated reasons for the § 5010(c) finding and sentence by saying that the report showed a long history of incorrigibility and an improper attitude toward authority. The court further noted the serious circumstances of appellant’s offense. The procedures and determinations by the sentencing court were reasonable. We are satisfied that the statutory finding and the sentence are valid. Fourth, appellant argues that his sentence was illegal for failure to comply with 18 U.S.C.A. § 5012. He says that there was no certificate by the Director of the Bureau of Prisons before the trial court or in the record, as § 5012 requires, that proper and adequate treatment facilities and personnel were provided for sentencing under the Youth Corrections Act. Thus we are told that the necessary finding could not be made for sentencing under the Act and that the sentence is illegal. We cannot agree. § 5012 does bar commitment to the Attorney General under.the Act until the Director certifies that proper and adequate'facilities and personnel have been provided. We believe the certification provision was concerned with the starting point for the use of the Act, and such certification has obviously occurred. See Department of Justice, Federal Prisons— 1957 — A Report of the Work of the Federal Bureau of Prisons 9-10, 86 (1958). § 5012 does not say that a certificate must be submitted to the trial court in every case where a youth offender- is up for sentencing and we feel that such an interpretation would be unreasonable. Harvin v. United States, 144 U.S.App.D.C. 199, 445 F.2d 675, cert. denied, 404 U.S. 943, 92 S.Ct. 292, 30 L.Ed.2d 257, is relied on, but the case does not support appellant’s position here. The court did state that if proper facilities and personnel were not available, sentence could not be imposed under .the Act. Id. at 681 n. 12. This is not to say that the statute requires the Government to furnish a certification to the sentencing court on the availability of facilities and personnel in every youth offender ease and we decline to make such an interpretation. We note as to this case that appellant’s counsel urged sentencing under the Act without objection by appellant. We conclude that appellant’s contention under § 5012 is untenable. Lastly, appellant argues that he has not received proper classification, treatment and supervision and was improperly sentenced to a penitentiary and sent directly to Marion. Vigorous objection is made to incarceration in the penitentiary at Marion as an improper facility for a youth offender. The trial court sentenced appellant to the custody of the Attorney General for treatment and supervision as provided by 18 U.S.C.A. § 5010(c), not to any particular institution. The Director decides on the transfer and place of treatment and confinement of youth offenders. 18 U.S.C.A. § 5015; see Abernathy v. United States, 418 F. 2d 288 (5th Cir.). The objections as to the handling of appellant after sentencing and to his incarceration at Marion are not cognizable in this § 2255 proceeding before the sentencing court, but must be asserted in a proper habeas suit where the appellant is in custody. See Mordecai v. United States, supra 137 U.S.App.D.C. 198, 421 F.2d at 1139, 1140; Ridenour v. United States, 446 F.2d 57 (9th Cir.); see also Barrett v. Hunter, 180 F.2d 510, 514 (10th Cir.), cert. denied, 340 U.S. 897, 71 S.Ct. 234, 95 L.Ed. 650. Affirmed. “No youth offender shall be committed to the Attorney General under this chapter until the Director shall certify that proper and adequate treatment facilities and personnel have been provided.” . The indictment contained four counts but three remaining counts were dismissed after sen•tencing. . In Harper, supra 368 F.2d at 55-56, the court stated: “One of the consequences, with respect to which the defendant should be advised, is the maximum sentence which may be imposed on a plea of guilty, and when, as here, a different sentence may be imposed under two applicable statutory provisions, the maximum sentence that might be imposed under each of such provisions.” While the possibility of sentencing under the Youth Corrections Act was not mentioned at the arraignment, the 25-year maximum sentence was spelled out to appellant. We are satisfied that this complies with the intent of Harper as to the maximum sentence possible being brought out. . 18 U.S.C.A. § 5010(c) provides that on finding that the youth offender may not be able to derive maximum benefit from treatment prior to the expiration of six years from the date of conviction, the court may impose sentence for any further period that may be authorized by law for the offense, or until discharged. 18 U.S.C.A. § 2113(d) provides that one convicted thereunder “shall be. fined not more than $10,000 or imprisoned not more than twenty-five years, or both.” . The court complied with the requirement of findings necessary for sentencing under the Act, see 18 U.S.C.A. § 5010(b); Rogers v. United States, 326 F.2d 56, 58 (10th Cir.), as well as for imposing the heavier 18-year sentence. . The court observed that there was a shot fired by appellant in the perpetration of the robbery. The court stated “[i]t might have been just a warning shot but it certainly indicated that he felt at the time he was in command of the situation by virtue of that loaded pistol he had . . . .” . 18 U.S.C.A. § 5012 provides: . We have also examined United States v. Alsbrook, 336 F.Supp. 973 (D.D.O.) which appellant has relied on. That court has adopted a recommended procedure including the following requirement : “No defendant shall be committed under the Youth Corrections Act unless tbe Attorney General certifies in advance as to each defendant that a facility is available to provide the type of program and adequate period of treatment contemplated in the particular 5010(e) report.” 336 F.Supp. at 979-980. The opinion does not purport to base this local procedure on a statutory requirement and we find none. In any event we feel there is no statutory requirement for such certification in each individual case, as argued by appellant.

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

ESTATE of James H. LUMPKIN, Jr., Deceased. Christine T. HAMILTON, Executrix, Petitioner-Appellee, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant. No. 72-1298. United States Court of Appeals, Fifth Circuit. Feb. 14, 1973. Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Atty., Tax Div., U. S. Dept of Justice, Lee H. Henkel, Jr., Acting Chief Counsel, Edward D. Robertson, K. Martin Worthy, Chief Counsel, 1. R.S., Gary R. Allen, Tax Div., Dept, of Justice, Washington, D. C., for respondent-appellant. Rudy M. Groom, Melvin M. Engel, Houston, Tex., for petitioner-appellee. Before GEWIN, THORNBERRY and CLARK, Circuit Judges. GEWIN, Circuit Judge: This federal estate tax ease squarely presents the question of whether an employee who under the provisions of a group term life insurance policy is given nothing more than the right to alter the time and manner of enjoyment of the proceeds possesses an “incident of ownership” with respect to that policy so that at his death the value of the proceeds must be included in his gross estate under § 2042 of the Internal Revenue Code of 1954. Decedent, James H. Lumpkin, Jr., died on March 15, 1964. After his estate’s tax return was received, the Commissioner of Internal Revenue assessed a deficiency because the value of the proceeds from a group term life insurance policy covering Lumpkin’s life were not included in his gross estate. Lumpkin’s estate brought this action in the United States Tax Court to contest the Commissioner’s deficiency determination. The Tax Court decided that § 2042 does not require the value of the proceeds to be included in decedent’s gross estate, and the Commissioner has appealed. We reverse. At the time of his death Lumpkin was an employee of the Humble Oil & Refining Company (hereinafter Humble) and as such was covered by a non-contributory group term life insurance policy issued to Humble for the benefit of selected employees by the Equitable Life Assurance Society of the United States. According to the terms of the policy, which were communicated to covered employees in a booklet Humble had prepared and distributed, two kinds of benefits were payable to survivors of covered employees who died while serving Humble, but of these only one is relevant to our inquiry, the “Contingent Survivors Group Life Insurance Coverage.” Benefits receivable under “Contingent Coverage” consisted of a lump sum payment of $200, to be paid immediately upon the employee’s death, plus a series of monthly payments, each in the amount of half the employee’s normal monthly compensation, to continue over a period the duration of which depended upon the number of full years of service the deceased employee had completed. The “Contingent Coverage” benefits were to be paid to one of the following classes of qualifying “preference relatives” in descending order of priority: (1) spouse, (2) children under 21 years of age or permanently incapable of self-support, and (3) parents. The order in which the employee’s survivors succeeded to the right to receive the proceeds from the “Contingent Coverage” was irrevocably fixed; under no circumstances could the employee redetermine who the beneficiaries would be or the order of priority among them. Thus upon the employee’s death his spouse was to receive the lump sum and the monthly installments; if there were no surviving spouse, the payments would be divided equally among any surviving members of the class next in priority, i. e. children. If there were no children, the payments would be divided among members of the group lowest in priority, i. e. parents. Similarly, if the spouse were to die before all earned payments had become due, the remaining installments would be divided among any surviving children or, if none, among any surviving parents. Payments were to cease as soon as there were no more survivors from the list of qualifying preference relatives; as.a result it was never certain that all monthly installments earned by the employee would actually have to be disbursed. We now come to the “Optional Modes of Settlement” provision exercisable in connection with the “Contingent Coverage” benefits, the provision said by the Commissioner to bring § 2042 into play. One part of the optional settlement provision entitled the employee to elect, without the consent of any other person, to have any monthly installments becoming payable to his spouse in effect reduced by half. The insurer would then accumulate the unpaid balance of each monthly installment with interest into a fund, and, in the event all monthly installments earned by the employee were paid to the spouse, the fund would be used to continue reduced monthly payments to the spouse until it was exhausted. If the spouse were to die before the fund was consumed, the amount remaining in it would be paid to her estate in a lump sum. But in no event would her estate receive more than what was in the accumulated fund. If the spouse were to die before all monthly installments earned had become due, the remaining installments would still be paid to surviving members of the next priority of preference relatives as previously outlined. Thus this part of the optional settlement provision enabled the insured employee to extend the period of time over which monthly payments would be made to his spouse and consequently to reduce them in amount. It did not empower him to divest her of any portion of the proceeds to which she (or her estate) was entitled under the terms of the preference relative provisions. In addition to offering the employee this specific optional mode of settlement, the optional settlement provision entitled him, upon obtaining the approval of his employer and the insurer, to establish any other scheme he might devise for the disbursement of the proceeds once they became payable to a particular relative. The exercise of this more general part of the optional settlement provision was also limited in that under it the employee still could not rearrange the order in which his preference relatives succeeded to the right to receive monthly installments and hence could not divest any preference relative of the share of the proceeds to which he was entitled. The optional settlement provision concluded with the stipulation that under it the employee had no right to designate beneficiaries either by request or by assignment but that he could assign all rights given to him by the policy. Before proceeding any further we should delineate the exact nature of the power that was conferred upon Lumpkin by the provision entitling him to elect optional modes of settlement, the only provision in the entire policy which gave him any control over the proceeds. By exercising his rights under this provision Lumpkin could not benefit himself or his estate, nor could he designate who the beneficiary of the proceeds would be. What the optional settlement provision did give him the right to do was to vary the time and manner in which the proceeds would be paid to the policy-designated beneficiaries after his death. For instance, if he exercised the option in the provision specifically dealing with his spouse’s settlement, she would be denied early enjoyment of approximately one half of each monthly installment, and her eventual enjoyment of the accumulated fund would be conditioned upon her living past the date when the last monthly installment became due. Similarly by exercising the other option in the provision, which contained no limitation as to the form of settlement that could be arranged but which required the consent of the employer and the insurer, Lumpkin could extend or diminish the period over which payments were to be made to the spouse or any of the other beneficiaries selected by the policy, consequently either enlarging or reducing them in amount. In short the right to elect optional modes of settlement gave Lumpkin a degree of control over the time when the proceeds of the policy would be enjoyed and nothing more. § 2042 is the statute in the federal estate tax scheme under which the value of life insurance proceeds is taxed to the estate of the insured. With respect to proceeds receivable by beneficiaries other than the insured, it is triggered only if at death the insured possessed any “incidents of ownership” in the insurance. When the “incidents of ownership” term first appeared as part of an amendment to § 2042’s predecessor, no definition accompanied it; however, Congress, in its committee reports, did include an illustrative list of the kinds of rights comprehended by the phrase. Among these were the right of the insured to the economic benefits of the insurance, the right to change beneficiaries, the righ to surrender or cancel the policy, the right to assign the policy, the right to pledge the policy for a loan, and others. From this list it can be inferred that by using the “incidents of ownership” term Congress was attempting to tax the value of life insurance proceeds over which the insured at death still possessed a substantial degree of control. This inference is strengthened if we recognize that by enacting § 2042 Congress intended to give life insurance policies estate tax treatment roughly equivalent to that accorded other types of property under related sections of the Code. Under §§ 2036 (transfers with retained life estate), 2037 (transfers taking effect at death), 2038 (revocable transfers), and 2041 (powers of appointment) substantial control is often the touchstone by which the determination is made that in-elusion is necessary. Of course Congress knew that control can be, and often is, exercised by one not having complete legal and equitable title — hence the term “incidents of ownership.” As the First Circuit has said: “The very phrase ‘incidents of ownership’ connotes something partial, minor, or even fractional in its scope. It speaks more of possibility than of probability.” The question before this court is whether the right to alter the time and manner of enjoyment, a fractional right to be sure, affords its holder the kind of control over the proceeds that will make it an “incident of ownership” within the meaning of § 2042(2). The Tax Court thought not. In reaching this decision it relied on an earlier Board of Tax Appeals case which to our knowledge is the only one in which the question has been considered. In Billings v. Commissioner the decedent had a right to elect optional modes of settlement similar to that conferred upon Lumpkin by the group term policy in this case; the Tax Court’s predecessor held that the right to determine when the proceeds should be paid to the beneficiary was too limited and insignificant to amount to control over the proceeds. To offset the impact of this 1937 decision, the Commissioner relies upon two relatively more recent Supreme Court decisions. In Lober v. United States the decedent had created three separate irrevocable trusts, one for the benefit of each of his three minor children. Although the trust instruments gave each child a “vested interest” under state law so that if one of them had died after creation of the trusts respective interest would still have passed to his estate, the decedent as trustee had retained the right to turn all or any part of the principal trusts over to the beneficiaries at any time he saw fit. Thus Lober had forsaken the right to determine who the beneficiaries of the trust would be but had retained the right to determine when the trust property would be enjoyed. The court held that retention of this right rendered the value of the trust property includible in Lober’s gross estate under the forerunner to § 2038; that section, as does § 2038, required the inclusion of the value of all property that the decedent had previously transferred in trust but over the enjoyment of which he had retained the power to “alter, amend, revoke or terminate.” In reference to Lober’s right to alter the time of enjoyment, the court said: “ ‘ [A] donor who keeps so strong a hold over the actual and immediate enjoyment of what he puts beyond his own power to retake has not divested himself of that degree of control which § 811(d)(2) requires in order to avoid the tax.’ ” In essence United States v. O’Malley, the second case relied upon by the Commissioner, is not substantially different from Lober. The decedent Fabrice created several irrevocable trusts for the benefit of different members of his family. As one of the trustees he was empowered to pay the trust income to the beneficiaries or to accumulate it and add it to the principal, in which event the beneficiaries would be denied the privilege of immediate enjoyment and their eventual enjoyment would be conditioned upon their surviving the termination of the trusts. Thus Fabriee also had the right to alter the time and manner of enjoyment; however, the control afforded him by this right was somewhat less than Lober had possessed because it extended to the trust income only and not the principal which was in-alterably committed to pass to the beneficiary (or his estate) when the trust terminated. Nevertheless the Supreme Court held that O’Malley’s power over the time and manner of enjoyment was significant and of sufficient substance to activate the predecessor to § 2036 which required inclusion whenever the transferor of property in trust had retained the right to “designate” who was to enjoy it. Quite clearly the lesson to be drawn from Lober and O’Malley is that the right to alter the time and manner of enjoyment does give its holder a substantial degree of control, at least insofar as §§ 2036 and 2038 are concerned. In view of the Congressional intention to make the estate tax treatment of life insurance roughly analogous to that bestowed upon other types of property, somewhat of an anomaly would be created if power over the time and manner of enjoyment was said to impart enough control to activate §§ 2036 and 2038 yet not enough to make it an “incident of ownership” within the context of § 2042. The only significant distinction between §§ 2036 and 2038 on the one hand and § 2042 on the other is that under the former there must be an incomplete transfer by the decedent whereas under the latter a transfer is unnecessary. Thus under §§ 2036 and 2038 the decedent must have retained some control over property he initially transferred while under § 2042 it is enough if at death the decedent merely possessed an incident of ownership, the means by which he came into possession being irrelevant This distinction does not, however, suggest that there is a further difference among these sections of the estate tax as to the degree of power a decedent must hold over the property in question — whether it be life insurance or some other form of wealth — in order to render its value includible in his gross estate. These sections are all part of a Congressional scheme to tax the value of property transferred at death, whether the decedent accomplishes the transfer by will, by intestacy, or by allowing his substantial control over the property to remain unexercised until death so that the shifting of its economic benefits to the beneficiary only then becomes complete. It is the lapse of substantial control at death that triggers their application. Lober and O’Malley teach that one endowed with power over the time of enjoyment has the kind of substantial control Congress intended to reach by enacting these sections. Because the control it affords is substantial, we conclude that a right to alter the time of enjoyment such as that conferred upon Lumpkin by the optional modes of settlement provision in this case is an “incident of ownership” under § 2042(2). Lumpkin could easily have assigned the right to elect optional settlements, thereby completely divesting himself of control over the insurance proceeds and avoiding inclusion of their value within his gross estate. Since he did not, his estate must suffer the consequences. The Tax Court erroneously held that at his death Lumpkin possessed no incidents of ownership with respect to this group term life insurance policy. Its judgment is vacated, and the case is remanded with instructions to enter judgment for the Commissioner. Vacated and remanded. . 26 U.S.C. § 2042. § 2042 provides in pertinent part that: “The value of the gross estate shall include the value of all property— (2) Receivable by other beneficiaries. —To the extent of the amount receivable by all other beneficiaries as insurance under policies on the life of the decedent with respect to which the decedent possessed at.his death any of the incidents of ownership, exercisable either alone or in conjunction with any other person. it . The Tax Court’s decision is reported at 56 T.C. 815 (1971). . “Qualifying” is defined in the booklet as those “preference relatives” either living with the covered individual or receiving support from him to the extent of at least 20% of the amount the covered individual was last receiving as an employee or annuitant. . Actually if this option were elected the payments would be further reduced by the amount of any Social Security benefits available to the spouse. . The complete terms of the optional settlement provision are set out in the booklet as follows: Optional Modes of Settlement A covered individual may elect that only a portion of each monthly installment becoming payable to his spouse in accordance with the foregoing provisions of this Part 2 be paid on its due date. Such portion shall be equal to 25% of the covered individual’s monthly normal compensation reduced in the case of a covered annuitant by the total amount of benefits available (other than a lump sum payment) to his spouse and any children in her care under the U.S. Social Security Act as it reads at the time the covered annuitant dies, provided, however, that the portion so payable shall not be less than 10% of the covered annuitant’s monthly normal compensation. This election shall be made by the covered individual during his lifetime by proper written request submitted to the Society on a form furnished by or acceptable to the Society. * * * * * In the event the election pursuant to the foregoing shall have been made, the balance of each monthly installment payable to the spouse shall be held by the Society and accumulated as a fund, with interest credited at the effective rate authorized from time to time by the Board of Directors of the Society but at an effective rate of not less than 2%% per annum, subject to the further provisions hereof. Such interest shall be credited at the end of each month on the average balance remaining in the fund after the first day of such interest period. In the event the spouse receives the maximum number of monthly installments provided with respect to the covered individual by the foregoing provisions of this Part 2, the fund shall, except as hereinafter provided, be applied to continue monthly installments to the spouse, each in an amount determined on the same basis as the portion of the monthly installment paid to the spouse on its due date under the election, until the fund is exhausted, the first additional monthly installment becoming payable one month after the last monthly installment becomes due. In the event the spouse dies at any time while there is an amount in such fund, such amount shall be payable without further accrual of interest in one sum to the executors or administrators of such spouse’s estate. An election other than that specified above may be arranged during the lifetime of a covered individual with respect to monthly installments becoming payable to the covered individual’s preference relatives if the covered individual, the employer by whom employed and the Society mutually agree thereon. * * * * :!: Benefits payable under this policy with respect to any covered individual shall be payable only to the person or persons entitled thereto pursuant to the provisions of Part 1 and Part 2 of the section entitled “Group Life Insurance Benefits.” A covered individual shall have no right to designate a person or persons to receive any benefits payable under this policy either by request, assignment or by any other means, but may assign or transfer all rights he may possess under this policy. Once such an assignment or transfer has been made the assignee or transferee shall have the sole right to exercise all of the rights under this policy granted the covered individual. Benefits payable under this policy with respect to any covered individual shall not be assigned by any of his beneficiaries, and, to the extent permitted by law, shall not be subject to garnishment, attachment, execution or levy of any kind. . The Revenue Act of 1942, ch. 619, § 404, 56 Stat. 798, amending the Internal Revenue Code of 1939, § 811(g). . H.R.Rep. No. 2333, 77th Cong., 2d Sess. 163 (1942) and S.Rep. No. 1631, 77th Cong., 2d Sess. 235 (1942). The Treasury must have relied on this legislative history in promulgating its regulation under § 2042(2) because in them a list virtually identical to that set forth in the Committee reports is used to demonstrate what rights are considered “incidents of ownership.” Treas.Reg. § 20-2042-1 (c) (2) (1958). . See United States v. Rhode Island Hospital Trust Company, 355 F.2d 7, 10 (1966). . That Congress had such an intent with respect to § 2042 has been recognized in Skifter v. Commissioner, (2d Cir. 1972), 468 F.2d 699. . United States v. Rhode Island Hospital Trust Company, 355 F.2d 7, 10 (1966). . B.T.A. 1147 (1937), acq. 1937-2 Cum. Bull, 3. Although it has since been withdrawn, the Commissioner’s acquiescence in the Billings case remained outstanding at the time taxpayer filed its return and at the time the litigation commenced, and at oral argument the taxpayer argued that its justifiable reliance upon this acquiescence estopped the Commissioner from reversing his position retroactively. But it is well-established law that the Commissioner has plenary power to modify, amend or revoke his acquiescences and to make suit changes retroactively as to all taxpayers or, in the exercise of his discretion, certain classes of taxpayers. Dixon v. United States, 381 U.S. 68, 85 S.Ct. 1301, 14 L.Ed.2d 223 (1965). . 346 U.S. 335, 74 S.Ct. 98, 98 L.Ed. 15 (1953). . Internal Revenue Code of 1939, § 811 (d) (2). . Lober v. United States, 346 U.S. 335, 337, 74 S.Ct. 98, 100, 98 L.Ed. 15 (1953). . 383 U.S. 627, 86 S.Ct. 1123, 16 L.Ed. 2d 145 (1966). . The district court held that the original corpus of the trusts was includible in the estate, and that holding was not challenged on appeal. . Internal Revenue Code of 1939, § 811(c) (D (B)(ii). . See Commissioner v. Noel, 380 U.S. 678, 85 S.Ct. 1238, 14 L.Ed.2d 159 (1965) and Karagheusian v. Commissioner, 23 T.C. 806 (1955), rev’d on other grounds 233 F.2d 197 (2d Cir. 1956). But cf. Skitfer v. Commissioner, No. 72-1445 (2d Cir., 1972) 468 F.2d 699 and Fruehauf v. Commissioner, 427 F.2d 80 (6th Cir. 1970).

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES ex rel. Brodie Byron DAVIS, Petitioner-Appellant, v. C. Murray HENDERSON, nWarden of Louisiana State Penitentiary, Respondent-Appellee.p No. 72-2611. United States Court of Appeals, Fifth Circuit. March 8, 1973. James J. Gleason, III, New Orleans, La., for petitioner-appellant. William J. Guste, Jr., Atty. Gen. of La., Baton Rouge, La., Gilbert T. Brown, Jr., Asst. Dist. Atty., J. Carl Parkerson, Dist. Atty., Monroe, La., for respondent-appellee. Before GEWIN, GOLDBERG and DYER, Circuit Judges. GOLDBERG, Circuit Judge: This is an appeal from a denial of a petition for a writ of habeas corpus. Finding that petitioner’s allegations concerning the composition of the grand and petit juries that indicted and tried him should be re-investigated in light of Peters v. Kiff, 1972, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83, we vacate in part and remand. Petitioner, Brodie Byron Davis, a white man, was found guilty of murder on November 21, 1958, in the Fourth Judicial District Court for Ouachita Parish, Louisiana, and the jury fixed his penalty at death. His conviction and sentence were affirmed by the Louisiana Supreme Court. State v. Davis, 237 La. 577, 111 So.2d 778 (1959). A subsequent petition for state habeas corpus relief alleging that petitioner was entitled to a full, free transcript of his trial for use on appeal was found insufficient to warrant the exercise of the supervisory jurisdiction of the Louisiana Supreme Court. State ex rel. Davis v. Henderson, 252 La. 475, 211 So.2d 333 (1968). Petitioner first filed the application for federal habeas corpus relief that is the subject of this appeal on March 20, 1968. On August 19, 1971, after conducting an evidentiary hearing, the District Court permanently enjoined the State of Louisiana from executing petitioner because the petit jury that convicted him had been selected in a manner that violated Witherspoon v. Illinois, 1968, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. The District Court, however, rejected petitioner’s claim that he was entitled to a new trial. United States ex rel. Davis v. Henderson, D.W. D.La.1971, 330 F.Supp. 797. On this appeal, petitioner urges that the District Court erred in rejecting his petition because: (1) evidence seized pursuant to an illegal arrest had been introduced at his trial; (2) he had been denied the use of a full, free transcript of his trial for the purpose of appeal, and therefore he had been unable to prove that he had been denied a fair trial under Louisiana law by the prosecutor's improper references to his failure to take the stand; (3) the petit jury that convicted him had been selected in violation of Wither-spoon, denying him a fair trial; and (4) the grand and petit jury that indicted and convicted him were not selected from a cross-section of the community. We find that petitioner’s first three contentions are without merit but that his fourth point requires a remand for further proceedings. I Petitioner contends that the District Court erred in rejecting his petition because evidence seized pursuant to an illegal arrest had been introduced at his trial. After examining the record before us, we find that petitioner’s contention is without merit. Petitioner next asserts that at his trial the prosecutor made improper remarks to the jury concerning petitioner’s failure to testify at his trial and that he has been unable to prove that this violation of Louisiana law occurred only because he was not provided with a complete transcript of his trial despite the fact that he was an indigent and was unable to pay for a full transcript. This Court has previously discussed and approved Louisiana’s procedure of providing only a transcript of testimony explicitly preserved by the reservation of a bill of exceptions. Mack v. Walker, 5 Cir. 1966, 372 F.2d 170. Petitioner failed to make such a bill of exceptions and thus cannot be heard to complain that he has not been provided a full, free transcript to prove that the prosecutor made improper remarks. We also find untenable petitioner’s contention that the exclusion from the jury that convicted him of all persons conscientiously opposed to capital punishment warrants the setting aside of his conviction. Witherspoon v. Illinois, supra,, held that no death penalty imposed by a jury so constituted could be carried out, but the Supreme Court refused to “. . . announce a per se constitutional rule requiring the reversal of every conviction returned by [a jury selected in violation of its standards] . . . . ” 391 U.S. at 518, 88 S.Ct. at 1775, 20 L.Ed.2d at 782. Furthermore, the Court stated in Witherspoon that “[t]he data adduced by the petitioner . . . are too tentative and fragmentary to establish that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt.” 391 U.S. at 517, 88 S.Ct. at 1774, 20 L.Ed.2d at 782 (footnotes omitted). Petitioner has not presented this Court with convincing evidence that federal due process has been violated by the finding of guilt made by a jury constituted in violation of Witherspoon v. Illinois and his point must fail. II Petitioner’s final contention is that his conviction cannot stand because the grand and petit juries that indicted and convicted him were not selected from a cross-section of the community. Petitioner raised this issue for the first time at his federal habeas corpus hearing when he presented statistical evidence that the following conditions existed during the period when he was 'convicted: (1) 32.2% of the population of Ouach-ita Parish was non-white; (2) 96% of all prospective jurors were also registered voters; and (3) total voter registration was 22,-755, of which only 776, or less than 4%, were blacks. Petitioner urges that these figures support an inference that blacks were systematically or arbitrarily excluded from jury service. The District Court held: Here there is no evidence of systematic exclusion or inclusion or invidious discrimination of any kind. Accepting arguendo that the allegations are true with respect to the type of persons selected for jury service, we find here no deprivation of constitutional rights in the jury selection process and the State’s composition of the Grand and Petit Juries in this case was not constitutionally infirm. It should be especially noted that Davis is Caucasian, as were the jurors. United States ex rel. Davis v. Henderson, 330 F.Supp. at 801. The District Court rendered this opinion on August 19, 1971, apparently relying on previous Fifth Circuit decisions such as Mosley v. Smith, 5 Cir. 1968, 404 F.2d 346, and Peters v. Kiff, 5 Cir. 1971, 441 F.2d 370, in denying the claim of petitioner, a white man, that his constitutional rights were violated by an indictment and conviction rendered by unconstitutionally selected grand and petit juries. Subsequent to the District Court opinion, however, the Supreme Court reversed our decision in Peters v. Kiff. In Peters v. Kiff, 1972, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83, a white man sought for the first time on his ha-beas corpus petition to have his conviction set aside because blacks had been systematically excluded from the grand and petit juries that indicted and convicted him. The Fifth Circuit, relying on Mosley v. Smith, supra, held that a white man’s constitutional rights are not violated by the exclusion of blacks from grand and petit juries. Peters v. Kiff, supra, 441 F.2d at 371. The Supreme Court reversed, holding that a white man has standing to challenge the arbitrary exclusion of blacks from the grand and petit juries that indicted and convicted him, and that if such allegations are proved, the indictment and conviction rendered by such unconstitutionally selected juries cannot stand. In reviewing the record, we are not fully convinced that blacks were arbitrarily or systematically excluded from the grand and petit juries that indicted and convicted petitioner. The statistics presented by petitioner do, however, speak louder than the mere denial by the state that there was systematic exclusion of blacks from grand and petit jury venires. See Brooks v. Beto, 5 Cir. 1966, 366 F.2d 1; Black v. Curb, 5 Cir. 1970, 422 F.2d 656; Muniz v. Beto, 5 Cir. 1970, 434 F.2d 697. If the grand and petit jury lists were chosen substantially from voting lists or other compilations not representative of a cross-section of the general community, petitioner’s claim merits relief. Rabinowitz v. United States, 5 Cir. 1966, 366 F.2d 34; Mayfield v. Steed, E.D.Ark.1972, 345 F.Supp. 806, aff’d, 8 Cir. 1973, 473 F.2d 691. Petitioner’s presentation of adequate proof of his claim was undoubtedly encumbered by the District Court’s correct interpretation of our subsequently overruled prior decisions. Therefore, in light of the State of Louisiana’s assertion at oral argument that subsequent to petitioner’s trial a federal examiner was appointed to oversee the voting lists of Ouachita Parish, and in light of the statistics that petitioner did present concerning the composition of the grand and petit juries, we think that petitioner should be given an opportunity to more fully develop his contention. Petitioner is entitled to a full hearing concerning his contention that the grand and petit juries that indicted and convicted him were improperly constituted. However, we think it clear that petitioner’s evidentiary hearing should most appropriately be conducted in the Louisiana Courts. Petitioner has not presented this claim to the Louisiana Courts either on appeal or by habeas corpus petition. The procedure advocated in Spencer v. Wainwright, 5 Cir. 1968, 403 F.2d 778, is fully applicable to the case at hand: “In the interest of comity we must as to all of the issues now asserted, put the fact finding and law finding responsibility squarely on the [State] Courts where, initially at least, it belongs. We do not intimate even a possible whisper of a hint of a suggestion as to how these contentions will be resolved. However, in the setting of this case, they are extremely serious and warrant appropriate judicial inquiry and determination. The remedy prescribed and open-mindedly administered by the [State] Courts will afford [petitioner] an opportunity to present his contentions adequately and fully develop them in evidentiary hearings as required.” 403 F.2d at 781; see also Williams v. Henderson, W.D.La.1971, 330 F.Supp. 795. Of course, if after exhausting his state remedies, petitioner remains dissatisfied, he “can [then] return to the Federal Court for its inescapably independent judgment on federal issues.” Peters v. Rutledge, 5 Cir. 1968, 397 F.2d 731, 741; Spencer v. Wainwright, supra, 403 F.2d at 782. Petitioner’s statistics here may be only facially probative of his contention that blacks were arbitrarily or systematically excluded from Ouachita Parish grand and petit jury venires, and we claim no cybernetic finality for them. However, the statistics do have sufficient coloration to warrant a thorough examination to determine if they are more than skin deep. , They may be explained, but not ignored. The dismissal of the writ of habeas corpus is therefore affirmed in part and vacated in part, and the District Court is directed to follow the procedures it adopted in Williams v. Henderson, supra. Affirmed in part, vacated in part, remanded with instructions. . Petitioner’s application had been delayed by various difficulties, which are discussed in the opinion of the District Court appearing at 330 F.Supp. 797. . The State of Louisiana does not appeal from the District Court’s grant of injunction relief. . Petitioner does not contend that the prosecutor’s reference violated the federal law as enunciated at that time since petitioner’s trial occurred prior to Griffin v. California, 1965, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, which forbids reference to a defendant’s failure to testify in his own behalf, but which is non-retrospective. Tehan v. United States, 1966, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453. Petitioner does contend, however, that because Louisiana law at the time of the trial forbade such prosecutorial references, State v. Bentley, 219 La. 893, 54 So.2d 137 (1951), the failure of the State to provide him with a complete transcript with which to prove the existence of the alleged remarks denied him equal protection of the law under Griffin v. Illinois, 1956, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891. . Petitioner argues, however, that Louisiana law mandates a new trial when an individual is convicted by a jury selected in a manner violative of Witherspoon, State v. Turner, 253 La. 763, 220 So.2d 67 (1969), because such a jury denied a defendant a fair and impartial trial. State v. Benjamin, 254 La. 49, 222 So.2d 853 (1969). We find that this issue is now controlled by State v. Shaffer, 260 La. 605, 257 So.2d 121 (1971), and that in the light of that case, petitioner’s contention is without merit. . The evidence concerning the racial composition of the voter registration lists was submitted subject to an objection that race was not an issue because petitioner did not have standing to challenge the exclusion of blacks from the grand and petit juries. . Petitioner also contends that the grand and petit juries that indicted and convicted him were improperly constituted because individuals of higher economic and social classifications were overrepresented on the grand and petit jury venires. Without reaching the constitutional dimension of petitioner’s claim, we hold that the statistics adduced by petitioner are insufficient to support a contention of arbitrary or systematic economic discrimination.

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CUYAHOGA METROPOLITAN HOUSING AUTHORITY, Plaintiff-Appellee, v. Richard M. HARMODY et al., Defendants-Appellants. CUYAHOGA METROPOLITAN HOUSING AUTHORITY, Plaintiff-Appellee, v. CITY OF CLEVELAND et al., Defendants-Appellants. Nos. 72-1686, 72-1687. United States Court of Appeals, Sixth Circuit. Argued Oct. 14,1972: Decided Feb. 14, 1973. Milt Schulman, Schulman & Schulman, Cleveland, Ohio, William R. Van Aken, Richard 0. Horn, Cleveland, Ohio, for defendants-appellants; Henry Du-Laurence, Cleveland, Ohio, on brief, for appellants. Walter C. Kelley, Jr., Cleveland, Ohio, for plaintiff-appellee; Fred J. Livingstone, of Kelley & McCann, Cleveland, Ohio, on brief, for plaintiff-appellee. Before WEICK, PECK and MILLER, Circuit Judges. WILLIAM E. MILLER, Circuit Judge. The Cuyahoga Metropolitan Housing Authority (CMHA) instituted this action in the court below to enjoin the City of Cleveland from adopting a proposed ordinance which would have the effect of repealing a prior ordinance of the city authorizing it to enter into a Cooperation Agreement with CMHA. The prior ordinance provided for the development and administration by CMHA of 2500 dwelling units for persons of low income in the City of Cleveland. The action also sought to enjoin the city from cancelling the Cooperation Agreement executed pursuant to the prior ordinance. Federal jurisdiction was invoked under 28 U.S.C. § 1331(a), the complaint alleging the requisite jurisdictional amount and specifically asserting that the proposed ordinance, if adopted, would be violative of the contracts clause, Article I, Sec. 10 of the Federal Constitution and the due process clause of the Fourteenth Amendment, as well as certain provisions of the Ohio Constitution and statutes. The plaintiff’s application for a temporary restraining order was denied on March 6, 1972. Thereafter, with the permission of the district court, plaintiff filed an amended complaint alleging that the City of Cleveland, after the denial of the temporary restraining order, had adopted on March 27, 1972, Ordinance 392-72 specifically repealing the prior Ordinance 836-7.1 which had authorized the city to enter into the Cooperation Agreement, and cancelling the Agreement itself which had been duly executed by the contracting parties on May 17, 1971. The amended complaint also predicated jurisdiction upon 28 U.S.C. § 1331(a), alleging the requisite jurisdictional amount and pleading violations of the same federal and state constitutional provisions and laws as the original complaint, except that the amended complaint also alleged that the actions taken by the City of Cleveland were violative of the Supremacy Clause. (Article VI of the Constitution of the United States). Following a full hearing, the district judge filed and entered an elaborate memorandum opinion, Cuyahoga Met. Housing Auth. v. Cleveland, 342 F.Supp. 250 (N.D.Ohio, 1972), in which he concluded that Ordinance 392-72, which sought to repeal the prior ordinance and to cancel the Cooperation Agreement, was null and void. He determined that the Cooperation Agreement was a valid and subsisting contract. The defendants were permanently enjoined from any further proceedings or actions in violation of or interference with the plaintiff’s rights under the Agreement. The ultimate conclusion reached by the district court was predicated upon a number of grounds, but its opinion focused primarily upon a finding that Ordinance 392-72, which sought to repeal the prior ordinance and to cancel the Cooperation Agreement, constituted an impairment of the obligation of a valid contract and thus was in violation of Article I, Sec. 10 of the Federal Constitution. The city, in opposition to this view, argues that Ordinance 392-72 was a valid exercise of the reserved police power of the city and was not in violation of the contract clause or any other provision of federal or state law. For the reasons stated below, we are of the opinion, in the context of the present case, that the city, having entered into the Cooperation Agreement under a valid ordinance enacted pursuant to the provisions of both federal and state laws, was without power to abrogate the prior ordinance or to cancel the Cooperation Agreement. Before discussing the legal foundation for our conclusion some additional facts should be stated. As the district court found from undisputed evidence, after the formal execution of the Cooperation Agreement in May, 1971, CMHA, in reliance upon the Agreement, engaged in considerable activity to effectuate a plan to provide dwelling units in the City of Cleveland for persons of low income. It developed plans for 2,500 units over a two and one-half year period. Construction was to proceed in five separate phases which would eventually result in the development of 2,000 family units and 500 elderly units. In order to obtain financial assistance from the Federal government under the National Housing Act, it applied to the Department of Housing and Urban Development (HUD) for a program reservation of 500 units. This request was duly approved by HUD. All of the 500 units in the first phase were designed for single family scattered units to be built under the traditional Turnkey method of construction. It appears, however, that the original plans and approvals were changed so that at the time of the hearing below 150 units were to be constructed under a Turnkey acquisition program. In order to meet the demands for development of the 2,500 units, CMHA hired an additional planner and real estate officer; it created a new position of Deputy Director; and it assigned additional staff members to accomplish the program’s development. It formulated criteria to be forwarded to proposed Turnkey developers and obtained HUD’s approval thereof. In addition, it placed legal advertisements inviting proposals for the development of the 500 Turnkey units. Proposals from ten developers were received by CMHA for 509 units. A considerable amount of time and money were devoted by the CMHA staff to the evaluation of the proposals. It further appears that the HUD staff also spent considerable time and effort in evaluating the proposals, after the CMHA staff had tentatively approved some one hundred proposed sites. Substantial time was also devoted by CMHA, its staff and Board, and by HUD in evaluating the financial and construction aspects of the various Turnkey proposals. As of the time of the hearing below, the CMHA Board had approved plans for approximately 71 sites in all respects and had agreed to enter into development programs therefor. These proposed programs had all been sent to HUD for funding by amendments to the existing Annual Contributions Contracts. Approvals, however, have been withheld by HUD because of the attempt by the City of Cleveland to abrogate the Cooperation Agreement and to withdraw its approval of the program. The proof shows that CMHA expended approximately $45,000 in the development and planning of the 500 scattered units as the first stage of construction under the 1971 Agreement. This money will not be refunded to CMHA unless the Cooperation Agreement is upheld. It appears further from the findings of the district court that federal funds amounting to approximately 62.5 million dollars will be withheld from CMHA, thus preventing it from carrying out its statutorily mandated purpose of providing persons of low income with decent, safe, and sanitary housing in the City of Cleveland. Congress, in the United States Housing Act, 42 U.S.C. § 1401 et seq., has declared the National Housing policy of the country: It is declared to be the policy of the United States to promote the general welfare of the Nation by employing its funds and credit, as provided in this chapter, to assist the several States and their political subdivisions to alleviate present and recurring unemployment and to remedy the unsafe and insanitary housing conditions and the acute shortage of decent, safe, and sanitary dwellings for families of low income, in urban, rural nonfarm, and Indian areas, that are injurious to the health, safety, and morals of the citizens of the Nation. In the development of low-rent housing it shall be the policy of the United States to make adequate provision for larger families and for families consisting of elderly persons. It is the policy of the United States to vest in the local public housing agencies the maximum amount of responsibility in the administration of the low-rent housing program, including responsibility for the establishment of rents and eligibility requirements (subject to the approval of the Authority), with due consideration to accomplishing the objectives of this chapter while effecting economies. 42 U.S.C. § 1401. The statute provides an elaborate scheme to effectuate these objectives, primarily by means of financial assistance to local units of government. However, by the express terms of the Act, 42 U.S.C. § 1415(7) (b), federal assistance in the form of annual contributions or contracts for loans, other than preliminary loans, to local public housing agencies shall not be made “unless the governing body of the locality involved has entered into an agreement with the public housing agency providing for the local cooperation” required by the federal statute. It is also required by the federal statute that federal financial assistance shall not be forthcoming unless the local public housing agency has demonstrated “a need for such low rent housing which is not being met by private enterprise.” 41 U.S.C. § 1415(7) (a). In order to further the objectives of the national policy in Ohio, the legislature of that state has enacted numerous provisions. The state’s policy is declared in unambiguous terms: “It is hereby declared that it is necessary in the public interest to make provisions for housing families of low income and to provide for the elimination of congested and unsanitary housing conditions which exist in certain areas of this state and which are a menace to the health, safety, morals, welfare, and reasonable comfort of the citizens of this state.” Ohio Rev.Code Ann. § 3735.26 (Page 1971). A State Board of Housing is provided for and vested with wide supervisory powers. Ohio Rev.Code Ann. § 3735. 01 (Page 1971). The State Board, upon a determination of need, is given authority to create metropolitan housing authorities for metropolitan areas. Ohio Rev.Code Ann. § 3735.27 (Page 1971). It was under the authority of this provision that the CMHA was created for the City of Cleveland. By § 3735.31 of the Ohio Revised Code, Annotated, the metropolitan housing authorities constitute bodies corporate and politic with a wide range of powers. These include the conventional powers to sue and be sued, but in addition specific powers are conferred for the authorities to determine what areas constitute slum areas and to prepare plans for housing projects therefor, and to acquire property by lease, gift or by eminent domain and other methods. They are specifically authorized to accept grants or other financial assistance from the federal government “for or in aid of any housing project within [their] territorial limits,” and “[to] enter into such . . . agreements as are necessary, convenient or desirable.” Ohio Rev.Code Ann. § 3735.27 (Page 1971). Nothing appears in either the federal statute or in the Ohio legislation which could support either directly or by reasonable implication the proposition that a city, having validly declared the need for federal assistance for low rent housing and having executed with the local housing authority a Cooperation Agreement, could thereafter under its police power cancel the Agreement and withdraw from the program. It appears to us that the police power claimed on the part of the City of Cleveland in this case, if it should be upheld, would cause the state and national plans and policies with respect to low rent housing to rest upon a most tenuous basis — subject to frustration as the result of the vagaries of local politics or at the whim of local governing bodies. We are of the opinion that the policies underlying the national and state legislation under which the Cooperation Agreement in this case was made and entered into necessarily protect the Agreement against cancellation at the mere will of the city. The Agreement was manifestly designed to effectuate national and state purposes of great importance and the police power of a municipality cannot be invoked to interfere with their accomplishment. Such police power as the City of Cleveland possessed as to the particular subject matter was exhausted to the extent of its commitment after it found a need for low rent housing and entered into a solemn agreement with CMHA to obtain federal assistance. The conclusion we have reached is particularly applicable in this case inasmuch as CMHA in reliance upon the Cooperation Agreement engaged in substantial activity and incurred a considerable expense. The Agreement provides, in our opinion, the only means by which it may be validly rescinded or revoked by the city, absent, of course, the application of some general principle of contract rescission which we do not find to be present in this case. Since we find as a matter of law that the city, at least in the context of this case, did not have the right under the applicable state and federal housing laws to withdraw from the program or to cancel the Cooperation Agreement, we find it unnecessary to explore the issue as to whether the action taken by the city was in violation of the contract clause of the Federal Constitution. While we have been unable to find any federal authority directly in point, we are in full agreement with the reasoning of the Supreme Court of California in Housing Authority v. City of Los Angeles, 38 Cal.2d 853, 243 P.2d 515 (1952). In that case the California Supreme Court held that under the federal statute with respect to low rent housing and similar provisions of the California statutes, the City of Los Angeles, having entered into a Cooperation Agreement, could not thereafter rescind or cancel it. The following language of the opinion is particularly apposite: In enacting the Housing Authorities Law and the Housing Cooperation Law the legislature did not take from the city all power to act in connection with housing projects under the statute. The city was given discretionary power to determine initially the need for the housing authority to function and to give approval of a proposed project. The city was also vested with discretionary powers to be exercised pursuant to the cooperation agreement which is required under the federal act. 42 TJ.S.C.A. Sec. 1415(7)(b). But having taken the initial discretionary action to bring the housing authority into operation and having approved a project and entered into a cooperation agreement, there was nothing left to be done by either contracting party but to perform administratively whatever was necessary to carry the agreement into effect. Kleiber v. City, etc., of San Francisco, supra, 18 Cal.2d 718, 724, 117 P.2d 657; Housing Authority v. Superior Court, supra, 35 Cal.2d 550, 558, 219 P.2d 457. Other issues are presented on appeal. We have carefully considered them and find them to be without merit. Our disposition of the case renders moot certain motions filed with this Court and not heretofore disposed of. Affirmed. . There was a single action below but on appeal two numbers have been assigned because of some differences in the issues as between certain defendants, as will be noted. We treat all issues here as on one appeal. . Pursuant to Rule 65(a) (2), Federal Rules of Civil Procedure, the district court consolidated the hearing on the preliminary injunction with the hearing on the merits. He then, pursuant to the same authority, advanced the case for an early hearing. We do not find in the context of the case that there was any abuse of discretion on the part of the district court in permitting the plaintiff to drop from the amended complaint the members of the Citizens Committee and the city clerk as parties defendant, or in his refusal to permit the attorneys who represented three councilmen in their individual capacities to participate in the preparation and conduct of the trial. In this connection it should be pointed out that the hearing was an expedited one and that the attorneys for the Citizens Committee, as well as the attorneys for the three councilmen, were permitted to participate at the hearing as amicus curiae. Further, we think it is clear from the record that the interests of the City of Cleveland were properly represented by the city’s counsel (through its law department) and that these procedural rulings of the district court were well within the range of his permissible discretion. While the rulings are questioned on appeal, we do not deem it necessary to discuss them in detail. Although at the time of the hearing no formal answers had been filed on behalf of any of the defendants the crucial issues had been fully explored and we have no doubt wore clearly understood by the participating parties. It is not unusual to proceed with a hearing on an application for injunctive relief, particularly where, as here, the hearing has been properly expedited, before the issues have been developed by formal pleadings. . The district court clearly had jurisdiction under the claims set forth in the original and amended complaints. The requisite jurisdictional amount was alleged as well as violations of specific provisions of the Federal Constitution. The claims asserted were, in our view, not frivolous or insubstantial and jurisdiction was thus conferred on the district court pursuant to 28 U.S.C. § 1331(a). Since the complaints properly invoked federal jurisdiction on the basis of substantial federal questions, we are free to dispose of the case upon a federal or a state ground, or upon both. Cf. Silver v. L & N R. Co., 213 U.S. 175, 29 S.Ct. 451, 53 L.Ed. 753 (1909); Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1945). . Indeed in the present case it appears that the Ordinance which sought to cancel the Cooperation Agreement was enacted soon after the city administration of Cleveland was substantially changed by a recent election. . Pursuant to the Charter of the City of Cleveland an initiative petition was duly addressed to the City Council proposing that there be submitted to the electors of the city a proposed ordinance which would undertake to cancel the Cooperation Agreement entered into between the city and CMHA, as authorized by Ordinance No. 836-71, enacted May 10,1971. Instead of submitting the proposed ordinance to the electors, the City Council adopted the proposed ordinance No. 392-72 on March 27, 1972. Thus, the 1971 Ordinance was repealed and the Cooperation Agreement was canceled without Council’s giving any ground or reason for such cancellation and repeal. It was only after the injunction action was commenced that any claim of misunderstanding or mistake was made. At the hearing in the district court an attempt was made by counsel for amicus curiae to offer evidence as to the reason for the cancellation, namely, that a committee of the council which negotiated the 1971 ordinance with the CMHA understood that the housing units would be built only after their proposed location would be presented to and approved by the City Council. The district court rejected such testimony and a proffer was made. This evidence would conflict with the provisions of the Cooperation Agreement. No charge of fraud was made in the district court. We do not consider, therefore, any issue whether the enactment of the ordinance and the execution of the Cooperation Agreement were induced by fraud practiced on the city by CMHA, or by mistake.

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Thomas A. DONELON, Charles J. Eagan, Jr., et al., Plaintiffs-Appellants, v. NEW ORLEANS TERMINAL COMPANY and Federal Railroad Administration of the Department of Transportation, Defendants-Appellees. No. 73-1546. United States Court of Appeals, Fifth Circuit. March 12, 1973. Rehearing Denied April 4, 1973. Nathan Greenberg, Roy Price, Parish Atty., Parish of Jefferson, Gretna, La., for plaintiffs-appellants. Benjamin Slater, Walter J. Suthon, III, New Orleans, La., for New Orleans Terminal Co. Gerald J. Gallinghouse, U. S. Atty., New Orleans, La., for Federal Railroad. Before GEWIN, GOLDBERG and DYER, Circuit Judges. GOLDBERG, Circuit Judge: This is an appeal from the granting of a federal injunction prohibiting plaintiffs-appellants, various officials of the Parish of Jefferson, Louisiana [hereinafter the Parish Officials], from proceeding with a state court suit in which they were attempting to obtain injunc-tive relief against the allegedly unsafe practices of defendant-appellee, the New Orleans Terminal Company [hereinafter the Railroad]. The Railroad filed a counterclaim in a related federal suit, which was also brought by the Parish Officials, and asked for a declaratory judgment that the Parish Officials were utterly without jurisdiction, power, or authority to prescribe, establish, or enforce standards and regulations for the maintenance and repair of the Railroad’s roadbeds and tracks. The United States District Court granted the Railroad’s motion for partial summary judgment as to the request for declaratory relief, certified that there was no just reason for delay in the entry of a final judgment regarding the partial summary judgment, see Rule 54(b), F.R.Civ.P., and issued a preliminary injunction against the Parish Officials pursuing their state court suit while the federal action continued. The only issues presently before us are (1) whether the granting of the partial summary judgment was proper, and (2) whether in-junctive relief was appropriate in light of the Anti-Injunction Act, 28 U.S.C.A. § 2283. For the reasons stated herein, we affirm the trial court’s holding on both points. Although the procedural history of this controversy is unusually lengthy and complex, the importance of that history to our holding justifies our setting out the operative occurrences in some detail. August U, 1970: The Jefferson Parish Council was concerned about the fact ..that two train derailments had occurred within the parish in the space of thirty days. The Council met and passed a resolution to initiate legal action to correct the allegedly dangerous conditions of railroad tracks, roadbeds, and other facilities in the parish. October 16, 1970: The Federal Railroad Safety Act of 1970, 45 U.S.A. §§ 421-441, became effective. October 27, 1970: The Parish Officials filed suit in Louisiana state court seeking injunctive relief requiring “proper repair and maintenance” of the New Orleans Terminal Company's tracks and roadbeds and enjoining all use of the tracks until repaired. November 19, 1970: The New Orleans Terminal Company removed the action to federal court pursuant to 28 U.S.C.A. § 1441. January U, 1971: The federal court remanded the action to the state court. January 15, 1971: The Railroad petitioned the Secretary of Transportation to conduct an inquiry into the condition of the Railroad’s trackage, roadbed, and other facilities in Jefferson Parish and to declare them to be in safe and proper condition. The Railroad alleged in its petition that the Federal Railroad Safety Act of 1970, particularly § 203 thereof, 45 U.S.C. § 432, conferred authority on the Secretary of Transportation to conduct such an inquiry and to issue the requested report. The Parish Officials filed exceptions with the Secretary of Transportation objecting to any investigation being held at the Railroad’s request and urging that the petition be dismissed. January 21, 1971: The Federal Railroad Administration of the Department of Transportation assumed jurisdiction of the controversy and conducted an inspection of the Railroad’s facilities in Jefferson Parish. February 19, 1971: The Railroad filed jurisdictional exceptions to the state court proceedings, alleging that federal jurisdiction was exclusive and that even under Louisiana law the Parish Officials were improper parties to bring such a suit. March 16, 1971: The Fedéral Railroad Administration issued a report, F. R.A. Pet. No. 25 [hereinafter the Report], declaring that “this matter properly comes within the scope of the Federal Railroad Safety Act of 1970,” setting forth detailed findings regarding the conditions of the Railroad’s facilities in Jefferson Parish, and concluding that the trackage was properly maintained and was in a safe and suitable condition for daily operations. April 2, 1971: The Parish Officials filed the instant suit in federal court. The petition was captioned “Petition for Review of an Order of an Administrative Agency of the United States," but it named as defendants both the Federal Railroad Administration and the Railroad. The suit basically sought a determination that the Federal Railroad Administration had no jurisdiction to act as it did, that the Administration denied the Parish Officials due process of law by refusing to grant them an adversary hearing before issuing the Report, and that the Report was null and void. May 19, 1971: The Railroad answered the federal petition and counterclaimed for a declaratory judgment that (1) the Parish Officials had no jurisdiction to prescribe or enforce rules and regulations relating to the safety of operations of a railroad operating in interstate commerce, and (2) the Report was valid and binding. October 16, 1971: Pursuant to the statutory mandate of § 202(e) of the Federal Railroad Safety Act of 1970, 45 U.S.C. § 431(e), the Federal Railroad Administration adopted comprehensive federal “Track Safety Standards,” 36 Fed.Reg. 20336-343, 49 C.F.R. § 213.1-213.241. November 5, 1971: The Railroad filed a motion in the federal action for partial summary judgment. In essence, the Railroad asked for a judgment that the area of establishing and enforcing railroad track safety standards was totally preempted by federal law and that the Parish Officials were totally without jurisdiction, power, or authority to establish or enforce railroad safety standards. December 15, 1971: The federal court granted the Railroad’s motion for partial summary judgment. Shortly thereafter, the state court set a hearing date as to the Parish Officials’ state suit for injunctive relief against the Railroad. January 21, 1972: The Railroad returned to federal court and asked for a preliminary injunction enjoining the Parish Officials from proceeding with their state court suit. After certifying the partial summary judgment under Rule 54(b), F.R.Civ.P., the United States District Court entered an order that “[T]he granting of a preliminary injunction against the prosecution of [the state court] suit ... is necessary to protect the jurisdiction of this Court and the Department of Transportation, and to protect and effectuate the [partial] judgment in favor of New Orleans Terminal Company. . . . ” The court then issued the injunction restraining the Parish Officials from taking any further steps against the Railroad other than by continuing its suit for judicial review of the Report. We note at the outset of our analysis that there are two distinctive features about this case. First, this is an appeal from only a partial summary judgment, which was made final, and therefore appealable, by a Rule 54(b) certification. The entire federal court case has not yet been finally decided below — the action for review of the Report of the Federal Railroad Administration is continuing to be litigated. Furthermore, the orders entered to date by the district court clearly indicate that the court intends to re-examine the injunction against the state court proceedings at the time a final judgment is entered regarding the review of that Report. Secondly, appellants’ posture on this appeal is perhaps unique. Appellants sought to have the state court settle the controversy — they filed the original suit in state court, and when the Railroad removed it to federal court, appellants were successful in obtaining a remand back to the state court. Had the matter ended there, the federal court would not have become involved in the dispute, for a remand order is not reviewable. But appellants were not content to leave the entire case in state court. Apparently fearing that the Railroad could successfully use the Federal Railroad Administration’s Report as a “defense” to the state suit, appellants themselves invoked the jurisdiction of the federal court by bringing suit to attack the Report. By naming the Railroad as a party defendant in that action, appellants called upon the federal court to resolve the differences between' themselves and the Railroad. Their complaint is with the manner in which the federal court resolved the dispute they themselves asked it to resolve. I. THE PARTIAL SUMMARY JUDGMENT The basic thesis underlying the district court’s granting of the partial summary judgment is that a federal regulatory scheme has pre-empted the field of railroad safety to the exclusion of whatever interest in regulating railroad safety these individuals might otherwise have had outside the Act. We are in complete agreement with that conclusion, and we are fortified in reaching that result by the fact that we have a clear declaration of Congressional intent on that point to guide us: “The Congress declares that laws, rules, regulations, orders, and standards relating to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force any law, rule, regulation, order, or standard relating to railroad safety until such time as the Secretary has adopted a rule, regulation, order, or standard covering the subject matter of such State requirement. A State may adopt or continue in force an additional or more stringent law, rule, regulation, order, or standard relating to railroad safety when necessary to eliminate or reduce an essentially local safety hazard, and when not incompatible with any Federal law, rule, regulation, order, or standard, and when not creating an undue burden on interstate commerce.” 45 U.S.C. § 434. The meaning of the Congressional declaration is clear. The ultimate goal of the Act is to establish nationally uniform control of railroad safety, but the statute is not iron-clad. The Act specifically authorizes a narrow spectrum of deviation from national uniformity, and the issue here is whether appellants’ state court suit falls within one of the permissible exceptions. The first statutory “exception,” which appears in the second sentence of § 434, is clearly inapplicable. Regulations covering the precise subject matter of the state court suit have been enacted, 36 Fed.Reg. 20336-343, 49 C.F.R. § 213.1-213.241, and those regulations are comprehensive in scope and detail. Nor can the second “exception,” which appears in the final sentence of § 434, be said to envision this particular action. Three tests must be met if a state regulation is to be justified under the second “exception”: (1) the state regulation or standard relating to railroad safety is necessary to eliminate or reduce an essentially local safety hazard, see Washington v. Chicago, M., St. P. & P. RR., 1971, 79 Wash.2d 288, 484 P.2d 1146, appeal dismissed, 404 U.S. 804, 92 S.Ct. 108, 30 L. Ed.2d 36 (fire hazards along railroad rights-of-way); (2) the local measure is not incompatible with any federal measure; and (3) the local measure does not unduly burden interstate commerce. We need not and do not decide whether those tests are here met, because in any event meeting those three conditions justifies only State action. This case is supported by United Gas Pipeline Co. v. Terrebonne Parish Police Jury, 1970, 319 F.Supp. 1138, aff’d, 5 Cir. 1971, 445 F.2d 301. That case concerned the Natural Gas Pipeline Safety Act of 1968, 49 U.S.C.A. § 1671-1684, which provided a similarly limited “exception” for “Any state agency.” Id. § 1672(b). The Railroad Safety Act, however, speaks of an exception for “States,” and we do not .have before us an attempt by the State of Louisiana to regulate railroad safety; rather, we have before us individual officials of a parish government. Their remedy against unsafe railroad practices must fit within the borders of the federal Act and the enumerated qualifications and exceptions thereto. We do not purport to suggest at this time that the State of Louisiana, acting through its Attorney General, could not bring this same common-law suit to enjoin unsafe railroad practices. Nor do we intimate here that the Louisiana legislature, or some duly delegated agency acting for the State, could not establish standards under § 434’s second exception. Lastly, we do not reach the issue of the extent to which the Act pre-empts State standards such as the common-law tests that appellants apparently seek to vindicate. See Napier v. Atlantic Coast Line RR., 1926, 272 U.S. 605, 47 S.Ct. 207, 71 L.Ed. 432. None of those issues are now before us, and we hold only that these individual officials are without authority under the Federal Railroad Safety Act of 1970 to require the Railroad to meet any safety standard beyond those provided for in the national Act. II. THE TEMPORARY INJUNCTION AGAINST STATE COURT PROCEEDINGS Having decided that the district court correctly entered a judgment that appellants are without power to require the Railroad to meet any non-federal safety standards, we must next determine whether it was appropriate for the United States District Court to issue an injunction against further state court proceedings. The Railroad urges that the preliminary injunction was proper under either of two exceptions to the Anti-Injunction Act, 28 U.S.C.A. § 2283, which provides as follows: “A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” First, the Railroad says that this injunction is needed in aid of the federal court’s jurisdiction and to protect or effectuate its judgment. Secondly, the Railroad argues that the injunction is “expressly authorized by Act of Congress” in passing the federal pre-emp-tive legislation, citing Mitchum v. Foster, 1972, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705. Finding the first alternative to be applicable, we pretermit consideration of the second. In Tampa Phosphate RR v. Seaboard Coast Line RR., 5 Cir. 1969, 418 F.2d 387, and Woods Exploration & Production Co. v. Aluminum Co. of America, 5 Cir. 1971, 438 F.2d 1286, this Court wrote at great length on the state of the law regarding federal court injunctions against state court proceedings. In the latter case we thought that we had “at last reached the end of our long and protracted journey through the Appling Field and points beyond,” 438 F.2d at 1316, but the importance of the issue justifies a few additional words. The Anti-Injunction Act expressly excepts stays necessary in aid of the court’s jurisdiction or needed to protect or effectuate its judgments. Here, both precepts appear, for the United States District Court still has before it part of the controversy between these parties — the judicial review of the Report — and the court has already finalized a judgment pursuant to Rule 54(b) as to part of the controversy. In effect, the court below has by final judgment held that the Railroad cannot properly be subjected to the efforts of these individual local officials to impose some safety standard that lies outside of the Federal Railroad Safety Act of 1970. That part of the action is concluded and certainly rises to the level of res judicata effect that was our central concern in Woods Exploration & Production Co. v. Aluminum Co. of America, supra. We find that the Woods Exploration and Tampa Phosphate RR. cases control and we hold that this injunction was proper. Those two cases are so directly in point that it would serve little purpose to quote from them at length; instead, we merely reiterate that a federal court may enjoin a state proceeding that is precluded under the doctrine of res judi-cata. While § 2283 was designed to ensure the state courts’ adjudicative potency, its exceptions assure that the federal courts and their judgments will not be eunuchized and that their muscularity will not be atrophied. Although the character of the person filing the federal action does not control the issue, we cannot ignore the fact that here it was the Parish Officials themselves who invoked the jurisdiction of the federal court. This is not a ease of parties racing to the courthouse or racing to judgment, nor is this a case of parties suing each other in separate state and federal courts and then encouraging jealous cross-fire between the courts. None of those factors being present, many of the thorny considerations usually involved in these injunction cases are not even raised. Appellants themselves issued the invitations to dance in the federal ballroom, they chose their dancing partners, and at their own request they were assigned a federal judge as their choreographer. Now that the dance is over, appellants find themselves unhappy with the judging of the contest. They urge us to reverse and deciare that “Good Night Ladies” should have been played without the partial summary judgment having been granted and without the preliminary injunction having been issued. This we have declined to do, and in so doing we note that this is not The Last Tango for the Parish. Appellants still have an encore to perform and their day in court is not yet over. Their attack on the Report issued by the Federal Railroad Administration has yet to be decided. The Railroad Safety Act makes clear, however, that seeking judicial review of the Report’s determination that the Railroad meets all applicable standards is the only remedy even arguably available to these particular individuals. See 45 U.S.C. § 432. The State may participate in regulating railroad safety under the Act, see 45 U.S.C. §§ 435, 436, 439(a), but this case does not involve the State itself. Here we have individuals, representing a parish, waltzing into two courts simultaneously. The trial court’s holding that the Act is pre-emptive is correct. No attempt to regulate the safety of interstate railroads may be made unless the Act itself authorizes or allows the regulation. We hold that the court below properly rendered judgment that the Railroad could not be forced to participate in this state court cotillion, which was not brought by the State and which sought to impose safety measures that were not contemplated by the Act, and that the federal court, under the facts of this case, was the sole director of the terpsichorean exhibition and had the right to effectuate and protect its directional decisions. The adjudication having gravitated to the federal forum, appellants’ attempt to repeal that law is unavailing. Affirmed. . The Federal Railroad Administration of the Department of Transportation was also named as a defendant in the principal federal suit but is only a nominal party on this appeal. . See Wright, Federal Courts § 41. The sole exception is where removal was sought under 28 U.S.C.A. § 1443. See 28 U.S.C.A. § 1447(d).

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Ray BEAVERS, Petitioner-Appellant, v. Park J. ANDERSON, Warden, Oklahoma State Penitentiary, Respondent-Appellee. No. 72-1437. United States Court of Appeals, Tenth Circuit. Argued and Submitted Feb. 20, 1973. March 16, 1973. Leonard E. Davies, Denver, Colo., for petitioner-appellant. Paul Crowe, Asst. Atty. Gen. (Larry Derryberry, Atty. Gen., of Oklahoma, on the brief), for respondent-appellee. Before HILL and DOYLE, Circuit Judges, and BRATTON, District Judge. WILLIAM E. DOYLE, Circuit Judge. This is an appeal from a judgment of the District Court for the Eastern District of Oklahoma denying the petition of the appellant for relief pursuant to 28 U.S.C. § 2254. Petitioner had pleaded guilty to manslaughter in the first degree and had been sentenced to 25 years in the Oklahoma State Penitentiary, the maximum sentence being 99 years. Denial of relief in the district court was based on a review of the records of the proceedings in the state court and the court of criminal appeals, and the finding that these records contained nothing which would require a conclusion different from that reached by the state district court and the court of criminal appeals. An evidentiary hearing was not conducted, and the petitioner has exhausted his state court remedies. He contends here, as he did in the district court, that his plea of guilty resulted from coercion. Essentially, then, our inquiry is whether the record reveals coercion or whether an evidentiary hearing to determine the truth of this contention factually should have been carried out by the federal trial court. Defendant, in seeking relief here, relies on the decision of the Supreme Court in Boykin v. Alabama, 395 U.S. 238, 242-243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). This is a case in which the defendant entered pleas of guilty to five indictments charging armed robbery. The cause was submitted to a jury in accordance with Alabama practice for the purpose of determining the sentence. The jury imposed the death penalty. At the time of Boykin’s plea of guilty the court failed completely to- address the defendant with respect to whether his plea had been entered voluntarily. The Supreme Court ruled that waiver of the right to counsel and acceptance of a plea of guilty without a showing that it was intentional and voluntary constituted a violation of the petitioner’s constitutional rights. - The record in the case at bar is not silent. It is true that we do not have a stenographer’s transcript of what occurred at the state court hearing. The record does contain, however, a form consisting of 27 questions and answers signed by the accused and his counsel as well as by the trial judge, the district attorney and the court reporter. This form is somewhat exhaustive, and we are assured that the questions were asked by the trial judge and that the answers were given by the defendant. The form makes inquiry as to whether the accused pleaded guilty of his own free will and only for the reason that he was guilty and further as to whether he committed the acts charged. He was further asked whether he had been “abused, mistreated, or threatened by anyone to have you enter this plea?” Defendant answered “No, sir.” Other questions pertained to his right to a jury trial, his knowledge as to the minimum and maximum sentences under the pertinent statute and as to his right to appeal. There is no statement in any of the answers suggesting that there had been a coercion exercised. Petitioner alleged in the state court and also in the district court that the guilty plea was involuntary because while he was confined in the county jail on a charge of murder, the sheriff threatened that if he did not cop out or plead guilty “he was going to see that I got all the law would give.” He further alleges that the district attorney stated that if he did not plead guilty, a former conviction would be filed and he would be sentenced to 99 years. Also, he claims that his court appointed attorney told him that if the former conviction were charged, he would be unable to take the stand in his own defense. An examination of the relevant Oklahoma law reveals that a 99 year sentence is apparently the maximum which is imposed for the offense of first degree manslaughter in Oklahoma and this was brought to the petitioner’s attention at the time of his arraignment in the state district court. At this time he stated that he understood that he could receive a sentence within the limits of four years to 99 years. Advice as to the consequences of the plea certainly does not constitute coercion. See Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); Lattin v. Cox, 355 F.2d 397, 400 (10th Cir. 1966). In the final analysis the petitioner’s case is reduced to his allegation that the sheriff told him that if he did not plead guilty he would get the maximum. This allegation standing alone is, to say the least, unimpressive. We do note, however, that if a plea of guilty is coerced, the law is clear that this violates due process. See Roscoe v. Hunter, 144 F.2d 91, 92 (10th Cir. 1944); cf. Reed v. Turner, 444 F.2d 206, 208-209 (10th Cir. 1971). See also Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962), which holds that an inquiry is necessary even though the allegations are illogical or apparently false. The allegation here is that the plea was obtained by threats and coercion. We are unable to say from the record before us that the defendant was coerced, but we believe in view of the allegations that the court was required to conduct an inquiry and make a finding, first, as to what transpired in the district court, that is, as to whether the district court addressed the defendant and made a genuine effort to ascertain whether the plea was knowingly, understandably and voluntarily entered. On the other hand, we are not to be understood as condemning the use of a written memorial signed by the accused as to the proceedings which occurred in connection with the plea of guilty. We are merely saying that the important aspect is not the form but the substance of the matter. If, therefore, the form were to be used in a ritualistic way it could be meaningless. On the other hand, if the trial judge carries out his function with a conscientious effort to satisfy himself that the plea is a product of volition of the accused personally and was not induced by promises of any kind or character, and uses the questions and answers as a guide or check list, the form would merely evidence the voluntariness of the plea. Counsel for petitioner would have us superimpose Rule 11 of the Federal Rules of Criminal Procedure on the state court procedure so as to render it a constitutional requisite. Boykin v. Alabama, supra, does not hold that this must be done, and we are not disposed to adopt such a requirement. In a very recent opinion, filed February 27, 1973, Stinson v. Turner, 473 F.2d 913, this court denied a petition similar to that which is here presented. The Supreme Court’s decision in Boykin was considered in Judge Holloway’s opinion and it was concluded, just as we conclude here, that Boykin requires the record to affirmatively show that a defendant who pleaded guilty entered his plea understanding^ and voluntarily, and that its requirements were there satisfied. The philosophy expressed in Stinson is the same as that which we have expressed and are now expressing in the ease at bar. Surely the states, so long as they satisfy the substantial requirements of the Fourteenth Amendment, can follow their own procedure. We merely hold that where, as here, allegations of coercion appear, there exists a degree of uncertainty as to the voluntariness of the plea so that the presumption of validity of the state proceedings is not strong enough to justify upholding state court action without further inquiry. Cf. Maes v. Patterson, 401 F.2d 200, 201 (10th Cir. 1968); United States v. La Vallee, 319 F.2d 308 (2d Cir. 1963). In State of Missouri v. Turley, 443 F.2d 1313 (8th Cir. 1971), the court said: Rule 11 is, of course, not applicable in state proceedings. Nevertheless, once it has been established that a state court has, at the time of accepting a guilty plea, elicited sufficient information from the parties so that the propriety of accepting the plea is established in a manner analogous to the dictates of Rule 11, and an adequate record is made thereof, the occasion for setting aside a guilty plea should seldom arise. In view of these variables, the use of a form by itself will not be sufficient in every case and will need an elaboration in some instances. In the case at bar the reason that the form may be insufficient is that the defendant has alleged that coercion was exercised by state officials outside of court. It may be that no form would furnish an answer to such an allegation. But regardless of this, we are convinced that inquiry was here required. Based upon the foregoing, the judgment of the district court is reversed and the cause is remanded for further proceedings. . 21 Okla.Stat.Ann. § 713. . Cf. Arbuckle v. Turner, 440 F.2d 586, 589 n. 4 (10th Cir. 1971).

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Elvin Emmett MOORE, Petitioner-Appellant, v. Park J. ANDERSON, Warden, Respondent-Appellee. No. 72-1783. United States Court of Appeals, Tenth Circuit. March 16, 1973. Leonard E. Davies, Denver, Colo., for petitioner-appellant. Paul Crowe, Asst. Atty. Gen. (Larry Derryberry, Atty. Gen. of Oklahoma, on the brief), for respondent-appellee. Before HILL and DOYLE, Circuit Judges, and BRATTON, District Judge. WILLIAM E. DOYLE, Circuit Judge. Appellant seeks reversal of a judgment of the United States District Court for the Western District of Oklahoma where he filed a petition pursuant to 28 U.S.C. § 2254, alleging that his pleas of guilty to charges of assault and battery with a deadly weapon with intent to kill and escape from confinement other than penitentiary were not voluntary and therefore void. The state court remedies of petitioner have been exhausted, appellant having pursued post conviction remedies through the state courts. The district court denied the petition on the basis of the moving papers holding: “The generalities, conclusions, and other allegations of petitioner which are contradicted by the records of the trial court are insufficient to entitle petitioner to an evidentiary hearing.” We affirm. Appellant’s main contention is that the record in the state court was so inadequate as to constitute a violation of his due process rights under the Fourteenth Amendment because the record does not disclose, according to him, that he was informed of his constitutional rights before entering his plea. This is another case in which written questions were submitted and answers were inserted in blank spaces presumably by the court or the clerk. The completed form is signed by the district attorney, the attorney for the defendant, by the defendant, by state district judge, the court reporter and court clerk. The court propounds the questions. This form is essentially the same as that which was used in Beavers v. Anderson, 474 F.2d 1114, a decision announced this day. Unlike the Beavers case, wherein particular allegations were made as to the coercion practiced, the petition at bar simply alleges that the plea was not voluntary and that there was not a sufficiently full explanation as to the defendant’s right to a trial by jury and his right to counsel and “the possibility of the penalty provided by statute for the offense charged.” The petition also stated that “the defendant at the time of his plea of guilt was under heavy mental strain as well as under strain and influence of threats before plea.” The defendant was obviously warned as to the maximum penalty provided by law and as to the consequences of a plea of guilty. He was also told of his right to have a jury trial and stated that he did not wish to have one. He further stated that he had discussed the charges with his lawyer and understood his rights and that his lawyer had advised him in the matter. Based upon this and other questions which were propounded to him, he entered pleas of guilty to both charges and was sentenced. He was in fact represented by counsel and he nevertheless complains that the judge failed to advise him fully of his right to counsel. As in the Beavers ease, counsel argues that the written form by itself violates the Constitution. We disagree. We have carefully read Boykin v. Alabama, 395 U.S. 238, 242-243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), which is relied on by the appellant, and that case does not hold that Rule 11 together with its implementing federal decisions is lock, stock and barrel applicable to state court proceedings. Undoubtedly the accused is entitled to have the judge address him personally on the occasion of his arraignment and he is entitled to know of his right to a jury trial, and if he attempts to enter a plea of guilty he is entitled to know the consequences of his plea, and the judge must satisfy himself that the plea is being given voluntarily and with knowledge of its consequences. The questions and answers here are sufficient to satisfy these minimum requirements. The presumption of validity given to these proceedings is not challenged by the allegations of the petitioner. See Norvell v. Illinois, 373 U.S. 420, 424, 83 S.Ct. 1366, 10 L.Ed.2d 456 (1963); Boyd v. Oklahoma, 375 F.2d 481 (10th Cir. 1967). As we said in Beavers, the nature of the questions and answers signed by the accused and others does not of itself establish that the proceedings were inadequate or involuntary. On the contrary, they tend to show that the accused acknowledged his guilt and was aware of his rights. For example, the mere fact that he is called upon to sign a document does not condemn the practice. Rule 23(a) of the Federal Rules of Criminal Procedure calls for the signing of a document whenever the accused waives a jury and consents to be tried to the court. This procedure has been upheld. See Estrada v. United States, 457 F.2d 255 (7th Cir.), cert. denied, 409 U.S. 858, 93 S.Ct. 143, 34 L.Ed.2d 104 (1972), and see United States v. Straite, 138 U.S.App.D.C. 163, 425 F.2d 594 (1970). We have considered the excellent opinion of Judge Holloway in Stinson v. Turner, 473 F.2d 913, and the decision here, as does the decision in Beavers, conforms with Stinson. Finally, appellant contends in his allegation that he was under heavy mental strain which itself justifies an evidentiary hearing. Again, we disagree. The state district court referred the defendant for mental examination and he was reported sane. There is no other evidence that he was unable to understand the proceedings and to cooperate with counsel. Furthermore, the allegation itself is weak. It fails to allege incompetency. In summary, the trial court correctly determined that an evidentiary hearing was unnecessary in view of the lack of apparent substance in the petition. See Machibroda v. United States, 368 U.S. 487, 495-496, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962) and Eskridge v. United States, 443 F.2d 440 (10th Cir. 1971). The judgment of the district court is affirmed.

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UNITED STATES of America, Appellee, v. Larry Lee HANSEL, Appellant. No. 72-1373. United States Court of Appeals, Eighth Circuit. Submitted Dec. 5, 1972. Decided Feb. 20, 1973. Douglas McArthur, Lincoln, Neb., filed brief for appellant. William K. Schaphorst, U. S. Atty., and R. C. Cougill, Asst. U. S. Atty., Omaha, Neb., filed brief for appellee. Before MATTHES, Chief Judge, and GIBSON and HEANEY, Circuit Judges. . Statutes prohibiting the possession of firearms by particular classes of persons have been criticized. National Commission on the Causes & Prevention of Violence, Staff Report, Firearms and Violence in American Life, § 81-25 (undated). This case bears out the difficulties with respect to the definition of classes. HEANEY, Circuit Judge. The defendant was convicted on two counts of violating the Gun Control Act of 1968. Count I charged that, in violation of 18 U.S.C. §§ 922(a)(6) and 924 (a), he had falsely certified that he had not been adjudicated a mental defective or committed to a mental institution. Count II charged that, in violation of 18 U.S.C. §§ 922(h) and 924(a), the defendant had received a firearm after having been adjudicated a mental defective or committed to a mental institution. The evidence clearly showed that the defendant had purchased a firearm on April 25, 1971, and had stated on the “Firearms Transaction Record” that he had not been adjudicated mentally defective or committed to a mental institution. The principal question before the trial court and before this Court is whether the defendant had in fact been “adjudicated as a mental defective” and “committed to any mental institution” within the meaning of § 922(h) of the Gun Control Act of 1968. According to the evidence produced by the government, the Board of Mental Health of Lancaster County, Nebraska, found the defendant to be mentally ill and in need of hospitalization and ordered him hospitalized pursuant to 5 Neb.Rev.Stat. § 83-328 (1971). It was the position of the government that the finding of the mental illness constituted an adjudication of mental defectiveness, and that the order of hospitalization constituted a commitment. During the government’s case, the doctor who had examined the ■ defendant upon his admission to Lincoln State Hospital testified. He stated that the defendant was found not to have a serious mental disorder, and that he was not in need of hospitalization. He also stated that the defendant was not a mental defective. The evidence showed that the defendant was released from the hospital on “convalescent leave” after two weeks, and was shortly thereafter formally discharged. Subsequent to his release, the defendant had no further contacts with the hospital. At the close of the government’s case, the defendant moved for a directed verdict on the grounds that there was no evidence to show that he had either been adjudicated a mental defective or committed to a mental institution. This motion was denied. The defendant then presented his case. The defendant testified that he did not believe that his entry into the Lincoln State Hospital constituted a “commitment.” He stated that he had been told that it was solely for a brief period of observation. This testimony was corroborated in part by the defendant’s wife. At the close of the case, the court instructed the jury that they could find the defendant guilty if he had either been adjudicated a mental defective or if he had been committed to a mental institution. The court then defined a mental defective as a “person who has any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls.” The court did not further define the term “commitment.” The defendant objected, stating that he did not believe the question of whether the defendant was a mental defective should go to the jury because no evidence had been introduced in that regard. The judge overruled this objection. The first question is whether the defendant’s hospitalization, pursuant to the County Mental Health Board’s order, was a “commitment.” The government conceded on appeal that the defendant was not committed because there was no compliance with 5 Neb.Rev.Stat. § 83-328. This concession is well taken. The Nebraska statutory scheme establishes a two-step procedure for determining that an individual is a mentally ill person in need of hospitalization. First, the individual may be temporarily hospitalized for psychiatric observation if the County Mental Health Board makes a determination that he is a mentally ill person in need of hospitalization. Second, an individual may be committed to a hospital if, on the basis of this observation, the superintendent of the state mental hospital determines that the individual is mentally ill and then certifies this determination to the County Board of Mental Health. In the present case, no evidence was introduced to establish that the superintendent of the mental hospital had determined the defendant was mentally ill or had conveyed any certification to the Mental Health Board. The record rather indicates that the defendant was found by the superintendent to have no serious mental illness, and was found not in need of hospitalization. Thus, the scope of the Mental Health Board’s order hospitalizing the defendant was limited to “authorizing the superintendent of the hospital to receive and keep the person as a patient for a period of observation, not to exceed sixty days * * (Emphasis added.). 5 Neb.Rev.Stat. § 83-328. There is nothing in 18 U.S.C. § 922(h) which indicates an intent to prohibit the possession of firearms by persons who had been hospitalized for observation and examination, where they were found not to be mentally ill. The statute makes it clear that a commitment is required. The second question is whether the finding by the Mental Health Board, that the defendant was mentally ill, was an adjudication of mental defectiveness within the meaning of 18 U.S.C. § 922 (h). We hold that it was not. We do not reach the question of whether the “finding” was an “adjudication” because we believe that the term “mental defective” as used in the Gun Control Act does not include mental illness. The Gun Control Act itself does not define the term “mental defective.” The parties have not suggested any legislative history which would illuminate this point, and we have found nothing in the committee reports or debates which is helpful. Thus, we are left to ourselves to determine the meaning of the term “mental defective,” “ * * * without any revealing guides as to the intent of Congress. In these circumstances we should follow the familiar rule that criminal statutes are to be strictly construed and give to ‘[mental defective]’ its narrow meaning * * Yates v. United States, 354 U.S. 298, 310, 77 S.Ct. 1064, 1072, 1 L.Ed.2d 1356 (1957). At trial, the following colloquy took place between the defendant’s counsel and the doctor who had examined the defendant at the state mental hospital: “Q. Dr. Richardson, are you familiar with the term mentally defective, or mental defective? “A. I think that I would know what is generally meant by mental defective, yes. “Q. What is your understanding of the term mental defective? “A. My understanding of the term would be an impairment of intellectual abilities so it would be synonymous with mental retardation. This would be my understanding of the term. “Q. Dr. Richardson, based upon your training and based upon your examinations of Larry Hansel do you have an opinion as to whether or not Mr. Hansel would be classified as a mental defective ? “A. No, he would not. “Q. He would not be classified as a mental defective? “A. In my opinion he would not.” No testimony to the contrary was introduced. In law, a distinction has usually been made between those persons who are mentally defective or deficient on the one hand, and those who are mentally diseased or ill on the other. See, People v. Thayer, 121 Misc. 745, 202 N.Y.S. 633 (Ulster County Ct. 1923); Interstate Compact on Mental Health, 5A Ark.Stat.Ann. § 59-801; Herzog, Medical Jurisprudence, §§ 561-585 (1931); 1 Wharton and Stille, Medical Jurisprudence, §§ 1073-1093 (5th ed. 1905). In its plain meaning, the term “mental defective,” as Dr. Richardson testified, normally designates an individual of marked subnormal intelligence. People v. Hoffmann, 255 App.Div. 404, 8 N.Y.S.2d 83, 85 (App.Div.1938). In that case, the court stated: “ * * * The statutes do not define ‘mental defect,’ ‘mental defective,’ nor ‘mental deficiency;’ but Webster’s Dictionary (1935 edition) denominates these as ‘marked subnormal intelligence,’ ‘lack of intelligence,’ and that in varying degrees of the descending scale of moronity, imbecility and idiOCy^ * * * ” Similarly, a psychiatric dictionary defines “mental defective” as “one who is subnormal intellectually, feebleminded.” L. Hinsie & R. Campbell, Psychiatric Dictionary (1960). The Encyclopedia Britanniea states that mental defectiveness, mental deficiency and feeblemind-edness are synonyms which denote limitations of development of the personality, usually including intellectual retardation. 15 Encyclopedia Britanniea 167 (1972). The Royal Commission on Capital Punishment (1953) has stated: “336. ‘Mental deficiency’ is generally understood as meaning intellectual defect, or defect of understanding, existing from birth or from an early age. In England ‘mental defectiveness’ is defined by statute as ‘a condition of arrested or incomplete development of mind existing before the age of eighteen years, whether arising from inherent causes or induced by disease or injury’. A mental defective, therefore, as has often been said, is a person who has never possessed a normal degree of intellectual capacity, whereas in an insane person faculties which were originally normal have been impaired by mental disease. “337. In England mental defectives are divided into four classes, which are defined as follows:- — ■ “ ‘(a) Idiots, that is to say, persons in whose case there exists mental defectiveness of such a degree that they are unable to guard themselves against common physical dangers; “‘(b) Imbeciles, that is to say, persons in whose case there exists mental defectiveness which, though not amounting to idiocy, is yet so pronounced that they are incapable of managing themselves or their affairs or, in the case of children, of being taught to do so; “‘(c) Feeble-minded persons, that is to say, persons in whose case there exists mental defectiveness which, though not amounting to imbecility, is yet so pronounced that they require care, supervision and control for their own protection or for the protection of others or, in the case of children, that they appear to be permanently incapable by reason of such defectiveness of receiving proper benefit from the instruction in ordinary schools; “ ‘(d) Moral defectives, that is to say, persons in whose case there exists mental defectiveness coupled with strongly vicious or criminal propensities and who require care, supervision and control for the protection of others.’ ” We recognize that the term “mental defective” has on occasion, been given a more expansive meaning by courts and legislatures. See, United States v. Flores-Rodriguez, 237 F.2d 405, 411 (2nd Cir. 1956). But as we have said, we must construe the statute narrowly and give to “mental defective” its. general meaning. If it is the desire of Congress to prohibit persons who have any history of mental illness from possessing guns, it can pass legislation to that effect, but we cannot read into this criminal statute an intent to do so. We can speculate that Congress desired to keep guns from all who had a history of mental illness and we might agree that such a policy would be desirable; but we can find no support for such a holding on our part. We, therefore, hold that the defendant’s convictions must be set aside and a judgment of acquittal entered on both counts. Reversed. . 18 U.S.C. § 922(h) states: “(h) It shall be unlawful for any person— “(1) who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; “ (2) who is a fugitive from justice; “(3) who is an unlawful user of or addicted to marihuana or any depressant or stimulant drug (as defined in section 201 (v) of the Federal Food, Drug, and Cosmetic Act) or narcotic drug (as defined in section 4731(a) of the Internal Revenue Code of 1954) ; or “(4) who has been adjudicated as a mental defective or who has been committed to any mental institution; “to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” . The defendant’s wife stated that it was her understanding that the defendant had been hospitalized for observation. . The jury returned a general verdict of guilty on both counts. It made no special finding that the defendant nad been “committed to any mental institution” or “adjudicated a mental defective.” Under such circumstances, we must examine the record to determine whether there is evidence to support both. For the reasons set forth in the opinion, we feel that there is not sufficient evidence to support either. . 5 Xeb.ltev.íStat. § 83-32S (1971) states: “83-328. County board of mental health; certification from superintendent; findings. As soon as practicable after the certificate required by this act lias been filed, the county board of mental health shall conclude its investigations. The board members shall find (1) whether the person alleged to be mentally ill is mentally ill; (2) if mentally ill, whether he should be admitted to a state hospital for the mentally ill; and (3) whether his legal settlement is in their county, and if not in that county where it is, if ascertained. If they find the person alleged to be mentally ill is not mentally ill, the board members shall order his discharge, if he is in custody; if they find the person alleged to be mentally ill is mentally ill and should be admitted to a hospital, they shall issue a warrant in duplicate, stating their finding together with the legal settlement of the proposed patient if found and if not found their information if any in regard thereto, authorizing the superintendent of the hospital to receive and keep the person as a patient for a period of observation not to exceed sixty days, at which time the hospital superintendent shall certify that the patient is or is not mentally ill. Commitment by the county board of mental health will be completed only when certification from the superintendent of the state hospital concerned is properly filed with the referring county board of mental' health.” - Mental Deficiency Act, 1927 Section 1(2).

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Philip Benjamin BLACKMON, Defendant-Appellant, v. UNITED STATES of America, Plaintiff-Appellee. No. 72-1763. United States Court of Appeals, Sixth Circuit. Argued Feb. 9, 1973. Decided March 12,1973. Ishmael C. Childs (Court appointed), Cleveland, Ohio, for defendant-appellant. Frederick M. Coleman, U. S. Atty., William D. Beyer, Asst. U. S. Atty., Cleveland, Ohio, for plaintiff-appellee. Before WEICK, MILLER and LIVELY, Circuit Judges. LIVELY, Circuit Judge. On direct appeal from his conviction of armed bank robbery (18 U.S.C. § 2113(a) and (d)) the appellant seeks reversal on a number of grounds, all of which have been considered by this Court. There is no merit to the contention that Section 2113 is unconstitutional. Also, an examination of the entire record convinces us that there was sufficient evidence to support the jury’s verdict of guilt. Although there was some discrepancy between two pre-trial statements given by the witness Brooks, nevertheless, he testified concerning the alleged admission made to him by the defendant Blackmon and was cross-examined concerning his prior statements. It was for the jury to determine his credibility and the weight to be given his evidence. The alleged admission of Blackmon to Brooks was corroborated by independent testimony of other witnesses. Two alleged procedural errors have been brought to our attention by appellant. The case was submitted to the jury late one Friday afternoon and, after several hours of deliberation, court was recessed until the following Monday and the jurors were permitted to separate over the weekend. After returning the jury deliberated for two more days before making its verdict. There was no showing of any outside influence. Absent such a showing, the discretion of the trial judge in deciding whether sequestration is required under the circumstances existing at the time and place of the trial will not be disturbed. United States v. Acuff, 410 F.2d 463 (6th Cir. 1969), cert. denied, 396 U.S. 830, 90 S.Ct. 82, 24 L.Ed.2d 81 (1969). After the jury had deliberated for more than two days the foreman requested that a map which had been marked for identification as “Government’s Exhibit 3” be delivered to the jury. Neither side had offered the map in evidence, but several witnesses had referred to it and had identified the location of their homes and other places in the vicinity of the robbed bank by placing initials and various symbols on the map. It is apparent that the map was displayed in such a way that the jury could see it during the trial and saw the various witnesses make their identifying marks on it. The only objection disclosed by the record occurred when one prosecution witness made two marks in response to a question and the court ruled one of the marks out. When the foreman requested that the map be delivered to the jury, the following colloquy ensued: THE COURT: Now, may I say this: The map was marked as Government’s Exhibit 3. The Government did not offer it in evidence, nor did any of the defendants offer it in evidence; however, in view of the fact that several witnesses made reference to it, and testified in connection with it, if it is the jury’s desire to have the map, the Court, on his own motion, will send the map to the jury room, and you of course will understand that the receipt of it under these circumstances should in no sense be inferred by you as having any adverse effect on any of the parties, either on the Government or on any of the defendants, because none of them offered it in evidence. Is that clear ? THE JURY FOREMAN: Yes, sir. THE COURT: The jury does desire this map, and the Court has located it, and will send it to the jury, and does that answer your question, Mr. Christie? THE JURY FOREMAN: Yes, sir. THE COURT: Very well. You could treat it, Mr. Johnson, as a court exhibit, just purely for identification purposes, and give it the next number as a court exhibit, and please so mark it, and give it to the — or take it, rather, to the jury room, in connection with all the other exhibits and all of the evidence that you have received. You may proceed back to the jury room. * * * Again, there was no objection. However, a short time after receiving the map, the jury returned its verdict. Appellant maintains it was prejudicial error to permit the jury to have during its deliberation an exhibit which had been marked for identification only and never introduced or received as evidence. This case is distinguishable from Sawyer v. United States, 112. U.S.App.D.C. 381, 303 F.2d 392 (1962), cert. denied 371 U.S. 879, 83 S.Ct. 150, 9 L.Ed.2d 116 (1962), where it was held to be error for the trial judge to send to the jury room part of a witness’ statement which he had earlier refused to admit in evidence. In the present case there is no reason to believe the introduction of the map in evidence would have been refused, or even objected to, if offered. Neither do we believe that Henry v. United States, 204 F.2d 817 (6th Cir. 1953), requires reversal. There the trial judge permitted large segments of testimony, including a sharp exchange between the judge and one witness, to be played back to the jury after the foreman had reported that the jury was unable to reach a verdict. The defendants in that case objected. Writing for this Court, Judge John D. Martin stated the rule as follows: There is no iron-bound, copper-fastened, double-riveted rule against the admission of evidence after both parties have rested upon their proof and even after the jury has entered upon its deliberations. Considerable latitude in discretion is vested in the trial judge in this respect. YT "X- X- X* VY X* In practice generally, where evidence is permitted to be introduced after the jurors have entered upon their deliberations, the admission is by consent of the parties or in relation to some non-controverted matter essential to a complete record. After the jury has reported its inability to agree upon a verdict, it is, in our opinion, incumbent upon the trial judge to exercise extreme care in reopening the case for the introduction of further testimony or in permitting any evidence to be restated or re-read to the jurors. Unless restraint is exercised by the judge, it may well be that he would permit undue emphasis to be placed upon portions of the testimony, if such portions were called for by the jurors. 204 F.2d at 820-821. The admonition of the trial judge in permitting the jury to have the map shows that he was exercising restraint and extreme care. We have studied the map and, in light of all the circumstances, find that its submission to the jury did not prejudice the rights of the appellant. The judgment of the District Court is affirmed.

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Wilmer KESINGER et al., Plaintiffs-Appellants, v. UNIVERSAL AIRLINES, INC., and Air Line Pilots Association, International, Defendants-Appellees. No. 72-1274. United States Court of Appeals, Sixth Circuit. Argued Oct. 11, 1972. Decided Feb. 27, 1973. Charles Fine, of Clark, Hardy, Lewis & Fine, Birmingham, Mich., for plaintiffs-appellants. Robert Savelson, New York City, for defendants-appellees; Cohen, Weiss & Simon, New York City, Rothe, Marston, Mazey, Sachs, O’Connell, Nunn & Freid, Detroit, Mich., on brief. Before WEICK, EDWARDS and MILLER, Circuit Judges. WILLIAM E. MILLER, Circuit Judge. This is another in the series of cases concerning the jurisdiction of the Civil Aeronautics Board (CAB) to resolve labor disputes incident to its approval of a merger between air carriers. In 1968, the Air Line Pilots Association (ALPA) became the collective bargaining agent for the flight crew members of Universal Airlines. During negotiations for a collective bargaining agreement, a dispute arose over whether the existing seniority system should be maintained or altered to a strict date of hire basis. ALPA and Universal agreed to submit this dispute to binding arbitration. On May 28,1969, Arbitrator Harry Platt issued his Opinion and Award (the Platt Award), essentially retaining the system then in effect. The Platt Award was adopted and made a part of the collective bargaining agreement between Universal and ALPA. This collective bargaining agreement was extended indefinitely after its expiration on July 1, 1971, and remains in effect. In 1970, Universal sought to acquire American Flyers Corporation, including its aircraft and 33 flight crew personnel. Universal and American applied to the CAB for approval of the merger plan. On April 13, 1971, after a public hearing, the CAB approved the merger subject to its labor protective provisions. These provisions contain two sections relevant here. Section 3 provides: Insofar as the merger affects the seniority rights of the carriers’ employees, provisions shall be made for the integration of seniority lists in a fair and equitable manner, including, where applicable, agreement, through collective bargaining between the carriers and the representatives of the employees affected. In the event of failure to agree, the dispute may be submitted by either party for adjustment in accordance with Section 13. Section 13 provides: In the event that any dispute or controversy * * * arises with respect to the protection provided herein, which cannot be settled by the carrier and the employee, or his authorized representative, within thirty days after the controversy arises, it may be referred, by either party, to an arbitration committee for consideration and determination, the formation of of which committee, its duties, procedure, expenses, etc., shall be agreed upon by the carriers and the employees, or the duly authorized representatives of the employees. Also, the CAB retained jurisdiction over the merger to make any changes or modifications that it should deem necessary. The flight crew personnel for American Flyers were represented by a separate organization called PEN-COM. Consequently the negotiations over a new seniority list involved ALPA, PEN-COM and Universal, the surviving airline. These negotiations resulted in an integrated seniority system based strictly on date of hire. . Universal implemented this plan on July 1, 1971. On July 19, 1971, 71 members of Universal flight crews, dissatisfied with the integrated seniority list, petitioned the CAB to reopen the record of the merger proceedings and to order binding arbitration to formulate another integrated seniority list. They argued that ALPA had not fairly represented their interests and that the terms of the new list were not “fair and equitable.” The CAB declined to reopen the record and refused to pass on the merits of the appellants’ petition. In its ruling on the petition the CAB noted: We are here asked to attempt to resolve these conflicting contentions and disputed issues and in essence to determine whether petitioners have been fairly represented by ALPA in the seniority negotiations. The Board has previously pointed out on numerous occasions, as have the courts, that the Board possesses no expertise in labor matters. Accordingly, the Board has declined to intervene in similar circumstances. Similarly, we do not here consider that the public interest would be served by Board adjudication of matters which relate so substantially to questions of internal union procedures. Indeed, but for the context in which they presently arise, these questions probably would be beyond the Board’s jurisdiction. In reaching this conclusion, we do not intend to in any way abridge the right of the parties to pursue such other remedies as are available to them. On September 29, 1971, appellants filed a complaint in the United States District Court for the Eastern District of Michigan against Universal and ALPA praying for an injunction and damages. The District Court dismissed the appellants’ action for lack of subject matter jurisdiction, holding that the CAB had exclusive jurisdiction to resolve the dispute. The gist of the appellants’ grievances concerns the integrated seniority list. They argue that ALPA representatives had assured the appellants that the Platt Award would not be disturbed by the integration of the American Flyers’ flight crews; and that the integrated list, based on date of hire, was in derogation of those promises and of the Platt Award. They assert that the merger merely provided an excuse for ALPA to alter the seniority list, and that such a drastic change was not necessary to integrate the 33 American personnel into the 160 working member Universal staff. ALPA formulated the new seniority-list and placed it before Universal and PEN-COM during the negotiations over seniority after the merger. Despite the protests of the appellants, they were not allowed to present in these negotiations their opinions concerning seniority rights. Also Universal, without waiting for employee ratification, put the new lists into effect. The appellants therefore claim that ALPA has breached its duty of fair representation because their actions were arbitrary, unreasonable and based on considerations unrelated to the seniority lists. Also the appellants urge that ALPA has failed to follow its Constitution, By-Laws and Administrative Policy Manual, by its failure to consult with the appellants, by failure to allow the appellants to present their position in the negotiations, and by failing to submit the new seniority list to the union membership for ratification. On appeal ALPA argues that the complaint represents an improper collateral attack on the order of the CAB, and that the jurisdiction of the CAB is exclusive to deal with labor concerns arising out of mergers. Further they assert that the order of the CAB is res judicata. 49 U.S.C. § 1378(a) (1971) requires that all mergers between air carriers shall receive approval from the CAB. 49 U.S.C. § 1378(b) (1971) requires that the CAB must find that the merger “will not be [in] consistent with the public interest” and that the conditions and terms of the merger are “just and reasonable.” Pursuant to this mandate the CAB has developed labor protective provisions, to protect the interests of employees of carriers after a merger. Under these provisions the development of a new seniority list is left primarily to private negotiations and the CAB has intervened only where the parties could not reach an agreement. The validity of these protective provisions, including the power of the CAB to intervene directly, and its power to order binding arbitration, have been consistently upheld by the courts. American Airlines, Inc. v. CAB, 445 F.2d 891 (2nd Cir. 1971); Oling v. Air Line Pilots Ass’n., 346 F.2d 270 (7th Cir. 1965); Hyland v. United Air Lines, Inc., 254 F.Supp. 367 (N.D.Ill., 1966); See Outland v. CAB, 109 U.S.App.D.C. 90, 284 F.2d 224 (1960); Kent v. CAB, 204 F.2d 263 (2nd Cir. 1953). The appellants rely on Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964) and Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) for the proposition that the jurisdiction of the CAB in this case is not exclusive, because the complaint states a cause of action arising under the union’s duty of fair representation. Humphrey clearly establishes that the union’s duty of fair representation extends to the formulation and implementation of seniority rights. “The undoubted broad authority,” the Court also said, “of the union as exclusive bargaining agent in the negotiation and administration of a collective bargaining contract is accompanied by a responsibility of equal scope, the responsibility and duty of fair representation.” 375 U.S. at 342, 84 S.Ct. at 368. The union must exercise its obligations “in good faith and without hostility or arbitrary discrimination.” 375 U.S. at 350, 84 S.Ct. at 372. The Court further pointed out, quoting from Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 73 S.Ct. 681, 97 L.Ed. 1048 (1953), that “[a] wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion.” 375 U.S. at 349, 84 S.Ct. at 372. Consequently, the mere fact that the integration of a seniority list is detrimental to one group of employees, and favorable to another, does not establish that the union has reached its duty of fair representation if it has integrated the list in good faith and not on grounds totally irrelevant to seniority. In Vaca v. Sipes, supra, it was held that an action for unfair representation would lie although the same facts may also constitute an unfair labor practice cognizable by the N.L.R.B. See also Steele v. Louisville & N. R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944). The appellants have alleged that the union has engaged in conduct that breaches .its duty of fair representation. ALPA asserts that even if these allegations are true, they would constitute a breach of the labor protective provisions of the merger, and consequently the appellants’ remedy must lie, if at all, before the CAB. Oling v. Air Line Pilots Ass’n, supra. In Oling a group of second officers were dissatisfied with the new seniority list after the merger of United Airlines and Capital Airlines. The new list had been formulated by an arbitrator after negotiations between ALPA and the airline had reached a standstill. After the arbitrator’s award the second officers petitioned the CAB, alleging that they had not been treated in a “fair and equitable manner” as required by the labor protective provisions. The CAB dismissed the petitioner’s action after considering the merits of their claims. In these circumstances the Seventh Circuit held that the CAB had exclusive jurisdiction to adjudicate the contentions, even though the same allegations might have constituted unfair representation under the Railway Labor Act, 45 U.S.C. § 151 et seq. (1971). Accord, Hyland v. United Air Lines, Inc. 254 F.Supp. 367 (N.D.Ill.1966); Holman v. Southern Airways, Inc., 210 F.Supp. 407 (N.D.Ga.1962). These cases also hold that the proper procedure for a party aggrieved by a CAB order is a direct appeal to a circuit court of appeals as provided by 49 U.S.C. § 1486 (1971). Oling v. Air Line Pilots Ass’n, supra; Holman v. Southern Airways, Inc., supra. The appellees further argue that even though the CAB in this instance declined to exercise its jurisdiction, implying that the appellants had remedies available elsewhere, citing Humphrey v. Moore, supra, the CAB is not the final word concerning its own jurisdiction, Pan American World Airways, Inc., v. United States, 371 U.S. 296, 83 S.Ct. 476, 9 L.Ed.2d 325 (1963), and certainly not the final word concerning the jurisdiction of United States district courts. Upon the authority of Oling v. Air Line Pilots Association, supra, and for reasons which we believe to be consistent with the statutory scheme of the Federal Aviation Act (49 U.S.C. § 1301 et seq. (1971)), we conclude that the appellants’ exclusive remedy was to appeal the CAB’s denial of the relief sought to a court of appeals. In view of this conclusion we do not deem apposite Vaca and other cases relied upon by appellants. Although we have been unable tc find significant legislative history bearing upon the question of statutory construction, we think that it is a fair conclusion from the terms of the Federal Aviation Act itself, that Congress intended that the CAB should have exclusive jurisdiction, in approving air line mergers, to prescribe conditions, including labor protective provisions, and to adjudicate questions arising with respect to compliance or non-compliance with such conditions. As pointed out in Oling, numerous courts have sustained the jurisdiction of the Board with respect to seniority integration in merger cases. As the Oling court also stated, with supporting authority, the principle is well settled that “collateral attacks upon administrative orders are not permissible.” See Oling v. Airline Pilots Ass’n, supra, 346 F.2d at 277. It is true that in Oling the employees’ petition for relief was entertained by the Board and adjudicated adversely to them on the merits, whereas in the present case the appellants’ petition was dismissed by the Board upon the pleadings without reaching the merits. We do not deem this distinction to be a significant one. Apparently the Board was of the view that it had the discretionary authority to refuse consideration of the petition on the basis of the pleadings, although from our examination of the record it would appear that the appellants at least presented a substantial question to the Board and that material issues of fact were involved. The reasons assigned by the Board in its order of dismissal to justify such a summary disposal of the claim for relief appear to us to be at least highly questionable. The Board’s order indicated that it had no particular expertise in labor matters and that the petitioners had other remedies available to them. Since the Board has full authority to impose conditions for the protection of employees, it is difficult to follow the argument that it may reject an employee’s petition because of a supposed lack of expertise with respect to labor questions, particularly questions which have arisen directly from the conditions formulated by the Board itself. Moreover, the statement by the Board that the employees had other remedies would appear to be a denial of the exclusivity of the Board’s jurisdiction, contrary to the principles enunciated by the Seventh Circuit in Oling as well as by a number of district courts. See Hyland v. United Air Lines, supra; Holman v. Southern Airways, Inc., supra; and Master Executive Council Northeast Pilots v. O’Donnell, 69 CCH Lab.Cas. ¶ 13,200 (D.D.C. Nov. 8, 1972). It follows from what we have said that upon the denial of the petition by the Board the appellants’ exclusive remedy was to appeal the denial to a court of appeals pursuant to 49 U.S.C. § 1486 (1971). Upon such appeal the court of appeals would have had express and exclusive statutory authority either to affirm the Board’s order, to modify it, or to remand the petition to the Board for further proceedings. In accordance with the foregoing the judgment of the District Court is affirmed. The action is hereby remanded to that court, however, with directions that the dismissal shall be without prejudice to the right of the appellants to petition the Civil Aeronautics Board for a reopening of the proceeding for consideration of the appellants’ claims on their merits. . Appellants sue on behalf of themselves and the approximately 70 other Universal flight crew members who were dissatisfied with the seniority list and who joined in the merger reopening petition. . Title 49 U.S.C. § 1486 (1971), provides in material part: “(a) Any order, affirmative or negative, issued by the Board or Administrator under this chapter shall be subject to review by the courts of appeals of the United States or the United States Court of Appeals for the District of Columbia upon petition, filed by any person disclosing a substantial interest in such order. “(d) Upon transmittal of the petition to the Board or Administrator, the court shall have exclusive jurisdiction to affirm, modify, or set aside the order complained of, in whole or in part, and if need be, to order further proceedings by the Board or Administrator. “(f) The judgment and decree of the court affirming, modifying, or setting aside any such order of the Board or Administrator shall be subject only to review by the Supreme Court of the United States ...” [Italics supplied.]

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UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Brent STOW, Defendant-Appellant. No. 72-1651. United States Court of Appeals, Ninth Circuit. March 8, 1973. J. B. Tietz (argued), Los Angeles, Cal., for defendant-appellant. Lee Osborne, Asst. U. S. Atty., (argued), Eric A. Nobles, Asst. U. S. Atty., William D. Keller, U. S. Atty., Los Angeles, Cal., for plaintiff-appellee. Before ELY, HUFSTEDLER and WALLACE, Circuit Judges. WALLACE, Circuit Judge: Jeffrey Brent Stow was convicted of refusing to submit to induction in violation of 50 U.S.C.App. § 462(a). He makes three contentions. We find them unmeritorious and therefore affirm. Stow contends that the local board should have reopened his classification when he requested a conscientious objector form after his local board mailed his order to report for induction. On November 17, 1970, the local board mailed an order to report to the address last reported to it by Stow. The order was returned marked: “Moved, left no address.” In spite of reasonable efforts, the board was unable to contact Stow. On December 4, 1970, Stow notified the board of his whereabouts. It was on this date, for the first time, that Stow requested a form to apply for conscientious objector status. The request for a change of classification was not timely because it was requested after the induction order had been mailed. 32 C.F.R. § 1625.2 provides : The classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction . unless the local board first specifically finds there has been a change in the registrant’s status resulting from circumstances over which the registrant had no control. Lack of timeliness can be obviated only by a showing that the tardiness was due to circumstances over which Stow had no control. This he has not done. On April 7, 1971, the local board, pursuant to an order from the State Director of Selective Service, reviewed Stow’s claim of conscientious objection pursuant to 32 C.F.R. § 1625.2. The board specifically found that there had not been a change resulting from circumstances over which Stow had no control. That finding is supported by the record. In Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971), the Supreme Court was confronted with the question of whether crystallization of conscientious objector beliefs after the mailing of a notice to report for induction constituted a “circumstance over which the registrant had no control.” Without deciding “ . . . the nature of ‘control’ over one’s own conscience . . . ” the Supreme Court stated that “ . since the meaning of the language is not free from doubt, we are obligated to regard as controlling a reasonable, consistently applied administrative interpretation if the Government’s be such.” 402 U.S. at 105, 91 S.Ct. at 1323. In accepting the government’s contention that his crystallization did not constitute a eir-cumstance over which Ehlert had no control the Court went on to state: The Government’s interpretation is a plausible construction of the language of the actual regulation, though admittedly not the only possible one. Given the ambiguity of the language, it is wholly rational to confine it to those “objectively identifiable” and “extraneous” circumstances that are most likely to prove manageable without putting undue burdens on the administration of the Selective Service System. 402 U.S. at 105, 91 S.Ct. at 1323. As a result of Ehlert, it becomes clear that for purposes of 32 C.F.R. § 1625.2, the crystallization of conscientious objector beliefs after a notice of induction is not a change in the registrant’s status resulting from circumstances over which he had no control. The Court explained the rationale behind its holding: A regulation barring post-induction notice presentation of conscientious objector claims, with the proviso mentioned, would be entirely reasonable as a timeliness rule. . . . Allocation of the burden of handling claims that first arise in the brief period between notice and induction seems well within the discretion of those concerned with choosing the most feasible means for operating the Selective Service and military systems. Id. at 102, 91 S.Ct. at 1322. Furthermore, Stow cannot rely on the fact that he requested his conscientious objector form before he received his induction order for three reasons. First, he did not receive his order promptly because of his own failure to supply the board with a current mailing address. Second, the mere request of a conscientious objector form with nothing more does not present á prima facie claim. United States v. Lloyd, 431 F.2d 160 (9th Cir. 1970), cert. denied, 403 U.S. 911, 91 S.Ct. 2210, 29 L.Ed.2d 688 (1971); United States v. Enslow, 426 F.2d 544 (9th Cir. 1970). Third, the cutting point of timeliness is the date of mailing, not the date of receipt. 32 C. F.R. § 1625.2; cf. Ehlert v. United States, supra. Stow next contends that the local board improperly denied him a hearing. He had made two requests for a personal appearance, both of which were made after the board mailed his induction order. The purpose of his requests was to support his conscientious objector claim. As that claim could not be heard on the merits because it was untimely, Stow cannot claim any procedural rights’ violation. 32 C.F.R. § 1625.2; cf. United States v. Stupke, 451 F.2d 997, 998 (9th Cir. 1971). Finally, Stow contends that the original induction order lapsed. This argument is based on 32 C.F.R. § 1632.2, which allows a maximum postponement of induction of 120 days. A similar factual situation arose in United States v. Foster, 439 F.2d 29, 31 (9th Cir. 1971) where we held: Since, however, every postponement, including those occurring after the 120 day period had run, was granted at appellant’s specific request or was due to his actions and all were for his benefit, we feel we would be taking an unnecessarily rigid approach by saying, in effect, that the local board does not have the discretion to aid the registrant by allowing him more time than the regulations specify. The vast majority of delays in the instant case can be attributed directly to Stow’s own actions, or were the actions of the Selective Service Board for his benefit. Stow’s claim that the order lapsed and that a new order should have been issued, thereby allowing him an opportunity to prosecute his conscientious objector claim, is rejected. Affirmed. . After his induction order had been mailed, Stow wrote to the local board requesting a conscientious objector form. He specifically offered late crystallization as his reason for the request. He said: Very recently my beliefs have become to (sic) strong (I think the expression “fixed” would be the word) that I again ask for the form. I will fill it out and send it back promptly. I have thought about this matter a great deal and have finally made up my mind, I mean that my conscience has now made it up for me. (Etaphasis added.) . The proviso referred to is that the military provide adequate means of due process so “that no inductee could be ordered to combatant training or service before a prompt, fair, and proper in-service determination of his claim.” 402 U.S. at 101, 91 S.Ct. at 1322.

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Donald H. WEAVER, Petitioner-Appellant, v. STATE OF TEXAS et al., Respondents-Appellees. No. 72-2208 Summary Calendar. United States Court of Appeals, Fifth Circuit. March 5, 1973. Rehearing and Rehearing En Banc Denied April 10, 1973. Don H. Weaver, pro se. Harry H. Walsh, Staff Counsel for Inmates, Texas Dept, of Corrections, Huntsville, Tex., for Donald H. Weaver. James H. Randals, Inmate Counsel, Texas Dept, of Corrections, Huntsville, Tex., for petitioner-appellant. Crawford Martin, Atty. Gen., Ben M. Harrison, Asst. Atty. Gen., Austin, Tex., for respondents-appellees. Before BELL, DYER and CLARK, Circuit Judges. Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I. DYER, Circuit Judge: This is an appeal from the district court’s denial of Weaver’s petition for a writ of habeas corpus. He alleged that he was in jail at the time of the offense, and that his guilty plea was not voluntarily and knowingly made. The district court denied the writ. We affirm, but for reasons different than those expressed by the court below. Because of the several contentions of the parties, and with the hope that litigation arising out of Weaver’s state conviction may come to an end, it is essential to explore the facts chronologically. On October 13, 1958, after a plea of guilty, Weaver was convicted of robbery by assault in the District Court of Zava-la County, Texas, and was sentenced to twenty-five years in prison. No appeal was taken. On July 8, 1969, Weaver was released on parole. On September 2, 1969, his parole was revoked and he was held in the Bexar County jail on a charge of burglary with intent to commit theft, which offense allegedly occurred on August 31, 1969. He thus began serving time once again under his 1958 conviction. On April 20, 1970, Weaver filed a petition for habeas in the state convicting court challenging his 1958 conviction. He asserted that he could not have committed the offense since he was in jail at the time of the robbery. On June 19, 1970, the state court denied the application and on September 3, 1970, the Court of Criminal Appeals of Texas affirmed. On July 14, 1970, Weaver was convicted on the August 31, 1969, burglary charge, and the 1958 Zavala County conviction was used for enhancement purposes. At this time Weaver did not object to nor assert that his 1958 conviction was invalid. Weaver applied to the court below in October 1970 for ha-beas relief from his 1958 conviction, using the same allegations as he had in the state courts, i. e., that he was in jail at the time the offense was alleged to have been committed. On November 30, 1970, the district court denied relief. Next Weaver filed a new state application for habeas on December 21, 1970, alleging that his plea of guilty was not voluntarily and knowingly made. This new application was denied on December 28, 1970. On February 1, 1971, the Court of Criminal Appeals for Texas denied Weaver’s new application. On April 12, 1971, this Court affirmed the November 30, 1970, denial of Weaver’s application, but did not reach Weaver’s allegations concerning his guilty plea in 1958 since the state remedies had not been exhausted at the time the application had been filed. Weaver v. Texas, 5 Cir. 1971, 441 F.2d 388, 389. On May 10, 1971, Weaver filed another petition for habeas in the court below in which he maintained, as he had five months previously in the state court, that his plea of guilty was involuntarily and unknowingly made. The petition was denied and this appeal ensued. The State of Texas argues that Weaver has not exhausted his state remedies; that since he is being held only under his 1970 Bexar County conviction he has no standing to attack his 1958 conviction; and that since he did not attack the validity of his 1958 Zavala County conviction when it was used for enhancement purposes in his 1970 Bexar County conviction he cannot now do so. Price v. Beto, 5 Cir. 1971, 436 F.2d 1070; Zales v. Henderson, 5 Cir. 1970, 433 F.2d 20. In denying habeas the district court essentially agreed with these contentions and further found that even though the 1958 conviction might be found invalid, Weaver’s petition should be denied because he would still be in custody under the 1970 conviction. Our explication of the historical facts foreclose the State’s arguments. Weaver has obviously exhausted his state remedies with respect to his 1958 conviction. His standing is properly predicated upon the fact that his parole under that conviction was revoked on September 2, 1969, and he is still serving time. While his failure to attack the validity of his 1958 conviction, used in his 1970 conviction for enhancement purposes, prevents him from using that as a ground for habeas relief with respect to his 1970 conviction, Price and Zales, supra, it does not foreclose his habeas attack made directly on his 1958 conviction. Finally, the magistrate’s finding, approved by the district court, that “Habeas Corpus is available only when a ruling in petitioner’s favor will result in his immediate release or will cause the restraints on his liberty to cease,” is, in the context of this case, erroneous. Weaver is still serving his sentence under the 1958 conviction. If that conviction should now be found invalid the State would have no legal basis for continuing Weaver’s incarceration under the 1958 conviction, but could keep him in prison under the 1970 conviction. This detention, contingent upon the invalidation of the 1958 conviction, does not bar Weaver from petitioning for a writ of habeas corpus to attack either conviction. Peyton v. Rowe, 1968, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426; Walker v. Wainwright, 1968, 390 U.S. 335, 88 S.Ct. 962,19 L.Ed.2d 1215. On the other hand, Weaver’s contention, again made on this appeal, that he was in jail at the time of the offense, need not be considered a second time. Weaver v. Texas, 5 Cir. 1971, 441 F.2d 388. Thus the only issue that was properly before the district court and that is before us on appeal is the validity vel non of Weaver’s guilty plea used as a predicate for his 1958 state conviction and sentence. The underlying facts presented by Weaver to support his assertion that his plea was not voluntarily and understanding^ made are as follows. While Weaver was in custody the alleged victim made a false and illegal identification. The victim, however, positively identified Weaver as the robber although Weaver denies ever having seen the victim. Whether under the circumstances in which the identification was made such evidence would have been admissible at trial is of no moment. See McMann v. Richardson, 1970, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763. We are likewise unimpressed with the argument that Weaver’s plea was coerced because upon advice of his retained counsel he “reluctantly agreed, through fear of receiving a life sentence, to plead guilty for the twenty-five years offered by the * * * District Attorney of Zavala County, Texas.” North Carolina v. Alford, 1970, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162; Parker v. North Carolina, 1970, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785; Brady v. United States. 1970, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747; Roberts v. United States, 5 Cir. 1973, 472 F.2d 1195; Schnautz v. Beto, 5 Cir. 1969, 416 F.2d 214; Parrish v. Beto, 5 Cir. 1969, 414 F.2d 770, cert. denied, 1970, 396 U.S. 1026, 90 S.Ct. 606, 24 L.Ed.2d 522; Rogers v. Wainwright, 5 Cir. 1968, 394 F.2d 492. Weaver’s claim that the District Attorney misinformed him concerning the date and time of the robbery is without merit. This was substantially dealt with in Weaver v. Texas, 5 Cir. 1971, 441 F.2d 388. On collateral attack by habeas it does not rise to a constitutional level. Finally, Weaver’s argument that his counsel had inadequate time to prepare his defense is unsupportable. Weaver was first indicted for robbery with firearms, a felony capital offense. Seven days before trial he was reindicted for robbery by assault, enhanced by a prior conviction for burglary with intent to commit theft, which, upon conviction, carried an automatic life sentence. Counsel had from April 25, 1958, to October 13, 1958, to prepare for trial on the merits. The second indictment did not change the essential elements of the offense; it simply charged a prior conviction for enhancement purposes if Weaver were found guilty. Under the circumstances a denial of a motion for a continuance poses no constitutional question. The judgment of the district court is Affirmed. . After exhausting his state remedies, Weaver sought habeas in the district court claiming that his 1970 conviction should be set aside because the state court should have suppressed evidence connecting him with the robbery for which he was being tried. The district court denied relief and in a companion appeal we affirmed. Weaver v. Texas, 5 Cir. 1973, 472 F.2d 1407. . Weaver v. Texas, 5 Cir. 1971, 441 F.2d 388.

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Adolph M. ROTERMUND, Appellant, v. UNITED STATES STEEL CORPORATION et al., Appellees. No. 72-1405. United States Court of Appeals, Eighth Circuit. Submitted Jan. 12, 1973. Decided March 7, 1973. James L. Sullivan, St. Louis, Mo., for appellant. Thomas L. Croft and Albert E. Schoenbeck, St. Louis, Mo., for appellees. Before LAY, HEANEY and STEPHENSON, Circuit Judges. . Id. at 71. STEPHENSON, Circuit Judge. This cause initially was filed in the Circuit Court of the City of St. Louis, Missouri. It was removed to federal court by United States Steel pursuant to removal jurisdiction under 28 U.S.C. § 1441(c) based upon plaintiff-appellant Rotermund’s separate and independent claim against Steel in Count I of the complaint. Rotermund now appeals from entry of summary judgment which was entered May 26, 1972. The district court’s opinion is reported at 346 F.Supp. 69 (E.D.Mo.1972). The original action was for specific performance of an alleged agreement entered into between defendants-appellees, Powell and United States Steel under date of June 28, 1965. Count I of Rotermund’s complaint sought specific performance against USS which would require USS to purchase shares of Basic Materials common stock owned by Rotermund. Count II alleged a conspiracy by all defendants to induce USS to violate its alleged obligation to purchase stock from Rotermund under the 1965 agreement and that Rotermund was discharged from Basic in furtherance of the alleged conspiracy. Count III alleged a violation of the Missouri Service Letter Statute by Basic. The trial court determined as a matter of law that U. S. Steel under the agreement was not obligated to purchase Rotermund’s stock and entered summary judgment accordingly on Count I. In view of its finding that USS did not violate the agreement, the court further ruled there could be no conspiracy to induce USS to breach the agreement and therefore entered judgment in favor of all defendants on Count II. See, Howe v. St. Louis Union Trust Co., 392 S.W.2d 625, 628 (Mo.1965). Because the remaining Count III, a non-removable claim, required construction of a Missouri statute, the trial court exercised its discretion and remanded it to the state court for disposition. See, Murphy v. Kodz, 351 F.2d 163, 167-168 (9th Cir. 1965). Since the factual circumstances together with the relevant portions of the 1965 agreement, the 1968 option, and the 1968 amendment are set out in detail by the trial court in its opinion at 346 F.Supp. 69, we shall confine our statement to those facts essential to our determination. There are three agreements relevant to this cause. The only parties to all three agreements are USS and Powell. Pursuant to Section 5 of the 1965 agreement, USS, or its nominee, was given the option to purchase all the Basic stock which Powell would “now or hereafter own” during the fifteen year period from the making of the agreement (or within 20 years if Steel owns, or is obligated under any circumstance to purchase, any obligations of Basie) under three circumstances: (a) after Powell’s death; (b) after Powell’s retirement from the active management of Basic; or (c) if the book value of Basic common shares would fall 20% below book value as disclosed by auditing statements for either of the two immediate preceding years. Section 6 states in substance that during the same 15-year period, Powell, his guardian, his estate or his trustee would have the option to require USS to purchase all his stock in Basic under the same circumstances as (a) and (b) stated in Section 5. At the time of the 1965 agreement, Rotermund was an officer of Basic, and owned jointly with his wife 2,000 shares of Basic common stock. Section 10 of the agreement is the basis of Count I of Rotermund’s complaint. It reads as follows: “If during the term of this agreement USS shall purchase Powell’s stock in Basic pursuant to the terms hereof USS shall within thirty (30) days after such purchase irrevocably offer for sixty (60) days to acquire on the same terms and conditions any stock of Basic which, according to its records, was held by Oliver Keller, Adolph M. Rotermund, Stephen F. Powell or Gale H. Powell on the date twelve (12) months prior to the date of such purchase. Acquisitions of stock by USS pursuant to this section shall be made within fifteen (15) days of acceptance of USS’s offer and tender to USS of the certificates of stock which is the subject of such acceptance.” (Emphasis supplied.) On July 30, 1968, USS and Powell entered into an agreement granting USS an option to purchase 25,000 common shares of Basic for $1,696,000.00 on condition that Powell would surrender to Basic the warrants he had acquired under the 1965 agreement. That same day, the 1965 agreement was amended, to become effective only if USS exercised its option to purchase 25.000 shares of Basic stock pursuant to the 1968 amendment. Principally, Section 5 was amended to delete paragraph 5(b) under which USS had the option to purchase Powell’s stock after his retirement. Section 6 likewise deleted the retirement provision with respect to Powell’s option to require USS to purchase his stock. Additionally, Section 10 was amended to provide that the contemplated 1968 purchase by USS of 25.000 shares of Powell’s stock in Basic “shall not constitute a purchase within the meaning of the term as used in this paragraph 10.” In October of 1968, USS exercised its option under the 1968 agreement to purchase 25,000 shares of Powell’s stock. Approximately 3 years later, in July of 1971, Rotermund demanded that USS purchase his 2,000 shares of Basic for the same price per share as USS had paid for Powell’s in 1968. Rotermund raises three main issues which we discuss seriatim. That the trial court erred: (1) in failing to hold that Rotermund was a third party creditor or donee beneficiary under the 1965 agreement, and that his rights under that agreement could not be changed by the 1968 amendment without his consent. (2) in not holding that the 1968 sale of the 25,000 shares to USS and the 1968 amendment to the 1965 agreement together triggered events which obligated USS to purchase Rotermund’s stock in Basic. (3) in granting summary judgment for defendants on Count I, thereby precluding Rotermund from proceeding on Count II, for the reason that there is a disputed issue of fact as to whether Powell’s sale of the Basic shares to USS was pursuant to the 1965 agreement. I. In support of his first assigned error, Rotermund refers us to Black and White Cabs of St. Louis, Inc. v. Smith, 370 S.W.2d 669 (Mo.App.1963) for the proposition that “where the contract creates a right in favor of a third person, the law presumes that the party to the contract intended to confer benefits on the third person and the third party beneficiary has the right to enforce the contract . . . .’’Id,, at 675. To be sure, we have no conceptual difficulty with this principle-. However, its application is delimited by the general rule, as recognized by the trial court, that “[o]ne suing on a contract allegedly made for his benefit as a third-party beneficiary must accept the contract as it was made by the parties thereto; and he is in no better position than, and his rights are no greater than those of, the contracting party through whom he claims.” Stephens v. Great Southern Savings and Loan Ass’n, 421 S.W.2d 332, 337 (Mo.App.1967). In this connection, the trial court held that “only a purchase pursuant to the terms of the 1965 agreement would give rise to a third-party beneficiary claim by [Roter-mund]” since the 1965 agreement which he relies upon obligates USS to purchase Rotermund’s 2,000 shares in Basic only if USS first were to purchase “Powell’s stock in Basic pursuant to the terms thereof.” We fully agree with the trial court’s holding. The 1965 agreement provides that an option to purchase the Powell shares by USS could not be made pursuant to the terms thereof unless: (1) Powell died, or (2) Powell retired from the management of Basic, or (3) the book value of stock would become less than a specified standard. The record before us indicates that none of these conditions precedent had occurred. Thus, no present obligation to Rotermund as a third-party beneficiary had been breached, and USS, therefore, is not obligated to purchase Rotermund’s stock under the 1965 agreement. Inasmuch as the trial court based its determination of defendants’ motion for summary judgment solely upon the terms of the 1965 agreement as originally drawn and relied upon by Rotermund, we hold that the trial court did not err in determining it unnecessary to decide whether the 1965 agreement could be amended without Rotermund’s consent insofar as it affects his rights as a third-party beneficiary. II. Under Rotermund’s next assigned error, he alleges that the trial court erred in failing to hold that the purchase by USS of 25,000 shares of Powell’s stock and the 1968 amendment to the 1965 agreement together constituted an exercise of the option and the triggering of events which obligated USS to buy Roter-mund's 2,000 shares in Basic. Rotermund’s rights under the 1965 agreement are based wholly upon the rights of Powell thereunder. The 1965 agreement relied upon by Rotermund provides in Section 10 that USS would be obligated to purchase Rotermund’s stock upon condition that USS first exercise its option to purchase aU Powell’s shares pursuant to the 1965 agreement. As we have determined, it is evident from this record that none of the triggering circumstances enumerated under Sections 5 and 6 had taken place: Powell had not died, nor had he retired, nor had the book value of the stock fallen below the given standard. Moreover, Section 10 of the 1968 amendment expressly states that the purchase of 25,000 shares of Powell’s stock by USS would not be construed as constituting a “purchase” within the meaning of Section 10 of the 1965 agreement. Since Powell was not entitled to compel USS to purchase all his common shares of Basic stock, Rotermund is in no better position. See, Allen v. Globe-Democrat Publishing Company, 368 S.W.2d 460,463 (Mo.1963); Stephens v. Great Southern Savings & Loan Ass’n, 421 S.W.2d 332, 337 (Mo.App.1967); Noles v. Terminal R.R. Ass’n of St. Louis, 154 S.W.2d 606, 609 (Mo.App.1941); Williston on Contracts, (3rd Ed) § 364A. Consequently, Rotermund cannot now force upon USS a purchase of his 2,000 shares. III. Rotermund lastly urges that the issue of whether the sale of the 25,-000 Powell shares was pursuant to the 1965 agreement raises a question of fact, thus rendering improper the entry of summary judgment. We have stated before that when a motion for summary judgment is made to the trial court, only one determination is before the court — whether or not there are issues of fact to be tried. Minnesota Bearing v. White Motor Corp., 470 F.2d 1323 (8th Cir. January 9, 1973); 3 B & H, Federal Practice and Procedure § 1231 at 101 (Wright Ed. 1958). Moreover, “the right to judgment must be shown ‘with such clarity as to leave no room for controversy, and . that . . . [Rotermund] would not be entitled to recover under any discernible circumstances’ ” Minnesota Bearing v. White Motor Corp., supra, at 1328; Cervantes v. Time, Inc., 464 F.2d 986, 993 (8th Cir. 1972); Traylor v. Black, Sivalls & Bryson, Inc., 189 F.2d 213, 216 (8th Cir. 1951). In Elbow Lake Cooperative Grain Co. v. Commodity Credit Corp., 251 F.2d 633, 637 (8th Cir. 1958) we said that “ambiguity in a contract cannot be created by the mere assertion of a party to it.” Here there are no disputed facts. The only question before the trial court was whether as a matter of law the purchase of Powell’s 25,000 shares by USS obligated USS to purchase the Rotermund stock. We have effectively covered the waterfront in determining that none of the triggering conditions precedent to purchasing Rotermund’s shares have occurred. Rotermund suggests, however, that an examination of Basic’s books by the trial court “might prove that some of the events specified in the 1965 agreement may have transpired to trigger the exercise of the option.” Rotermund was afforded ample opportunity to apprise the trial court of facts relevant to the value of Basic stock since consolidated financial statements for each year from 1961 through 1970 inclusively were produced at the Powell deposition pursuant to Rotermund’s request. Nevertheless, this record is devoid of any attempt by Rotermund to provide the trial court with such relevant data. Rotermund additionally urges that in-terrogatoris submitted to USS were not answered; thus the court’s ruling on May 26, 1972 precluded discovery and foreclosed him from proving his case. Fed.R.Civ.P. 56(c) states that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact . . . . ” (emphasis supplied). USS filed its motion for summary judgment on September 23, 1971. On November 2, 1971, USS filed its supporting memorandum. On the same date, separate motions for summary judgment and supporting briefs were filed by Basic and Powell. On November 5, 1971, upon his own oral request, Rotermund was granted an additional 20 days in which to file affidavits and suggestions in opposition to the separate motions. On December 17, 1971 the motions for summary judgment were taken as submitted. By written agreement of the parties, depositions taken prior to December 17, 1971 were to be considered by the trial court in ruling upon the motions. In view of the time available to Rotermund to propound interrogatories prior to the date of submission coupled with the trial court’s proper adherence to Rule 56(c) in considering those matters on file by December 17, 1971, this contention by Rotermund forms no basis for setting aside summary judgment. We hold, therefore, that the trial court properly entered summary judgment as to Count I of the complaint. Cf., Cervantes v. Time, Inc., supra, 464 F.2d at 993. The only remaining question is whether Basic, Powell and USS conspired together to induce USS to violate its alleged contractual obligation to purchase Rotermund’s stock, and that whether in furtherance of this conspiracy, Roter-mund was fired as an employee of Basic. Specifically, Rotermund argues that defendants excluded the retirement provision of the 1965 agreement to keep Rotermund from being eligible for stock should Powell retire. As we have suggested repeatedly, this agreement is not self-executing. The record before us shows that at the time this action commenced, Powell had not retired from Basic. Even assuming that he had, however, under the 1965 agreement this event would have done no more than trigger an option on the part of Steel to purchase Powell’s shares. If USS were to purchase all Powell’s shares, then, and only then, would it be obligated to Rotermund. A Civil conspiracy is a combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties “to inflict a wrong against or injury upon another,” and “an overt act that results in damage.” Neff v. World Publishing Co., 349 F.2d 235, 257 (8th Cir. 1965). Under Missouri law, “[t]he gist of the action is not the conspiracy, but the wrong done by acts in furtherance of the conspiracy . . . . ” Contour Chair Lounge Co. v. Aljean Furniture Mfg. Co., 403 S.W.2d 922, 926 (Mo.App. 1966). Under the instant circumstances, damages would accrue only if there had been an actual breach of the contract. Since no breach has occurred, we label this aspect of Rotermund’s argument to be without foundation. Finally, Rotermund has failed to demonstrate that any genuine issue of fact relative to his allegation that defendants conspired to fire him from his employ with Basic. As noted in Cervantes v. Time, Inc., supra, 464 F.2d at 993, the “extreme nature” of summary judgment “does not lighten the burden of a party against whom a motion therefor is interposed.” Fed.R.Civ.P. 56(e). Thus, as spelled out by the Rule: “ . . . [A]n adverse party may not rest upon the mere allegations or denials of his pleading, but his response by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” By reason of the absence in this record of any genuine factual issue to be tried, the judgment of the trial court must be affirmed. . Vernon’s Ann.Mo.Stat. § 290.140 (1965). . 346 F.Supp. 69, 70-71. . Id. at 72-73. . Basic and Steel suggest that despite what label might be attached to Rotermund’s beneficiary status, in paragraph 22 of the 1965 agreement the parties signatory thereto expressly retained the right to rescind or amend the original agreement without obtaining the consent of any third party beneficiary. We disagree. Paragraph 22 simply states that if the agreement is to be “changed, waived, discharged or terminated” at all, it must be done in writing. Paragraph 22 cannot, therefore, be construed as an express reservation of right to amend the 1965 agreement as against a third party beneficiary. Instead, we interpret it to be no more than a recital of a general principle of contract law otherwise applicable. See, Restatement of Contracts § 407, in connection with V.A.M.S. § 432.020 (1952) (rescission or modification of a contract within the Statute of Frauds must be in writing) ; and see generally, 44 A.L.R.2d 1270. . Even if an examination of Basic’s financial statements were to prove that some of the events specified in the 1965 agreement transpired, it still remains that the purchase of 25,000 shares of Powell’s stock did not constitute a purchase of all the Powell shares within the meaning of the 1965 agreement. Since 25,000 shares constitutes less than % of Powell’s holdings, we are not faced with the problem of determining whether “all” means “substantially all.” . We note that correspondence appears in the record to Judge Regan from Roter-mund’s counsel stating: “Certainly the court cannot take into consideration anything other than those depositions taken prior to December 17, 1971 in considering the motions for summary judgment, but in an effort to be prepared for trial in the event summary judgment is not granted to defendants I felt it necessary to continue with the discovery process.” . We have thoroughly examined the affidavits and depositions contained therein. . The trial court properly remanded Count III to State court for its determination since Count III involves the construction of a Missouri statute and the removing defendant has been eliminated. See, 1A J. Moore, Federal Practice ¶ 0.168 [4.-1] at 1342 (2nd Ed. 1965).

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GLEN MANOR HOME FOR the JEWISH AGED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 72-1537. United States Court of Appeals, Sixth Circuit. Argued Dec. 5, 1972. Decided Feb. 22, 1973. J. Mack Swigert, Taft, Stettinius & Hollister, Cincinnati, Ohio, for petitioner. Frank Vogl, N.L.R.B., Washington, D. C., for respondent; Peter G. Nash, Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Elliott Moore, Deputy Asst. Gen. Counsel, Frank Vogl, Atty., N.L.R.B., Washington, D. C., John C. Getreu, Director Region 9, N.L.R.B., Cincinnati, Ohio, on brief. Before PHILLIPS, Chief Judge, PECK, Circuit Judge, and O’SULLIVAN, Senior Circuit Judge. PHILLIPS, Chief Judge. The Glen Manor Home for the Jewish Aged brings this petition to review and set aside a National Labor Relations Board order and decision finding it in violation of §§ 8(a)(1) and 8(a)(5) of the National Labor Relations Act. 196 N.L.R.B. 171. ' The Home is a non-profit institution located in Cincinnati and is licensed by the city as a nursing home and as a rest home. It maintains constant health services for its approximately 80 residents. A physician is on call at all times and is present at the Home three times weekly. Constant nursing care is administered by a staff of four registered nurses, three graduate licensed practical nurses (GLPN’s) and ten nurses’ aides. When residents become ill, the Home attempts to care for them as long as possible, but when they reach the critical stage they are discharged to a hospital or a private nursing home. The Home has no major medical facilities. All services necessary for residents are provided, including food preparation, laundry services, housekeeping and maintenance. Average length of residence at the Home is three and one-half years. In 1970 the gross revenue of the Home was $342,039. Approximately $60,000 of this came from the State-administered federal-state Medicaid program. During 1970, the Home paid $18,000 to the Cincinnati Gas & Electric Company, $2,400 to Cincinnati Bell Telephone and $20,000 to Shillito’s department store, all of which are engaged in interstate commerce. On July 12, 1971, the National Union of Hospital and Nursing Home Employees, Local 1099 H, Retail, Wholesale & Department Store Union, AFL-CIO, filed a representation petition and requested an election be held among the Home’s service and maintenance employees. On September 2, the Regional Director issued his decision and direction of election after finding that the Home was subject to Board jurisdiction as a nursing home under the standards of University Nursing Home, Inc., 168 N.L.R.B. 263 (1967). This decision included two of the GLPN’s in the bargaining unit and excluded the third. The Board denied the Home’s petition for a review, determining that the two GLPN’s included in the unit should be permitted to vote in the representation election subject to the challenge procedure. It should be noted that throughout the representation proceedings the Home disputed the Board’s asserted jurisdiction over it. The representation election was conducted on October 1, 1971, with the Union winning, 19-15. The Union was certified as the unit’s collective bargaining agent, after which the Home refused to bargain with it. The Union thereupon filed a complaint against the Home alleging violations of §§ 8(a)(1) and 8(a)(5). The defense of the Home in the unfair labor practice proceedings was the alleged impropriety of the bargaining unit. The Board, on May 22, 1972, found that the refusal to bargain was an unfair labor practice and violated §§ 8(a)(1) and 8(a)(5) of the Act. The Board held that the improper unit claim of the Home concerning the GLPN’s was not a valid defense to the unfair labor practice charge because there was no doubt as to the majority status of the union. The Board suggested bargaining over the unit placement of the GLPN’s or, failing at that, a petition for unit clarification. The Home now seeks review of the order and decision of the Board on two grounds: 1) the Board improperly asserted jurisdiction over it, and 2) the unit outlined by the Board in the representational proceedings was improper. We examine the issues in order. 1) Jurisdiction It is well established that Congress, in passing the National Labor Relations Act, gave and intended to give the Board the fullest permissible jurisdiction under the Commerce Clause of the Constitution. N.L.R.B. v. Reliance Fuel Oil Corp., 371 U.S. 224, 226, 83 S.Ct. 312, 9 L.Ed.2d 279 (1963); Polish National Alliance v. N.L.R.B., 322 U.S. 643, 647, 64 S.Ct. 1196, 88 L.Ed. 1509 (1944). The statutory jurisdiction of the Board extends to all representation questions and unfair labor practices “affecting commerce.” 29 U.S.C. §§ 159(c) (1) , 160(a). Because of several factors, including limited resources and manpower, the Board for the first fifteen years of its existence determined on an ad hoc case-by-case method whether to assume jurisdiction in a particular case. This was replaced in 1950 with the pronouncement of a series of “yardsticks” to determine whether the Board would assume jurisdiction in a specific type of case. These standards, issued in a series of 1950 decisions by the Board, were essentially dollar volumes. The Board held that if these dollar volume mínimums of the value of inflow or outflow were exceeded in a particular case then it would take jurisdiction. In other cases it would decline to act. Different yardsticks were promulgated for different industries. The yardsticks were raised in 1954 and then lowered in 1958. See Sie-mons Mailing Service, 122 N.L.R.B. 81 (1958). In 1959, Congress validated this Board practice, extending over a span of 20 years, of declining jurisdiction in certain cases, by the enactment of § 14(e)(1) of the Act. 29 U.S.C. § 164(c)(1). This amendment authorizes the Board to decline jurisdiction by “rule of decision or by published rules.” There is no statutory jurisdiction over non-profit hospitals. 29 U.S.C. § 152 (2) . The Board originally exercised no jurisdiction over proprietary hospitals, either, Flatbush General Hospital, 126 N.L.R.B. 144 (1960), but asserted jurisdiction over them in 1967. Butte Medical Properties, 168 N.L.R.B. 266 (1967). On the same day, the Board asserted jurisdiction for the first time over proprietary nursing homes, University Nursing Home, 168 N.L.R.B. 263 (1967), and announced a gross volume of business yardstick of $100,000. The Board, in that decision, found that there were over 20,000 public and private nursing homes in the country at that time, caring for from one to two per cent of the nation’s population. By 1965, the annual gross national expenditure for nursing home care was $1.2 billion, up 754 per cent from the 1950 expenditure of $142 million. The Board did not exercise jurisdiction over non-profit nursing homes until, in 1968, a District Court held that the Board could not constitutionally assert jurisdiction over proprietary nursing homes while renouncing jurisdiction over non-profit nursing homes. Council 19, AFSCME v. N.L.R.B., 296 F.Supp. 1100 (N.D.Ill.). That court held that once the Board exerted jurisdiction over a class of employers (nursing homes), as it had in University Nursing Home, supra, it could not renounce jurisdiction over an entire category of employers within that class (non-profit nursing homes). Soon afterwards, in the same case, the Board asserted jurisdiction over non-profit nursing homes. Drexel Home, Inc., 182 N.L.R.B. 1045 (1970). The Board found, in Drexel, that the non-profit nursing home exercises the same kind of impact on interstate commerce as a proprietary nursing home. The Board adopted the same $100,000 yardstick for non-profit nursing homes as it had previously adopted for proprietary homes. The Home here makes three separate attacks on the jurisdiction of the Board. First, it maintains that Drexel, under whose authority the Board assumed jurisdiction of this case, is an impermissible assertion of jurisdiction by the Board; second, it asserts that the $100,000 yardstick is arbitrary and capricious; and third, it claims that it is not a nursing home within the meaning of the Drexel rule. The Board’s contention that the Home should be barred from making its jurisdictional claims on appeal is ill-founded. The Home maintained a continuing jurisdictional objection in the representation proceedings and was barred from making these claims in the unfair labor practice proceedings before the Board in the absence of newly found evidence. N.L.R.B. Rule No. 102.67(f); Howard Johnson Co., 164 N.L.R.B. 801 (1967); Cf. May Dept. Stores Co. v. N.L.R.B., 326 U.S. 376, 379, 66 S.Ct. 203, 90 L.Ed. 145 (1945.) It appears that the exact nature of the jurisdictional objection may be different in this Court from the specific objection before the Board. This is not, however, controlling. This court has held that the exercise of jurisdiction by the Board is within the administrative discretion of the Board and will not be reversed without demonstration of an abuse of that discretion. Lucas County Farm Bureau Cooperative Ass’n v. N.L.R.B., 289 F.2d 844, 845-846 (6th Cir.), cert. denied, 368 U.S. 823, 82 S.Ct. 42, 7 L.Ed.2d 28 (1961); N.L.R.B. v. Guernsey-Muskingum Electric Co-Op, 285 F.2d 8, 11 (6th Cir. 1960). We have held further that the Board’s assertion of jurisdiction in violation of its own self-imposed yardstick is not improper. N.L.R.B. v. West Side Carpet Cleaning Co., 329 F.2d 758, 760 (6th Cir. 1964). We cannot hold that the Board’s decision to assert jurisdiction over non-profit nursing homes was an abuse of discretion. The Home seeks to have this court impose an analogy between non-profit hospitals, which are statutorily exempt from Board jurisdiction, and non-profit nursing homes. Assuming, without deciding, that such an analogy would have been permissible, we decline to mandate it to the Board. The Board apparently has decided instead that there is a closer analogy between non-profit and proprietary nursing homes. The Home has delineated ample evidence in the legislative history of the Labor Management Relations Act that the Senate committee did not originally exclude hospitals from N.L.R.B. jurisdiction in the preliminary draft of what became § 2(2) of the Act because, in the words of Senator Taft, “the Committee felt that hospitals were not engaged in interstate commerce and . . . their business should not be so construed.” 2 Legislative History of the Labor Management Relations Act (1947) at 1464. While this may well be true, § 2(2) as enacted does not exclude non-profit employers generally. Only non-profit hospitals are exempted from the class of employers subject to the provisions of the Act and the jurisdiction of the N. L. R. B. 29 U.S.C. § 152(2). Conditions in the health care industry have changed substantially since 1947. The Board, in the Universal Nursing Home decision in 1967, noted that there was a 754 per cent increase in nursing home care expenditures between 1950 and 1965. 168 N.L.R.B. at 264. This data now is over seven years old. The assertion of jurisdiction by the Board over the non-profit nursing homes cannot be viewed as an abuse of the Board’s discretion, in light of the nursing home industry’s impact on the economic life of this country. As far as the $100,000 yardstick is concerned, we hold that this was also a permissible standard within the Board’s discretion. We reemphasize that the Board’s permissible jurisdiction is as broad as the Commerce Clause. The Home seeks to have this court hold that it really is not a nursing home within the Drexel rule. This same contention was made by the home for the aged in Drexel itself. This is a fact determination within the jurisdiction of the Board and its determination is entitled to great weight. We find no abuse of discretion. The Board’s decision that Glen Manor was an industry “affecting commerce” similarly was not an abuse of discretion. We hold that the Board’s assertion of jurisdiction over non-profit nursing homes generally and the Glen Manor Home for the Jewish Aged in particular was not improper. 2) Unit Determination The Home has claimed, before the Board and this court, that there was an improper unit determination made by the Board in including two of the GLPN’s in the bargaining unit. The Home claims that these two employees are supervisors. A search of the record reveals that the Regional Director in his decision in the representation case did hold to this effect. The Board, however, in its actions in both the representation case and the unfair labor practice proceeding, has not ruled on the propriety of the inclusion of these two GLPN’s within the unit. Instead it has suggested arbitration or bargaining or a petition for unit clarification, which is available to either party. 29 CFR § 102.60(b). It should be noted that their inclusion or exclusion will not affect the Union’s majority status within the unit because of the 19-15 vote in the representation election. We, therefore, make no ruling on their status. We deny the petition of the Home and grant the Board’s cross application to enforce its order.

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Willie ROSS, alias Willie Harrison, Petitioner-Appellant, v. STATE OF TEXAS, Respondent-Appellee. No. 72-1239. United States Court of Appeals, Fifth Circuit. Jan. 30, 1973. Rehearing and Rehearing En Banc Denied March 12, 1973. Harry H. Walsh, Staff Counsel for Inmates, Texas Dept, of Corrections, Huntsville, Tex., for petitioner-appellant. Crawford Martin, Atty. Gen., Lonny F. Zwiener, Asst. Atty. Gen., Austin, Tex., for respondent-appellee. Before GEWIN, THORNBERRY and CLARK, Circuit Judges. GEWIN, Circuit Judge: Willie Ross, a state prisoner, sought habeas corpus relief in the district court but was unsuccessful. There he urged several grounds for relief, but his chief contention — and the only one raised on appeal — related to the alleged suppression or non-disclosure by the state of a police offense report at his trial for robbery by assault. This report was based on the police investigation of the crime for which Ross was charged and ultimately convicted. He contended that the report contained certain information favorable to his case and that the State’s failure to divulge it constituted a denial of due process. Following a full eviden-tiary hearing, the district court denied all relief. We affirm. Late on the evening of October 31, 1964, Wilson Broushett left his house to go to the Houston Ship Channel to collect his paycheck for the preceding week. At the time he had almost $100.-00 in cash in his possession. After searching fruitlessly for a taxi, he came upon two people standing next to a parked automobile in the vicinity of Williams’ Restaurant in Houston. He testified that one was an acquaintance named Beatrice Williams and the other was Willie Ross, a man whom Broushett did not know by name at the time. According to Broushett’s version of the ensuing events, Ross agreed to give him a ride to the dock area. But shortly before they got there, Ross turned off on a side street, pulled a knife on Brou-shett and took all of his money. This was reported to the police in the early morning hours of November 1, 1964. Ross was finally arrested on January 27, 1965 after Broushett spotted him at Williams’ Restaurant and called the police. At the trial, Broushett’s testimony represented the State’s chief evidence of Ross’ guilt. He positively identified Ross and unequivocally testified that Ross admitted the robbery and tried to persuade him to accept a return of the money taken and to drop the charges The defense consisted of two elements. The first was to develop an alibi. To this end, Ross’ wife, Geraldine, testified that the accused was with her at another place at the time of the robbery. The second element was to impeach Brou-shett’s identification of Ross. This was attempted mainly through the testimony of Beatrice Williams who stated that Ross was not the individual with her when Broushett solicited the ride to the dock area. The defense also brought out the fact that Broushett was unable to provide the police with anything more than' a general description of his assailant, even though he knew the accused’s wife and was aware that she had some relationship with Ross. At the habeas corpus evidentiary hearing there was no substantial dispute as to the facts. Ross established unequivocally that the police offense report made in connection with the alleged robbery was unavailable to him for the preparation of his defense. This report, the existence of which was unknown to the prosecutor, disclosed the various phases of the police investigation in this case. In particular, it revealed that at one point four individuals, none of whom was Ross, were suspected by the police of committing the Broushett robbery. These four had apparently admitted guilt to several other robberies in the vicinity of the ship channel and were in possession of an automobile similar to the one used to take Broushett to get his payroll check on the evening of October 31, 1964. The district court found that the state had not withheld any evidence favorable to Ross’ case and therefore denied the due process challenge to his conviction. Ross now argues that the district court failed to apply the proper legal standard in reaching its conclusion. Relying primarily on the cases of United States v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642 (1971) and Levin v. Clark, 133 U.S.App.D.C. 6, 408 F.2d 1209 (1967), he urges that the test which should have been applied is whether the undisclosed evidence might have led the jury to entertain a reasonable doubt as to his guilt. On the facts of this case, it is asserted that through the use of the police offense report, such doubt might have been instilled in the minds of the jurors. Although a rule similar to the one which Ross asks us to adopt seems to be followed in the D. C. Circuit, it does not appear that this circuit has embraced it and we are not aware that any other circuits have done so. Our reluctance to adopt such a rule proceeds from several considerations, not the least of which is our desire to keep the administration of criminal justice free of encumbrances that are not clearly commanded by the policy underlying the due process clause of the federal constitution. Under the rule now urged upon us, the showing of materiality necessary to obtain a new trial would be rather minimal. In the case at hand, Ross would gain a retrial or perhaps his freedom by demonstrating the bare possibility that the police offense report would have led the jury to entertain a reasonable doubt of his guilt. Given the uncertain chemistry of the minds of jurors, almost any evidence remotely relevant to a criminal case could arguably generate such doubt. In our opinion the proposed standard is far too restrictive on the state and is not calculated to foster a proper balance between the individual’s fundamental right to a fair trial and the legitimate interests of the state in prosecuting persons accused of crime. Moreover, there are other appropriate and necessary factors to be considered. It is of the utmost significance in this case that neither the prosecutor nor any of his assistants were in possession of the police report or were even aware of its existence. Were we to grant the relief Ross seeks, the effect of our decision would be to require more than just the disclosure of evidence possibly helpful to a defendant’s case. By necessary implication it would place upon the prosecutor’s shoulders the added burden of discovering all such evidence even though buried somewhere in the files of any one of numerous other state bureaus or agencies. In view of the unrealistic rigorousness of such an obligation with all of its ramifications, we think that a judicial requirement of disclosure in the circumstances here present is not commanded by the due process clause. While we are committed to the principle that the truth must be pursued diligently and in good faith, the rule urged upon us would require near perfection in this endeavor. The advocated requirement would not strike a proper balance in a judicial system that must accommodate many competing values and interests in addition to those of the defendant. Arguments in support of the desired disclosure expressed in terms of “possibilities” and mere conjecture breed rather than foreclose uncertainty in the judicial process. In our estimation, the likelihood of changing a jury’s decision as a result of newly discovered evidence must rise considerably above the level of speculation. Otherwise, finality would be a vanishing element from all judgments of conviction in criminal cases. The decisions dealing with the suppression or nondisclosure of exculpatory evidence are numerous. In some circumstances it has been considered relatively easy to establish grounds for a new trial: when the suppression has been deliberate or when the substantial value of evidence to the defense could not have escaped the prosecutor’s attention. See e. g., Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967). Cases involving a specific request for evidence form another category. Where the accused requests evidence from the prosecutor and it is withheld, a due process violation results if the evidence is material either to guilt or punishment without regard to the good or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In each of these lines of cases, while there is a requirement that the evidence be material, the probable effect of such evidence on the jury’s verdict is not the sole reason for granting a new trial. An additional reason is to deter prosecutorial misconduct or negligence; to be certain that prosecutors bring to light all significant evidence which was known or should have been known to them. None of the above mentioned considerations are involved in the case at hand. The prosecutor can bear no blame for the fact that the police report was never made available to Ross. Consequently, in deciding whether a new trial is necessary, we need not be concerned with creating a deterrent against prosecutor-ial overzealousness or ineptness which results in the unfair administration of the criminal processes. What we are seeking to protect, however, is the defendant’s individual interest in receiving and society’s generalized interest in conducting a fair trial based on all of the material evidence. In eases such as this Judge Friendly has defined the approach to be taken rather well: “ . . . [T]he wider interests of society unite to require a substantially higher probability that disclosure of the evidence to the defense would have altered the result. To invalidate convictions in such cases because a combing of the prosecutor’s files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict would create unbearable burdens and uncertainties. United States v. Keogh, 391 F.2d 138, 148 (2d Cir. 1968). While the police report may possibly have been of some value to Ross in conducting his defense, we have very strong doubts that it would have resulted in a verdict of acquittal. At best, the report showed that individuals other than Ross were suspected of the Broushett robbery. It should be noted, however, that none of these individuals ever admitted involvement in this crime. Indeed, they all strenuously denied it. It is our conclusion that the report contains nothing to undermine the probative force of Broushett’s positive identification of Ross as his assailant. It surely contains nothing that would mitigate the devastating impact of Ross’ admission to Broushett at the time of the arrest that he was the robber and that he would return the money if charges were dropped. We would reach a different result if the undisclosed evidence were a laboratory report showing that another person’s fingerprints were on the knife used in the Broushett robbery. Such evidence would be of vital, critical and significant importance in determining the truth of the charges and would have a serious bearing on the fundamental fairness of the trial. See, e. g., United States ex rel. Almeida v. Baldi, 195 F.2d 815 (3d Cir. 1952), cert. denied 345 U.S. 904, 73 S.Ct. 639, 97 L.Ed. 1341; Barbee v. Warden, 331 F.2d 842 (4th Cir. 1964). It would make a difference too if Ross had discovered after trial an eyewitness to the crime, unknown to him but known to the prosecutor, who would have testified that he was not the robber. See Jackson v. Wainwright, 390 F.2d 288 (5th Cir. 1968). But such is not the case here. We think the district court was correct in denying the petition. Judgment affirmed. . Ross is presently serving a sentence of life imprisonment at the Ellis Unit of the Texas Department of Corrections. He was convicted by a jury of the crime of robbery by assault in Criminal District Court No. Six of Harris County, Texas. Following this conviction, his appeal to the Texas Court of Criminal Appeals was unsuccessful, Ross v. State, 406 S.W.2d 464 (1966), as was his subsequent attempt to petition the United States Supreme Court for a writ of certiorari, Ross v. Texas, 386 U.S. 938, 87 S.Ct. 962, 17 L.Ed.2d 811 (1967). . Taken from the transcript of Ross’ state court trial for robbery by assault, the full text of Broushett’s remarks are set forth below: Q. Did you ever have a conversation with tlie Defendant? A. He asked me for a cigarette and he said if I wouldn’t bring a charge against him, he would give me my money back. I said I didn’t want it; ho didn’t have any money. Q. And you told him, “I don’t want it" ? You said “I am filing charges against you for robbery” ? A. That’s right. Q. And this Defendant told you he was the one that robbed you? A. Yes, he did. Q. You knew he was the one that robbed you, didn’t you? A. Yes, sir. Q. You had pointed him out to the officers, hadn’t you? A. Yes, sir. Q. And he said, "If you won’t file charges against me, I will give you your $92.00 back” ? A. Yes, sir. Q. And you told him, “No” ? A. Yes, sir. Q. Has he come to you since or some of his family come to you since and offered to return that money? A. His mother and his wife came to my house and offered to give me $16.00 and they said they could pay me the rest, and I told them, “No.” Q. If you would get the charges dismissed in this case? A. That is what they wanted. Q. And you told them no? A. Yes, sir. Q. When the Defendant Willie Ross told you if you wouldn’t file’ those charges, he would give you your money back— A. That’s right. Q. Officer Mackey and Officer Hamilton were right there with you? A. Yes, sir. Q. And they heard this same conversation? Is that right? A. That’s right. The substance of Broushett’s testimony in this regard was corroborated by the two police officers who were in attendance, Officers Mackey and Hamilton. . In appellant’s brief the effect of the report upon the jury is forthrightly stated as follows: “It is true that the ultimate effect of the offense report or the information contained therein upon- the jury, had it been available to the defense, is speculative in nature.” . See footnote 2, supra.

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NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MIDWEST HANGER CO. AND LIBERTY ENGINEERING CORP., Respondent. No. 72-1115. United States Court of Appeals, Eighth Circuit. Submitted Nov. 13, 1972. Decided Feb. 20, 1973. Rehearing' and Rehearing En Banc Denied March 15, 1973. Jonathan Axelrod, Atty., N.L.R.B., Washington, D. C., for petitioner. John A. McGuinn, Washington, D. C., for respondent. Before GIBSON and LAY, Circuit Judges, and DURFEE, Court of Claims Judge. United States Court of Claims Judge sitting by designation. GIBSON, Circuit Judge. The National Labor Relations Board seeks enforcement of its decision and order reported at 193 N.L.R.B. No. 85. The Board found that Midwest Hanger Company and Liberty Engineering Corporation committed unfair labor practices in (1) coercive interrogation of one employee, (2) discriminatory discharge of 18 employees during a union organizing campaign, (3) threatening striking employees with discharge or other reprisal and (4) discharge of one employee at the conclusion of an unfair labor practices strike upon his unconditional offer to return to work. Although an election petition was filed, no election has yet been held. The Board ordered reinstatement with back pay for all concerned employees and further entered a bargaining order based upon its finding that the employer’s actions precluded the holding of a valid election. The Factual Background: The United Steelworkers of America, AFL-CIO, began its campaign to obtain recognition as the bargaining representative for the employees- of the Company on June 1, 1970, when four employees signed authorization cards. The campaign reached its peak on June 11 and 12, when the Union mailed a letter to the president of the Company requesting recognition and offering to prove its majority status by submitting the signed authorization cards to a neutral party for inspection and verification. The Company received the letter on Monday, June 15; it made no reply. During the intervening weekend the Company, which manufactures laundry and dry cleaning products, had selected 22 employees for discharge. These terminations were attributed to an expected decline in business due to a previously announced price increase effective as of June 15. Jones, the President of the Company, testified that their customers built up large inventories between the announcement and the effective date of the price increase. This had two effects: first, it caused an increase in work load over normal levels during the period just prior to the date of increase as customers built up their stock at the lower price, and second, it caused a decrease in business after the date of the increase as these customers reduced their inventories to normal levels. The standard which the Company claimed to have used in selecting the employees to be terminated was the efficiency of the employee based on skills, attendance habits and ability. The Company contends that the employees discharged were the least efficient of its employees. The Discriminatory Discharge: The General Counsel charges that the Company violated Section 8(a)(1) and (3) by the discharge of 18 named employees during the weekend of June 13 and 14 and thereafter. Seven of the employees were discharged during the weekend, six on Monday, June 15, and two on Tuesday, June 16. Two of the other three were discharged on July 1 and the other on August 11. The discharge of a large numer of employees including some union leaders during a union organizing campaign would appear to be “inherently destructive of employee interests,” thus placing the burden on the Company of explaining away or justifying its action. As said in NLRB v. Great Dane Trailers, 388 U.S. 26, 34, 87 S.Ct. 1792, 1798, 18 L.Ed.2d 1027 (1967): •“From this review of our recent decisions, several principles of controlling importance here can be distilled. First, if it can reasonably be concluded that the employer’s discriminatory conduct was ‘inherently destructive’ of important employee rights, no proof of an- antiunion motivation is needed and the Board can find an unfair labor practice even if the employer introduces evidence that the conduct was motivated by business considerations.” Though a reduction in work force was clearly in order, the manner in which the Company made the reduction gave rise to a finding by the Board that the stated reasons given were pretextual. Even though the employer may reduce its number of employees, it may not discriminate because of union activity in the selection of those to be terminated. The General Counsel relied initially on a percentage test to show that the selection procedures had been used to discriminate against the union employees. Of the 18 discharged employees, all but one had signed authorization cards. This presented a telling percentage of 95 per cent discharge of union adherents while the percentage of union employees in the plant as a whole was 70 per cent. This on its face would indicate a discriminatory discharge vio-lative of the Act. Hamilton-Brown Shoe Co. v. NLRB, 104 F.2d 49, 53 (8th Cir. 1939); see, Annot. 153 A.L.R. 841 (1944). The Company challenges these statistics by countering that other discharges of non-union adherents during the same period of time as the discharges in question would alter the figures. This may be correct, but there still exists substantial evidence in the record from which the Board could infer that the discharges questioned were discriminatory, and the Board can properly consider in context the discharges made during a crucial period of the organizing campaign. As stated by Judge Lay in NLRB v. The Freeman Company, 471 F.2d 708 (8th Cir. 1972) : “The rule is generally recognized that where the company demonstrates a proper business reason which standing alone would justify the company’s action affecting employees, the Board has the burden to overcome this fact and demonstrate that the reasons exercised by the company were pretex-tual. Reliance Insurance Companies v. N. L. R. B., 415 F.2d 1, 7 (8 Cir. 1969); N. L. R. B. v. Gotham Industries, Inc., 406 F.2d 1306, 1309 (1 Cir. 1969).” We feel the Board here has carried, with exceptions later discussed, its burden of proof. Although evidence of a proper business purpose was supplied by the Company, the record contains substantial evidence to overcome the prima facie business purpose and to warrant an inference of discrimination. The most persuasive of this evidence is the showing by General Counsel that while these employees were discharged rather than laid off, the Company continued to advertise in a local newspaper for new employees, and that within a month after the discharge of -¡these employees the Company began to hire new employees to maintain the work force at the new reduced level. These discharges must be considered along with the Company’s assertion that its biggest problem was employee turnover and the resulting inexperience of its work force. The Company alleged that the employees selected for termination were so selected because they were the least efficient of the Company’s work force. This explanation implied that the employees met the minimum level of competency required to perform the work. The Company chose to ignore this ready pool of at least minimally qualified persons when it needed additional employees to replace the normal turnover occurring after the reduction in force. Instead of utilizing previously experienced employees, it recruited new, untrained personnel. This action was inconsistent with both the reasonable needs of the business and, more importantly, with the employer’s past practice during slack business periods. While we recognize that the National Labor Relations Act does not give the Board license to dictate the method by which an employer must reduce his work force, the Board may consider the method selected just as it does any employer action affecting employees where it finds that the action was taken for a prohibited purpose. The method selected for the reduction in work force may in itself be evidence of a discriminatory purpose when considered in light of the surrounding circumstances. The Act protects employees’ rights to organize and bargain collectively and any action taken by management to thwart that right is violative of the Act. Majestic Molded Products, Inc. v. NLRB, 330 F.2d 603 (2d Cir. 1964), presents a factual situation sufficiently analogous to the instant case to lend authoritative support to the Board’s position. In Majestic two related companies had the same officers and shareholders and shared the same building. Both companies were unionized. During a period when a rival union was trying to gain recognition as the bargaining representative in one of the companies, Lucky Wish Products, Inc., a substantial number of employees were laid off. The company alleged that the layoff was due to a decline in business. At the same time, however, the sister company, Majestic Molded Products, Inc., increased its work force. The Court held that Majestic’s failure to hire the employees laid off by Lucky Wish, in the absence of credible evidence other than the bare statements of management that the employees laid off by Lucky Wish were not qualified to perform the work done at Majestic, would support an inference that the layoff had been made because of the union activity and not for the reasons advanced by the employer. The Company’s failure here to preserve this group of experienced employees in combating normal attrition of workers, indicates a desire to permanently disassociate these employees from the Company, a desire which would be consistent with an anti-union motivation in the terminations. The Board, at least, could draw this permissible inference of illegal discrimination from the factual situation presented. Also casting doubt on the Company’s explanation that the employees selected for termination were the least efficient employees in the plant is the fact that the selections were made without consulting the foremen who as members of management could best evaluate job performance of the employees. Although it was proper for the Company officials to reserve to themselves the decision on the dischargees, their failure to consult with the supervisors who best know the efficiency of each employee indicates that the criteria which was followed in making the selections was focused on some other aspect of the employee’s conduct rather than efficiency. Although the evidence in this case is conflicting on the charge of discrimination in the discharge of the named employees, there is substantial evidence from which the Board could permissibly infer discriminatory motives in the discharges, and we must enforce the Board’s Order providing for reinstatement and back pay for these employees. Two other employees were discharged on about July 1, allegedly for excessive absences. Elaine Peukert was absent 55.5 hours between January 1 and June 16, and she had received several warnings. She was not absent from June 16 to the time of her discharge. Kim Bristow was absent on June 16 and the next day was given a written warning. On June 29, she requested the next day off to go to the doctor and received permission. On her return to work on the following day, she was informed that she was discharged for repeated absenteeism. She was not absent between June 17 and June 29. During this period both employees had engaged in overt union activities which had come to the attention of management. The Hearing Examiner found that these two employees had been discharged in violation of the Act and the Board ordered their reinstatement with back pay. Due to the prior discharges which we have found to be an unfair labor practice, the intervening union activity and the length of time between any unexcused absence and the discharge, there is substantial evidence to support the Board’s findings and the Order will be enforced as to those two employees. Betty Johnson was discharged on August 11 for excessive absences. The General Counsel concedes that she had been “frequently absent prior to June 6.” On June 16, she received a written warning concerning absences. She refused to sign the warning. On July 18, after several more absences, she was again given a written warning. After four more absences she was discharged. Conceding that she was active in the union organization drive, it is obvious that the employer had ample cause to discharge her for aggravated and continued absenteeism, and, in the absence of any evidence that this discharge was motivated by any prohibited purpose, we hold that the finding that the discharge was in violation of the Act is not supported by substantial evidence. We, therefore, will not order enforced that portion of the Board’s Order which required her reinstatement and back pay. The Coercive Interrogation: John Sells applied for employment with Liberty Engineering in February 1970. At the employment interview Sells was asked how he felt about unions. He replied that in theory unions were “one of the greatest things that had ever been brought about,” but that sometimes they get misused. The interviewer told him that they might have some union trouble. Sells replied that since the plant was located in an area where most of the companies were non-union he wouldn’t have anticipated any trouble at all. Sells was hired about one week after the interview. On June 15, the General Manager came to Sells at work and asked him if he had heard any union talk around the plant. Sells answered that he had and upon being asked how long he had heard the talk, replied “At least a couple of weeks.” The General Manager asked Sells to inform him if he heard anything else. Later that afternoon Sells was discharged. Under the criteria set out in NLRB v. Ritchie Mfg. Co., 354 F.2d 90, 99 (8th Cir. 1966), we find there is substantial evidence in the whole record to support the Board’s finding of coercive interrogation. Under Ritchie we look not only to the questioning itself but also at the circumstances surrounding the interrogation. Ritchie pointed out five circumstances which should receive close attention. These are: “[A] history of employer hostility and discrimination, the nature of the information sought (e. g., was the interrogator seeking information from which he could take action against individual employees), the identity of the questioner (i. e., what was his position in the company), the place and method of interrogation, and the truthfulness of the reply (e. g., did the interrogation inspire fear leading to evasive answers).” 354 F.2d at 99. These standards had been previously enunciated by the Second Circuit in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964). In the instant case certain of the circumstances point to the interrogation as having a coercive effect. The interrogation occurred against the background of a substantial discharge of employees at the time of the interrogation. The questioner, Ward, was the General Manager of the Company. Although the questioning took place at Sells’ work area it was under circumstances by which Sells might think that Ward had sought him out for questioning rather than having the questions occur in a casual conversation. Finally, Sells’ answers while not untruthful were evasive. Sells was one of the instigators of the union movement and was well aware of the extent of the union campaign at the time of the questioning. He did not, however, volunteer this information or any information to Ward. Management could and probably did view his answers as unsatisfactory to it; hence, his discharge. These facts constitute substantial evidence to support the Board’s conclusion that the questioning was coercive and therefore constituted an unfair labor practice under 29 U.S.C. § 158(a)(1). The Letter to the Strikers: It is disputed whether a letter sent by the Company to the striking workers was found to be a violation of the Act. The letter was dated October 30, and informed the employees that the plant would reopen on Monday, November 2; and that employees who did not “wish to report to work as scheduled [would] be given until Wednesday, November 4, to seriously consider [their] decision.” In the amended complaint the General Counsel alleged that this letter contained the threat of discharge or other reprisal directed at the striking employees. No other activity of the Company which could be construed as such a threat was litigated. The Hearing Examiner found that "by threatening employees with discharge or other reprisals for engaging in a strike, the [Company] violated Section 8(a)(1) of the Act.” While the decision is not pinpointed with regard to this letter, in the context of the entire record the finding can only be construed to relate to the letter. The letter can certainly be viewed as coercive and as an illegal interference with the employees’ right to organize. That portion of the Order which requires the employer to cease and desist threatening the employees with discharge or other reprisals is ordered enforced. Termination of Grover Speck: On October 22, 1970, the employees on the second shift picketed the plant demanding the reinstatement of the employees discharged since June 12. They were later joined by employees from the other two shifts. Grover Speck, a long haul truck driver for the Company, was scheduled to haul a load out that evening. He arrived at the plant about 5:00 p. m. but upon the request of the strikers, refused to cross the picket line. When the strike ended and the other employees returned to work Speck was discharged. The Company alleged that the discharge was for cause putting forward four independent grounds as giving cause for discharge. These were: (1) failure of Speck to return a telephone call from the Company president relating to loads delivered before the strike, (2) uncomplimentary remarks made about the Company president during a job interview, (3) misconduct during the strike, and (4) abuse of leased equipment. The latter two of these reasons, if true, give adequate cause for discharge. The misconduct which was alleged was that during the strike Grover Speck had followed a replacement driver, who was then operating a company truck, in an unsafe manner, at high speeds on a narrow winding road. The employer presented the testimony of the truck driver as to the occurrence of this event and it was corroborated by the Company president who saw Speck’s car leave following the truck and another Company employee who testified that he saw Speck’s car following the truck. Speck denied that the incident occurred. The Board has held that “admitted reckless driving in pursuit of an employee in another automobile during the strike was conduct which justified [the employer] in denying his request for reinstatement.” United Brass Works, 126 N.L.R.B. 537, 545 (1960). This Court has held that if the employer had reasonable cause to believe that the striking employee had been engaging in unprotected strike activities and, in reliance on that belief, refused to reinstate him, no violation of the Act results. Local No. 3, United Packinghouse Workers of America, CIO v. NLRB, 210 F.2d 325, 331 (8th Cir.), cert. denied, 348 U.S. 822, 75 S.Ct. 36, 99 L.Ed. 648 (1954). The Hearing Examiner found that the record did not support this defense, but no explanation of this finding was made. Although the reckless driving was not admitted by Speck, there was no finding of a lack of credibility of the three Company witnesses who testified concerning the incident. There was no finding supported by substantial evidence, or any evidence at all, that the reason for discharge was pretextual and that the true motive for Speck’s discharge was his union activities. The record clearly supports the occurrence of the incident. Another ground which would justify the Company’s refusal to reinstate Speck was the alleged abuse of equipment used by Speck. Midwest Hanger does not own its trucks; they are leased from Schock Leasing, Incorporated. Under the terms of the lease, Midwest furnished the drivers and Schock performed all maintenance and repairs. In the case of abuse of equipment by the drivers Schock may require the Company to replace a driver. If Midwest does not do so Schock can shift the cost of repairs to Midwest. The president of Schock Leasing testified that the equipment assigned to Speck had been abused, that he had been observed operating it in an improper manner, that his equipment required excessive repairs, and that the. engine governor had been tampered with, allowing the engine to overrun, resulting in damage. The president of Schock Leasing contacted President Jones of Midwest Hanger and told him that Speck would have to be replaced. The Hearing Examiner did not credit this testimony because no documentary evidence was produced to support the testimony of the president of Schock Leasing. There appears to be no reason to discredit the testimony of the president of Schock Leasing for failing to bring in books and records to support his testimony. The “best evidence” rule is not applicable here; he did not testify as to the contents of the records. If there was any doubt in the mind of the General Counsel, the records were equally available to him through the use of the discovery procedures provided. There is no reason to believe that the witness was other than a disinterested third party. It is also relevant to note that the central thrust of the testimony, the fact that Schock Leasing told Midwest Hanger that Speck would have to be replaced, would not be found in the records. The Board’s decision that Grover Speck was discharged because of his union activities is not supported by substantial evidence on the record considered as a whole. While we recognize that strikers are generally entitled to reinstatement upon their unqualified offer to return to work, subject to the availability of a job in the case of an economic striker, such a right is not absolute; there are certain recognized exceptions to the rule. Both of the reasons which we have discussed fall within such exceptions. After the employer has offered legitimate business reasons which would justify his actions, the Board plainly has the burden of going forward and offering evidence that the reasons advanced were pretextual. NLRB v. The Freeman Co.,, supra. The General Counsel’s bare contention that this discharge was motivated by Speck’s union activity is unsupported by any evidence whatsoever and further is refuted by the record; no other striking employees were discharged and this discharge was isolated by more than four months from the other discharges associated with union activity in the plant. That portion of the Board’s order which requires reinstatement and back pay for Grover Speck is denied enforcement. The Bargaining Order: On the basis of the unfair labor practices which had been found, the Board concluded that since the Union had acquired cards from a majority of the employees and since the employer’s conduct had tended both to destroy that majority and to negate the likelihood of a future fair election, a bargaining order would be appropriate. The employer challenges this bargaining order on the sole grounds that it committed no unfair labor practices. We have found substantial evidence to support the findings of unfair labor practices as to all those charges except the discharge of Grover Speck and Betty Johnson. In view of these findings the contention of the employer is without merit and the bargaining order is granted enforcement. The Board’s Order is enforced except for that portion which requires reinstatement and back pay for Grover Speck and Betty Johnson. . These two companies have a common ownership and management and occupy the same building, employing approximately 90 production and maintenance persons. Reference hereafter will be as to the Company and will include either or both companies as appropriate. . These employees were Ronald Great-house, David Covey, Virgic Peterson, Margaret Buckley, Sharon Meier, James Walter Forbis, .Tolm Ashby, Marilyn Kimberlin, Shirley Lauderdale, William Greathouse, June Elliott, Joseph DeMent, Michael Owens, Charles Lankford and John Sells. These employees were all discharged over the weekend of June 13-14 or the two days following. Three other employees were found to have been discharged for union activities, however their discharges were removed in time from the discharges due to the decline in business and the employer did not allege that these employees were discharged for that reason. These three discharges will be discussed separately. . The Company hired seven employees in the latter half of June, ten in July and 22 in August. . This would not necessarily be true where there was some system of employee evaluation in effect by which the higher management officials would have a valid gauge available to objectively measure the employee’s abilities. . The Fifth Circuit added a caveat in NLRB v. Camco, Inc., 340 F.2d 803, 804 (5th Cir.), cert. denied, 382 U.S. 926, 86 S.Ct. 313, 15 L.Ed.2d 339 (1965). The Court said, “This list is not intended to be definitive and . . . intimidation may occur even if all these factors cut in favor of the employer. [Bok] warns [Bok, The Regulation of Campaign Tactics in Representation Elections under the National Labor Relations Act, 78 Harv.L.Rev. 38, 107 (1964)] that ‘employers must beware of interrogation unless (1) they have a valid purpose for obtaining information concerning the union’s strength; (2) they communicate this purpose to the employees; and (3) they assure the employees that no reprisals will be taken.’ ” The Court there points out that even though the factors favor the employer under the Bourne test, intimidation may nevertheless occur if the employer does not heed the warning of Cameo. This seems to be sound advice.

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Plaintiff-Appellee, v. NORTHSIDE REALTY ASSOCIATES, INC., and Ed A. Isakson, Defendants-Appellants. No. 72-2151. United States Court of Appeals, Fifth Circuit. March 14, 1973. See also D.C., 324 F.Supp. 287. Harold L. Russell and Lloyd Sutter, Atlanta, Ga., for defendants-appellants. Thomas M. Keeling, Atty., Housing Section, Dept, of Justice, Washington, D. C., John W. Stokes, Jr., U. S. Atty., Atlanta, Ga., Frank E. Sehwelb and Harold H. Moore, Civil Rights Div., Dept, of Justice, Washington, D. C., for plaintiff-appellee. Before GEWIN, GOLDBERG and DYER, Circuit Judges. GOLDBERG, Circuit Judge: This is an appeal from an order enjoining appellants, Northside Realty Associates, Inc. and its Executive Vice President, Ed A. Isakson, from violating the Fair Housing Act of 1968. Although we are unable to ascertain the precise legal rationale for the District Court’s decision, the Court apparently based its decision on constitutionally impermissible grounds. We therefore remand for fresh findings of fact and conclusions of law. This action was brought by the Civil Rights Division of the Justice Department pursuant to Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq., alleging that appellants had engaged in a policy and practice of racial discrimination against Blacks with respect to the purchase and sale of homes in the Metropolitan Atlanta, Georgia area. The government sought injunctive relief, claiming that appellants’ actions constituted a pattern or practice of resistance to the Fair. Housing Act of 1968, and had denied groups of persons rights granted by the Act raising an issue of general public importance. See 42 U.S.C. § 3613. After a three day non-jury trial, the District Court made the following pertinent factual findings: Northside Realty Associates, Inc. is incorporated under the laws of the State of Georgia and is licensed to engage in the listing and selling of real estate. Its executive vice president, Ed Isakson, is also the sales manager for one of the Company’s seven residential sales offices. Although Ed Is-akson has not advertised, sold or shown any residential property since 1960, his broker’s license inures to the benefit of the Company. Northside, through its 165 salespeople and its brokers, acts as agent for listing sellers by presenting offers on behalf of potential buyers. Commissions are paid by the sellers when sales are consummated. The majority of such sales involve single family dwellings while a smaller proportion involve lots and multiple dwellings or commercial property. In the three years since the effective date of the Fair Housing Act, not a single one of the more than 3,000 homes sold by Northside has been sold to a black person. Prior to the effective date of the Fair Housing Act, Ed Isakson violated the provisions of the Act by treating a black couple, the Bowers, in a discriminatory manner when he: (1) failed to discover the Bowers’ total financial potential before determining what priced house they could afford; (2) denied that Northside had any houses listed within the price range of the Bowers without consulting the listing book or the agents in the office; and (3) referred the Bowers to a black real estate broker without “co-operating” or receiving a referral fee, when he had never referred a white buyer to a black real estate broker. This violation evidenced a pre-Act practice of violating the Fair Housing Act. Subsequent to the effective date of the Fair Housing Act, Ed Isakson violated the provisions of the Act on two separate occasions. On one occasion he discriminated by denying to a prospective black buyer that he, Isakson, sold real estate, without explaining that Northside Realty, of which he was executive vice-president, did; and by immediately referring the black buyer to two other real estate companies that sold primarily to Blacks. Is-akson subsequently held this mode of behavior out as a model to be employed by white real estate people who did not wish to deal with Blacks. On a second occasion, Isakson violated the Act by showing an intention not to co-operate with a black real estate broker unless ordered to do so by the District Court. Finally, Isakson manifested an intent not to comply with the Fair Housing Act by stating that Congress had exceeded its constitutional authority in enacting the Fair Housing Act. After making the above findings of fact and conclusions of law, the Court held : “The Court finds that Mr. Isakson’s intentions [to resist compliance with the Act] have manifested themselves in his actions and that black people as a group have thereby been denied the protection guaranteed by the Act. This denial of protection is of sufficient importance to authorize the relief herein.” The Court then enjoined appellants from further discriminatory conduct and ordered them to take affirmative action to prevent future discrimination. Appellants attack the District Court’s order on a number of grounds: (1) The two post-Act violations of the Fair Housing Act that the District Court found occurred were insufficient to raise an issue of general public importance justifying the granting of injunctive relief. (2) The District Court’s finding that appellant Isakson violated the Act was insufficient to support the conclusion of wrongdoing by Northside Realty. (3) A finding of only one pre-Act violation does not support a finding of a pre-Act pattern or practice of violating the Fair Housing Act. (4) The District Court’s finding that appellant Isakson violated the Act on three occasions was based upon a legally impermissible inference drawn from Isakson’s constitutionally protected challenge to the Act arid was clearly erroneous. We find that appellants’ first two contentions are without merit but that his third and fourth points require that we remand to the District Court for further proceedings. I. PUBLIC IMPORTANCE Appellants urge that the District Court’s finding of two post-Act violations by Mr. Isakson is insufficient to establish an issue of general public importance and that injunctive relief is therefore not authorized by 42 U.S.C. § 3613. This contention is meritless. The question of what constitutes an issue of general public importance is, absent specific statutory standards, a question most appropriately answered by the executive branch. United States v. Bob Lawrence Realty, Inc., 5 Cir. 1973, 474 F.2d 115. See United States v. Greenwood Municipal Separate School Dist., 5 Cir. 1969, 406 F.2d 1086, 1090; Boyd v. United States, E.D.N.Y.1972, 345 F.Supp. 790, 794. Just as in his determination whether to prosecute a criminal case, the Attorney General must have wide discretion to determine whether an issue of public importance is raised. “Once the Attorney General alleged that he had reasonable cause to believe that a violation of . [the Fair Housing Act] denied rights to a group of persons and that this denial raised an issue of general public importance, he had standing to commence an action in District Court and to obtain injunctive relief upon a finding of a violation of the Act.” United States v. Bob Lawrence Realty, Inc., supra,, 474 F.2d at p. 125 n. 14 (citations omitted). II. CORPORATE LIABILITY Northside Realty argues that the District Court’s findings of one pre-Act violation and two post-Act violations by the individual appellant, Ed Isakson, are insufficient to impute liability to the corporate appellant, Northside Realty. Northside urges that the District Court’s finding of corporate liability does not comport with this Circuit’s decision in Standard Oil Co. of Texas v. United States, 5 Cir. 1962, 307 F.2d 120, because (1) the evidence fails to establish that Isakson was acting within the scope of his employment when the violations occurred, since by stipulation Isakson is not normally a real estate salesperson, and (2) Isakson was not shown to have been acting with the purpose of benefiting the corporate appellant when he violated the Act. In light of the fact that Ed Isakson (1) is the Executive Vice President of Northside Realty, (2) is the broker whose license inures to the benefit of the corporation and enables it to engage in the business of selling real estate, and (3) directly supervises one sales office of Northside Realty and is in charge of hiring or selecting the sales managers for the other Northside offices, we do not think it clearly erroneous for the District Court to conclude that appellant Isakson acted within the scope of his duties when he spoke to customers at the office that he supervised and when he discussed sales policy with other people in the real estate business. Nor do we think the District Court was clearly erroneous in finding that these activities were conducted with the intention of benefiting the corporation for which Isakson served as executive vice president. See Standard Oil Co. of Texas v. United States, supra. III. THE AMBIGUITIES OF THE DISTRICT' COURT’S ORDER 42 U.S.C. § 3613 authorizes the District Court to grant injunctive relief pursuant to a complaint by the Attorney General if the court finds (1) an individual pattern or practice of acts violating the Fair Housing Act, see United States v. Reddoch, 5 Cir. 1972, 467 F.2d 897; United States v. West Peachtree Tenth Corp., 5 Cir. 1971, 437 F.2d 221; or (2) a group pattern or practice of violating the Act, see United States v. Bob Lawrence Realty, Inc., 5 Cir. 1973, 474 F.2d 115; or (3) that an act, or acts violative of the Fair Housing Act denied a group of persons rights protected by the Act, see United States v. Bob Lawrence Realty, Inc., supra. In considering the Attorney General’s request for injunctive relief in the instant case, the District Court stated the issue in this manner: “The question before this Court is whether the [government] has met [its] . . . burden of proving that Northside Realty and Ed Isakson have engaged in a discriminatory ‘pattern or practice’ of selling real estate.” However, the Court subsequently held: “The Court finds that Mr. Isakson’s intentions [to resist compliance with the Act] have manifested themselvas in his actions and that black people as a group have thereby been denied the protection guaranteed by the Act. This denial is of sufficient public importance to authorize the relief herein granted.” The District Court’s conclusion of law thus does not respond to its statement of the issue, and we are unable to ascertain clearly the legal rationale of the court’s decision. The court might have based its granting injunctive relief: (1) upon a finding that the Bowers incident evidenced a pre-Act pattern or practice of violating the Fair Housing Act that was continued after the effective date of the Act; or (2) upon a finding that Isak-son’s verbal challenge to the constitutionality of the Fair Housing Act evidenced an intent to violate the Act that was carried out in two post-act incidents; or (3) upon a finding that two post-Act incidents violated the Act and evidenced a pattern or practice of violating the Act; or (4> solely upon a finding that the two post-Act incidents violated the Act and denied rights protected by the Act to a group of persons. Appellants argue that the District Court’s order was based on a find-ing that appellant Isakson’s conduct toward the Bowers established ¿ pre-Fair Housing Act pattern or practice of discriminatory conduct that the Court felt was continued by appellants subsequent to the effective date of the Act. In United States v. West Peachtree Tenth Corp., supra, we discussed the meaning of the terms “pattern or practice” as utilized in 42 U.S.C. § 3613: “The words ‘pattern or practice’ were not intended to be esoteric words of art. There is nothing magic in their meaning. To be sure, they were intended to encompass more than an ‘isolated or ae-cidental or peculiar event.’ ” United States v. West Peachtree Tenth Corp., supra, 437 F.2d at 227 (citations omitted). Although, “[e]aeh case must turn on its own facts,” id., we do not think that the District Court’s finding of one pre-Act violation, standing alone without á finding of any other factors to support its decision, can justify a finding of a pre-Act pattern or practice. The District Court could thus not properly base a finding of a Post-Act pattern or practice solely on a finding that the Bowers incident evidenced a pre-Act pattern or practice that subsequently was continued. Appellants also urge that the District Court’s finding that appellant Isakson violated the Fair Housing Act on three occasions was predicated upon a legally impermissible inference of wrongful intent that the Court deduced from Isak-son’s constitutionally protected challenges to the authority of Congress to pass the Fair Housing Act. Appellants also contend that the District Court’s findings in this regard were clearly erroneous. In a pre-trial statement entered into the record, Isakson stated: “I am familiar with the Fair Housing or Civil Rights Act of 1968; and I know that the Act makes certain actions illegal, so far as Congress has authority within the limitations of the U. S. Constitution to make such actions illegal. Although I believe that my firm and I have complied with the Act, I personally believe that Congress may have exceeded its authority under the Constitution in enacting the Act and I intend to challenge Congress” action in this litigation in hopes that this Court will interpret the law and decide the case in my favor.” The District Court held: “The Court takes note that the government filed this case and presented it with little evidence to support its position that the defendants were engaged in a pattern or practice of discrimination. At the time suit was filed, the government’s case consisted of one pre-Act incident and one post-Act incident (which later failed of proof). Mr. Isakson’s own actions and statements that Congress has exceeded its constitutional limitations, however, indicate his intention on behalf of himself and the company to resist compliance with the purposes of the Fair Housing Act. The Court finds that Mr. Isakson’s intentions have manifested themselves in his actions and that black people as a group have thereby been denied the protection guaranteed by the Act. This denial of protection is of sufficient public importance to authorize the relief herein granted.” We seriously doubt that the learned court below would have based its finding that appellants violated the Fair Housing Act on an unconstitutional ground, however, its opinion is ambiguous on this point. Certainly if the District Court did base its decision that appellants violated the Fair Housing Act upon appellant Isakson’s challenge to the constitutionality of the Fair Housing Act, its decision would be fatally infirm. Due process of law demands that a party not be penalized for exercising his right to raise the defense that the Act which he is being charged with violating is unconstitutional. United States v. Butler, 6 Cir.. 1968, 389 F.2d 172, cert. denied, 1968, 390 U.S. 1039, 88 S.Ct. 1636, 20 L.Ed.2d 300; cf. Griffin v. California, 1965, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106. “Moreover, the First Amendment, which protects a controversial as well as a conventional dialogue, . extends to petitions for redress of grievances as well as to advocacy and debate.” Whitehill v. Elkins, 1967, 389 U.S. 54, 57, 88 S.Ct. 184, 185, 19 L.Ed.2d 228, 231 (citations omitted). Individuals accept the role of martyrs by defying laws to test their constitutionality, and if the laws are found to be constitutional the individual must accept the inexorable consequence, martyrdom; but our Constitution forbids that anyone should be found to have violated a law for opining that the law is unconstitutional. The proposition is too axiomatic to explicate that a person can express an opinion that a law is unconstitutional, and Isakson for a thousand times could have declared with impunity that the Fair Housing Act is unconstitutional, for these asseverations may not constitute proof of a violation. Isakson may well suffer the sanctions of law for what he did, for after reading this record, we do not find that the District Court was clearly erroneous in finding that appellants violated provisions of the Fair Housing Act; however, we want to remove any clouds of uncertainty and thus clear away all possibility of any miasma of dubiety. We know that the learned trial judge would not want us to wallow in doubt, and we cannot affirm if there is the slightest possibility that his decision rested upon a constitutionally impermissible ground. United New York and New Jersey Sandy Hook Pilots Asso. v. Halecki, 1959, 358 U.S. 613, 79 S.Ct. 517, 523, 3 L.Ed.2d 541; Street v. New York, 1969, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572; Chapman v. California, 1967, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. The government correctly urges that if we ignore the District Court’s statements concerning appellant Isakson’s challenge to the validity of the Fair Housing Act, the District Court’s finding that Isakson committed two post-Aet violations is not clearly erroneous and would alone support the granting of injunctive relief. Appellants correctly urge that if the District Court made those findings of post-Aet violations relying upon its drawing of unconstitutional inferences from Isakson’s challenge to the Act, its order is fatally infirm and must be reversed. “In effect, the parties urge that we pick and choose to come to conclusions each asserts is required under the clearly erroneous concept. But this is not our role. It deprecates the function of the trial. Armed with the buckler and shield of F.R.Civ.P. 52(a), as findings come to us, we can perform our limited role only as we know with reasonable assurance just what the Judge has found.” Mladinich v. United States, 5 Cir. 1967, 371 F.2d 940, 942 (citations omitted). Since we are unable to ascertain either the principle of law the District Court applied or the constitutional propriety of its fact findings, we think that justice demands that we remand this case to the District Court for a reconsideration of the facts in light of this opinion and for new conclusions of law. The record could support findings and conclusions of law that justify equitable relief, but we must be able to read such findings clearly and distinctly. The trial court’s findings are only clearly erroneous if they were based (1) on a belief that Isakson’s claimed intention to test the constitutionality of the Fair Housing Act showed an intent to violate the Act, or (2) on the finding that the Bowers incident standing alone evidenced a pre-Act pattern or practice. We must be absolutely certain that the trial court’s findings were not tainted by a belief that Isakson’s challenge to the constitutionality of the Act was probative of an intent to violate the Act. If this theory prevailed, no one could verbalize constitutional rights or theories. If the trial court found a violation because of Isakson’s constitutional opin-ionativeness, this finding' is repugnant to the First Amendment. We are constantly vigilant lest the non-conformist be chilled in the expression of ideas, and we must be just as watchful of any idea-tional concept, regardless of its source or content. We recognize that the specificity and exactitude of a blueprint is not essential to findings of a violation of the Act. We remand for clarity to be certain that Isakson’s public declaration of a constitutional opinion did not become the basis for a finding of a violation and that the trial court’s decision was thus not sullied by an impermissible inference. Therefore, in reconsidering its order, the District Court may not consider appellants’ challenge to the constitutionality of the Fair Housing Act as probative of a violation of the Act. If it again finds that appellants' activities violate the Act, it should then grant injunctive relief only upon a finding that appellants participated in a pattern or practice of violating the Act or upon a finding that appellants have denied a group of persons rights granted by the Act. We express no opinion as to the appropriate determination of this matter on remand. We merely direct the District Court to enter fresh findings of fact and conclusions of law, not inconsistent with this opinion. Remanded. . 42 U.S.C. § 3613 (Section 813, Civil Rights Act of 1968) SEC. 813(a) Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights granted by this title, or that any group of persons has been denied any of the rights granted by this title and such denial raises an issue of general public importance, he may bring a civil action in any appropriate United States district court by filing with it a complaint setting forth the facts and requesting such preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order against the person or persons responsible for such pattern or practice or denial of rights, as he deems necessary to insure the full enjoyment of the rights granted by this title. . In addition, the District Court found that allegations concerning statements made by one of Northside Realty’s sales agents were irrelevant because those statements, even if proved, would not represent the sales policy of Northside Realty. The District Court also found that the allegations of one of the government’s witnesses were not proved, not that they were “perjured” as appellants continually and erroneously state in their brief. . The District Court issued the following injunction: NOW THEREFORE, pursuant to the foregoing Findings of Fact and Con-elusions of Law, IT IS ORDERED, ADJUDGED AND DECREED that the defendants Northside Realty Associates, Inc., Ed A. Isakson, all the corporate defendant’s officers, employees, brokers, agents and all persons in active concert or participation with any of them are enjoined from: (1) Failing or refusing to negotiate for the sale of any dwelling, and from making any dwelling unavailable to any person because of race, color, religion, or national origin; (2) Discriminating against any person in the terms, conditions, or privileges of purchase of a dwelling; or in the services or facilities connected with such sale or purchase or with real estate brokerage, because of race, color, religion or national origin; (3) Representing, explicitly or im-plicity, to any person because of race, color, religion or national origin, that any dwelling is unavailable for sale or inspection when such dwelling is, in fact, available; (4) Discriminating against any person or persons on account of race, color, religion or national origin with respect to engagement of his services by defendants or any of them ; (5) Failing or refusing to cooperate with any broker or any representative of any corporate or individual broker, with respect to the sale or negotiation for sale of any dwelling, because of the race, color, religion, or national origin of the broker, the sales person, or the client on whose behalf such available dwellings are being sought, or because of racial occupancy patterns in any place or area. IT IS FURTHER ORDERED that the defendants shall forthwith adopt and implement the following affirmative program to assure nondiscriminatory treatment of Negroes and to correct the effects of their past discriminatory practices and image: (1) The defendants shall, within 30 days of the entry of this Order, conduct an educational program for its sales personnel and other agents and employees to inform them of the provisions of this decree and their duties under the Fair Housing Act. Such a program shall include the following: (a) A copy of this decree shall be furnished to each salesperson and other employee ; (b) By general meeting or individual conference, the defendants shall inform each salesperson and other employee of the provisions of this decree and of the duties of the company and its agents and employees under the Fair Housing Act. (2) Throughout the calendar years 1972 and 1973, the defendants shall maintain separate records on each inquiry from potential buyers and/or sellers who are identified or are identifiable as members of the Negro race. E'ach record should include the following information : (a) the inquirer’s name; (b) the services requested or desired; (c) the services actually rendered; (d) the name of the person and the office handling the inquiry or transaction ; (e) the date of the initial inquiry; (f) the date the service, if any, was rendered ; (g) if no service was rendered, the reason therefor. The defendant shall maintain these records as permanent files of the company for three years from this date unless further ordered by this Court. Furthermore the defendants shall make these records available for inspection by a representative of the Attorney General of the United States at six-month intervals during 1972 and 1973. . See note 1, supra. . Appellant also urges that the District Court failed to make findings with respect to material issues required by Rule 52(a) Fed.R.Civ.P. because it failed to specifically comment on all of the evidence adduced by appellants. In light of our disposition of this matter we think it suffices to note that “Courts need not indulge in exegetics, or parse or declaim every fact and each nuance and hypothesis,” Gulf King Shrimp Co. v. Wirtz, 5 Cir. 1969, 407 F.2d 508, 516, and that “there is absolutely no indication that the trial court did not consider the evidence that appellants claim was ignored. All of the facts were admitted into evidence and the trial court’s failure to mention each and every specific item in its memorandum opinion in no way indicates that they were not considered, weighed, and rejected as inconclusive.” Ramey Const. Co., Inc. v. Local Union No. 544, 5 Cir. 1973, 472 F.2d 1127.

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INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW and its Local 647, UAW, Plaintiffs-Appellants, v. GENERAL ELECTRIC COMPANY, INC., Defendant-Appellee. Nos. 72-1619, 72-1620. United States Court of Appeals, Sixth Circuit. Argued Dec. 12, 1972. Decided March 6, 1973. John A. Fillion, Detroit, Mich., for appellants-cross-appellees; Stephen I. Schlossberg, Detroit, Mich., Bernard C. Fox, Beckman, Lavercombe, Fox & Weil, Cincinnati, Ohio, on the brief. J. Mack Swigert, Cincinnati, Ohio, for appellee-eross-appellant; Robert W. Maxwell II, Cincinnati, Ohio, on the brief; Taft, Stettinius & Hollister, L. S. Stek, Cincinnati, Ohio, of counsel. Before EDWARDS, CELEBREZZE and PECK, Circuit Judges. EDWARDS, Circuit Judge. This ease involves 3,600 grievances, a major labor dispute, the memorandum agreement by which that labor dispute was settled, and the laws of this country pertaining to arbitration. Nonetheless, the efforts of the parties themselves and those of the District Judge who heard this case at the trial level have resulted in an appellate record of manageable proportions. As the International Union, United Automobile Aerospace and Agricultural Implement Workers of America and the General Electric Company, Inc., approached the termination date of their 1963-66 labor-management agreement for the General Electric plant at Even-dale, Ohio, one of the major issues concerned how to dispose of a huge backlog of grievances which had not been resolved under two prior contracts, the then existing contract and its predecessor for the years 1960-63. Under the pressure of a possible strike, and with the mediation assistance of the United States Department of Labor's mediation service, the parties met in Washington, D. C., and ultimately on December 4, 1966, signed a memorandum agreement which in certain respects amended and in other major respects extended the 1963-66 agreement. Paragraph 4 of that memorandum agreement dealt specifically with the problem of the backlog of grievances: 4. With respect to the grievance backlog, the parties agree that active grievances at 2nd, 3rd, and 4th Steps on December 4, 1966, will be combined for the purpose of expediting processing. The International Representative of the Union will review all unresolved grievances which were active at the 2nd, 3rd, and 4th Steps of the grievance procedure on October 17, 1966, for the purpose of eliminating and disposing from any further consideration, a substantial number of such grievances. The remaining active grievances will thereupon be referred to Step 3 of the grievance procedure set forth in Article XXII of the 1966-1969 Agreement for expedited consideration. Should any of the grievances remain unsettled after such expedited consideration at Step 3, they will then be referred to a special committee for further efforts toward resolution. The Committee will be composed of the Manager of Union Relations, a Staff Representative, and a specialist from the Union’s International Headquarters. Such grievances as may remain unsettled after consideration by the Committee will be categorized by the Committee into one of the following categories: A. Grievances which are (1) arbi-trable as a matter of right under the terms of the 1963-1966 collective bargaining agreement and as to which either party will determine whether it desires to proceed to arbitration and (2) arbitrable under the 1963-1966 agreement by mutual agreement. B. Grievances which would constitute a contract violation but which are deemed to be non-arbitrable by the Company under the terms of the 1963-1966 Agreement. 'íhe Union will determine whether or not they wish to strike or proceed in court on such grievances under the terms of Section 301 of the Taft Hartley Act. C. Non-contractual grievances. Should any of such grievances be issues upon which the Union elects to strike, it shall give ten days notice thereof to the Federal Mediation and Conciliation Service. The Company should be simultaneously notified. The grievance backlog program shall be conducted during the period January 3, 1967 through April 3, 1967, at the end of which period the Special Grievance Committee will be dissolved, and all matters connected with the issue of backlog of grievances shall be deemed settled for all purposes, excepting only such arbitration proceedings initiated or court actions which may have been filed, or any non-contractual grievances in mediation, or where notice of intent to strike has been given. Between December 4, 1966, and April 3, 1967, the parties met and sought to resolve as many of the grievances as possible. It is clear from this record that during this period the total backlog of grievances from 1960 down to Decem-ber 4, 1966, were under negotiation and that a number of grievances from the 1960-63 period were resolved along with numbers of - grievances from the 1963-66 period. Nonetheless, as of April 3, 1967, a formidable number of grievances still remained as to which there was no agreed-on solution and as to which the union claimed the absolute right to arbitration under the contract and the company asserted that, under the same contract, no such right existed. Thereupon the union filed suit in the United States District Court for the Eastern District of Michigan under Sec. 301 of the Labor-Management Relations Act, 29 U.S.C. § 185(a) (1970) for a decree compelling arbitration. The case was transferred to the United States District Court for the Southern District of Ohio and there was heard by a District Judge in the Western Division. The parties then filed a stipulation classifying the grievances into six classes (plus two individual grievances grouped generally with the B2 class) and agreeing upon a typical grievance as illustrative of the class concerned. The chart below is an attempt to present the stipulation in skeleton form: Exhibit No. Brief description of grievance Contract period during which grievance arose Al Working in higher class 1963-66 A2 Working in higher class 1960-63 B1 Supervision or salaried personnel working on bargaining unit. 1963-66 Company says not bargaining unit work. B2 Supervision or salaried personnel working on bargaining unit. 1960-63 . Company says not bargaining unit work. (Also 2AFN and 88E2 (past Step 4)) Cl Supervision working in bargaining unit. 1963-66 Company admits bargaining unit work, but claims is justified under contract. C2 Supervision working in bargaining unit. 1960-63 Company admits bargaining unit work, but claims is justified under contract. The complaint in this case was filed April 3, 1967. The parties then filed exhibits and the stipulation referred to, along with cross-motions for summary judgment. The District Judge after argument of those motions entered an extensive memorandum on November 7, 1969, deciding all issues presented, except whether or not the 1960-63 grievances covered by the B2 and C2 classifications were arbitrable. On this issue he conducted an evidentiary hearing on May 17, 1971, and subsequently decided same by Memorandum Decision of January 24, 1972. A final judgment was entered April 20, 1972. The District Judge held that: (1) Defendant was entitled to judgment as a matter of law with respect to grievances in the Al and A2 classifications. (2) Plaintiffs were entitled to judgment with respect to grievances listed in the B1 and Cl classifications. (3) Defendant was entitled to judgment as a matter of law as to the grievances listed in the B2 and C2 classifications. He held that defendant was also entitled to judgment as a matter of law as to grievances 2AFN and 88-E2 listed in the B2 classification separately. Some of the complications in this appeal can quickly be ' eliminated. For reasons of its own, the company has not appealed the District Judge’s order that the Cl grievances be arbitrated. Additionally, our inspection of the Memorandum Agreement of December 4, 1966, indicates that it contains no language which shows an intention of the parties to include in the “grievance backlog” the two individual grievances from the 1960-63 period which had already gone beyond step four. The backlog which the Memorandum of Settlement decided to deal with is clearly defined as “active grievances at 2nd, 3rd and 4th steps on December 4, 1966.” Hence, we affirm the Distl’iet Judge on this issue. This then leaves us with three issues on this appeal, each of them pertaining to a class of grievances, of course. (1) The union apeals the District Judge’s decision, holding that Al and A2 grievances are not arbitrable because of his holding that there is no contract language prohibiting management from working an employee out of classification. (2) The company appeals from the District Judge’s decision holding that B1 grievances pertaining to supervisors doing work in the bargaining unit were arbitrable grievances because of ambiguity existing as the result of conflict between two terms of the 1963-66 agreement. (3) Finally, the union appeals the District Judge’s holding that under the Memorandum of Settlement of December 4, 1966, all 1960-63 grievances (A2, B2 and C2) were excluded from arbitration because of the Memorandum of Settlement’s employment of the language “under the terms of the 1963-66 agreement.” We affirm the District Judge on the first and second issues and reverse on the third. We believe the District Judge handled and decided the first and second issues with full recognition of the strong federal preference for arbitration set forth in the Steelworkers trilogy: United Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). Illustrative of that preference is this language from the Worrier & Gulf case: The Congress, however, has by § 301 of the Labor Management Relations Act, assigned the courts the duty of determining whether the reluctant party has breached his promise to arbitrate. For arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit. Yet, to be consistent with congressional policy in favor of settlement of disputes by the parties through the machinery of arbitration, the judicial inquiry under § 301 must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance or did agree to give the arbitrator power to make the award he made. An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage. United Steelworkers v. Warrior & Gulf Navigation Co., supra at 582-583, 80 S.Ct. at 1353. (Footnote omitted.) THE A1-A2 GRIEVANCES The disposition of the union’s appeal from the District Judge’s denial of an arbitration order concerning the A1 grievance classification requires some additional facts concerning the arbitration clauses in the 1963-66 labor-management contract between these parties. While the contract contains a fairly elaborate arbitration clause, it clearly does not provide for compulsory arbitration of all grievances or for that matter for an absolute no strike clause. Management’s right to reject arbitration (with specific named exceptions) is reserved in Article XXIII, paragraph 2, and the union’s right to strike in the event of the company’s refusal to arbitrate is reserved in article XXIV, paragraph 2. Further, the 1963-66 contract does not contain the broad arbitration clause of the preceding 1960-63 contract. For reasons best known to the parties, Article XXIII dealing with arbitration in the 1963-66 contract was substantially changed to read as follows: ARTICLE XXIII ARBITRATION 1. Any grievance which involves the interpretation or application of this Agreement and which remains unsettled after having been fully processed pursuant to the provisions of Article XXII shall, notwithstanding the Company’s right to refuse to arbitrate grievances, as reserved in Article XXIV, para. (2), be submitted to arbitration upon written request of either the Union or the Company, provided such request is made within 30 days after the final decision of the Company has been given to the Union pursuant to Article XXII, and provided such requests directly raises an issue which is either (a) a disciplinary penalty, consisting of a warning notice, a suspension, or a discharge, which penalty is imposed on or after the effective date of this Agreement, and is alleged to have been imposed without just cause, but not a disciplinary penalty effected under Company Policy 20.4; or (b) an alleged violation of one of the following provisions of this Agreement: There follow 17 specifically enumerated articles with specific exceptions excluding arbitration in eight of them. It thus appears that the arbitration clause in the 1963-66 contract was written with great particularity as to what was and what was not subject to arbitration. As the District Judge noted, the strong preference in the federal law favoring arbitration does not allow the courts to order arbitration of an issue which the parties have not agreed to arbitrate. John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1963); Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1961); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); District 50, UMW v. Chris-Craft Corp., 385 F.2d 946 (6th Cir. 1967). The union relies upon the listing of Article VIII in the list of 17 arbitrable articles. Article VIII is, however, listed with an exclusionary clause: Article VIII, Rates of Pay, including violation of the provisions on starting rate, transfer rate, progression, and merit increase, but excluding any issue pertaining or relating in any way to the establishment, changing or elimination of a job classification or a wage rate, or the method by which an employee is paid. The typical grievance chose as representative of the Al and A2 classifications follows: NATURE OF GRIEVANCE (Contract Article Violated): Working over classification DESCRIBE SPECIFICALLY WHAT HAPPENED (Who, When, What, Where, How, Etc.) : Flo MeMillen worked two days identifying sorting and segregating mixed parts in the C.E.O. warehouse. They do not have an inspector there THE UNION’S POSITION: This is not an R-12 job it is an R-15 inspectors job. That she be paid R-15 pay for 16 hrs. The exclusionary language following the listing of Article VIII as set forth above must be read as specifically excluding from arbitration the exact type of dispute over an employee working out of classification as is described in the typical grievance. We have carefully inspected Article VIII upon which the union relies to show an ambiguity which requires arbitration. It does not contain any provision which even arguably prohibits working an employee over classification. And the union does not seek to identify any such language elsewhere in the agreement. On this issue we find no ambiguity to trigger the Warrior & Gulf rule. This issue is, we believe, governed by the settled law of John Wiley & Sons v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1963): “Under our decisions, whether or not the company was bound to arbitrate, as well as what issues it must arbitrate, is a matter to be determined by the Court on the basis of the contract entered into by the parties.” Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241, 82 S.Ct. 1318, 1320, 8 L.Ed.2d 462. Accord, e. g., United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409. . . . The duty to arbitrate being of contractual origin, a compulsory submission to arbitration cannot precede judicial determination that the collective bargaining agreement does in fact create such a duty. Thus, just as an employer has no obligation to arbitrate issues which it has not agreed to arbitrate, so a fortiori, it cannot be compelled to arbitrate if an arbitration clause does not bind it at all. Id. at 546-547, 84 S.Ct. at 913. On this issue the judgment of the District Court is affirmed. THE B1 GRIEVANCES The District Judge ordered arbitration of grievances classified under the B1 list attached to the stipulation of the parties. The- grievance chosen in this stipulation as typical of those on the B1 list is described as follows: NATURE OF GRIEVANCE (Contract Article Violated): Overtime DESCRIBE SPECIFICALLY WHAT HAPPENED (Who, When, What, Where, How, Etc.): Two salaried employees on 1/9/66 performed bargaining unit work on Machine No. P425. Neither Machine Operator nor Union Representative, was notified; present or aware of the operation, during this mal-practice. Each party argues a contract provision as directly applicable. Plaintiffs rely upon Article XXV, paragraph 3, which says: 3. Supervisors or salaried personnel will not perform work on any job within the Bargaining Unit except in cases of emergency, or when no qualified employee is available, or when instructing an employee. Defendant relies upon Article XXIII, paragraph 4(iv), which provides: In addition, and notwithstanding any contrary provision of this Article, no issue shall under any circumstances be subject to arbitration if it pertains or relates in any way to: (iv) the assignment of work to, or the performance of work by, persons outside the bargaining unit; . . . . The District Judge found that the language of Article XXV, paragraph 3, was specific and the language of Article XXIII, paragraph 4(iv), was more general and gave precedence to the more specific provision thereby finding for plaintiffs on this issue. We think that under the Warrior & Gulf rule quoted above, the District Judge’s arbitration order was appropriate because in any event the conflict between the two clauses created a clear ambiguity. Carey v. General Electric Co., 315 F.2d 499 (2 Cir.), cert. denied, 377 U.S. 908, 84 S.Ct. 1162, 12 L.Ed.2d 179 (1963). As to this issue the judgment of the District Court is affirmed. THE B2 AND C2 “HOLDOVER” GRIEVANCES The typical grievance selected for the B2 and C2 classifications is the same one which applied to the B1 and Cl classifications, namely, a complaint that salaried personnel were doing bargaining unit work. Thus, all that we have said concerning the arbitrability of such grievances which arose during the 1963-66 contract applies a fortiori to those grievances which arose during the 1960-63 contract, since the language of the earlier contract was more favorable to arbitrability than that contained in the later contract. The “holdover” -grievances (ones which arose during the 1960-63 contract period) were undisposed of when that contract terminated and were still pending at steps 2, 3 or 4 of the grievance procedure on December 4, 1966. Our first question as to these grievances is: Were they still viable grievances for purposes of arbitration on that date, or had they ceased to be viable because of termination of the 1960-63 and the 1963-66 contracts? We find no language in either contract which set any time limit upon the processing of such grievances either during or after the contract term. If we were to imply such a time limit from the fact that the contract itself had a termination date, such an implication would create insuperable difficulties in processing the last grievances through the grievance and arbitration machinery as the end of the contract approached. Obviously, as we shall see, the parties themselves did not so interpret the contract. These grievances were ones which sought compensation to members of the bargaining unit for work allegedly done by salaried personnel in violation of Article XXV, paragraph 3: 3. Supervisors or salaried personnel will not perform work on any job within the Bargaining Unit except in cases of emergency, or when no qualified employee is available, or when instructing an employee. In Lincoln Mills, the seminal arbitration case, the Supreme Court held that holdover grievances seeking money damages after the company had terminated operations and contracted to sell its mill properties were nonetheless “continuing controversies.” Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). Bearing on this same issue is the language of the Court in John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1963): It is true that the Union has framed its issues to claim rights not only “now” — after the merger but during the terms of the agreement — but also after the agreement expired by its terms. Claimed rights during the term of the agreement, at least, are unquestionably within the arbitration clause; we do not understand Wiley to urge that the Union’s claims to all such rights have become moot by reason of the expiration of the agreement. As to claimed rights “after January 30, 1962,” it is reasonable to read the claims as based solely on the Union’s construction of the Interscience agreement in such a way that, had there been no merger, Interscience would have been required to discharge certain obligations notwithstanding the expiration of the agreement. We see no reason why parties could not if they so chose agree to the accrual of rights during the term of an agreement and their realization after the agreement had expired. Of course, the Union may not use arbitration to acquire new rights against Wiley any more than it could have used arbitration to negotiate a new contract with Interscience, had the existing contract expired and renewal negotiations broken down. Whether or not the Union’s demands have merit will be determined by the arbitrator in light of the fully developed facts. It is sufficient for present purposes that the demands are not so plainly unreasonable that the subject matter of the dispute must be regarded as nonarbitrable because it can be seen in advance that no award to the Union could receive judicial sanction. See Warrior & Gulf, supra, at 582-583, 80 S.Ct. 1347, Id. at 554-555, 84 S.Ct. at 917. (Footnote omitted.) We conclude, as obviously the parties did by their continued processing of the grievances, that the B2 and C2 grievances were viable as of December 4, 1966, when the Memorandum of Settlement was signed. For the same reasons that the District Judge held the B1 and Cl grievances arbitrable (with our full affirmance earlier in this opinion), we now hold that the B2 and C2 grievances were arbi-trable as of December 4,1966. This leaves the remaining question as to whether the December 4, 1966, Memorandum of Settlement represented an agreement of the parties to terminate the B2 and C2 grievances. There is a strong dispute of background facts and interpretation as to what paragraph 4 of the Memorandum of Settlement of December 4,1966, meant to the parties to the contract in relation to the 1960-63 grievances. The District Judge originally (and we believe correctly) held that paragraph 4 was susceptible of two logical constructions: that urged by the union, and that urged by the company. He thereupon held an evidentiary hearing and resolved some of the fact problems bearing on construction of the Memorandum of Settlement. We believe that it is clear and essentially undisputed (and the District Judge so found) that the “grievance backlog” referred to in the first part of paragraph 4 did refer to a total of some 3,600 grievances, among which were “holdover” grievances from the 1960-63 contract period. We believe that it is also undisputed (and the District Judge so found) that 1960-63 grievances were discussed and some of them were settled in the negotiations following the Memorandum of Settlement between December 4, 1966 and April 3,1967. It is, we think, clear that the references in the first part of paragraph 4 to “grievance backlog” and “active grievances at 2nd, 3rd and 4th steps on De-cember 4, 1966” included the 1960-63 “holdover” grievances. The question then arises as to what interpretation should be given to the later provisions of paragraph 4: Such grievances as may remain unsettled after consideration by the Committee will be categorized by the Committee into one of the following categories : A. Grievances which are (1) arbitra-ble as a matter of right under the terms of the 1963-1966 collective bargaining agreement and as to which either party will determine whether it desires to proceed to arbitration and (2) arbitrable under the 1963-1966 agreement by mutual agreement. B. Grievances which would constitute a contract violation but which are deemed to be non-arbitrable by the Company under the terms of the 1963-1966 Agreement. The Union will determine whether or' not they wish to strike or proceed in court on such grievances under the terms of Section 301 of the Taft Hartley Act. C. Non-contractual grievances. Should any of such grievances be issues upon which the Union elects to strike, it shall give ten days notice thereof to the Federal Mediation and Conciliation Service. The Company should be simultaneously notified. The grievance backlog program shall be conducted during the period January 3, 1967 through April 3, 1967, at the end of which period the Special Grievance Committee will be dissolved, and all matters connected with the issue of backlog of grievances shall be deemed settled for all purposes, excepting only such arbitration proceedings initiated or court actions which may have been filed, or any non-contractual grievances in mediation, or where notice of intent to strike has been given. The company’s interpretation of the language “under the terms of the 1963-66 collective bargaining agreement” is that it was designed to exclude the 1960-63 grievances. The union’s position is that the paragraph 4 language just quoted above was employed to describe the standard by which the arbitrator would determine arbitrability. We think the District Judge erred in undertaking to resolve this conflict. We certainly cannot say “with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” Thus under the prescription given us by the Supreme Court in United Steelworkers v. Warrior & Gulf Navigation Co., supra at 582, 80 S.Ct. 1347, these “holdover” grievances must be referred to arbitration in lieu of resolution in the federal court. As to this issue the District Court is reversed. The judgment of the District Court is affirmed in part and reversed in part, and remanded for further proceedings consistent with this opinion. . This same ruling would be applicable to the grievances of the 01 class but for the fact that the company chose not to appeal the District Judge’s order to arbitrate as to them. . We note that the District Judge failed to resolve a dispute of fact as to whether this very issue (the survival of the 1960-63 grievances) was (as claimed by the company) discussed by the negotiators with the company’s interpretation of paragraph 4 being stated by its chief negotiator at the December 4, 1966, meeting or whether, as claimed in union testimony, no such issue was ever raised or talked about.

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Gary L. ROUSE, Appellee, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Appellant, v. SUPERIOR COOPERATIVE ELEVATOR COMPANY. Gary L. ROUSE, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Appellee, v. SUPERIOR COOPERATIVE ELEVATOR COMPANY, Appellant. Nos. 72-1124, 72-1161. United States Court of Appeals, Eighth Circuit. Submitted Oct. 19, 1972. Decided March 1, 1973. B. A. Webster, Des Moines, Iowa, for Chicago, Rock Island and Pacific Railroad Co. William F. Fanter, Des Moines, Iowa, for Superior Cooperative Elevator Co. Francis Fitzgibbons, Esterville, Iowa, for Rouse. Before LARAMORE, United States Court of Claims Senior Judge, BRIGHT and ROSS, Circuit Judges. Sitting by designation. BRIGHT, Circuit Judge. Gary L. Rouse, while serving as a brakeman for the Chicago, Rock Island and Pacific Railroad Company (Railroad), lost part of his leg when he struck a loading dock encroaching near a spur track and fell from a train, rolling beneath its wheels. Rouse brought this FELA action against the Railroad, which in turn sought indemnity or contribution in a third-party complaint against Superior Cooperative Elevator Company (Elevator) under terms of a lease agreement with the Elevator. The Railroad alleged that the lessee-Elevator’s failure to create adequate clearances between its loading dock and the spur track caused Rouse to sustain his injuries. A jury, by special verdict, awarded Rouse $273,125 on his claim against the Railroad. Thereafter the trial judge rejected the Railroad’s claim to full indemnity but entered judgment in favor of the Railroad for contribution from the Elevator. The Railroad has appealed contending that the district court erred (1) in rejecting the Railroad’s right to recover full indemnity from the Elevator under the lease, (2) in refusing to grant a new trial or remittitur because of the exeessiveness of the verdict, (3) in refusing to instruct the jury that an award to plaintiff would not be subject to state and federal income taxes, and (4) in refusing an instruction relating to future pain and suffering and medical expenses. The Elevator has appealed urging that the district court erred in refusing to submit the question of its liability for contribution to a jury and in declining to grant a new trial for errors committed during trial. The Elevator also attacks the amount of the verdict as excessive. We deny these appeals and affirm the verdict and judgment entered in the main action and the third-party proceedings. The lease provisions required that no structure be erected or ■ maintained by the Elevator within a minimum of six feet from the center line of the track. The evidence established that the Elevator’s loading dock lay within six feet of the center line in violation of the lease as well as track clearance regulations of the Iowa State Commerce Commission. Testimony established that Rouse struck the loading dock and fell beneath the wheels of the train while attempting to release a handbrake on a grain car. The testimony further indicated that supervisory railroad employees had been aware that the loading dock unlawfully encroached upon the tracks. The lease agreement stipulated that should the Elevator fail to observe clearance requirements it “will assume all liability therefor and agrees to indemnify and save harmless the Lessor * * * against any and all claims for loss, damage, injury or death resulting therefrom.” A general provision of the lease further provided for indemnity for claims arising out of injury or death of the parties and their employees or other persons while on or about the leased premises and stipulated that “if any claim or liability due to some other cause than fire shall result from the joint or concurring negligence of both parties hereto it shall be borne by them equally.” The trial court determined as a matter of law that the Railroad had acquiesced in the encroachment and therefore was barred from obtaining full indemnity from the Elevator. The Railroad, however, contended that the fact that it knew of the existence of a dangerous condition did not bar indemnity under Iowa law. The facts and the provisions of the lease here in question are almost identical to those before this court in Missouri Pacific R.R. Co. v. Arkansas Oak Flooring Co., 434 F.2d 575, 577 (1970). In that case we recognized the doctrine of acquiescence as a defense to the lessor-railroad’s claim for indemnity against its lessee. The Railroad, here, has referred us to no decision of the Iowa Supreme Court which is inconsistent with our decision in Arkansas Oak Flooring. Accordingly, on the authority of that decision, which we believe enunciated a proper general rule in the construction of lease agreements such as the one before us, we affirm the ruling of the district court denying indemnity but awarding contribution to the Bailroad. The Bailroad next alleges that the jury verdict was “so excessive as to shock the conscience and indicates passion and prejudice * * * .” The limitation upon the scope of review of a damage award has been enunciated frequently by this court and needs no elaboration here. See Scoville v. Missouri Pacific R.R. Co., 458 F.2d 639, 647-649 (8th Cir. 1972), and cases cited therein. The court will only intervene where there is “plain injustice or a monstrous or shocking result.” Novak v. Gramm, 469 F.2d 430, 434 (8th Cir. 1972). Bouse was 31 years old when the accident occurred and 34 at the time of trial. As a result of the accident, he had suffered an amputation of his left leg at a point five inches below the knee. He offered medical testimony that further amputation might be necessary. He had already undergone 12 operations, had incurred in excess of $11,000 in medical expense, and had sustained lost earnings of about $900 per month total-ling $14,400. Considering Bouse’s life expectancy, his past and anticipated future pain and suffering, his prior earning capacity, and the nature of his disability in general, we cannot say that the verdict, although very substantial, was so shocking as to require our intervention. See Grunenthal v. Long Island R.R. Co., 393 U.S. 156, 161-162, 89 S.Ct. 331, 21 L.Ed.2d 309 (1968); Greco v. Seaboard Coast Line R.R. Co., 464 F.2d 496, 497 (5th Cir. 1972), and compare Perry v. Bertsch, 441 F.2d 939, 945 (8th Cir. 1971). As a second prong of its attack on the verdict, the Bailroad argues that tax-conscious juries mistakenly assume that awards will be subject to taxation and therefore increase awards sufficiently to compensate for such imaginary taxes. Upon this hypothesis, the Bailroad urges that the trial court erred in refusing to instruct that “plaintiff would not be required to pay state or federal income tax on any award granted him in this case.” Courts and legal commentary disagree on the appropriateness of such an instruction. See, e. g., Domeracki v. Humble Oil & Refining Co., 443 F.2d 1245, 1249 nn. 5-6, 1252 n. 16 (3d Cir. 1971); Annot. 63 A.L.R.2d 1393 (1959); Comment, 56 Minn.L.Bev. 503 (1972). We do not propose to resolve this controversy in these proceedings. We recently said in Raycraft v. Duluth, Missabe and Iron Range Ry. Co., 472 F.2d 27 (8th Cir. 1973): In view of the state of the law and the record in the instant case, this Court will not pass on the issue at the present time. Even if this panel were to adopt the instruction, this panel would do so only prospectively. Therefore, such a holding is not necessary for resolution of the instant case. The question is more properly left open for future consideration and perhaps for en banc determination by the entire Court. [472 F.2d at 33 (footnote omitted).] We make a similar response to the issue in this case. See Greco, supra, 464 F.2d 496, rehearing en banc denied, 468 F.2d at 823. We similarly find no error in the trial court’s instruction relating to future pain and suffering and medical expenses which admonished that these items must be proved with “reasonable certainty.” The trial court did not give the instruction in the exact language requested by the Railroad, but its instruction was similar in substance. No exception was taken by appellant-Railroad to the damage instruction as given by the court and, thus, no basis for error was preserved on the record. Rule 51, Fed.R.Civ.P. Errors alleged on appeal by the Elevator as third-party defendant in this action are equally unavailing. The Elevator argues that the issue of its liability for contribution should have been submitted to a jury rather than directed, since the evidence did not conclusively establish that the brakeman struck that part of the platform lying within six feet of the center line of the track in violation of the lease. The simple response is that the jury’s verdict in the principal action established the Railroad’s liability for failing to provide appellee-Rouse with a safe place to work. That finding triggered the Elevator’s liability under the lease since it was undisputed that the encroaching structure had been built and maintained by the Elevator in violation of that agreement. Because of this violation, the Elevator became contractually obligated to indemnify the Railroad. See Scherff v. Missouri-Kansas-Texas R. R. Co., 449 F.2d 23, 28-30 (5th Cir. 1971); Minneapolis-Moline Co. v. Chicago, M., St. P. & P. R. Co., 199 F.2d 725, 729 (8th Cir. 1952). Indemnification, of course, which was required in the cited cases, is not applicable here since, as we noted earlier, the defense of acquiescence served to bring the contribution clause of the lease agreement into play, limiting the Elevator’s contractual liability to 50 percent of the verdict against the Railroad. Arkansas Oak Flooring, supra, 434 F.2d 575, at 581; Erie Avenue Warehouse, supra, 302 F.2d 843, at 849. See Anthony, supra, 316 F.2d 858, at 866. We have also examined the Elevator’s contention that the district court should have granted it a new trial for errors in the conduct of the jury trial in the principal action. Since the liability of the Elevator rested on contractual principles applicable to undisputed facts, it is difficult to perceive prejudice to the Elevator from the admission of evidence in Rouse’s case against the Railroad or from the refusal to allow the Elevator to participate in final argument in the principal action, notwithstanding the Elevator’s participation in the trial under Rule 14(a), Fed.R.Civ.P. We have reviewed the alleged errors and find no prejudice to the Elevator in these rulings of the district court nor in its denial of the Elevator’s motion for a new trial. Affirmed. . We distinguished an earlier decision, Anthony v. Louisiana & Arkansas Ry. Co., 316 F.2d 858 (8th Cir.), cert. denied, 375 U.S. 830, 84 S.Ct. 74, 11 L.Ed.2d 61 (1963), on the ground that the lease in that case contained a clause specifying that the railroad’s knowledge of an obstruction did not waive its right to indemnification from its lessee for damages arising out of a violation of the lease. . For fuller discussion of acquiescence as a defense to the obligation to indemnify under a railway spur track agreement, see Arkansas Oak Flooring, supra, 434 F.2d at 577-580; Pennsylvania R. R. Co. v. Erie Avenue Warehouse Co., 302 F.2d 843, 848-849 (3d Cir. 1962). . While we do not pass on the issue of a prospective instruction here, we add this comment. We know of no evidence in this case or empirical data demonstrating that this jury or juries in general regularly increase damage awards because of a mistaken belief that the state and federal governments share in the award through income taxes. Furthermore, if a cautionary instruction should be given the jury to dissuade it from improperly increasing an award for income tax purposes, tlien perhaps other cautionary instructions should also be given on other collateral matters which conceivably affect the amount of damages awarded by a jury. For example, a jury might be instructed not to increase or decrease an award because one or both parties must pay attorney’s fees in the action. See McWeeney v. New York, New Haven & Hartford R. R. Co., 282 F.2d 34, 37-38 (2d Cir. 1960). Regardless of the appropriateness of an income tax instruction, the cure for excessive verdicts usually rests with the trial court which, in appropriate cases, should exercise its powers of remittitur.

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CRENSHAW COUNTY PRIVATE SCHOOL FOUNDATION, etc., d/b/a Crenshaw Christian Academy, Plaintiff-Appellant, v. John B. CONNALLY, Jr., Secretary of the Treasury of the U. S., et al., Defendants-Appellees. No. 72-2775. United States Court of Appeals, Fifth Circuit. March 14, 1973. Rehearing and Rehearing En, Banc Denied Charles J. Kettler, Jr., Luverne, Ala., for plaintiff-appellant. Ira DeMent, U.- S. Atty., Kenneth E. Vines, Asst. U. S. Atty., Montgomery, Ala., Scott P. Crampton, Asst. Atty. Gen., Tax Div., Meyer Rothwacks, Carolyn R. Just, Leonard J. Henzke, Jr., Attys., U. S. Dept, of Justice, Washington, D. C., for defendants-appellees. Before BELL and THORNBERRY, Circuit Judges, and GROOMS, District Judge. GROOMS, District Judge: This is an appeal by the plaintiff-appellant, a non-profit private school foundation, from an order of the District Court of the Middle District of Alabama, 343 F.Supp. 495, granting a motion to dismiss its complaint for an injunction against the Secretary of the Treasury and the Commissioner of Internal Revenue. The action was dismissed on two grounds. The lower court held that (1) relief was barred by 26 U.S.C.A. § 7421(a), and (2) that plaintiff had an adequate remedy at law in view of the fact that it was not threatened with irreparable injury. Since our decision is posited on the first ground, we pretermit a decision on the second. Appellant was incorporated on July 15, 1965, as a non-profit religious educational corporation under the laws of Alabama, including the provisions of Title 10, §§ 124-132, Code of Alabama, 1940, as amended. It began full operation as the Crenshaw Christian Academy on September 30, 1968, allegedly “for students and parents who object to the constitutional inhibitions against prayer, Bible reading, religious study, and other activities of the Christian faith in public schools.”, Succinctly stated, the claimed purpose of the Academy is “to provide the children of the area an opportunity to obtain a quality education in a wholesome Christian atmosphere.” Appellant avers that the Academy is nondenominational and is open to all adherents of the Christian faith, that its membership and student admission policy has never included any reference to race or color, and that there does not exist any officially recognized anti-racially discriminatory admission policy. It concedes that it has never received an application from a non-white, and consequently has never denied an application for admission from a non-white. On September 17, 1968, appellant applied to the Internal Revenue Service for tax-exempt status under Title 26, § 501(c)(3). On January 8, 1969, the Service issued its determination letter and letter of advance assurance ruling that appellant was exempt from Federal income tax under that section of the Revenue Code and that donors could deduct contributions to appellant as provided by Section 170, Title 26 U.S.C.A. “ . . . [N]o suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.” However, the letter contained conditions reading; “The conclusions in this ruling are based on the Service’s understanding that the operations of your school do not involve state action constituting a violation of the Constitution or laws of the United States. Further, in the event of legislative developments, or judicial interpretations — constitutional or otherwise — respecting the legality or educational qualification of your purposes or manner of operation which affect your elegibility under section 501(c)(3) of the Code, this ruling shall cease to be of effect.” Following the three-judge decision in Green v. Kennedy and Thrower, D.C., 309 F.Supp. 1127 (January 12, 1970), the Service issued a news release on July 10, 1970, wherein it was announced it could “no longer legally justify allowing tax-exempt status to private schools which practice racial discrimination nor can it treat gifts to such schools as charitable deductions for income tax purposes . . . where a school fails to establish that it has a racially non-discriminatory admission policy, an outstanding ruling of exemption will be withdrawn. . . ” On July 19, 1970, the Service amplified the release of July 10, 1970, by stating that its statement of position on racially non-discriminatory policies “would be applicable to all private schools, whether church related or not.” On June 18, 1971, the Internal Revenue Service wrote appellant requesting that it comply by establishing “a policy one way or the other,” and by publicly advertising through the local news media a racially non-discriminatory policy. Following further correspondence and conferences, appellant declined to accede to the request for compliance, and upon the threatened withdrawal of its tax-exempt status and advance assurance of deductibility of contributions, it instituted this action. The Supreme Court has interpreted the provisions of Section 7421(a) to mean that the tax assessment and collection processes are not subject to injunctive interference unless the complainant shows (1) that “it is clear that under no circumstances could the Government ultimately prevail,” and (2) that equity jurisdiction otherwise exists because of the absence of a legal remedy. Enochs v. Williams Packing Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292. “[T]he question of whether the Government has a chance of ultimately prevailing is to be determined on the basis of the information available to it at the time of suit. Only if it is then apparent that, under the most liberal view of the law and the facts, the United States cannot establish its claim, may the suit for an injunction be maintained.” Id. Thus judged, the exceptions are seen to be quite narrow and complainant’s burden a most onerous one indeed. Appellant insists that Section 7421(a) is inapplicable. Its insistence is premised on the position that the suit is not for the forbidden purpose proscribed by the section because (1) the administrative acts which it seeks to enjoin do not constitute an “assessment or collection” of a tax, and (2) because the purpose of the contested tax policy is not to raise revenue, but to compel compliance with the Government’s policy respecting racial integration in the nation’s schools. Initially it grounded its primary reliance upon the authority of Bob Jones University v. Connally, 341 F.Supp. 277 (D.C. 1971). That decision was reversed by the Fourth Circuit on January 19, 1973, 472 F.2d 903. While still insisting that the lower court was correct it now insists that the decision of the Circuit Court for the District of Columbia in “Americans United” Inc. v. Walters (1973) 477 F.2d 1169, should control. The court in the latter case, citing as sustaining authority the decision of the lower .court in Bob Jones, reached a conclusion contrary to that of the Fourth Circuit on its review of the Bob Jones case. Appellant to a lesser extent also relies on Green v. Connally, D.C., 330 F.Supp. 1150, aff’d per curiam sub nom. Coit v. Green, 404 U.S. 997, 92 S.Ct. 564, 30 L.Ed.2d 550. That was a class action by Negro federal taxpayers of Mississippi to enjoin U.S. Treasury officials from according tax-exempt status and deductibility of contributions to private schools which discriminated against Negroes. That decision resolves the merits against appellant, but sustains the grant of an injunction without specific reference to Section 7421(a). In Green the court held that in light of the settled federal policy against racial discrimination the Internal Revenue Code must be construed to prohibit exemptions and deductions which extend tax benefits to racially discriminatory private schools. The court further held that the Internal Revenue Service can demand evidence of non-discrimination in admission policies in the nature of the evidence here requested before the institution of this suit. We disagree with appellant’s contention that Section 7421(a) is inapplicable because the suit did not seek to enjoin an “assessment or collection” of any tax. The administrative proceedings were directed to a withdrawal of tax-exemption and deductibility-assurance rulings of the Internal Revenue Service. Those proceedings are directly involved with the assessment and collection of taxes from appellant and those making contributions to it. If those rulings are withdrawn, appellant will be liable for taxes on any net income realized by it and contributors to it will not be permitted to deduct from their gross income the amount of their contributions. Either event will result in an increase in taxes. On the contrary, if the injunction issues, any assessment or collection of such increased taxes will be prohibited. Section 7421(a) is directed against that result. We agree with the Fourth Circuit in Bob Jones University that the Government’s policy with respect to racial discrimination is irrelevant to the proper disposition of this case. In view of the decisions in Green v. Connally, aff’d sub nom. Coit v. Green, supra, and Green v. Kennedy and Thrower, supra, we cannot conclude that “under no circumstances” could the Internal Revenue Service prevail in withdrawing its tax-exemption and deducti-bility-assurance rulings. - Considering all the averments presented by the complaint, we do not consider the charge by way of conclusion that the Internal Revenue Service is interfering with appellant’s constitutional guarantee of religious liberty sufficiently substantial to merit an adjudication with respect to that issue. Congress has barred the side door to actions “with respect to Federal taxes”' under the Declaratory Judgment Act, 28 U.S.C.A. § 2201, and, subject to the noted exceptions, has also barred the front by Section 7421(a). We are of the opinion and so hold that the lower court correctly ruled that Section 7421(a) constitutes a bar to the maintenance of this action. Consequently it did not err in dismissing the action on that ground. Its action is affirmed. . Subject to exceptions not here applicable § 7421(a) provides that: . Section 501. Exemption from tax on corporations, certain trusts, etc. (c) List of exempt organizations.— The following organizations are referred to in subsection (a) : (3) Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation, and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of any candidate for public office. . Section 170. Charitable, etc., contributions and gifts (a) Allowance of deduction.— (1) General rule. — There shall be allowed as a deduction any charitable contribution (as defined in subsection (c)) payment of which is made within the taxable year. A charitable contribution shall be allowable as a deduction only if verified under regulations prescribed by the Secretary or his delegate. (c) Charitable contribution defined. —For purposes of this section, the term “charitable contribution” means a contribution or gift to or for the use of— (2) A corporation, trust, or community chest, fund, or foundation— (B) organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes or for the prevention of cruelty to children or animals; . The suit of the individuals involved dollars contributed by them to American United. The claim of the latter did not involve its own tax-exempt status but the deductibility of contributions to it. The court held that the suit' could not be maintained by the former since “the relief sought by the individual appellants direct-. ly ranged within the ambit of § 7421(a).” Amercan United was permitted to maintain its action. . See Fourth Circuit opinion in Bob Jones University. . See Bailey v. George, 259 U.S. 16, 42 S.Ct. 419, 66 L.Ed. 816 (1922), where the court upheld the application of the predecessor of Section 7421(a) and reversed the lower court which had granted an injunction against the Collector of Internal Revenue from collecting the Child Labor Tax in face of the argument that the tax was not for the purpose of raising revenue, but was penal and for the purpose of regulating child labor. See also, Singleton v. Mathis, 284 F.2d 616 (8 Cir.), where the court affirmed the denial of an injunction against the Director who was proceeding to collect a gaming tax of $250.00 each on pinball machines where it was obvious that the purpose of the tax was not to raise revenue but to control gambling.

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Gregory N. ALDRIDGE, Plaintiff-Appellee, v. Andrew MULLINS, Defendant-Appellant. No. 72-1681. United States Court of Appeals, Sixth Circuit. Argued Dec. 6, 1972. Decided March 6, 1973. O’Sullivan, Senior Circuit Judge, dissented and filed opinion. James H. Harris, III, Metropolitan Atty., Nashville, Tenn., on brief, for defendant-appellant. Lionel R. Barrett, Jr., Nashville, Tenn., on brief, for plaintiff-appellee. Before KENT, Circuit Judge, and Mc-ALLISTER and O’SULLIVAN, Senior Circuit Judges. PER CURIAM. This is an appeal after a trial to the Court without a jury which resulted in a judgment for the plaintiff-appellee for $10,000 compensatory damages and $3,-000 punitive damages. The parties will be referred to as in the court below. Suit was brought by the plaintiff after he suffered a gunshot wound on September 30, 1970. The facts are in dispute, but viewing the evidence in the best light for the plaintiff it appears that he and some other young people, some less than and some more than 21, were engaged in some horse play at about 11:00 p. m. on the day in question. The defendant is a police officer in the Metropolitan Police Department of Nashville and Davidson County, Tennessee. Defendant and his partner were cruising in a motor vehicle when they saw some individuals, never identified, in the vicinity of a closed office building. They had no report or evidence that any crime had been committed. Defendant and his partner stopped their cruiser, the individuals ran, and shortly thereafter defendant saw the plaintiff in a field in the area. Plaintiff claims that he was shot at this time. This is denied by the defendant, although the defendant admits that he fired his gun. There was no evidence of any other shooting of any gun involving or near the plaintiff at any other pertinent time. In his appeal the defendant claims the trial court’s findings of fact were clearly erroneous when the Court concluded that the plaintiff was shot by the defendant, that the circumstances of said shooting amounted to a breach of the plaintiff’s Constitutional and Civil Rights in violation of Title 42 U.S.C. § 1983. The defendant also asserts that the trial court was in error in awarding punitive awards. After full consideration of the record, the briefs and arguments of counsel, we are satisfied that the trial court’s findings of facts are not clearly erroneous and that únder the circumstances surrounding this shooting, where the defendant had no reason to believe that a crime had been committed and no justification for drawing his gun, and certainly no justification for firing his gun, the award of punitive damages was not error. We find no other allegations of error which require discussion. The judgment of the District Court is affirmed. O’SULLIVAN, Senior Circuit Judge (dissenting). Respectfully, I dissent. I do so because the evidence that the bullet removed from the plaintiff’s leg had not been fired from the gun of the defendant police officer was uncontroverted. Plaintiff put in testimony by a ballistics expert who examined the bullet in question. His testimony included the following: “A. The bullet in question, of course I identified as being of .38 Special cali-bre. It contained a copper covering, or copper coating. By weight, it weighed 152.56 grains, which would identify it as being a standard 158 grain bullet. The rifling, or type of rifling on there was right-handed five groove. The bullet found to be actually under microscopic examination to be too deformed for any type of comparison examination other than to note the land and groove widths were of approximately the same width as those on the known bullets.” The following was part of the expert’s cross-examination: “Q. Are you familiar with the brand of ammunition called Super Vel? “A. Yes, I am. * * * *' * * “THE WITNESS: The actual weight of the unknown bullet, 152.56, which a bullet doesn’t come in that weight. It would come in 158 grain. So judging from the appearance of the bullet, it would initially have been a 158 grain bullet. ***** * “Q. Mr. Goodwin, what is the weight of the bullet in the Super Vel cartridge ? “A. 110 grains. ****** “Q. Now, based on your examination, are you able to tell whether the bullet that was removed from Gregory Al-dridge’s leg was a Super Vel bullet? “A. I would say in my opinion it is not a Super Vel bullet. * * * * * * “Q. Do you have known bullet specimens of 110 and 200 grain cartridges of the type we talked about with you? “A. At the time these items were submitted, there was submitted two Super Vel bullets and two 200 grain Western bullets. ****** “Q. Now, I believe you testified that the slug removed, or the bullet removed from Gregory Aldridge’s leg, in your opinion, was not a 110 grain Super Vel bullet. Is that correct? “A. That’s correct. ****** “Q. So, for all practical purposes, the slug identified as a plaintiff’s exhibit is intact? “A. Yes. “Q. An accurate representation of a 158 grain slug? “A. Yes, Sir.” The defendant testified that the only bullets in his gun at the time he fired two warning shots in the air were 110 grain Super Vel type. There was unchallenged evidence that at the time of the involved event the only bullets used by, or issued to, the officers of the Metropolitan Police Department of Nashville were 110 grain Super Vel. Heavier bullets, 158 grains, formerly used by such department, had been discontinued prior to 1960. The shooting here involved occurred on September 30, 1970, some ten years after the use of the heavier bullets was discontinued. Thus, the evidence that the only bullets fired by defendant were 110 grain Super Vel and that the bullet which was extracted from plaintiff’s leg was not such a bullet, was in no way impeached nor was its probative worth impaired. The District Judge’s contrary factual finding was, in my view, clearly erroneous. The reasoning by which the District Judge attempted destruction of this clear evidence is set out in his memorandum opinion as follows: “7. Although police records were available, no records were introduced to show the kind and the amount of ammunition defendant requisitioned after the incident in question. Such records of ammunition requisitioned, being available to defendant and in the custody and control of defendant’s employer, would have constituted the best evidence of the ammunition requisitioned by defendant. Respectfully, I submit that such reasoning was invalid. There had been no inquiry of defendant or anyone else as to the actual requisitioning by defendant of bullets to replace those fired at the time of the incident in question. The Captain York referred to in footnote 4 testified as to the procedure for the requisitioning of bullets to replace those fired by an officer, and said: “[T]he Chief of Police’s secretary prepares a little three by five card which she sends to me, since I maintain ammunition supplies, and when I receive that notification that they have been notified of a round expended, then I am authorized to issue to the officer. “Q. Would it be fair to say that every bullet is accounted for in this manner? “A. Yes, Sir.” I cannot read the foregoing as in any way supporting an inference that Officer Mullins had used other than the only authorized ammunition when he fired two shots from his revolver. Neither does it support an inference that defendant had fired more than two shots, nor that he requisitioned more than two bullets to replace those fired. Plaintiff’s evidence included the claim that three shots were heard at or about the time plaintiff and two others ran away following, or as part of, the “horseplay” referred to in the majority opinion. If there was a third shot which struck plaintiff’s leg, it did not come from defendant’s gun. Plaintiff’s two companions were identified but neither of them was produced. Plaintiff said that as to one of them he last heard of him as being in San Francisco. A stipulation was entered as to the other (Dorris M. Victory) that if called he would testify that at about 11:00 o’clock on the evening in question he was in the company of the plaintiff, and at that time: “[He], and Gregory Aldridge became separated and he observed Gregory Aldridge run into some tall weeds on an overgrown vacant lot. He lost sight of Aldridge in the weeds and proceeded on his way. Very shortly thereafter he heard two shots fired and he immediately left the area.” (Emphasis supplied.) This corroborates defendant’s testimony that he fired only two shots. At trial plaintiff testified: “We wasn’t going nowhere. I mean nowhere particular. We just ran down through the back of the yard over here at the Maxwell’s house and went down the alley and then we just stopped down there behind a car lot down below my house. ****** “Now, when did you cross Nolensville Road? How many minutes had elapsed from the time you left the Maxwell’s house until you crossed No-lensville Road? “A. Oh, about two to three minutes. “Q. Were wou walking or were you running ? “A. We were running. “Q. And why were you running? “A. We was just running from my brother. “Q. And why were you running from your brother? “A. Because we were just running from him. There wasn’t no reason. He just asked us to come home. We were just cutting up with him.” There was a further stipulation that the plaintiff Aldridge “was convicted on two counts of robbery with a deadly weapon on 26 October, 1970,” and that “for these crimes he was sentenced to serve two concurrent sentences of ten (10) years each in the State Penitentiary.” The record does not disclose when plaintiff Aldridge had committed the above felonies — whether before or after his alleged deprivation of civil rights in the incident of September 30, 1970. My own reading of the total factual story would leave me in grave doubt that it justified conviction of defendant of the misconduct which the District Judge found and which prompted him to award punitive damages. My view of the above discussed, and unchallenged, exculpatory proofs makes it unnecessary, however, that I consider whether the District Judge’s findings were otherwise clearly erroneous. I would reverse the District Court judgment and direct entry of a judgment of no cause of action. . According to Captain York’s testimony, such evidence would have consisted of a card filled out by the police chief’s secretary which approved such a requisition of replacement ammunition.”

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UNITED STATES of America, Plaintiff-Appellee, v. David MARDER, Defendant-Appellant. No. 72-2390. United States Court of Appeals, Fifth Circuit. Feb. 7, 1973. Max B. Kogen, Miami, Fla., for defendant-appellant. Robert W. Rust, U. S. Atty., Miami, Fla., Robert B. Patterson, U. S. Dept, of Justice, Washington, D. C., for plaintiff-appellee. Before GEWIN, SIMPSON and RO-NEY, Circuit Judges. GEWIN, Circuit Judge: David Marder appeals from his conviction for using a wire communication facility to transmit wagering information in interstate commerce while being engaged in the gambling business in violation of 18 U.S.C. § 1084. He was convicted on September 30, 1971 on three counts of violating the statute and sentenced to eight months imprisonment under each count and fined $5,000. The sentences under each count are to run concurrently. He presents two issues to this court for review. First, he alleges that the evidence was insufficient for his conviction. Secondly, he asserts that the testimony of certain government witnesses should have been excluded because the identity of these witnesses was obtained as a result of an illegal government wiretap. Whoever being engaged in the business of betting or wagering knowingly uses a wire communication facility for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest, or for the transmission of a wire communication which entitles the recipient to receive money or credit as a result of bets or wagers, or for information assisting in the placing of bets or wagers, shall be fined not more than $10,000 or imprisoned not more than two years, or both. Although we find merit in appellant’s second contention, we conclude the failure of the trial court to exclude the testimony of certain witnesses, assuming arguendo that their identity was discovered by an illegal government wiretap, was harmless error beyond a reasonable doubt and therefore affirm. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). We summarize the relevant facts. Government agents, who were stationed at adjacent telephone booths, overheard Marder making calls from a pay telephone booth in the lobby of a Las Vegas, Nevada hotel to a telephone in Miami, Florida. There is no need to relate the specific content of these conversations since each fairly obviously involved wagering information relative to sporting events. There was sufficient evidence introduced by the government to prove that Marder committed the first element of the offense charged which forbids the use of a wire communication facility for the transmission in interstate commerce of wagering information. In addition the burden was on the government to establish that Marder was in the business of gambling or in common parlance, was a “bookie”. See, Cohen v. United States, 378 F.2d 751 (9th Cir. 1967); Truchinski v. United States, 393 F.2d 627 (8th Cir. 1968). To prove this essential element of the offense, the government relied on four major witnesses. Mr. Jellison, a government agent who had appellant under surveillance, testified that he saw appellant discard a packet into a trash can about one block away from his home. This packet, and two others retrieved on two subsequent Mondays, after major weekend sporting events, contained torn up bits of paper. Each packet contained evidence which linked its contents directly to Marder. Other government evidence introduced established that the writing on the papers contained within each packet was made by the same person and the terminology used was definitely that of a bookmaker. The government introduced testimony of three other witnesses to establish that Marder was engaged in the business of betting or wagering. Each of these witnesses, Kasselman, Popper, and Greene, testified that they had made numerous bets and wagers with the appellant over an extended period of time. Prior to trial, the appellant moved to suppress evidence obtained from a wiretap which had been placed on his phone in November and December of 1970, approximately 60 to 90 days after the telephone calls alleged in the indictment. His motion was denied on the assertion by the government that no evidence obtained from the wiretap would be used against the defendant. Consequently, the trial court did not rule on the propriety of the government wiretap or the nature or content of the evidence found by its use. It is against this confined background that we must confront appellant’s contentions on appeal. The government’s first witness in their attempt to establish that Marder was engaged in the business of gambling was Benjamin Kasselman. Kasselman testified that he had several encounters with appellant in which he placed bets and made wagers. In response to a subsequent question on cross-examination inquiring whether he had told the grand jury about placing bets with appellant, Kasselman replied, “yes, sir, because I was informed that it was on the tapes, when I was calling Mr. Marder.” When Kasselman responded that he had originally been approached by the government in January or February of 1971, counsel for Katz, a co-defendant who was also on trial with Marder but was acquitted, immediately requested a voir dire examination of him so he could determine whether the government had learned of his identity as a result of the wiretaps. The court denied counsel’s request and stated: . You cannot, because if you do, you get a terrific fine from me, because you are abusing the province of the law. . . I am awfully tired of people not trying a law suit according to the rules. . . . We all know wiretapping is going on. Do not bring it into this case. We have no way of knowing with certainty the basis of the trial court’s ruling in denying counsel’s requested voir dire examination. The court may have determined that its original denial of the motion to suppress was conclusive on this issue, continuing to rely on government assurances that no evidence elicited from the wiretaps were being used. However, the lower court may have erroneously concluded that the identification of key government witnesses from wiretaps, even if they were illegal, was not fruit of the poisonous tree. Since the trial court never ascertained the propriety of the government wiretapping, we approach the issue presented here under the assumption that such intrusions were illegal. Conceding an illegal search, the issue presented to this court is whether a witness who could not have been located but for the illegal search, must not be permitted to testify because he is also the fruit of the poisonous tree. This circuit has followed the general rule that if the identity of a government witness and his relationship to the defendant are revealed because of an illegal search and seizure, the testimony of such witness must be excluded. Williams v. United States, 382 F.2d 48 (5th Cir. 1967). In Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920), Justice Holmes reiterated the general exclusionary rule: The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government’s own wrong cannot be used by it in the way proposed. Id. at 392, 40 S.Ct. at 183 (Emphasis added). This rather extensive explanation of the exclusionary rule has been qualified somewhat by the “attenuation rule.” In Wong Sun v. United States, Justice Brennen explicated this recognized qualification when he stated: . not . . .all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” 371 U.S. 471, 487-88, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963). Therefore, once it is demonstrated that the identity of a key government witness was discovered by an illegal search and seizure, his testimony must be excluded unless the government can show: (1) the identity of the witness originated from an independent source; see, United States v. Holsey, 437 F.2d 250, 253 (10th Cir. 1970); (2) the identity of the witness discovered from the original illegal seizure has become so attenuated as to remove the original taint. We do not adopt a per se rule which would ipso facto preclude the utilization of all testimony of a witness identified as a consequence of an illegal search. Many extenuating circumstances may affect the appropriateness of the introduction of such testimony, which would not pertain to an inanimate object seized by an illegal search. However, the same basic rule of exclusion follows from an illegal search, whether the evidence be animate or inanimate, tangible or intangible. Rogers v. United States, 330 F.2d 535, 540-541 (5th Cir. 1964). Any other conclusion would be totally inconsistent with the fundamental purpose of the exclusionary rule; to instill respect in government officers for a citizen’s fourth amendment rights. Nevertheless, the type of evidence seized will undoubtedly determine the circumstances that must be considered in determining whether the original taint has been so attenuated, that its exclusion is no longer mandated. Several factors should be considered in deciding whether the attenuation rule is applicable to “live testimony.” The unpredictability of the human will, which is necessarily involved in the use of a witness to prove essential elements of a crime, forecloses the adoption of any rigid rules. “Thus, each case must be examined on an ad hoc basis, considering the particular facts presented, rather than on any sweeping general concept of ‘live testimony’ as such.” See, United States v. Evans, 454 F.2d 813, 818 (8th Cir. 1972). Proof that the witness would have come forward by his own volition, regardless of his identification by the illegal search, would be extremely relevant to a determination of attenuation. United States v. Hoffman, 385 F.2d 501, 504 (7th Cir. 1967). Likewise, evidence that the witness was completely uncooperative when originally discovered by the illegal search but later changed his attitude and supplied the necessary information, would tend to prove the attenuation of the original taint. See, Smith & Bowden v. United States, 324 F.2d 879, 882, 117 U.S.App.D.C. 1 (1963). This, is certainly not an exhaustive list of the factors to be considered. Only reasoned judgment will determine whether the necessary circumstances exist which call for the application of the attenuation rule to so called “live testimony.” This explication is in complete conformity with the general rule adopted by this court in Williams v. United States, 382 F.2d 48 (5th Cir., 1967). In Williams we found that a close nexus existed between the illegal seizure of the inanimate evidence and the identification of the key government witness. We concluded that “but for” the illegal seizure, the government would have never discovered the relationship of the witness to Williams. This was true even though the witness never identified the defendant until two years after the original illegal seizure. We stated the general rule to be: . the significance of the nexus between an illegal search and challenged evidence is one of common sense, see Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939), to be considered under the facts and circumstances of the particular case. Suffice it to say that the road from the illegal search to the testimony of Mrs. Thomas, (the government witness) although a little long, was not a winding one. United States v. Tane, 329 F.2d 848 (2d Cir. 1964). 382 F.2d at 51. Our decision today, does no more than refine our original pronouncement in Williams. Although the district court should have permitted appellant to conduct a voir dire examination of Kasselman who testified that he.had made bets with appellant, we find such failure harmless error. After a careful review of the record, we conclude there were only two possible witnesses, Kasselman and Greene, whose identities could have conceivably been discovered by the illegal wiretap. Nothing in the record reveals how the government happened to discover the identity of these witnesses and their relationship to appellant. However, agent Jellison testified that he saw Popper and Marder together on September 8, 1970. This clearly establishes that the government learned of Popper’s identity over two months before the allegedly illegal wiretaps. Therefore the evidence clearly shows that Popper’s testimony that he had extensive dealings with appellant was untainted. We conclude that evidence of the packets discarded by Marder and the testimony of Popper clearly established that appellant was in the business of gambling. The case against Marder was irrefragable. There was more than ample evidence that he committed the substantive offenses charged. The admission of the testimony of Kasselman and Greene, could have had only a de minimis bearing on the question of guilt or innocence when viewed in light of the overwhelming evidence of guilt from other sources. For the foregoing reasons the judgment of the district court is affirmed. . 18 U.S.C. § 1084(a) provides: . The first packet contained a postcard addressed to Marder and his wife; the second, business envelopes used in Marker's dress shop; and the third, other correspondence addressed to Marder. . Accord, United States v. Tane, 329 F.2d 848 (2d Cir. 1964); Smith v. United States, 120 U.S.App.D.C. 160, 344 F.2d 545 (1965); Goodman v. United States, 285 F.Supp. 245 (D.C.Cal.1968). . For an excellent discussion of the attenuation rule and its application to “live testimony”, see, Ruffin, Out on a Limb of the Poisonous Tree: The Tainted Witness, 15 U.C.L.A. 32, 44 (1967). . The “but for" test is not to be applied in a ritualistic fashion. Subsequent intervening forces may break the casual connection between the alleged primary illegality and the evidence found. See, United States v. Fike, 449 F.2d 191, 193 (5th Cir. 1971); Nardone v. United States, 308 U.S. 338, 441, 60 S.Ct. 266, 84 L.Ed. 307 (1939). . There was strong circumstantial evidence that Greene might have furnished needed evidence by his own volition. Counsel for Marder cross-examined Greene rather thoroughly as to the circumstances surrounding his contact with agent Jellison. Greene testified that he met his attorney at the office of agent Jellison and at that time gave a sworn unsigned statement and agreed to appear and testify for the government. This occurred several months prior to trial but presumptively after the wiretaps. We have no way of knowing with detailed certainty the nature of the government’s activity in obtaining Greene’s testimony. Such speculation is useless because of our disposition of this case.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

In the Matter of TIME SALES FINANCE CORPORATION and its wholly owned subsidiary corporations et al. Appeal of GRACE BUILDING CO., Inc. No. 19069. United States Court of Appeals, Third Circuit. Argued May 17, 1971. Decided July 7, 1971. Alfred I. Breinig, Jr., Jenkintown, Pa., for appellant. Sidney Chait, Adelman & Levine, Philadelphia, Pa., for Trustee. Before SEITZ, VAN DUSEN and ADAMS, Circuit Judges. OPINION OF THE COURT VAN DUSEN, Circuit Judge. This is an appeal from a district court order of April 22, 1970, which affirmed February 17 and 18, 1970, orders of a referee in bankruptcy holding certain Delaware County, Pennsylvania, treasurer’s tax sales void, and denying appellant’s motion to reopen the hearing on the validity of the treasurer’s tax sales. This case arises in the context of arrangement proceedings under Chapter XI of the Bankruptcy Act initiated by Time Sales Finance Corporation (Time Sales) and its wholly-owned subsidiary, Marpoole, Inc. (Marpoole), by means of petitions for arrangement filed on April 5, 1968, and June 18, 1968, respectively. Among the assets of Marpoole on, and before, October 25,1966, were five duplex row houses in- Haverford Township, Delaware County, Pennsylvania. Interim school taxes levied on the five houses for the year 1963 were not paid. On October 24,1966, the five houses were sold for the delinquent school taxes by the treasurer of Delaware County at a tax sale. The houses were purchased by the appellant, Grace Building Co., Inc. (Grace). The statutory two-year redemption period, during which Marpoole could exercise a statutory right of equity of redemption to redeem the houses from the tax sale, expired on October 24, 1968. In November or December 1968, the receiver of Marpoole discovered the treasurer’s tax sale in the course of preparing to sell the five houses. On January 27, 1969, the receiver petitioned the referee in bankruptcy to hold the tax sale invalid, to approve the sale of the five houses, and to determine the respective rights of Marpoole, Grace, and the mortgagee to the proceeds of the sale. After hearings on February 12 and February 24, 1969, the referee entered an order on March 12, 1969, authorizing the receiver to sell the five houses, and directing him to hold the proceeds in escrow pending determination of the rights of the parties to the proceeds. The referee commenced hearings on the respective rights of Marpoole, Grace, and the mortgagee on March 20, 1969. The key issue in these hearings was the validity of the tax sale, and resolution of that issue turned on whether or not Marpoole received notice of the tax sale. It was conceded that the official notice of the impending sale required by statute to be sent by registered or certified mail to the owner, Marpoole, was not sent to Marpoole, but was instead sent only to the title insurance company. Grace contends that Marpoole received notice of the sale from the title insurance company, and that actual knowledge of an impending tax sale prevents subsequent invalidation of the tax sale. The receiver for Marpoole contends that Marpoole did not receive notice of the sale from anyone. The receiver does not urge, however, on this appeal that the official notice required by statute is a prerequisite to a valid tax sale. After hearing testimony on the respective rights of Marpoole, Grace and the mortgagee on March 20, 1969, the referee adjourned the hearings until April 9, 1969, in order to give Grace an opportunity to inspect the records of Marpoole pursuant to a discovery order issued by the referee on March 20, 1969. At the hearing on April 9, the receiver for Mar-poole produced by subpoena one witness, an officer of the mortgagee. Counsel for- Grace also produced by subpoena one witness, Samuel C. Nissenbaum, the alleged president and chief executive officer of both Marpoole and its parent, Time Sales. After giving his name and address, Mr. Nissenbaum asserted his fifth amendment privilege and refused to answer any and all questions put to him, including the questions whether he had been president and chief executive officer of both Marpoole and Time Sales and whether he had had actual knowledge of the tax sales before they took place, on the ground that the answers might tend to incriminate him. At the conclusion of Mr. Nissenbaum’s non-testimony, counsel for Grace requested a continuance, in order that he might (1) introduce letters from the files of Time Sales which opposing counsel had indicated that he would produce but which opposing counsel had left at his office (N.T. 411-12, 426), and (2) produce witnesses whose whereabouts were being sought as a result of the information found in the records of Marpoole, access to which had been ordered by the referee on March 20. A continuance until April 22, 1969, a date on which other matters relating to the Time Sales arrangement were to be heard before the referee, was granted. On April 22, counsel for Grace offered no testimony, and requested instead a further continuance in order to ascertain the whereabouts of witnesses. The referee denied the request for a further continuance, and ordered the hearings closed. On June 17, 1969, counsel for Grace petitioned the referee to reopen the hearings so that Grace might offer the testimony of the former secretary of Mar-poole and Time Sales, one Barbara Rubin, who, according to the petition to reopen, would testify that Marpoole and Time Sales had received notice of the impending tax sales of the property in question. The petition recited that Grace was unable to locate the witness prior to the last hearing on April 22, and recited in considerable detail the sequence of events and the difficulties besetting Grace between the referee-ordered inspection of the Marpoole records and the ultimate discovery of the whereabouts of the witness. The referee set this motion down for a hearing on July 14, 1969. The newly-discovered witness was present at the July 14 hearing, ready to testify; and counsel for Grace indicated that direct examination of the witness would not require more than five or ten minutes. At the hearing, counsel for Grace gave a detailed summary of the reasons for delay in petitioning to reopen after the whereabouts of the witness was discovered, which consisted chiefly of the fact that the witness had initially refused to cooperate and then had vacillated between cooperation and non-cooperation, and counsel stated that the witness would verify these facts. The referee, operating under the misapprehension that he had already decided the issue of the validity of the tax sale, denied the petition to reopen at the close of the July 14, 1969, hearing. The district court was petitioned to review this decision, as well as other decisions of the referee. On October 24, 1969, the district court held, inter alia, that the referee had not prior to the July 14 hearing determined the validity of the tax sale, but, on the contrary, had merely made a jurisdictional determination and a preliminary determination of the validity of the tax sale, without prejudice to Grace’s rights to the proceeds of the tax sale. Accordingly, the district court directed the referee to reconsider Grace’s petition to reopen, and to make a final determination of the validity of the tax sale and the rights of the respective parties to the proceeds. On February 17, 1970, the referee held the tax sale invalid, and ordered the proceeds of the sale of the property, after deduction of certain -counsel fees, apportioned between Marpoole and the mortgagee, according to their respective interests in the property. On February 18, 1970, the referee denied after reconsideration Grace’s June 17, 1969, motion to reopen the hearings. On April 22, 1970, the district court in a memorandum opinion affirmed both of these orders of the referee. We reverse. The issue in this case is whether the referee abused his discretion in refusing to reopen the hearings to hear the brief testimony of one newly-discovered witness. This is an issue that must be decided against the background of the procedural history and all of the facts and circumstances of the case. The factual context of the refusal to reopen must be considered in light of equitable principles, for bankruptcy courts are essentially courts of equity. One of the chief purposes of the bankruptcy laws is “to secure a prompt and effectual administration and settlement of the estate of all bankrupts within a limited period.” Katchen v. Landy, 382 U.S. 323, 328, 86 S.Ct. 467, 472, 15 L.Ed.2d 391 (1966). Parties do not have an absolute right to reopen a hearing in order to introduce further testimony. On the contrary, a referee should not be expected to reopen a closed proceeding after the parties have had the normal opportunities to present evidence absent a special reason for permitting reopening. In this case a special reason, inability to locate an important witness despite diligent efforts, was advanced. Furthermore, the parties treated the subject matter to which the witness would testify as being of critical significance. In light of the fact that the referee did not finally decide the issue on which Grace sought to offer additional testimony until eight months had elapsed after Grace filed its petition to reopen the hearings, we hold that it was an abuse of discretion to refuse to reopen the hearings. Counsel for Grace represented that- direct examination of the newly-discovered witness would not require more than five or ten minutes. The witness was to testify to matters previously considered, therefore there was little reason to believe that voluminous responsive testimony would be forthcoming from the receiver. The additional testimony could have been received at the July 14, 1969, hearing on the motion to reopen, fully seven months prior to the referee’s final decision on the validity of the tax sale. Under these circumstances, the hearings should have been reopened. There is no substantial reason to believe that reopening the hearings would have delayed the ultimate disposition of this case. Accordingly, the April 22, 1970, order of the district court will be reversed, and the case will be remanded with directions that a prompt hearing be held before the referee to receive the testimony of Barbara Rubin and for further proceedings consistent with this opinion. . 11 U.S.C. § 701 et seq. (Supp. Y, 1969). . 72 Pa.Stat.Ann. § 5971g (1968). . The decisions of the Supreme Court of Pennsylvania suggest that actual knowledge of an impending tax sale is sufficient to prevent subsequent invalidation of the tax sale, despite the failure of the county treasurer to send the official notice required by 72 Pa.Stat.Ann. § 5971g (1968). See In re York County Tax Claim Bureau, 404 Pa. 654, 660, 171 A.2d 765, 768 (1961); Watson v. Ciaffoni, 385 Pa. 16, 122 A.2d 56 (1956); Hess v. Westerwick, 366 Pa. 90, 99, 76 A.2d 745, 749 (1950); In re Ross, 366 Pa. 100, 76 A.2d 749, 752 (1950). The Pennsylvania trial courts have so held. See In re Lehigh County Tax Claim Bureau, 33 Lehigh Co.L.J. 279 (1969); Norton v. Tax Claim Bureau, 14 Chester Co.Rep. 142 (1966); Kimmons v. Aronauer, 13 Chester Co.Rep. 85 (1964). In the absence of the availability of Pennsylvania authorities contrary to the foregoing, if there is a valid finding that Marpoole had actual knowledge of the proposed tax sale, whatever is determined to be the net proceeds of the receiver’s sale should be awarded to Grace as opposed to the receiver of Marpoole. . In essence the petition recited that Barbara Rubin had moved twice after leaving the employ of Marpoole and Time Sales, and was discovered only after a certified letter was forwarded from the last known address that counsel for Grace was able to locate. . The referee held, as an additional reason for denying the petition to reopen, that Grace was guilty of laches. We have often noted that, aside from mere passage of time, two elements of laches are unreasonable delay in light of the equities of the case and undue prejudice to the opposing party. See, e. g., Ward v. Union Barge Line Corp., 443 F.2d 565 (3rd Cir., filed May 10, 1971); Burke v. Gateway Clipper, Inc., 441 F.2d 946 (3rd Cir., filed May 4, 1971); Mroz v. Dravo Corp., 429 F.2d 1156 (3rd Cir. 1970). There is no basis for a finding of inexcusable delay in this case, for counsel for the receiver observed that the chain of evidence leading to the discovery of the whereabouts of Barbara Rubin was probably not uncovered until the referee, after the hearings had commenced, ordered Marpoole to permit counsel for Grace to inspect the records of Marpoole (N.T. 500). Thus it appears that non-cooperation on tlie part of Marpoole was partially responsible for the delay, as was the refusal of Marpoole’s president to testify. Nor is there a basis for a finding of undue prejudice to the receiver as a result of the passage of time. When the referee asked counsel for the receiver at the April 9, 1969, hearing what harm would be suffered by the receiver or by the estate in the event that a continuance were granted, counsel for the receiver responded: “I thing it is the duty of counsel, sir, to move for expeditious determination of the case and the proceedings. We could have requests for continuance ad infinitum because the applicant may desire to find witnesses. I don’t think that is proper procedure.” (N.T. 433). The fact that the receiver had to pay interest to the mortgagee is not persuasive. First, there is no evidence that these interest charges were occasioned by Grace’s delay. The record suggests the contrary. Second, there is no indication that obligations to the mortgagee could not have been discharged pending resolution of the respective interests of Marpoole and Grace in the proceeds of the sale, nor is there any indication why the proceeds of the sale wore not utilized by the referee to earn interest to offset that due the mortgagee. The fact remains inescapable that the preferred testimony would not have occasioned appreciable delay, while the ultimate decision on the validity of the tax sale was not issued until seven months had elapsed after the refusal to reopen. No additional evidence was received during that seven-month period. . The referee awarded to Grace the sum it paid for the properties at the tax sale, plus interest at the rate of six percent from the date of the tax sale. . Katchen v. Landy, 382 U.S. 323, 327, 86 S.Ct. 467, 15 L.Ed.2d 391 (1966); Pepper v. Litton, 308 U.S. 295, 304, 60 S.Ct. 238, 84 L.Ed. 281 (1939); Local Loan Co. v. Hunt, 292 U.S. 234, 240, 54 S.Ct. 695, 78 L.Ed. 1230 (1934). . Quoting Ex Parte Christy, 44 U.S. (3 How.) 292, 312, 11 L.Ed. 603 (1845). . In re Booss, 154 F. 494 (E.D.Pa.1907); see California Airmotive Corp. v. Bass, 354 F.2d 453 (9th Cir. 1965). . See California Airmotive Corp. v. Bass, 354 F.2d 453, 455 (9th Cir. 1965); cf. N.L.R..B. v. Phaostron Instrument and Electronic Co., 344 F.2d 855, 858 (9th Cir. 1965). See also note 3 supra.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Plaintiff-Appellee, v. John A. GARCIA et al., Defendants-Appellants. CITY OF AUSTIN et al., PlaintiffsAppellees, v. John A. GARCIA et al., Defendants-Appellants. No. 72-2823 Summary Calendar. United States Court of Appeals, Fifth Circuit. March 12, 1973. Rehearing Denied May 10, 1973. John A. Garcia, M.D., pro se. William S. Sessions, U. S. Atty., Henry Valdespino, Asst. U. S. Atty., San Antonio, Tex., Winfred O. Craft, Asst. City Atty., Paul Jones, Austin, Tex., Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Atty., Tax Div., Dept, of Justice, Washington, D. C., for plaintiffs-appellees. Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges. Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I. SIMPSON, Circuit Judge: The Garcias, defendants-appellants, are judgment debtors to plaintiff-appel-lee, the United States. On this appeal they object to their having been required — in order to satisfy their outstanding judgment — to sell realty at a private sale to the Urban Renewal Agency of Austin, Texas, for a price they contend to be a mere fraction of its true value had the property been placed on the open and free,market. Much of the confusion below and on this appeal arises from the fact that Dr. Garcia, a physician, is proceeding pro se in a field that would be troublesome for most attorneys. He is as clearly bewildered as an attorney would be attempting a complex surgical operation. We find no error in the manner by which the district -court disposed of the appellants’ debt and property. Accordingly we affirm. On January 20, 1970, this court affirmed a judgment in favor of the United States for unpaid income tax liabilities of the Taxpayer for the years 1954 through 1956 and 1958 through 1961. Garcia v. United States, 5 Cir. 1970, 421 F.2d 1231, cert. denied, 400 U.S. 945, 91 S.Ct. 251, 27 L.Ed.2d 251. Certain payments were subsequently credited toward the Taxpayer’s delinquent tax account but, according to the Internal Revenue Service, more than $61,000, with interest accruing daily, remained unpaid by October 1971. On October 15, 1971, the district court granted the Government’s request for the public sale of four parcels of land owned by John A. Garcia, of which three were located in Austin, Travis County, Texas, and the fourth was situated in Houston, Harris County, Texas. On December 17, 1971, the court amended its order so that only one of the four tracts, one of the Austin parcels, would be sold to satisfy the judgment and would be sold in a private sale to the Urban Renewal Agency of the City of Austin for the sum of $85,000 cash pursuant to Title 28, U.S.C., Section 2001. As required by Section 2001(b), the court appointed three disinterested persons to appraise the property and file their valuations with the court. These appraisals were in the amounts of $105,000, $98,775 and $93,000, an average of $98,925 with $6,075 being the largest deviation. The district court further adhered to the requirements of Section 2001(b) by causing the terms of the proposed private sale to be published in a newspaper of general circulation for ten days along with the conditions for making offers higher than at least ten per cent (10%) over the minimum two-thirds value of the property as deter-mmed by the three court-appointed appraisers. A hearing on confirmation of the private sale was held on May 4, 1972, where, in the absence of higher offers, the court confirmed the private sale of the single Austin tract involved to the Urban Renewal Agency of Austin for $85,000 in cash. With the entry of the order for confirmation of sale, orders for partial distribution were filed which satisfied the Government’s judgment for federal income tax liabilities for the relevant years. Certain other claims against defendants-appellants were also satisfied from this source. The instant appeal was taken from the order confirming the sale. Taxpayer argues that the property involved was worth far more than the $85,000 ultimately paid for it by the Urban Renewal Agency. He further alleges that private investors anxious to develop the property were available and willing to pay as much as $850,000 for the Austin parcel should it become available for purchase without the threat from the United States “or its agent, the Urban Renewal Agency of Austin”, to condemn it under the “Appellee’s Powers of Eminent Domain.” In addition to having his property taken without receiving Fifth Amendment “just compensation,” the Taxpayer asserts that since the United States currently claims more than $600,000 for alleged tax liabilities for the years 1961 through 1969, the tax debt will remain as an eternal burden upon him and his wife in spite of the foreclosure of their property, thus denying them the due process of law also guaranteed by the Fifth Amendment. In short, the Taxpayer envisages some sinister, concerted effort between the United States and the Urban Renewal Agency of Austin working to deprive him of his property and relegate him to a permanent status of debt- or. The outrage of this conspiracy, he urges, is intensified by the existence of prospective purchasers and investors who could and would purchase the property for a sum sufficient to satisfy all of their obligations if only the property were safely immunized from the threat of condemnation by “eminent domain” with which it is now plagued. Accordingly, he seeks an order providing that the property be sold at public auction to the highest bidder, “with all bidders secure in the knowledge that they are protected from Appellee’s powers under the Doctrine of Emminent (sic) Domain, that should the property be acquired by condemnation under that Doctrine, that the purchaser will be reimbursed the full amount paid plus a reasonable profit thereon.” Of course, the United States has not attempted to exercise its power of eminent domain over the subject property. It merely seeks to be compensated by the Taxpayer for the tax liabilities already adjudged to be due and owing. The United States has simply elected to obtain that satisfaction by a judicial, sale of defendants-appellants’ property pursuant to Title 28, Section 2001. This being so, the identity of the prospective purchaser is an irrelevancy. The district court scrupulously adhered to the statutory requirements of Title 28, U.S.C. Section 2001 for a judicial sale of realty. That court acted well within its discretionary bounds in approving the sale for $85,000, about 86% of the average appraisal figure, and approximately 80% of the highest appraisal figure, $105,000. The three disinterested court-appointed appraisers determined the property to be worth an average of $98,925. No other offers were forthcoming in response to the advertisement for bids, leaving the strong presumption that $98,925 represented the approximate market value. The Taxpayer’s allegation that purchasers existed who were willing to refute the appraisal figures with a bona fide offer is completely unsupported. We refuse to find that the property was sold for a grossly inadequate price on a record which is convincingly to the contrary. See Weir v. United States, 8 Cir, 1964, 339 F.2d 82, 87; and American Trading & Production Corp. v. Connor, 4 Cir. 1940, 109 F.2d 871, 872 and 874. The Taxpayer’s request that we, somehow, enjoin the state from exercising its sovereign power of eminent domain is supported by no authority whatsoever. And, as already noted, the private sale under Section 2001 does not involve the power of eminent domain in any sense. Western v. McGehee, D.Md. 1962, 202 F.Supp. 287, 293. The Taxpayer also questions the district court’s decision to sell only one of the four properties at a private sale and leave the other three to be sold at a public auction should the need arise if subsequent liens against them are perfected. Here again, he fails to demonstrate any abuse of discretion by the district court in setting the terms and conditions of the judicial sale. United States v. Branch Coal Corp., 3 Cir. 1968, 390 F.2d 7, 10; and cases there cited. Affirmed. . We refer throughout this opinion to John A. Garcia as the Taxpayer. The appellant Mary Sue Garcia is also a party because she signed joint tax returns with her husband for the taxable years involved. . Title 28, U.S.C., Section 2001: Sale of Realty Generally: (a) Any realty or interest therein sold under any order or decree of any court of the United States shall be sold as a whole or in separate parcels at public sale at the courthouse of the county, parish, or city in which the greater part of the property is located, or upon the premises or some parcel thereof located therein, as the court directs. Such sale shall be upon such terms and conditions as the court directs. Property in the possession of a receiver or receivers appointed by one or more district courts shall be sold at public sale in the district wherein any such receiver was first appointed, at the courthouse of the county, parish, or city situated therein in which the greater part of the property in such district is located, or on the premises or some parcel thereof located in such county, parish, or city, as such court directs, unless the court orders the sale of the property or one or more parcels thereof in one or more ancillary districts. (b) After a hearing, of which notice to all interested parties shall be given by publication or otherwise as the court directs, the court may order the sale of such realty or interest or any part thereof at private sale for cash or other consideration and upon such terms and conditions as the court approves, if it finds that the best interests of the estate will be conserved thereby. Before confirmation of any private sale, the court shall appoint three disinterested persons to appraise such property or different groups of three appraisers each to appraise properties of different classes or situated in different localities. No private sale shall be confirmed at a price less than two-thirds of the appraised value. Before confirmation of any private sale, the terms thereof shall be published in such newspaper or newspapers of general circulation as the court directs at least ten days before confirmation. The private sale shall not be confirmed if a bona fide offer is made, under conditions prescribed by the court, which guarantees at least a 10 per centum increase over the price offered in the private sale. (c) This section shall not apply to sales and proceedings under Title 11 or by receivers or conservators of banks appointed by the Comptroller of the Currency. . Whether the Urban Renewal Agency of Austin did intend to exercise its power of eminent domain if, indeed, it is so endowed, is of no moment here. Clearly, the Urban Renewal Agency is a creature of state statute, 2B Vernon’s Tex.Civil Stat.Ann., Art. 1269Í-3. The state, by virtue of its sovereignty, has the right to reassert, either temporarily or permanently, its dominion over any portion of the soil of the state on account of public exigency and for the public good. When and where the sovereign has exercised that power, it is against the source of that power at that time that any challenge to eminent domain must be asserted.

f2d_474/html/1206-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Plaintiff-Appellee, v. Eugene Howard EDWARDS, Defendant-Appellant. No. 72-1219. United States Court of Appeals, Sixth Circuit. Argued Nov. 30, 1972. Decided March 8, 1973. Byron E. Trapp, Asst. U. S. Atty., Cincinnati, Ohio, for defendant-appellant; William W. Milligan, U. S. Atty., Cincinnati, Ohio, on brief. Thomas R. Smith, Court appointed, Cincinnati, Ohio, for plaintiff-appellee. Before CELEBREZZE, MeCREE and LIVELY, Circuit Judges. CELEBREZZE, Circuit Judge. Appellant appeals from his conviction in a jury trial of attempted breaking and entry of a United States Post Office in violation of 18 U.S.C. § 2115. On May 21, 1970, at about 10:50 p. m. Patrolman Ashley of the Lebanon, Ohio Police Department was on duty in his cruiser and received a radio transmission advising him that a suspicious tan Plymouth with out-of-town license plates was parked on South Sycamore Street near the Post Office Building, that three men were seen leaving the vehicle and that two persons had been seen at a meat locker at the intersection of South Street and South Sycamore Street. Ashley examined the Plymouth, found it empty, checked the meat locker and found nothing amiss there. Patrolman Ashley then drove northward on South Sycamore Street to Main Street, east on Main Street to the alley that runs in a north-south direction behind the Lebanon Post Office and turned south down the alley. Upon reaching the intersection of the alley and the Post Office driveway, Ashley then turned into the driveway. He went in back of the building, checked the windows there and along the side of the building. Upon reaching the west sidewalk of Broadway, he looked to his left and observed two men, one of whom was the Appellant Edwards, on the west sidewalk of Broadway at a point approximately even with the extension of the north line of the Post Office building. At the time Ashley first observed them Edwards and his companion had their backs to him and were walking in a northerly direction on the West sidewalk of Broadway. They walked in a normal manner without looking over their shoulders or turning around to the intersection of Broadway and Main Street where they crossed Main Street to the northwest corner of the intersection and then turned west on the north sidewalk of Main Street. When Edwards had reached and crossed the alley that intersects Main Street, Ashley received a radio transmission advising him that the burglar alarm system at the Post Office had been activated. He immediately overtook and apprehended Edwards and his companion, placed the two men in his cruiser and returned to the Post Office. Shortly thereafter Ashley took Edwards to the Lebanon Police Station where he was placed in a cell. Patrolman Ashley testified that approximately three minutes elapsed from the time he first observed Edwards on the sidewalk to the time that he received the radio transmission advising him that the Post Office burglar alarm had been activated. On the same evening an investigation by Ashley and several other members of the Lebanon Police Department, including Captain James Toller, who took paint samples from the window sill and the wire mesh screen, revealed that an attempt had been made to gain entrance through a window located on the north side of the building. On the following morning the Lebanon Police Department purchased new clothing for Edwards and took from him the clothing he was wearing at the time of his arrest. Subsequent microscopic comparison of paint chips obtained from Edwards’ clothing with chips from the vicinity of the damaged Post Office window made by the Ohio Bureau of Criminal Identification and Investigation revealed significant similarities. The paint samples were also examined microscopically and by means of a process known as neutron activation analysis at the Post Office laboratory in Washington, D. C., which indicated that such samples came or originated from the same source. A motion to suppress the paint chips found in Edwards’ clothing was filed and, following an evidentiary hearing, was overruled. The alarm system at the Lebanon Post Office was triggered by sound and is silent in that nothing occurs at the Post Office to indicate that the alarm has been activated. By means of a wireless transmitter an alarm bell is sounded in the home of a nearby resident. Two issues are raised on this appeal. First, Appellant contends that Patrolman Ashley did not have probable cause to arrest him and that his arrest was therefore unlawful. Second, Appellant contends that the seizure and search of his clothing was unlawful because it was made after he had been in custody for ten hours. We reverse the determination of the District Court that the seizure of the clothing was lawful. We first examine the question concerning the validity of the arrest. Whether an arrest is constitutionally valid depends upon “whether, at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The problem posed, by this case, as it was in Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), is determining where the line is to be drawn between mere suspicion and probable cause. The Supreme Court in Brinegar, supra, said “[t]hat line necessarily must be drawn by an act of judgment formed in the light of the particular situation and with account of all the circumstances.” 338 U.S. at 176, 69 S.Ct. at 1311. We think that under the facts of this case, there was probable cause to arrest the Appellant. He and his companion were seen directly in front of the Post Office three minutes before the message came that the alarm had gone off. They were the only persons observed by the officer in that vicinity and it was late on a Sunday night when few people were on the street. Patrolman Ashley testified that it appeared as though the two men had j'ust turned out of the drive leading to the Post Office. We hold that probable cause for the arrest existed at the time Appellant was apprehended. It next must be determined whether the removal and testing of Appellant’s clothing for paint chips without a warrant was lawful. We start with the premise that, absent some exception, a search or seizure cannot lawfully be made without the prior issuance of a warrant. The Supreme Court in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), reiterated this premise: Thus the most basic constitutional rule in this area is that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” The exceptions, are “jealously and carefully drawn,” and there must be “a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.” “[T]he burden is on those seeking the exemption to show the need for it.” In times of unrest, whether caused by crime or racial conflict or fear of internal subversion, this basic law and the values that it represents may appear unrealistic or “extravagant” to some. But the values were those of the authors of our fundamental constitutional concepts. In times not altogether unlike our own they won — by legal and constitutional means in England, and by revolution on this continent — a right of personal security against arbitrary intrusions by official power. If times have changed, reducing everyman’s scope to do as he pleases in an urban and industrial world, the changes have made the values served by the Fourth Amendment more, not less, important. 403 U.S. at 454-455, 91 S.Ct. at 2032. The two basic exceptions to the rule are those searches and seizures made incident to a lawful arrest and those made during the existence of exigent circumstances. We begin with an examination of the “search incident” exception. It is contended by the Government that Appellant’s clothing was seized incident to his arrest. A search conducted incident to a lawful arrest must be limited to a carefully defined area, Chimel v. California, 395 U.S. 752, 762-763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), and must be substantially contemporaneous with and confined to the immediate vicinity of the arrest. Stoner v. California, 376 U.S. 483, 486, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); Coolidge v. New Hampshire, supra, 403 U.S. at 456, 91 S.Ct. 2022. In Chimel v. California, supra, the Supreme Court substantially restricted the “search incident” exception to the warrant requirement. The Court defined the proper extent of a search incident to an arrest: “A similar analysis underlies the ‘search incident to arrest’ principle, and marks its proper extent. When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’— construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” 395 U.S. at 762, 763, 89 S.Ct. at 2040. The Court reviewed the test of reasonableness as approved in United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950), and Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947), and determined that a reasonableness test cannot be substituted for the Fourth Amendment: “Thus, although ‘[t]he recurring questions of the reasonableness of searches’ depends upon ‘the facts and circumstances — the total atmosphere of the case,’ [citation omitted], those facts and circumstances must be viewed in the light of established Fourth Amendment principles.” 395 U.S. at 765, 89 S.Ct. at 2041. The concern of the Court in Chimel was that the reasonableness test had permitted searches beyond the arrested person himself and the area within his immediate control. Even under the Chimel rationale, however, “a search of the person of an arrestee and of the area under his immediate control could be carried out without a warrant. [The Court] did not indicate there that the police must obtain a warrant if they anticipate that they will find specific evidence during the course of the search.” Coolidge v. New Hampshire, 403 U.S. 443, 482, 91 S.Ct. 2022, 2046, 29 L.Ed.2d 564 (1971). In the present case the search did not extend beyond the person of the Appellant. The clothing seized and searched certainly was within his immediate control and probable cause existed to believe that paint chips would be found on the clothing. The Supreme Court has rejected the distinction between mere evidence and instrumentalities, fruits of crime or contraband found during a lawful search, as long as there is a nexus “between the item to be seized and criminal behavior. Thus in the case of ‘mere evidence,’ probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction.” Warden v. Hayden, 387 U.S. 294, 307, 87 S.Ct. 1642, 1650, 18 L.Ed.2d 782 (1967). In this case, there was cause for such a belief. Appellant’s clothing could, therefore, properly have been the subject of a search incident to a lawful arrest. because it was within the limited area defined in Chimel v. California, supra. The question remains, however, as to whether the seizure was substantially contemporaneous with and confined to the immediate vicinity of the arrest. The removal of Appellant’s clothing did not occur until some ten hours after his arrest. In Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), the Supreme Court said: “Once an accused is under arrest and in custody, than a search made at another place, without a warrant, is simply not incident to the arrest.” 376 U.S. at 367, 84 S.Ct. at 883. While Preston involved the search of an automobile, the same rule is applicable to the search of an individual. “The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State.” Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966). Some Courts have distinguished Preston and rendered contrary decisions. In United States v. Caruso, 358 F.2d 184 (2d Cir. 1966), the Court found that the removal and search of the Appellant’s clothing at the police station some six hours after his arrest did not violate his Fourth Amendment rights. Also see Miller v. Eklund, 364 F.2d 976 (9th Cir. 1966). And in United States v. Williams, 416 F.2d 4 (5th Cir. 1969), the Court upheld a seizure of clothing made several hours after the arrest for the purpose of laboratory testing, because the seizure was “an integral part of, and therefore incident to, the process of arrest.” 416 F.2d at 8. See United States v. Gonzalez-Perez, 426 F.2d 1283, 1287 (5th Cir. 1970). We do not agree with this approach. The exception to the warrant requirement is that the search be incident to the arrest. We do not find that a seizure of clothing made long after the events of the arrest have ended can be an integral part of the arrest. While circumstances might render it possible that “[a] search of an arrestee is still incident to an arrest when it is conducted shortly thereafter at the jail or place of detention rather than at the time and place of arrest,” United States v. Gonzalez-Perez, supra, 426 F.2d at 1287, a search cannot be incident to an arrest after the administrative process and the mechanics of the arrest have come to a halt and the prisoner is in jail. At this point, the justifications for the “search incident” exception no longer exist. It is well to recall these justifications as stated in Preston v. United States, supra, and reiterated in Chimel v. California, supra: “The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime — things which might easily happen where the weapon or evidence is on the accused’s person or under his immediate control. But these justifications are absent where a search is remote in time or place from the arrest.” 395 U.S. at 764, 89 S.Ct. at 2040. The Supreme Court in Coolidge v. New Hampshire, supra, again recognized that the search incident exception is based on these justifications: “The Court [in Chimel] applied the basic rule that the ‘search incident to arrest’ is an exception to the warrant requirement and that its scope must therefore be strictly defined in terms of the justifying ‘exigent circumstances.’ The exigency in question arises from the dangers of harm to the arresting officer and of destruction of evidence within the reach of the arrestee.” 403 U.S. at 478, 91 S.Ct. at 2044. Nor can the seizure be deemed a matter of reasonable police practice pursuant to a lawful arrest. In Coolidge the Supreme Court rejected such a theory: The rule that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions,” is not so frail that its continuing vitality depends on the fate of a supposed doctrine of warrantless arrest. The warrant requirement has been a valued part of our constitutional law for decades, and it has determined the result in scores and scores of eases in courts all over this country. It is not an inconvenience to be somehow “weighed” against the claims of police efficiency. It is, or should be, an important working part of our machinery of government, operating as a matter of course to cheek the “well-intentioned but mistakenly over-zealous executive officers” who are a part of any system of law enforcement. If it is to be a true guide to constitutional police action, rather than just a pious phrase, then “[t]he exceptions cannot be enthroned into the rule.” United States v. Rab-inowitz, supra, . . . (Frankfurter, J., dissenting). The confinement of the exceptions to their appropriate scope was the function of Chimel v. California, 403 U.S. at 481, 91 S.Ct. at 2046. In determining whether a search or seizure falls within one of the established exceptions to the warrant requirement, the burden is on the party claiming the exception to show that the circumstances permit an exception to the rule. This is not an arbitrary requirement. The Supreme Court has continually emphasized the importance of the constitutional requirement: “We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. . And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. We cannot be true to that constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative.” Chimel v. California, 395 U.S. qt 761, 89 S.Ct. at 2039, 23 L.Ed.2d 685 quoting from McDonald v. United States, 335 U.S. 451, 455-456, 69 S.Ct. 191, 93 L.Ed. 153 (1948). To find that the seizure of Appellant’s clothing was made incident to his arrest would require us to engage in the fiction that time was frozen for a period of ten hours or until the police could obtain substitute clothing. We hold that such a fiction is not permitted under the limited scope of the search incident exception. As the Supreme Court said in Coolidge, quoting from Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 29 L.Ed. 746 (1886): “It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.” 403 U.S. at 454, 91 S.Ct. at 2031. We determine that the seizure of Appellant’s clothing was not conducted incident to his arrest. It has been suggested that the warrantless seizure of Appellant’s clothing was permitted because of the existence of some exigent circumstances. We are unable to determine, however, what those circumstances might be. The burden, of course, lies with Appellee to show the existence of exigent circumstances. “We cannot be true to [the] constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative.” McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948); Coolidge v. New Hampshire, supra, 403 U.S. at 455, 91 S.Ct. 2022, 29 L.Ed.2d 564. Appellant had been in custody for ten hours when his clothing was seized. He presented no danger to the police during this period. After substitute clothing had been purchased, it was not imperative that the clothing be seized without a warrant. Any additional time that would have been needed to obtain a warrant would have been very small in comparison with the period of time Appellant had already been in the jail. Nor is it likely that any additional time would even have been required, in view of the fact that ten hours had elapsed. “[T]he police must, whenever practicable, obtain judicial approval of searches and seizures through the warrant procedure, . . . and [t]he scope of [a] search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” Chimel v. California, supra, 395 U.S. at 762, 89 S.Ct. at 2039; Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We find no exigent circumstances existed which prevented the police from obtaining the necessary warrant. One final consideration is whether Appellant could be held to have consented to the surrender of his clothing, as was the holding in Clarke v. Neil, 427 F.2d 1322 (6th Cir. 1970). We do not find that Appellant’s status as a prisoner permits the inference that he consented to the removal of his clothing. In view of the foregoing, we find that the seizure of Appellant’s clothing was not made pursuant to any exception to the rule requiring that a warrant be obtained. We remand to the District Court with instructions to grant Appellant’s motion to suppress the evidence obtained by the unlawful seizure of Appellant’s clothing. . Several courts have held that laboratory testing of the clothing of a jailed person without a warrant is permissible. Hancock v. Nelson, 363 F.2d 249 (1st Cir. 1966); Golliher v. United States, 362 F.2d 594 (8th Cir. 1966); Whalem v. United States, 120 U.S.App.D.C. 331, 346 F.2d 812 (en banc 1965); Robinson v. United States, 109 U.S.App.D.C. 22, 283 E.2d 508 (1960), cert. denied 364 U.S. 919, 81 S.Ct. 282, 5 L.Ed.2d 259; United States v. Guido, 251 F.2d 1 (7th Cir. 1958). In these cases the court was not presented with the constitutional problem of the time delay presented here. . The Court in Caruso distinguished the holding in Preston: “Appellant argues on the basis of Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), that it is the time lapse of about six hours between the moment of arrest and the final taking and holding of his clothes by the F.B.I. which violated his Fourth Amendment Federal Constitutional rights. But this case is distinguishable from Preston because there the question concerned the search of an automobile long after the defendants had been put in jail. Here the clothes were constantly in sight, were taken on the person of the suspect at the time of arrest and were continuously in custody. Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); United States v. Barone, 330 F.2d 543, 544 (2d Cir. 1964), cert. denied 377 U.S. 1004, 84 S.Ct. 1940, 12 L.Ed.2d 1053 (1964). The appellant’s contention means that the seizure of his clothing could have been made constitutionally only if, immediately on his arrest, he had been stripped to the buff on the public highway. Even though that April 13th may have been a very pleasant spring day, we are of the opinion that the argument is somewhat extreme.” 358 F.2d at 185-186.

f2d_474/html/1213-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Plaintiff and Appellee, v. Margarita JACOBO-GIL, Defendant and Appellant. No. 72-2976. United States Court of Appeals, Ninth Circuit. Feb. 13, 1973. George Benedict, of Herman & Benedict, San Diego, Cal., for defendant-appellant. Harry D. Steward, U. S. Atty., Stephen W. Peterson, Stephen G. Nelson, Douglas G. Hendricks, Asst. U. S. Attys., San Diego, Cal., for plaintiff-ap-pellee. Before CHAMBERS and TRASK, Circuit Judges, and BYRNE, Sr., District Judge. Honorable William M. Byrne, Sr., United States Senior District Judge, Central District of California, sitting by designation. WILLIAM M. BYRNE, Sr., District Judge: Jacobo-Gil appeals from her conviction by jury of one count of conspiring to violate the immigration laws of the United States and five counts of illegally transporting aliens within the United States. The conspiracy count charged a violation of both 18 U.S.C. § 371 and 8 U.S.C. § 1324. Each of the transportation counts charged a separate violation of 8 U.S.C. § 1324(a)(2). Appellant contends that the evidence produced at her trial was insufficient to support the jury’s verdict of guilty on the conspiracy count. In determining the merits of this contention, we are required to view the evidence in the manner most favorable to the jury’s verdict and uphold that verdict if substantial evidence exists to support it. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Callahan, 445 F.2d 552, 554 (C.A.9, 1971); Henderson v. United States, 143 F.2d 681, 682 (C.A.9, 1944). A reading of the transcript of appellant’s trial reveals ample evidence which, if believed, could have formed the basis for the jury’s verdict óf guilty on the conspiracy count. The evidence includes the testimony of five women aliens who were apprehended by border patrol agents while being transported within the United States in a car driven by the appellant; the testimony of a border patrol agent who interviewed the appellant shortly after her arrest; and appellant’s own testimony. Four of the five women aliens testified at some length about the circumstances leading to their apprehension. Each of them stated that she had arranged to illegally enter this country with a man in Tijuana who charged $300 and promised transportation to Los Angeles. Each of them also described how she had crossed the border with false immigration documents and been driven to an unknown house in San Ysi-dro, California, where the man had told her to wait. Three of the four unequivocally testified that she had been instructed by the man that, in the event that she was arrested while en route to her destination, she was to tell the authorities that she had been picked up “at a gas station.” They further testified that, after waiting a short time at the house with the fifth woman alien, the appellant picked up all five of them and transported them toward Los Angeles until they were apprehended. It is noted that none of the alien women testified that the appellant picked them up at a gas station. Instead, two of the women explicitly testified that the appellant had driven up to the front of the unknown house, stopped her ear, and motioned for them to get in. One of the border patrol agents who testified stated that, shortly after the arrest of the appellant, she told him that she had picked up the aliens “at a gas station” in San Ysidro after they had approached her and asked for a ride to Los Angeles. In addition, the appellant took the witness stand in her own defense and testified, in part, that she had picked up the aliens “at a gas station” rather than “at a house” and was transporting them to Los Angeles when she approached the immigration check point, and realizing it was in operation, reversed her direction of travel and was apprehended by border patrol agents. Although there was only circumstantial evidence that the charged conspiracy was formed and the appellant wilfully became a member of it, it is well-established that those elements may be proved by such evidence. E. g., Delli Paoli v. United States, 352 U.S. 232, 236, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957); Blumenthal v. United States, 332 U.S. 539, 557, 68 S.Ct. 248, 92 L.Ed. 154 (1947); Glasser v. United States, supra. In addition, if the jury did in fact base its verdict upon the above-mentioned evidence, it could hardly have failed to find that the appellant’s transporting of the aliens was an overt act in furtherance of the conspiracy. Therefore, after reviewing the evidence in the required manner, we conclude that it was substantial and that the appellant’s contention is without merit. Appellant further contends that, after the close of the evidence, the trial judge made two statements to the jury which constitute prejudicial error. Since her attorney objected to those statements, they are properly before us on this appeal. The first statement was as follows: “I suggest to you, ladies and gentlemen, in the consideration of the evidence in the case that the credibility of the witnesses is the most important and most difficult of your tasks, and that the most important single factor in determining the credibility of the witnesses is their interest in the outcome of the case and, of course, no one has the interest in the outcome of the case that the defendant [appellant] has in the case.” [Emphasis supplied.] Appellant argues that this statement unfairly singled out her credibility for attack by emphasizing that she had more of a “motivating interest” to lie than the other witnesses. Such an argument has been consistently rejected. Reagan v. United States, 157 U.S. 301, 310-311, 15 S.Ct. 610, 39 L.Ed. 709 (1895); United States v. Eskridge, 456 F.2d 1202, 1205-1206 (C.A.9, 1972); Stapleton v. United States, 260 F.2d 415, 420, 17 Alaska 713 (C.A.9, 1958); Papa-dakis v. United States, 208 F.2d 945, 954 (C.A.9, 1953). The record shows the second statement as follows: “I suggest further to you that as far as Counts Two through Six [the transportation counts] are concerned, that the evidence coming from the defendant [appellant] herself is sufficient to have her suffer a conviction upon a finding of guilty on those counts even after she admits when she found out that they [the five women aliens] were not lawfully in the United States. Her own testimony is sufficient to cause her conviction on those particular counts.” [Emphasis supplied.] This statement brings into issue the propriety of the trial judge’s exercise of his power to comment upon the evidence. While the existence of his power to do so is well-established, he must exercise it with caution. Quercia v. United States, 289 U.S. 466, 470-471, 53 S.Ct. 698, 77 L.Ed. 1321 (1933); Billeci v. United States, 87 U.S.App.D.C. 274, 184 F.2d 394, 403 (1950). The trial judge may even, with proper cautionary instructions, include comments as to the sufficiency of the evidence to sustain a verdict of guilty, but when he does so, he faces perils similar to those of a soldier who walks through a mine field. One false step may be fatal. Here the false step is apparent from a reading of the statute. A separate element of the offense of illegally transporting an alien within the United States is that the accused know or have reasonable grounds to believe that the alien last entered this country less than three years prior to the time that the accused commenced transporting him. 8 U.S.C. § 1324(a)(2). Nowhere in the appellant’s testimony did she state that she had such knowledge. Although the jurors might have easily inferred that the appellant had reasonable grounds to believe so, the trial judge took this factual issue from their consideration by making this statement. United States v. Murdock, 290 U.S. 389, 394, 54 S.Ct. 223, 78 L.Ed. 381 (1933); Lovejoy v. United States, 128 U.S. 171, 173, 9 S.Ct. 57, 32 L.Ed. 389 (1888). The statement inaccurately summarized the appellant’s testimony. Harding v. United States, 335 F.2d 515, 517 (C.A.9, 1964); Chavez v. United States, 275 F.2d 813, 818 (C.A.9, 1960). The error was not cured by the trial judge’s instructions that the jurors were free to disregard his comments upon the evidence if they desired to do so. By its terms, the statement pertained only to the transportation counts. This had no effect upon the jury’s verdict of guilty on the conspiracy count. Since the sentences which the appellant received on the transportation counts were less than the sentence on the conspiracy count and made to run concurrent with it, neither a new trial nor a rehearing on sentencing are necessary. Affirmed.

f2d_474/html/1216-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

EAGLE STAR INSURANCE COMPANY, LTD., Appellant, v. Jo C. DEAL et al., Appellees. No. 72-1157. United States Court of Appeals, Eighth Circuit. Submitted Oct. 17, 1972. Decided March 9, 1973. Bright, Circuit Judge, filed concurring opinion. E. C. Gilbreath, Fort Smith, Ark., for appellant. James W. Gallman, Fayetteville, Ark., for appellees. Before LARAMORE, United States Court of Claims Senior Judge, and BRIGHT and ROSS, Circuit Judges. LARAMORE, Senior Judge. This case involves an insurance coverage question arising out of an aircraft accident which occurred on March 6, 1971, while Dr. Phil L. Deal was piloting his plane with five passengers aboard. Upon approach for landing at Harrison, . Arkansas, Deal’s plane crashed, killing everyone on board. Eagle Star Insurance Company, Ltd. had issued to Deal an aircraft liability policy which was in full force and effect on his aircraft at the time of the accident. However, Eagle Star brought suit for declaratory judgment asserting that there was no coverage in this case because of the “employee exclusion” clause, under which it contended that the five deceased passengers were employees of Dr. Deal or that they were entitled to workmen’s compensation benefits. Eagle also contended that Deal was making an improper use of the aircraft which, if true, would also void coverage. In an opinion reported at 337 F.Supp. 1264 (W.D.Ark.1972), the District Court held, contra to Eagle’s contentions, that there was coverage under the policy issued by Eagle Star to Dr. Deal. The court found, as a matter of fact, that the five decedent passengers were employees of Ozark Lab, Inc., not Dr. Deal, and that, in any case, the five decedents were not engaged in the duties of their employment at the time of the accident. Although the court noted that it was without jurisdiction to determine entitlement to workmen’s compensation benefits, the court found, for purposes of the exclusion relied upon by Eagle, that decedent passengers were not entitled to workmen’s compensation benefits. In addition, the lower court held that the exclusion for improper use of the aircraft was not applicable. Appellant, Eagle Star, asserts that the above factual findings are unsupported by substantial evidence and the holding of the District Court is clearly erroneous. While the evidence in this case is essentially undisputed, appellant contests the inferences and the conclusions of law based thereon. For the reasons set forth herein, we must sustain the appellant’s position. The uncertainty which exists in this’ ease arises largely from the fact that in October 1968, Dr. Deal organized “Ozark Lab, Inc.,” an Arkansas corporation of which Dr. Deal was president, sole director and sole shareholder. It appears uncontradieted that Deal set up Ozark solely as a means of denuding himself of his employees for pension and profit sharing purposes. That is, he wished to remove his staff from “his employment” as an orthodontist, so that when he later adopted a retirement or deferred compensation plan for himself it would not be necessary for him to make contributions for his qualifying employees. Aside from this purpose, the evidence does not disclose any further independent business purpose for Deal’s organization of Ozark Lab, Inc. As the District Court indicated, Deal went through the various formalities of making Ozark a separate business entity, including maintenance of separate books of accounting and filing of appropriate tax returns. By April 1, 1970, Dr. Deal had transferred all of his former, non-domestic employees to Ozark, and two of his subsequently hired employees were placed directly on the Ozark Lab payroll. At the time of the accident, all five of the decedent passengers were “employed” by Ozark Lab. Appellant refers to the foregoing motives and various additional evidence as indicating that “Ozark Lab, Inc. amounted to nothing more than a payroll account for Phil L. Deal,” and as a result such entity should be disregarded. The District Court, on the other hand, concluded that Eagle had “not met the burden of proof necessary to pierce the corporate veil,” or otherwise demonstrate that Ozark was invalid. While substantiation of Ozark’s invalidity would serve to illustrate that the deee-dent passengers were de facto employees of Deal’s, the insufficiency of the evidence to “pierce the corporate veil” is not, however, controlling of the issue of whether the decedents were Dr. Deal’s “employees”. For notwithstanding the fact that Ozark may have been a valid corporation with the decedents technically being “employees” of that entity, it is possible that they were also employees of Dr. Deal. This possibility was recently noted in Beaver v. Jacuzzi Brothers, Inc., 454 F.2d 284 (8th Cir. 1972), where this court, in determining whether a person was an employee under Arkansas law, stated: * * * As a matter of common experience and of present business practices in our economy, it is clear that an employee may be employed by more than one employer even while doing the same work. Biggart v. Texas Eastern Transmission Corp., 235 So.2d 443, 445 (Miss.1970). Although Beaver and Biggart deal with the employer-employee relationship within the context of workmen’s compensation, we find this general principle to be equally applicable to the determination of employee status within the context of an insurance exclusion, as it is an observation of the economic realities of today’s business world and there is nothing peculiarly esoteric about this fact which would make it indigenous to workmen’s compensation law. Consequently, we cannot agree with the lower court’s suggestion that interpretations of workmen’s compensation laws are not relevant to insurance exclusions. Campbell v. American Farmers Mutual Ins. Co., 238 F.2d 284 (8th Cir. 1956). Although there are differences in the general construction of each (e. g., exceptions and words of limitation in liability policies are to be strictly construed against an insurer, Aetna Casualty & Surety Co. v. Stover, 327 F.2d 288 (8th Cir. 1964), while workmen’s compensation laws must be liberally construed in furtherance of the purpose for which they were enacted, Huffstettler v. Lion Oil Co., 208 F.2d 549 (8th Cir. 1954)), there can be little doubt that the essential elements of employment remain the same regardless of the context. Moreover, a review of cases in both areas discloses their common reliance on the older, more general principles of master-servant, despite the different contexts. The Arkansas courts have not addressed this question directly, but we do note that in Walker v. Countryside Casualty Company, 239 Ark. 1085, 396 S.W.2d 824 (1965), the Arkansas Supreme Court adopted rather liberal criteria in determining whether a casual employee was, in fact, an “employee” for purposes of an insurance exclusion clause. Utilization of this liberal criteria resulted in finding that the injured party was an employee, which in turn denied him coverage under the liability policy, notwithstanding the general rules of construction in favor of coverage. In any event, it is clear that undefined terms of an insurance policy, such as “employee,” must be construed in their plain, ordinary and everyday sense and the parameters of the definition should reflect the legal characteristics most frequently attributed to the word. Jefferson Insurance Co. of Pine Bluff, Ark. v. Hirchert, 281 F.2d 396 (8th Cir. 1960); State Farm Mutual Automobile Insurance Co. v. Pennington, 324 F.2d 340 (8th Cir. 1963). Such guidelines suggest that economic reality and substance, rather than legalistic form, should be determinative of the word’s meaning. In considering the employment relationship, the factors to which the Arkansas courts have most frequently referred include employer’s right to direct and control the employee, the right or power to hire or discharge, employer’s furnishing of tools, duration and time of employment, and fact, manner and basis of payment. Irvan v. Bounds, 205 Ark. 752, 170 S.W.2d 674 (1943); Clemons v. Bearden Lumber Co., 236 Ark. 636, 370 S.W.2d 47 (1963). These factors have usually been applied in distinguishing between an “employee” and an “independent contractor,” but as thé business relations have become more complex, e. g., with sub and sub-sub contractors, and temporary agencies as in Beaver, the element of control has emerged as generally being the most important determinant. Clemons v. Bearden, supra; Brinkley Heavy Hauling Co. v. Youngman, 223 Ark. 74, 264 S.W.2d 409 (1954); Beaver v. Jacuzzi Brothers, supra. Nonetheless, the status of employment is a question of fact to be considered in light of all of the surrounding facts and circumstances. Walker v. Countryside Casualty Co., supra. A review of the facts in this case against the framework set out above leads us to the inescapable conclusion that the decedent passengers were, in fact, employees of Dr. Deal. Although Dr. Deal went through the necessary formalities to set up Ozark and maintain it as a separate business, the thrust of the evidence is to the effect that there were no substantive changes in his orthodontic practice or in his relationship to the decedent passengers. He continued to exercise control over his staff in the details of their work in assisting him and he continued to exercise his authority to hire and discharge personnel as necessary. Appellees contend, however, that these circumstances fail to account for the fact that Dr. Deal was also president of Ozark and that it was only natural for him to exercise such control as a result of this position. This assertion would bear more weight if not for two factors. First, Dr. Deal drew no salary from Ozark Lab, Inc. From this we must infer that Dr. Deal did not see his role as president of Ozark and its appurtenant duties to be of sufficient demand on his time to merit remuneration. Instead, he obviously saw his control and authority as being a function of his position as an orthodontist, not as president of Ozark Lab, Inc. Secondly, the services and supplies which Ozark rendered to other dentists constituted only one percent of Ozark’s gross receipts. As a result, it js evident that the primary function and purpose of Ozark Lab and its “employees” was, as always, to service and support Dr. Deal’s orthodontic practice. As a matter of economic reality, the decedents were totally dependent on Dr. Deal’s orthodontic practice and it was on behalf of Dr. Deal as an orthodontist that they rendered their services. Fru-co Construction Co. v. McClelland, 192 F.2d 241 (8th Cir. 1952); Westover v. Stockholders Publishing Co., 237 F.2d 948 (9th Cir. 1956). In this respect, it is pertinent to note that none of Ozark’s lab work was done in Harrison, but rather only the performance of Dr. Deal’s orthodontic services. At the time of the accident the decedents were flying to Harrison with Dr. Deal to assist him in his orthodontic practice; therefore, it is particularly obvious that they were employees acting for and on behalf of Dr. Deal as an orthodontist, rather than Dr. Deal as president of Ozark Lab, Inc., at the time of this accident. The adoption of the variant business structure and the payment of wages through Ozark did not serve to alter the substantive economic realities of the employment relation. The decedent passengers were employees of Dr. Deal in the ordinary sense of the word and the District Court’s holding to the contrary is clearly erroneous. We are now confronted with the question of whether the decedent employees were “engaged in the duties of (their) employment” at the time of the accident. The District Court stated that such phrasing “requires more than the passive act of accepting transportation afforded gratuitously by the employer,” but we do not find this holding to be a valid reflection of the facts herein or the current status of Arkansas law. While this court has previously noted in Bryan v. Aetna Casualty & Surety Co., 381 F.2d 872 (8th Cir. 1967) that the position of the Arkansas courts on “employer-furnished transportation” is less than certain, we nevertheless held therein that an employee was “injured in the course of such employment” where the employee’s injury occurred while riding on his employer’s bus from the employer’s warehouse to a jobsite. We reached this conclusion notwithstanding the fact that the bus ride was not mandatory, and the employee could have reached the jobsite by other means. The precedential value of Bryan is not entirely clear, however, inasmuch as it dealt with the type of employee exclusion clause which is couched in terms of “in the course of * * *” or “arising out of and within the scope of employment,” whereas we here deal with “while engaged in the duties of his employment.” Some courts have found this variation in terminology to be a decisive difference, e. g., Passmore M. & R. Co. v. New Amsterdam Casualty Co., 147 F.2d 536 (10th Cir. 1945), suggesting that those clauses using “engaged” draw narrower parameters of exclusion as the word “engaged” connotes action. Travelers’ Indemnity Co. of Hartford v. Smith, 190 Ark. 492, 79 S.W.2d 1008 (1935) is in accord as to engaged denoting action, but Arkansas courts have not commented on the differences, if any, of these two types of employee exclusion clauses. In Commercial Casualty Ins. Co. v. Cherry, 190 Ark. 422, 79 S.W.2d 270 (1935) the Arkansas Supreme Court held that cotton-pickers were not “engaged in the business of the assured” while riding back from the cotton fields on the owner’s bus to their homes. The court emphasized that the injured had not picked cotton that day due to rain, and as a result had not been engaged in the business of their master. The court implied that the holding might have been different had they engaged in work that day. It is also pertinent to note that (1) the cotton-pickers were not regular employees, but rather a varying group of occasional employees, and (2) the bus ride was within the “going to work and returning home” situation. Because of the considerably different factual setting and the variant form of the exclusion clause, we find Cherry to be of minimal assistance with the issue herein. In Martin v. Lavender Radio & Supply, Inc., 228 Ark. 85, 305 S.W.2d 845 (1957) the Arkansas Supreme Court considered whether an employee was within the “scope of his employment” while driving his own car from home to work. The uncertainty stemmed from the fact that the employee often stopped on his way to work at the post office to pick up the employer’s mail. The court stated: * * * ipjjg decisive test must be whether it is the employment or something else that has sent the traveler forth upon the journey or brought exposure to its perils. [Id. at 849.] In Martin the court interpreted this test as meaning that the employee was not within the “scope of his employment” until he reached the point in his trip to work where he would turn off for the post office, and until that time his principal purpose was only reaching his regular place of employment. Implicit in this interpretation was the fact that reporting to the normal place of employment from one’s home is not within the “scope of employment,” at least when the employee was supplying his own transportation. To the extent that the above test is applicable here, it is clear that the duties of the decedents’ employment had sent them forth upon the journey which brought exposure to the subsequent tragedy, as they had deviated from their normal place of employment when they embarked on this trip to service Dr. Deal’s patients. While the foregoing cases set out the framework within which this issue must be considered, the question presented remains one of fact. Specifically, the question devolves to whether flying from Fayetteville to Harrison was a “duty of their employment,” as this was the activity in which they were “engaged” at the time of the accident. From all of the surrounding facts and circumstances we must conclude that the flight was such a duty. In reaching this conclusion it is important to first recognize, as suggested above, that the trip from Fayetteville to Harrison was not within the “going to work and returning home” situation. This is apparent not only from the fact that Fayetteville was the main office of operations, but is also evidenced by the apparent necessity of having a $34,000 plane to make the trip. Secondly, there can be little doubt that going to Harrison when Dr. Deal requested was as much a duty or obligation of their employment as assisting Dr. Deal in the Fayetteville office. Furthermore, there is various testimony indicating that the employees were considered “on the job” when they reported to the Fayetteville airport at 8:00 a. m., which was also their regular reporting time when they worked at the Fayetteville office. While there is some conflict in testimony as to whether it was mandatory to reach Harrison via Dr. Deal’s airplane, we do not find the mandatoriness of the flight determinative. The employees had to go to Harrison and they had accepted Dr. Deal’s flying them there as a means of fulfilling their duty to be in Harrison. That there may have been alternative means of fulfilling the duty of going to Harrison is immaterial. The fact is that they were engaged in a duty of their employment when they were going to Harrison — be it via Dr. Deal’s airplane or otherwise. Consequently, we must conclude that the employees were “engaged in the duties of (their) employment” when flying to Harrison. In light of this conclusion, we must further hold that the employee exclusion clause is applicable here to deny coverage, and the lower court’s holding to the contrary is clearly erroneous. Because of our holding as to this first portion of the employee exclusion clause, we find it unnecessary to also consider whether the employees were entitled to workmen’s compensation benefits or whether use of the plane was improper. Judgment is hereby reversed. BRIGHT, Circuit Judge (concurring). Since the facts affirmatively demonstrate that the decedents met death in Dr. Deal’s airplane while enroute to Harrison, Arkansas, for the purpose of assisting Dr. Deal in his practice of orthodontia, these decedents occupied the status of employees of Dr. Deal and as such are excluded from the coverage of the policy here in question. For this reason I concur in the result. . “This policy does not apply: 4. Under Coverages A, B or D to bodily injury, to sickness, disease or death of any employee of the insured while engaged in the duties of his employment or to any obligation for which the insured or any company as his insuror may be held liable under any Workmen’s Compensation Law.” . Although not determinative of the issues herein, it is pertinent to note that because of the evidenced intent, Dr. Deal probably could not have adopted a valid pension plan. . As noted by the District Court, “[i]t is only when the privilege of transacting business in the corporate form has been illegally abused to the injury of a third person that the corporate entities should be disregarded.” Rounds & Porter Lumber Co. v. Burns, 216 Ark. 288, 225 S.W.2d 1, 2-3 (1949). “Piercing the corporate veil” is most frequently applied in instances where third parties seek to place financial responsibility on those individuals or separate corporate entities who, because of their ownership or control and means of operating the corporation, can be said to be the party responsible for the actions of the corporation to be disregarded. Black & White v. Love, 236 Ark. 529, 367 S.W.2d 427 (1963); Plant v. Cameron Feed Mills, 228 Ark. 607, 309 S.W.2d 312 (1958); Banks v. Jones, 239 Ark. 396, 390 S.W.2d 108 (1965); Henderson v. Rounds & Porter Lumber Co., 99 F.Supp. 376 (D.C.Ark.1951); Green v. Equitable Powder Mfg. Co., 95 F.Supp. 127 (D.C.Ark.1951). Although there is a certain amount of overlap between the considerations pertinent to “piercing the corporate veil” for financial responsibility reasons and those relevant to determining the substantive employer-employee relationship, the factors are not identical and they are weighted differently in light of the distinct purposes to be resolved. Because our purpose herein is a determination of whether the decedents were employees of Dr. Deal, we find it unnecessary to decide whether the evidence was sufficient to “pierce the corporate veil” or otherwise demonstrate Ozark’s invalidity. . It might be noted that while liberal constructions of workmen’s compensation laws may have served the employee’s best interests at one time, such situation has changed markedly where encompassment by workmen’s compensation precludes a potentially greater recovery from insurance or tort action. This was the case in both Beaver and Biggart, and, notwithstanding the detrimental ramifications, the courts found the respective parties to be employees. . One witness testified that an employee lost her job because she would not fly with Dr. Deal any more, while another witness stated that she thought it did not matter how the employees readied Harrison as long as they did so on time.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Appellee, v. Trunnell Levett PRICE, and Arnold Lewis Coffey, Appellants. Nos. 71-3038, 71-3039. United States Court of Appeals, Ninth Circuit. March 5, 1973. David W. Williams, District Judge, dissented without opinion. William J. Zumwalt (argued), San Diego, Cal., Artie Henderson of Huntington, Byrans, Harper, Henderson, Burney & Newman-Crawford, San Diego, Cal., for appellants. Robert H. Filsinger, Asst. U. S. Atty. (argued), James W. Meyers, Asst. U. S. Atty., Harry D. Steward, U. S. Atty., San Diego, Cal., for appellee. Before ELY and HUFSTEDLER, Circuit Judges, and WILLIAMS, District Judge. Honorable David W. Williams, United States Judge for the Central District of California, sitting by designation. OPINION HUFSTEDLER, Circuit Judge: Price and Coffey appeal from their convictions for armed robbery of a post office (18 U.S.C. § 2114). Of their many contentions on appeal, only three require discussion: (1) denial of their preindictment motions to compel recor-dation of grand jury proceedings and of their postindictment motions to disclose the content of grand jury transcripts; (2) denial of Coffey’s motion to appear pro se at trial; and (3) error in sentencing them to the “mandatory” term prescribed by 18 U.S.C. § 2114, without revealed consideration of the sentencing alternatives of the youthful offender provisions of 18 U.S.C. §§ 4208(a)(1) and 4209. I. After appellants were in custody but before they were indicted, they moved for an order compelling recordation of the anticipated grand jury proceedings. The court observed that recordation was desirable, but it denied the motion on the ground that Rule 6(d) of the Federal Rules of Criminal Procedure did not make transcription mandatory and that the court would not “make the rule” itself. In noting that Rule 6(d) is permissive, the district court followed the language of the Rule and the decisions' of our court interpreting it. In denying the motion, however, the district court abdicated the discretion committed to it to order recordation, despite assurances by this court that it has such discretion and that it is obliged to exercise it. As we said in United States v. Thoresen (9th Cir. 1970) 428 F.2d 654, 666: “[T]he fact that a particular discovery procedure is ‘permissive’ rather than ‘mandatory’ does not mean that permission may be arbitrarily denied. Where a defendant, anticipating future grand jury proceedings involving himself, gives notice in advance that he will seek a transcript of the proceedings if an indictment is returned and offers to pay the expense of having a reporter in attendance or shows inability to pay, a sound exercise of discretion would ordinarily call for the granting of a motion that a reporter be in attendance.” We adhere to the principles stated in Thoresen, and we now implement them by holding that the district court must exercise its discretion in passing upon a preindictment motion for recordation of grand jury proceedings and that a district court abuses its discretion in denying the motion of parties situated as were appellants, in absence of a Government showing that it has a legitimate and compelling interest to be served by nonrecordation. The Government cannot meet its burden by resort to the secrecy rubric. Secrecy of grand jury proceedings is not jeopardized by recordation. The making of a record cannot be equated with disclosure of its contents, and disclosure is controlled by other means. Our holding, in part, is predicated on our recognition in Thoresen that recor-dation of grand jury proceedings should be routine and nonrecordation should be permissible only in exceptional circumstances. It is also based on our awareness that a less strict rule invites defeat of the principles enunciated in Dennis v. United States (1966) 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973. Dennis held that it was reversible error to deny petitioners’ motion for disclosure of certain portions of a grand jury transcript for which the petitioners had shown a particularized need. The Court reasoned that the broadened discovery available to defendants is “entirely consonant with the growing realization that disclosure, rather than suppression, of relevant materials ordinarily promotes the proper administration of criminal justice.” (384 U.S. at 870, 86 S.Ct. at 1849. See also U. S. Industries, Inc. v. United States District Court (9th Cir. 1965) 345 F.2d 18.) When Price and Coffey moved for disclosure of portions of the grand jury proceedings, their showing of particularized need may not have been adequate. However, even if their showing had been overwhelming, it would have been futile because the nonexistent is nonproduci-ble, and the Government had arranged that no record be made. The Government has known at least since Thoresen that a failure to record grand jury proceedings after notice that a defendant wants recordation could jeopardize a prosecution. In Thoresen we declined to dismiss the indictment because the Government had had no prior Circuit warning that its refusal to record could bring its case to grief. The warning was given, and it has been ignored. We are unwilling to go so far as to order dismissal of the indictments of Price and Coffey because we are not convinced that they have adequately demonstrated prejudice. (428 F.2d at 666.) However, we will vacate their sentences and on remand permit them a further opportunity to expand the record by offering additional evidence bearing on the issue. II. After the jury had been impaneled and before it was sworn, Coffey moved to dismiss his court appointed counsel and have new counsel appointed, or in the alternative, moved for leave to proceed pro se. There was ample room for an exercise of discretion refusing to substitute new counsel on the eve of the trial. See Good v. United States (9th Cir. 1967) 378 F.2d 934. Denial of Coffey’s motion to proceed pro se, however, is more troublesome. Federal law guarantees parties the right to conduct their own cases: “In all courts of the United Statés the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct cases therein.” 28 U.S.C. § 1654. No recent innovation, this statutory guarantee has existed since the First Congress. Judiciary Act of 1789, § 35, 1 Stat. 73, 92 (1789). See United States v. Plattner (2d Cir. 1964) 330 F.2d 271, 274. Indeed, it is now clear that the right to proceed pro se is not merely statutory, it is a right of constitutional dimension. (Bayless v. United States (9th Cir. 1967) 381 F.2d 67, 71. See also Adams v. United States ex rel. McCann (1942) 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (“The right to assistance of counsel and the correlative right to dispense with a lawyer’s help are not legal formalisms. . . . [T]he Constitution does not force a lawyer upon a defendant.”); Arnold v. United States (9th Cir. 1969) 414 F.2d 1056, 1058, cert. denied (1970) 396 U.S. 1021, 90 S.Ct. 593, 24 L.Ed.2d 514 (“A defendant in a criminal case not only has a constitutional right to the assistance of counsel, he has a correlative constitutional right to refuse the advice or interference of counsel and to present his own case. A court has no more right to force an attorney on a defendant than it has to ignore the Sixth Amendment right to counsel.”); Reynolds v. United States (9th Cir. 1959) 267 F.2d 235; Duke v. United States (9th Cir. 1958) 255 F.2d 721, cert. denied, 357 U.S. 920, 78 S.Ct. 1361, 2 L.Ed.2d 1365. But cf. People v. Sharp (1972) 7 Cal.3d 448, 103 Cal.Rptr. 233, 499 P.2d 489. Since the right to proceed pro se is bottomed on the Constitution, the defendant need not show prejudice in order to secure reversal of a conviction. (United States v. Pike (9th Cir. 1971) 439 F.2d 695.) Although it is not error for the court to require counsel to be present and prepared to give advice, such counsel may not interfere with the defendant’s presentation of the case and may give advice only upon request. (Bayless v. United States, supra.) The court may not deny a defendant the right to represent himself because he lacks expertise or professional capabilities. When a proper request is made, the only question for the court is whether the defendant has the capacity to decide intelligently and to understand what he is doing, i. e., can the defendant make a valid waiver of his right to counsel? (Hodge v. United States (9th Cir. 1969) 414 F.2d 1040.) We assume that the right to proceed pro se is not unlimited (e. g., United States v. Private Brands (2d Cir. 1957) 250 F.2d 554, cert. denied, 355 U.S. 957, 78 S.Ct. 542, 2 L.Ed.2d 532; United States v. Bentvena (2d Cir. 1963) 319 F.2d 916), but our circuit has not expressly decided what limitations, aside from timeliness (United States v. Pike, supra, 439 F.2d at 695), should be imposed. We need not delineate the margins of the right in this case because nothing in Coffey’s record suggests a basis for qualifying it. The Government argues that Coffey’s outburst at the threshold of trial justified denial of his right to proceed pro se. (Cf. Illinois v. Allen (1970) 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353.) The incident occurred when Coffey, who is black, learned that there were no blacks on the jury panel. The court admonished Coffey, and he thereafter behaved in a manner that moved the court to commend him for good conduct. However, we have no occasion to decide whether Coffey’s initial conduct would have warranted a denial of his right to represent himself, because the district court did not purport to place its ruling on that ground. Rather, the court denied the motion because it believed that Coffey did not have the skills adequately to defend himself. We recognize that the court was motivated by its concern for Coffey's welfare. We are also aware that pro se representation is usually inadequate and often unconducive to the orderly administration of a criminal trial. But the law of the circuit forbids denial of the right based on these considerations. (E. g., United States v. Pike, supra, 439 F.2d 695; Bayless v. United States, supra, 381 F.2d 67; Arnold v. United States, supra, 414 F.2d 1056.) Alternatively, the Government argues that the motion was appropriately denied because it was not timely. Here, again, the denial was not placed on that ground. The motion was made before the jury was sworn. The record contains no hint that the motion was a tactic to secure delay, and there is nothing that suggests that any delay would have attended the granting of the motion. We reject the Government’s contention that Coffey’s motion was untimely as a matter of law. III. We turn to the claimed error in sentencing defendants. We cannot determine from the face of the record whether the district court declined to apply young offender treatment or early parole eligibility provisions to defendants because it thought that they would not benefit from it or because it thought that resort to the Federal Youth Corrections Act and section 4208(a)(1) was foreclosed by the mandatory sentencing language of 18 U.S.C. § 2114. In United States v. Beverley (9th Cir. 1969) 416 F.2d 263, we characterized the twenty-five-year sentence prescribed by section 2114 as mandatory, but we did not consider the issue here presented. In Thurman v. United States (9th Cir. 1970) 423 F.2d 988, we upheld the district court in suspending execution of a twenty-five-year sentence of an offender convicted for a violation of 18 U.S.C. § 2114 and in placing him on probation, pursuant to section 4208(a)(2), without specifically addressing ourselves to the mandatory language problem. We now clarify the law of the circuit by holding that the mandatory terminology of section 2114 does not preclude the district court from exercising the discretion committed to it by the Youth Corrections Act or section 4208(a)(1). We are persuaded to this view by the legislative history of sections 4208, 4209, explicated by the reasoning of Judge (now Justice) Blackmun in Jones v. United States (8th Cir. 1969) 419 F.2d 593. The judgment against Price is vacated and the cause is remanded for further proceedings on the grand jury recordation issue and on sentencing; the judgment against Coffey is reversed and the cause is remanded for further proceedings consistent with the views herein expressed. District Judge DAVID W. WILLIAMS dissented without opinion. . “[A] stenographer or operator of a recording device may be present while the grand jury is in session . . . .” . E. g., United States v. Parker (9th Cir. 1970) 428 F.2d 488, cert. denied, 400 U.S. 910, 91 S.Ct. 155, 27 L.Ed.2d 150; Loux v. United States (9th Cir. 1968) 389 E.2d 911, 916, cert. denied, 393 U.S. 867, 89 S.Ct. 151, 21 L.Ed.2d 135. . The frequency of instances in which denial of preindictment motions lias been brought to our attention suggests that the district court’s misapprehension of the principle is not uncommon. . The Court: “Finally, Mr. Coffey, with respect to your motion to proceed in pro se, the Court has some misgivings about granting that motion for this reason: The Court has no knowledge of your ability or legal background, except what was brought up in the bail review, to properly defend yourself or proceed without an attorney. . . ’ . Mr. Zumwalt is a member of the State Bar of California and a member of the Federal Bar and has been practicing in this Court, as well as other Federal Courts for some period of time. He is a skilled Defense Attorney; at least I feel so and I am sure that all other Judges in the Court feel so. “The Court at this time, without a further showing, I think, is disposed to deny your motion. I think Mr. Zumwalt can adequately handle your case, and I think that if I am wrong in my decision you will have your opportunity before the Circuit Court to test the decision that I have made thus far.” . 18 U.S.C. § 4208(a)(1) provides: “(a) Upon entering a judgment of conviction, the court having jurisdiction to impose a sentence, when in its opinion the ends of justice and best interests of the public require that the defendant be sentenced to imprisonment for a term exceeding one year, may (1) designate in the sentence of imprisonment imposed a minimum term at the expiration of which the prisoner shall become eligible for parole, which term may be less than, but shall not be more than one-third of the maximum sentence imposed by the court, or (2) the court may fix the maximum sentence of imprisonment to be served in which event the court may specify that the prisoner may become eligible for parole at such time as the board of parole may determine.” 18 U.S.C. § 4209 provides: “In the case of a defendant who has attained his twenty-second birthday but has not attained his twenty-sixth birthday at the time of conviction, if, after taking into consideration the previous record of the defendant as to delinquency or criminal experience, his social background, capabilities, mental and physical health, and such other factors as may be considered pertinent, the court finds that there is reasonable grounds to believe that the defendant will benefit from the treatment provided under the Federal Youth Corrections Act (18 U.S.C. Chap. 402) sentence may be imposed pursuant to the provisions of such act.” . “Whoever assaults any person having lawful charge, control, or custody of any mail matter or of any money or other property of the United States, with intent to rob, steal, or purloin such mail matter, money, or other property of the United States, or robs any such person of mail matter, or of any money, or other property of the United States, shall, for the first offense, be imprisoned not more than ten years ; and if in effecting or attempting to effect such robbery he wounds the person having custody of such mail, money, or other property of the United States, or puts his life in jeopardy by the use of a dangerous weapon, or for a subsequent offense, shall be imprisoned twenty-five years.”

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Annie Jean HABECKER, Plaintiff-Appellant, v. Earl W. YOUNG, as Administrator of the Estate of Elizabeth T. Poppell, Deceased, Defendant-Appellee, Herman Tedder and Bartow Tedder, Intervenors. No. 72-2241. United States Court of Appeals, Fifth Circuit. March 27, 1973. Marion R. Shephard, Jacksonville, Fla., for plaintiff-appellant. W. Dexter Douglass, Tallahassee, Fla., Byron Butler, Perry, Fla., for Young. John H. Cotten, Tallahassee, Fla., John Weed, Perry, Fla., for Tedders. Before JOHN R. BROWN, Chief Judge, and THORNBERRY and MORGAN, Circuit Judges. LEWIS R. MORGAN, Circuit Judge: Appellant Annie Jean Habecker, plaintiff below, brought suit in the District Court for the Northern District of Florida seeking specific performance of a contract to adopt. The defendant is the administrator of the alleged foster mother’s estate. The intervenors are brothers of the alleged foster mother and are her heirs at law. The district court entered summary judgment for the defendant. We reverse and remand for a trial on the merits. I We have determined that summary judgment in this case came too quickly and that more evidence is necessary to avoid possible injustice to any concerned party. The justification for this action is an equitable one, grounded on the theory that what should have been done will be done. The basic facts are set forth by the pleadings and affidavits in the record. Appellant Habecker alleges' that she was the beneficiary of a contract to adopt entered between her natural father, James Freeman, and Andrew and Elizabeth Poppell. Elizabeth Poppell died intestate in 1970. This action is basically a contest over the property of the deceased Elizabeth Poppell pitting the alleged “adopted” daughter against the brothers of the deceased who would take under the Florida intestacy statute. The cause of action is often referred to as “virtual adoption” or “equitable adoption” and has been recognized in Florida for several years. Sheffield v. Barry, 153 Fla. 144, 14 So.2d 417 (1943) and Roberts v. Caughell, 65 So.2d 547 (1953). The facts in the record tend to show that the appellant was raised as a daughter by Andrew and Elizabeth and was recognized as such in the community. Virtually all of her youth was spent in the care of Andrew and Elizabeth until she married and left their home. James Freeman, natural father of appellant, is alive and allegedly was to testify as to the events surrounding the transfer of custody of the child in the mid 1930s. In the record before this court it is not clear exactly what this testimony would have precisely been. The opinion of the district court speaks of the representation of counsel that Freeman would testify to an arrangement concerning the child but that the word “adopt” was never used between the parties. This was apparently a significant point to the district judge in granting summary judgment. We are of the opinion that the full testimony of Freeman is desirable and that it is extremely important to view the entire transaction or understanding between the parties in order to ascertain what the true arrangement was. We are not convinced that a sufficient agreement could not be shown even though the word “adopt” was never used. We find no Florida ease where the state court has passed on the necessity for the word “adoption” to be used by the parties in forming the “contract” later enforced by a court of equity. Other states have held that the failure to use the term “adopt” when assuming responsibility over the child is not fatal to imposition of the equitable doctrine. See Holloway v. Jones, 246 S.W. 587 (Mo.1922); Taylor v. Coberly, 327 Mo. 940, 38 S.W.2d 1055 (1931); Toler v. Goodin, 200 Ga. 527, 37 S.E.2d 609 (1946). In light of Forida’s acceptance of the broad equitable notion of virtual adoption, we do not feel that the state courts would decide the issue solely on the technical ground that the word “adopt” was not used by the parties. Other language, evaluated with due regard for the parties involved and surrounding circumstances, could be sufficient to establish the necessary contract. Furthermore, in our consideration of the case it has appeared that there is some conflict as to exactly what the representations of counsel which the district court took note of were. They are not in the record and the parties seem to dispute the exact content of any such statements. To avoid injustice and to allow for adequate review, we feel that a full and complete record of all relevant testimony is desirable. There are other reasons why we think that summary judgment was improper in this case. Virtual adoption is an established doctrine usually invoked to avoid an unfair result from the application of intestacy statutes. Its underlying theories are drawn from the realm of contract law and the relevant elements include some showing of an agreement between the natural and adoptive parents, performance by the natural parents of the child in giving up custody, performance by the child by living in the home of the adoptive parents, partial performance by the foster parents in taking the child into the home and treating her as their child, and, finally, the intestacy of the foster parent. Sheffield v. Barry, supra. Much of each of these elements may have to be established by circumstantial evidence for often all parties but the child are deceased. For that reason, in virtual adoption cases it is essential to have as full a record as possible containing as much relevant evidence as possible. In this case the record is somewhat confused and disputed. Therefore, it appears to the court that a full evidentiary hearing would be helpful in establishing the true facts and the relationship between all the relevant parties. II It is difficult to discern from the district court’s order exactly what, if any, issues of law were felt to be controlling in this matter. As noted, we feel that under the record in this case it was premature to say that no agreement between the natural father and the foster parents had been shown. The facts stated in the district court’s order and the issues of law argued by the parties in their briefs suggest that there were two possible additional holdings in favor of defendants as a matter of law. First, an affidavit from the natural mother, who is still living, asserts that she never consent.ed to any adoption by the Poppells. The allegations in the complaint tend to establish, however, that she and James Freeman were separated quite soon after the child’s birth, that sometime later the father, James Freeman, was given legal custody of the child following a divorce, and that for the past 30-odd years the natural mother has had little, if anything, to do with her child. We feel full development of these facts would be helpful in the resolution of this issue. Secondly, appellees make an issue of the fact that Andrew and Elizabeth Pop-pell were not yet married when the child first came to live with Andrew Poppell and his aged father. On the other hand, the facts tend to show there was at least some “understanding” between Andrew and Elizabeth and that their marriage was being postponed only because of the objections of Andrew’s aged father. They were married soon after the father’s death and raised Annie Jean in their home. In the opinion of the district court it is not evident what, if any, weight this factor was given. We note that on both these last issues the appellees have made arguments based on Florida adoption law and public policies concerning adoption. As we are remanding this case for further proceedings, we do not feel it necessary to pass at this time on these possible legal issues since we are not assured that they were relied on by the district court below nor are we satisfied that the factual record surrounding them has been adequately developed. However, we desire to point out two factors which we feel may be relevant in future consideration of these issues below. Since virtual adoption cases generally arise after termination of the relationship because of death of the parents, state public policies relating to a legal adoption may not be weighed the same as they would be in a current adoption proceeding where the relationship is prospective in nature. Here the court is viewing what ought to be done in light of what has been done in the past, not what may happen in the future. Secondly, we think the court below, when and if it looks to state public policy on adoption, should take into consideration the adoption laws and attendant policies as they existed at the time the purported “contract” was made. For reasons stated in this opinion, we feel that summary judgment was im-' proper and this case is reversed and remanded. . At one point in our consideration of this case, we sought aid of counsel in drawing up a proposed certificate to submit to the Florida Supreme Court for elucidation as to underlying Florida public policies which may be relevant to the ultimate resolution of this case. The difficulty of drafting an adequate certificate, coupled with the uncertainty as to what part, if any, policy resolutions were involved in the summary judgment below, have convinced this court that more complete findings of fact and law are necessary. . We note that the adoption laws in effect in Florida at the time this alleged “contract” was entered were quite simple. Fla.Stat.Ann. §§ 72.01-72.06 [Repealed, Laws 1943, c. 21759, § 20]. Basically, the law only required that a person publish an intention to adopt, that the proposed adoption be filed, and that a hearing be held before the proper circuit judge. Following the hearing the judge, in his discretion, could grant the petition and allow the adoption. Thus, even if it is ultimately decided that the contracting parties must be fully able to carry out a legal adoption, we feel that the statute in effect at the time of contracting is extremely relevant and the factual situation should be analyzed in light of it. It might be that under then existing law, the circuit judge could allow adoption by a single person or without the express permission of one parent.

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Kim JONES et al., Plaintiffs-Appellees, v. The BOARD OF EDUCATION CLEVELAND CITY SCHOOL DISTRICT et al., Defendants-Appellants. Nos. 73-1031, 73-1032. United States Court of Appeals, Sixth Circuit. Argued Feb. 12, 1973. Decided March 16, 1973. Charles F. Clarke, Cleveland, Ohio, for defendants-appellants; Richard B. Bowles, Squire, Sanders & Dempsey, Cleveland, Ohio, on brief. Ronald Pollock, New York City, for plaintiffs-appelleesLloyd B. Snyder and Edward R. Stege, Jr., Cleveland, Ohio, on brief. Before PHILLIPS, Chief Judge, and WEICK and LIVELY, Circuit Judges. PER CURIAM. The motion to vacate the stay order entered by a single Judge of this Court at a time when the Court was not in session and when exceptional circumstances existed, has been considered and is hereby denied. The appeals were expedited by order of the Court and have been briefed and argued orally. We need not consider the appeal from a Memorandum of the District Court dated October 31, 1972, as this Memorandum did not constitute a final appealable order, although it was marked by the Clerk of the District Court as a judgment. The appeal which we consider is from a partial summary judgment entered by the District Court on December 15, 1972, in which the Court ordered that the Board of Education of the Cleveland City School District, the Superintendent of Schools, and the Deputy Superintendent provide school lunch programs by January 8, 1973, for thirty public schools and for thirty additional' public schools by April 30, 1973, which shall comply with the requirements of the National School Lunch Act. The Cleveland City School District consists of about one hundred seventy-eight schools. Free hot lunches are already being served in all but about fifty-four of such schools. The schools so served are especially the needy ones. Funds to pay the cost and expense of serving the lunches are supplied largely by the Federal Government through the Department of Agriculture. These funds are channeled through state educational officials to the local school districts which agreed to participate in the programs. The state, as well as the local school districts, contribute to the cost of the programs. Although the State of Ohio educational officials were made parties defendant to the action by the plaintiffs, the District Court made no' finding or order against them. The Department of Agriculture was not made a party defendant. Depositions were taken of officials of the Department of Agriculture by counsel for the School Board. Their testimony was to the effect that the School Board had complied substantially with the Act and the applicable regulations. The depositions were filed with the Clerk of the District Court prior to the entry of the summary judgment, but the District Court declined to consider them. The construction and interpretation of the statute and applicable regulations by the agency charged with their administration were entitled to be given great weight by the Court. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); Udall v. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); Bowles v. Seminole Rock Co., 325 U.S. 410, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945). The District Court erred in not considering the testimony of these officials. Since the Agriculture Department officials apparently have agreed with the School Board and not with the plaintiffs, it was imperative that the Department be made a party defendant in order to bind it by any judgment entered by the Court. The Act certainly did not contemplate that the School Board should bear the entire cost and expense of the school lunch program without contribution from either the state or federal governments. The School Board has been operating at a deficit. It was the contention of the School Board that it was proceeding in good faith as rapidly as possible with the funds it had, to supply all needy children from families with - incomes below the national poverty level with free or reduced-cost hot lunches. • It was the contention of the plaintiffs that the Board should supply such lunches to all needy children, immediately, in the other fifty-four schools, either by providing cold lunch boxes in such schools where there are no facilities, or by contracting with commercial suppliers with mobile units to provide hot lunches. The Board on July 7, 1972, made written application to the Department for an allowance of $700,000, to provide a central commissary and a satellite kitchen program for the schools, and to purchase trucks for transportation of the food. Subsequently it applied for $1,-300,000 for the same purposes. The Department has not acted on these applications. It is not for us to act as a super Board of Education and to tell the duly elected Board members how to operate the public schools. It would seem to us anomalous for the Board to furnish hot lunches in the one hundred twenty-four schools now being served, and to serve cold lunches in the remaining fifty-four schools with which plaintiffs are concerned. We would question the authority of the Board' under the provisions of the Act to discriminate against any of the schools within its district. Nor should we instruct the Board to hire independent suppliers when it desires to perform the work with its own employees. In our opinion it was error to enter summary judgment against the Board and its officials as there were disputed issues of both fact and law. S. J. Groves & Sons v. Ohio Turnpike Comm’n, 315 F.2d 235 (6th Cir.), cert. denied, 375 U.S. 824, 84 S.Ct. 65, 11 L.Ed.2d 57 (1963). It was also error to proceed without making the Department of Agriculture a party defendant, as it was an indispensable party to a determination of the issues. Gardner v. Nashville Housing Authority, 468 F.2d 480 (6th Cir. 1972); Boles v. Greeneville Housing Authority, 468 F.2d 476 (6th Cir. 1972). It was also error not to include in its judgment the state educational officials. The judgment of the District Court is reversed and the cause is remanded with instructions to require the plaintiffs to file an amended complaint making the Department of Agriculture a party defendant; to conduct an evidentiary hearing; to adopt findings of fact and conclusions of law; and to enter judgment in accordance therewith. Reversed. . 42 U.S.C. § 1751 et seq.

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UNITED STATES of America and Peter B. Parish, Agent, Internal Revenue Service, Petitioners-Appellants, v. The CLEVELAND TRUST COMPANY, Respondent-Appellee, and John Miceli, Intervenor-Appellee. No. 72-1804. United States Court of Appeals, Sixth Circuit. Argued Feb. 2, 1973. Decided March 7, 1973. Carleton D. Powell, Tax Division, Department of Justice, Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, John P. Burke, Attys., Tax Division, Department of Justice, Washington, D. C., on brief, for petitioners-appellants; Frederick M. Coleman, U. S. Atty., of counsel. Takashi Ito and Robert J. Rotatori, Cleveland, Ohio, D. C. Armour, Cleveland, Ohio, on brief, for respondent-appellee. Gold, Rotatori, Messerman & Hanna, by Robert J. Rotatori, Cleveland, Ohio, for intervenor-appellee. Before WEICK, EDWARDS and KENT, Circuit Judges. PER CURIAM. This is an appeal by the United States from an order of the United States District Court for the Northern District of Ohio denying judicial enforcement of a summons issued under the provisions of § 7602 of the Internal Revenue Code of 1954. 26 U.S.C. §§ 7602, 7402(b), 7604(a) (1970). The judgment of the District Court was entered some months before the United States Supreme Court decided Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973). In that case the Supreme Court held that enforcement should be granted in relation to a government summons of financial reports and data turned over by taxpayer to her accountant for preparation of her income tax returns. We believe the fact situation in Couch, on the basis of which the taxpayer therein argued that material in her accountant’s hands was protected by her Fifth Amendment right of privacy, was somewhat stronger in support of that argument than is the fact situation in this case. In this case the data sought by the government consists of a financial report of the taxpayer submitted to the Cleveland Trust Company for the purpose of securing a commercial loan. We do not believe that one supplying such a report for such a purpose retains his constitutional right of privacy therein. It is our belief that the Couch case is authority for deciding this case in favor of the government, as far as the major legal argument presented to us on this appeal is concerned. The District Judge, however, relied in his opinion upon Donaldson v. United States, where the Court said: We hold that under § 7602 an internal revenue summons may be issued in aid of an investigation if it is issued in good faith and prior to a recommendation for criminal prosecution. Donaldson v. United States, 400 U.S. 517, 536, 91 S.Ct. 534, 545, 27 L.Ed.2d 580 (1971). The District Judge then held as a matter of fact that the taxpayer here was being investigated solely for criminal purposes and that the revenue summons had not been issued “in good faith.” On the total record of this case, we hold that these findings of the District Judge are clearly erroneous. It is clear, of course, from the record in this case that the opening of a civil tax investigation into the tax returns of Miceli Dairy Products Co., Inc., in which John Miceli was a principal stockholder, was initiated by a representative of the Strike Force assigned in the Cleveland area to investigate organized crime on behalf of the Department of Justice of the United States. It appears to us that the District Judge’s bad faith finding was directly related to his view that there was something odious about the Strike Force’s recommendation of a civil audit. This court does not see why the transmission of information between two different units of the federal government pertaining to a possibility of tax liability should be the subject of judicial condemnation. As we see this matter, the question is whether on this record there was in fact a good faith investigation of the civil liability of the Miceli Dairy and/or John Miceli individually, or whether the sole purpose of the investigation was the criminal prosecution of John Miceli. It is uncontested on this record that there had been at the time of the issuance of this summons neither an indictment concerning John Miceli nor a recommendation for prosecution. And we know of no reason why, if gross receipts of the corporation had been falsely understated, the fact that information was provided to the civil side of the Internal Revenue Audit Division by agents usually concerned with criminal prosecution should immunize the taxpayer corporation from investigation as to its civil liability for additional taxes. In United States v. Couch, supra, the Supreme Court said: It is now undisputed that a special agent is authorized, pursuant to 26 U. S.C. § 7602, to issue an Internal Revenue summons in aid of a tax investigation with civil and possible criminal consequences. In Donaldson v. United States, 400 U.S. 517 [91 S.Ct. 534, 27 L.Ed.2d 580] (1971), the Court upheld such a summons, noting that: “Congress clearly has authorized the use of the summons in investigating what may prove to be criminal conduct. . . . There is no statutory suggestion for any meaningful line of distinction, for civil as compared with criminal purposes, at the point of a special agent’s appearance. . . To draw a line where a special agent appears would require the Service, in a situation of suspected but undetermined fraud, to forgo either the use of the summons or the potentiality of an ultimate recommendation for prosecution. We refuse to draw that line and thus to stultify enforcement of federal law.” 400 U.S., at 535-536 [91 S.Ct., at 544], United States v. Couch, supra. (Footnotes omitted.) The judgment of the District Court is vacated and the case is remanded for the purpose of enforcement of the summons.

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J. Roland HAHN, Plaintiff-Appellant, v. WOODMEN ACCIDENT AND LIFE CO., Defendant-Appellee. No. 72-1852. United States Court of Appeals, Sixth Circuit. Argued Jan. 31, 1973. Decided March 6, 1973. Carl William Hinton, Findlay, Ohio, for plaintiff-appellant; Hinton, Noble & Bryant, Findlay, Ohio, on brief. Thomas B. Ridgley, Columbus, Ohio, for defendant-appellee; Vorys, Sater, Seymour & Pease, Columbus, Ohio, on brief. Before WEICK, EDWARDS and CELEBREZZE, Circuit Judges. PER CURIAM. Appellant Hahn, in 1964, signed a contract with defendant life insurance company as a district manager and a salesman for said company of life and accident insurance. Defendant company terminated this contract by written notice on October 8, 1971. Invoking the diversity jurisdiction of the United States District Court for the Northern District of Ohio, appellant filed a very brief complaint, pleading breach of contract, seeking $350,000 damages and attaching a copy of the contract. Defendant company thereupon filed a motion to dismiss, asserting that the complaint failed' “to state a claim upon which relief can be granted against defendant,” attaching thereto a copy of the company’s letter discharging appellant Hahn. Appellant filed no response to the motion to dismiss as required by local court rule. The District Judge noted that the contract contained a clause which made it permissible for either party to terminate the contract upon written notice and interpreted this contract section to be uncontestable. He thereupon dismissed the complaint without prejudice to appellant’s refiling an action for accounting. Since we believe the basic dispute between these parties was pled in general terms, yet with sufficient particularity to state a cause of action, we reverse. Appellant’s breach of contract complaint said in part: Defendant is in breach of the agreement with the plaintiff in that it has failed to perform its covenants and promises; that the attempted termination of the contract by defendant was contrary to its provisions, unjust, unreasonable, and contrary to law. The contract attached provided in considerable detail for the continued payments of commissions to appellant on policies which he had sold, unless the discharge was “for cause.” In the event he was discharged “for cause,” all payments under the contract would cease. The letter of discharge was “for cause.” We believe that the pleadings and the various motions filed served at least generally to pose the issue as to whether or not appellee company’s discharge “for cause” of appellant Hahn was valid under the language of the contract and the facts of this case. While the complaint in this case was less than artfully drawn, and we agree completely with the District Judge that appellant should have responded to' the motion to dismiss, we do not think that anyone has been misled or that the interests of justice would be served by requiring this case to be started all over again. On motion for reconsideration of the order of dismissal, appellant Hahn made all of the responses which he should have made to the motion to dismiss in the first instance. At that point we believe an order should have been entered allowing him to amend his bill of complaint. This can now be accomplished by our vacation of the order of the District Court and remand of this case for trial. The judgment of the District Court is reversed and remanded for further proceedings consistent with the above.

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Edward W. CHAUNCEY, Petitioner-Appellee, v. SECOND JUDICIAL DISTRICT COURT, WASHOE COUNTY, RENO, NEVADA, and Carl Hooker, Warden, Nevada State Prison, Respondents-Appellants. No. 72-2538. United States Court of Appeals, Ninth Circuit. Feb. 26, 1973. Chambers, Circuit Judge, concurred and filed opinion. Robert List, Atty. Gen., Herbert F. Ahlswede, Chief Deputy, Atty. Gen., Carson City, Nev., Robert E. Rose, Dist. Atty., Kathleen M. Wall, Chief Deputy, Dist. Atty., Reno, Nev., for respondents-appellants. Charles M. Murphy, of Adams, Reed, Bowen & Murphy, Reno, Nev., for petitioner-appellee. Before CHAMBERS, BROWNING, and DUNIWAY, Circuit Judges. PER CURIAM: Chauncey is a Nevada state prisoner. Nevada has charged him with the crime of escape, and he asserts that Nevada has deprived him of his right to a speedy trial on that charge. In Chauncey v. Second Judicial District Court, 453 F.2d 389 (9th Cir. 1971), we ordered the district court to hold an evi-dentiary hearing on Chauncey s petition for habeas corpus. That has been done, and the district court has enjoined the state from giving any effect to the charge and detainer lodged against Chauncey. The facts revealed in the hearing below showed that while serving a sentence for burglary in Arizona, Chauncey sought by various motions and letters to be brought to trial in Nevada on a pending Nevada charge of his having unlawfully escaped from prison in that state. Prison officials in Arizona misinformed Chauncey as to the county from which the Nevada charge emanated. Thus, Chauncey’s initial demands for trial were directed to the courts and prosecutors of the wrong county and were ignored. Chauncey’s subsequent communications to the Nevada State Prison Warden, the Nevada attorney general, and the Nevada Supreme Court did not come to the attention of the officials in the county where venue was laid for more than three years from the start of Chauncey’s efforts to enforce his right. Before any action was taken, however, Chauncey, completed his term of confinement in Arizona and was released to Nevada authorities, who returned him to prison to complete his sentence on an earlier conviction. In addition, prosecution was then commenced on the escape charge. The state contends that Chauncey’s right to a speedy trial was not abridged because once the correct set of county officials learned of Chauncey’s demands they did not engage in excessive delay in bringing Chauncey to trial. This is too cramped a view of the state’s “constitutional duty to make a diligent, good-faith effort” to bring a prisoner confined in another jurisdiction to trial, Smith v. Hooey, 393 U.S. 374, 383, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). Although we are not confronted with a deliberate attempt to delay the trial in order to hamper the defense, the more neutral reason that the state ascribes to the delay here, being akin to negligence, must be weighed against the state. Barker v. Wingo, 407 U.S. 514, 581, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Likewise, the other factors delineated in Barker v. Wingo weigh in Chauncey’s favor. He has sedulously and tenaciously asserted his right, and the prejudice he has suffered is amply explained in Smith v. Hooey, supra. Affirmed. CHAMBERS, Circuit Judge (concurring) : While I adhere to my original dissent in Chauncey v. Second Judicial District Court, 453 F.2d 389 (1971), I recognize that the majority there established the law of the case. Therefore, I concur in the foregoing per curiam opinion on this second time around.

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The UNITED STATES, Plaintiff-Appellee, v. Anthony Frank MANCINO, Defendant-Appellant. No. 72-1617. United States Court of Appeals, Eighth Circuit. Submitted Feb. 16, 1973. Decided March 7, 1973. Certiorari Denied June 18,, 1973. See 93 S.Ct. 3020.. Peter J. Lindberg, Minneapolis, Minn., for appellant. J. Earl Cudd, Asst. U. S. Atty., Minneapolis, Minn., for appellee. Before HEANEY and ROSS, Circuit Judges, and BENSON, Chief District Judge. PER CURIAM. Anthony Frank Mancino was convicted of having received three firearms in commerce, after being convicted of a felony, in violation of 18 U.S.C.App. § 1202(a). We affirm the conviction. The facts disclosed that the three guns in question had been manufactured in Connecticut and Massachusetts and were shipped to Minnesota in 1966 and 1970. The three guns were sold to the S & N Hardware Store at Motley, Minnesota, and on or about April 30, 1971, all three guns were stolen from the S & N Hardware by Charles Thiede. The evidence shows that Thiede sold the three guns to Mancino on April 30, 1971. Mancino raises several questions on this appeal, all of which relate to the constitutionality and interpretation of 18 U.S.C. App. § 1202(a). As to the constitutionality of this section, this Court has heretofore held it to be constitutional in United States v. Synnes, 438 F.2d 764, 773 (8th Cir. 1971). In that case this Court also held that no nexus need be shown with interstate commerce in receipt and possession cases and noted its disagreement in that regard with United States v. Bass, 434 F.2d 1296 (2nd Cir. 1970), aff’d, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). The Second Circuit had held in Bass that in order to avoid serious constitutional problems, § 1202(a) should be interpreted to include a requirement that receipt and possession be shown in each case to have been “in commerce or affecting commerce.” On appeal the Supreme Court affirmed Buss, concluding that the provisions of § 1202(a) were ambiguous and that the phrase “in commerce or affecting commerce” was a part of all three offenses described in the section — receipt, possession and transportation. The Supreme Court however, did not declare the section unconstitutional. Later the Supreme Court vacated the judgment in Synnes for further consideration in light of Bass. Synnes v. United States, 404 U.S. 1009, 92 S.Ct. 687, 30 L.Ed.2d 657 (1972). But in our view, that action resulted solely from our determination that no nexus with commerce need be shown, and our determination therein that the statute is constitutional, is still viable. Mancino also claims on this appeal that no nexus with interstate commerce was shown and that the instructions relating thereto were in error. The trial court instructed the jury that the essential elements of the crime charged were: “First: That the defendant at the time and place charged in each count of the indictment, received a firearm; Second: That such receipt was in commerce or affecting commerce; Third: That at the time of such receipt, defendant had been convicted of a felony by a Court of the State of Minnesota.” The trial court also instructed the jury that “a firearm is received in commerce or affecting commerce if it had previously traveled between two states of the United States.” We find no error in the instructions and no inadequacy in the proof. The guns had been manufactured in other states and had been shipped into Minnesota. In United States v. Bass, supra, Mr. Justice Marshall, writing for the majority, stated as follows: “The Government can obviously meet its burden in a variety of ways. We note only some of these. For example, a person ‘possesses ... in commerce or affecting commerce’ if at the time of the offense the gun was moving interstate or on an interstate facility, or if the possession affects commerce. Significantly broader in reach, however, is the offense of *receiv[ing] in commerce or affecting commerce,’ for we conclude that the Government meets its burden here if it demonstrates that the firearm received has previously traveled in interstate commerce.” (Emphasis supplied.) Id., 404 U.S. at 350, 92 S.Ct. at 524. . Mancino claims this language is dicta, but in our view it is not only a correct statement of the law but also the only indication which we have been given by the Supreme Court as to its interpretation of the requirement. We note that the Sixth Circuit and the Ninth Circuit have also recently relied upon this portion of Bass. United States v. Brown, 472 F.2d 1181 (6th Cir., 1973); United States v. Giannoni, 472 F.2d 136 (9th Cir., 1973). For these reasons, the judgment of conviction is affirmed. . § 1202. Receipt, possession, or transportation of firearms— Persons liable; penalties for violations (a) Any person who— (1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, . . . and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.

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INTERNATIONAL DAIRY ENGINEERING CO. OF ASIA, INC. and Foremost Dairies Vietnam, S.A.R.L., Plaintiffs-Appellants, v. AMERICAN HOME ASSURANCE COMPANY, Defendant-Appellee. No. 26742. United States Court of Appeals, Ninth Circuit. Jan. 3, 1973. Harlon P. Rothert (argued), of Cush-ing, Cullinan, Hancock & Rothert, Wayne D. Hudson, Thomas F. Wolfe, J. Robert Notz, Jr., Legal Dept., Foremost-McKesson, Inc., San Francisco, Cal., for plaintiffs-appellants. W. Martin Tellegen (argued), Lyman Henry, of Hall, Henry, Oliver & Mc-Reavy, San Francisco, Cal., for defendant-appellee. Before HAMLIN, BROWNING and WRIGHT, Circuit Judges. HAMLIN, Circuit Judge: International Dairy Engineering Co. and Foremost Dairies (hereinafter Foremost) appeal from a determination by the United States District Court for the Northern District of California, sitting without jury, that the destruction by fire of certain of their property caused by a parachute flare dropped from an unidentified military aircraft came within the war risk exclusion clause of an insurance policy issued on said property by appellee American Home Assurance Co. (hereinafter American), so as to relieve the latter of liability thereunder. Foremost urges reversal upon the grounds that the District Judge made inaccurate findings of fact and misinterpreted the applicable legal principles. We affirm. Foremost maintained and operated a milk processing plant in the Thu Due District, South Vietnam, which lies directly east of Saigon. The plant was situated approximately five miles east of Ton Son Nhut Air Base, a combined military-civilian airfield immediately adjacent to Saigon. On June 1, 1965, American issued its Marine Open Policy No. 178 to Foremost. In addition to providing standard marine coverage for shipments to Vietnam, the policy was extended to afford land coverage to Foremost’s property while at the warehouses or processing plants. On May 26, 1967, a fire caused by an aerial parachute flare dropped from an unidentified military aircraft destroyed a large stock of Foremost’s box material, valued at approximately $88,000, which had been stored directly adjacent to the processing plant. The insurance policy was in full force and effect at the time, but American denied liability at trial solely on the basis that the loss was excluded by the policy’s war risk exclusion clause, Paragraph 6A, providing in pertinent part: “Notwithstanding anything contained to the contrary, this insurance is . . . warranted free from the consequences of hostilities or warlike operations (whether there be a declaration of war or not), but this warranty shall not exclude . . . fire . . . unless caused directly ... by a hostile act by or against a belligerent power. “Further warranted free from the consequences of civil war, revolution, rebellion-, insurrection, or civil strife arising therefrom, or piracy.” The District Judge agreed with American, finding that (a) the dropping of the parachute flare which caused the fire destroying Foremost’s property was a hostile act within the meaning of the aforementioned exclusion clause, and (b) the loss was a consequence of the belligerent activities, also within the provisions of the exclusion clause. Foremost has argued strenuously on appeal that (1) the utilization of parachute flares by allied forces in Vietnam for various purposes precludes the labeling of the use of the parachute flare in question as a “hostile act”; (2) American failed to sustain its burden below of proving that the fire was a product of a civil war, rebellion, revolution, or insurrection; and (3) even if the dropping of the subject parachute flare is deemed a “hostile act,” the fire loss should not be subject to the war risk exclusion clause, because it was the negligent dropping thereof, as opposed to the hostile character of its use which resulted in the fire. The District Judge, in a well considered opinion dated June 23, 1970, concluded that “the flare was obviously dropped in connection with military operations against . . .Viet Cong and . . . the loss was a consequence of civil war, revolution, rebellion, insurrection and civil strife arising therefrom, wi.thin the meaning of the policy.” An examination of the record shows these findings to be based on substantial evidence; they are certainly not “clearly erroneous.” The Court further found that “the dropping of the flare was itself, a hostile act by one belligerent against another and was clearly the dominant, effective, proximate, direct cause of the loss regardless of whether that hostile act was negligently performed.” The District Judge correctly summarized the applicable law in rejecting Foremost’s contention that a hostile act loses its hostile character when negligently performed. Judgment affirmed. . Reference to this opinion in 352 F.Supp. 827 (N.D.Cal.1970) is made for further details and findings. . See, The Amy Warwick, 67 U.S. 635, 17 L.Ed. 459 (2 Black 635) (1862); Home Ins. Co. v. Davila, 212 F.2d 731, 736 (1st Cir. 1954). . United States v. Welp, 469 F.2d 688 (9th Cir. 1972). Foremost’s assertion that this standard is modified in cases, such as this one, where some of the evidence consists of depositions, is not the law in this circuit. Snider v. England, 374 F.2d 717, 720 (9th Cir. 1967); Lundgren v. Freeman, 307 F.2d 104, 113-115 (9th Cir. 1962).

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UNITED STATES of America, Plaintiff-Appellee, v. Glory Walter USHAKOW, Defendant-Appellant. No. 72-2654. United States Court of Appeals, Ninth Circuit. Feb. 13, 1973. Rehearing Denied April 30,, 1973. Benjamin Lazarow (argued), Tucson, Ariz., for defendant-appellant. David S. Hoffman, Asst. U. S. Atty. (argued), Daniel G. Knauss, Asst. U. S. Atty., William C. Smitherman, U. S. Atty., Tucson, Ariz., for plaintiff-appel-lee. Before CHAMBERS and WALLACE, Circuit Judges, and LUCAS, District Judge. Honorable Malcolm M. Lucas, United States District Judge, Los Angeles, California, sitting by designation. PER CURIAM: Ushakow appeals his conviction subsequent to a jury trial on a one-count indictment charging possession of marijuana with intent to distribute and aiding and abetting, all in violation of 21 U.S.C. § 841(a)(1). We affirm. Ushakow challenges the admissibility of certain testimony. First, he objects to a conversation related by Carlon between Chicas and himself pertaining to who sold marijuana in Nogales. Chicas spoke in Spanish and there was no proof that Ushakow understood Spanish. However, the record reflects that Carlon was translating and was merely a language conduit between Ushakow and Chi-cas. Therefore, his testimony is within the same exception to the hearsay rule as when a defendant and another are speaking the same language. Subsequent to this conversation, Usha-kow and Carlon drove to Nogales and discussed marijuana in English with Trujillo; this discussion was clearly admissible. Ushakow also objects to Carlon’s testimony concerning a later conversation when he was not present. Carlon testified that, about one month later, he contacted Trujillo about marijuana Ushakow was to receive in Tucson. Plans concerning delivery were discussed. Although a conspiracy was not alleged, the discussion was properly allowed in evidence on the basis of the joint venture exception to the hearsay rule. See United States v. Williams, 435 F.2d 642 (9th Cir. 1970), cert. denied, 401 U.S. 995, 91 S.Ct. 1241, 28 L.Ed.2d 533 (1971); United States v. Griffin, 434 F.2d 978 (9th Cir. 1970), cert. denied, 402 U.S. 995, 91 S.Ct. 2170, 29 L.Ed.2d 160 (1971). As with its twin brother conspiracy, the trier of fact first must determine the existence of the joint venture as a prerequisite foundation to the admission of any statements against the accused. Here the question was presented to the jury, but the trial court neglected to instruct that the joint venture must be proven beyond a reasonable doubt. See Griffin, supra, at 984. However, no objection was raised to the joint venture instructions and reversal can occur only when there is plain error. Fed.R.Crim. P. 52. The court gave a proper presumption of innocence — reasonable doubt instruction and stated that it applied to every element of the case. Under the circumstances, we cannot say there is plain error. Ushakow next complains that a customs agent was allowed to repeat a report he heard over his two-way radio that Ushakow had given a signal to Car-Ion. Any error was harmless as Carlon testified to the same fact. Finally, Ushakow challenges the receipt into evidence of fifteen boxes of plastic baggies found in his vehicle at the time of his arrest. He contends that the baggies could be used for a lawful purpose. He is correct. But when the defendant was charged with possession with intent to distribute marijuana, the jury could, and apparently did, draw an equally plausible contrary inference. There was no error.

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UNITED STATES of America, Appellant, v. Matthew F. WHITAKER et al., Appellees. UNITED STATES of America, Appellant, v. Matthew F. WHITAKER et al., Appellees. Nos. 72-1682, 72-1683. United States Court of Appeals, Third Circuit. Argued Dec. 5, 1972. Decided Feb. 27, 1973. Certiorari Denied June 18, 1973. See 93 S.Ct. 3003, 3014. Carl J. Melone, U. S. Atty., Philadelphia, Pa., Sidney M. Glazer and John J. Robinson, Attys., Department of Justice, Washington, D. C., Raymond E. Ma-kowski, Sp. Atty., Department of Justice, Philadelphia, Pa., for appellant. Gilbert B. Abramson, Philadelphia, Pa., for appellee William Wilson in No. 72-1683. Robert G. Carr, Baltimore, Md., for appellees Elaine Perrera and Michael Charles Benicky in No. 72-1682. Herman Schwartz, Buffalo, N. Y., for appellee William Wilson in No. 72-1683 and appellees Elaine Perrera and Michael Charles Benicky in No. 72-1682. Norman C. Henss, Philadelphia, Pa., for appellees Matthew F. Whitaker and James Whitaker in Nos. 72-1682 and 72-1683 and James J. Avella and Peter Smith in No. 72-1683. Edward G. Tremel, Biloxi, Miss., for appellee Peter J. Martino in No. 72-1682. Paul D. Sulman, Philadelphia, Pa., for appellees Aldo Magnelli and Almond Magnelli in No. 72-1683. Before VAN DUSEN, GIBBONS and HUNTER, Circuit Judges. OPINION OF THE COURT PER CURIAM: The Government appeals pursuant to 18 U.S.C. § 2518(10) (b) from an order granting the defendants’ motions to suppress evidence found by the district court to be the fruits of an electronic surveillance made pursuant to a warrant issued on the authority of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. 18 U.S.C. §§ 2510-2520. The district court, 343 F. Supp. 358, granted the suppression on the ground that Title III is unconstitutional on its face, in that it fails to meet the requirements for a lawful electronic surveillance imposed by the fourth amendment. Most of the same constitutional arguments with respect to Title III were presented to this Court in United States v. Cafero, 473 F.2d 489 (3d Cir. 1973), and were rejected. That, case controls, except for one issue considered by the district court in this ease but not in Cafero. As a separate ground for decision the district court in this case held that Title III was constitutionally deficient in failing to require prompt notice, after surveillance, not only to the persons named in the order, whose telephones were to be tapped, but also to all those whose conversations were intercepted as a result. In so holding, the district court relied in part on United States v. Gervato, 340 F.Supp. 454 (E.D.Pa.1972), which was subsequently reversed by this Court. United States v. Gervato, 474 F.2d 40 (3d Cir., 1973). As with warrants to search for tangibles, Fed.R.Crim.P. 41, the warrant and notice requirements of Title III are directed to the protection of the primary target of the search. It has never been suggested that because letters in the possession of that primary target might contain communications from other parties those other parties are constitutionally entitled to notice and an inventory. Nor are such other parties aggrieved persons within the meaning of Title III. Alderman v. United States, 394 U.S. 165, 175-76 n. 9, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). Indeed, while it might be possible to determine from signatures and return addresses on letters who might be entitled to such notice, from the typical telephone or face-to-face conversation electronically intercepted such a determination would be a literal impossibility. Thus far the Court, despite the opportunity to do so, has declined to hold Title III to be unconstitutional. See Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972). If it were inclined to do so, one would hope that its decision would be based on a more defensible ground than the absence of a statutory notice requirement impossible of fulfillment had it been enacted. It is, of course, desirable that the judge who authorizes the interception direct the filing, as promptly as reasonably possible, of the inventory contemplated by 18 U.S.C. § 2518(8)(d). That section, moreover, gives the judge discretion to cause service of the inventory upon other parties to the communication in cases where the communication has been such that the identity of such other parties is in fact known. But as we pointed out in Cafero, supra, Congress has directed that in the exercise of that discretion the district court carefully weigh the competing claims to privacy arising of necessity from the interception of spoken communication. The Order of the district court suppressing evidence obtained as a result of court authorized electronic interception will be reversed. . But cf. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). The right of privacy, whatever its source, has not yet been developed to the point of encompassing this case. . There was in this case a delay, which we deem to be unnecessary and within the control of the district court, in the preparation of a transcript of the intercepted conversations. The district courts should be alert to prevent delays due to this mechanical problem.

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James William DAULTON, Defendant-Appellant, v. UNITED STATES of America, Plaintiff-Appellee. No. 72-1891. United States Court of Appeals, Sixth Circuit. March 1, 1973. Kelley Asbury (Court Apptd.), Cat-lettsburg, Ky., for defendant-appellant. Eugene E. Siler, Jr., U. S. Atty., Eldon L. Webb, Asst. U. S. Atty., Lexington, Ky., for plaintiff-appellee. Before PHILLIPS, Chief Judge, and PECK and LIVELY, Circuit Judges. PER CURIAM. Appellant was indicted, convicted and sentenced for violation of 18 U.S.C. § 1201, the federal kidnapping statute. He contends that the use of the phrase “or otherwise” in sub-section (a) renders the statute unconstitutionally vague. Appellant argues that one person might feel compelled to transport another person across a state line for the other person’s own safety, even though- against his will. The quoted language would make the person so acting subject to imprisonment, he maintains, even though his sole purpose was to protect the person he had transported. The amendment to the Federal Kidnaping Act which added the phrase “or otherwise” was construed in Gooch v. United States, 297 U.S. 124, 56 S.Ct. 395, 80 L.Ed. 522 (1936) as being for the purpose of preventing the transportation of unlawfully restrained persons in interstate commerce “in order that the captor might secure some benefit to himself.” 297 U.S. at 128, 56 S.Ct. at 397. See also, United States v. McGrady, 191 F.2d 829 (7th Cir. 1951), cert. denied 342 U.S. 911, 72 S.Ct. 305, 96 L.Ed. 681 (1952). The obvious purpose of Sec. 1201 is too plain to warrant the assertion that any person of ordinary intelligence would fail to understand what conduct it forbids. United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954). The evidence in this case was that the defendant robbed his victim of $100.00 at gunpoint and then ordered him to drive from Ohio to Kentucky, still at gunpoint. The facts of this case are quite different from the hypothetical situation posed in defendant-appellant’s brief. Since the statute is constitutional as applied to the facts of this case, defendant-appellant has no standing to attack it on the ground that, as applied to other persons or in other situations, it might be unconstitutional. United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960). The judgment of the District Court is affirmed. . 18 U.S.C. § 1201(a) provides, in part: Whoever knowingly transports in interstate or foreign commerce, any person who has been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away and held for ransom or reward or otherwise, except, in the case of a minor, by a parent thereof, shall be punished .

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HEIRS of Leon DENENA v. COMMUNICATION, SPLICING AND ENGINEERING CO., INC., Appellant, and The Government Insurance Fund, Appellee. No. 72-1971. United States Court of Appeals, Third Circuit. Argued Jan. 31, 1973. Decided March 1, 1973. Alexander A. Farrelly, Birch, De Jongh & Farrelly, St. Thomas, V. I., for appellant. Henry L. Feuerzieg, Asst. Atty. Gen., St. Thomas, V. I., Ronald H. Tonkin, Atty. Gen., and Warren M. Pulner, Asst. Atty. Gen., for appellee. Before VAN DUSEN, MAX ROSENN and HUNTER, Circuit Judges. OPINION OF THE COURT PER CURIAM: Communication, Splicing and Engineering Company, Inc., appeals from a district court judgment affirming a decision of the Commissioner of 'Labor of the Virgin Islands requiring it to reimburse the Government Insurance Fund for a workmen’s compensation award and, in addition, to pay a thirty percent penalty, pursuant to the provisions of 24 V.I.C. § 261(a). The important facts in this case are not in dispute. Appellant, as a Virgin Islands employer, is subject to the workmen’s compensation laws found in 24 V. I.C. §§ 251-285. Section 272(b) sets forth the requirements for coverage of an employee, and section 273(c) provides for payment of the annual premium in two separate installments on or before March 31 and June 30 of the year in which it is due. Thus, an employer may delay full payment for several months after filing and still remain insured. On February 6, 1969, appellant filed a report on wages paid for the previous year and estimated wages for 1969. No part of the 1969 premium was paid during 1969, however, despite the installment dates mentioned above. On February 6, 1970, an employee named Leon Denena was electrocuted in the course of his work. After awarding $10,000.00 to Denena’s heirs, the Commissioner of Labor, by an authorized deputy, assessed the award and a thirty percent penalty against appellant upon finding that the company was uninsured at the time of the accident. This action occurred on July 1, 1970. The delinquent premium had finally been paid on February 27, 1970. Appellant’s principal argument on this appeal is that the district court erred in affirming the Commissioner’s decision because the doctrine of estoppel should have been applied against the government under the facts of this case. The district court agreed that prior to 1969 the custom had been for the Commissioner of Finance to assess workmen’s compensation premiums after receiving a company’s wage statement. This procedure was apparently changed in 1969, but the 1970 forms which were completed by appellant still recited the old procedure. Appellant maintains that its failure to pay was excusable since it expected to receive a bill, and it contends that the government should therefore be estopped from finding appellant uninsured and from ordering reimbursement of the award paid to Denena’s heirs and imposing the thirty percent penalty. The district court rejected this argument on the ground that appellant was negligent in failing to request a bill some time before the next year’s premium became due. After carefully considering the briefs, oral argument and the district court opinion, we conclude that no error was committed. The doctrine of estoppel is not often permitted against a government, and it cannot be successfully asserted here where the 1969 premium was not paid until after the accident in question at which time this premium was many months overdue. Appellant’s second contention is a request that if this court affirms the district court, we should remand the case with instructions to order reimbursement to appellant of the amount of his 1969 premium. Appellant’s theory is that the government should not be reimbursed for the award and also be allowed to keep the premium. The government concurred in this request at oral argument, and we agree that it is both fair and correct. Accordingly, we affirm the judgment of the district court as modified, and we remand this case to the district court so that it can determine through appropriate proceedings the exact sum of money which should be credited to appellant. . See, e. g., In re Hooper’s Estate, 359 F.2d 569, 577-578 (3d Cir. 1966).

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Nora B. AMRITT v. PARAGON HOMES, INC., Appellant, and Caleb E. Romero. No. 72-1592. United States Court of Appeals, Third Circuit. Submitted Under Third Circuit Rule 12(6) Feb. 2, 1973. Decided March 6, 1973. Howard K. Gibbs, Corneiro, Gibbs & Selke, St. Thomas, V. I., for appellant. Irwin J. Silverlight, Nichols & Silver-light, Christiansted, St. Croix, V. I., for appellee. Before VAN DUSEN, ROSENN and HUNTER, Circuit Judges. OPINION OF THE COURT ROSENN, Circuit Judge. Paragon Homes, Inc., appeals from the judgment of the District Court for the District of the Virgin Islands in the sum of $18,770 in favor of Nora B. Am-ritt. The judgment was awarded because of the faulty construction of a home built for her with materials supplied by, in part financed by, and erected by a contractor with apparent authority to act as agent for, appellant Paragon. The judgment amount represented an award of $1,000 attorneys fees, $900 for materials which Paragon had promised but never shipped, and $16,870, the approximate cost of the home. Paragon’s appeal challenges its liability for the $16,870. The district court, sitting without a jury, found that the house was unsuited for human habitation, and, because the cost of necessary repairs exceeded the value of the house, awarded Amritt the cost of the house. The district court found that the unfit condition of the home was due to the failure of the contractor, Caleb E. Romero, to compact the soil under the house before pouring concrete for the foundation. Romero was found jointly and severally liable with Paragon for his negligence. Paragon’s liability was based on a finding that Romero had apparent authority to act as Paragon’s agent. Paragon contends the district court judgment should be reversed because there was insufficient evidence to support its findings that (1) Paragon’s local representative Ray Sewer was its agent; (2) the contractor Romero was Paragon’s agent; and (3) Amritt’s home was unfit for habitation. We find sufficient evidence in the record for all three findings and affirm the judgment. The record discloses that Amritt arranged through Ray Sewer, a distributor for Paragon, to purchase materials, plans and drawings for a pre-fabricated home. Sewer represented himself to Amritt as Paragon’s agent and informed her that Paragon would not be responsible for the construction of the home unless she used the local contractor Romero. The construction agreement between Amritt and Romero was made on a form supplied by Paragon and filled in by Sewer. Amritt borrowed money from, and gave a mortgage to, Paragon for the construction costs. The mortgage specified that the home was to be built according to Paragon’s plans. All materials were shipped by Paragon to Amritt through Sewer. Payments to Romero were made by Amritt by depositing funds in escrow with Paragon. Paragon demanded a completion certificate signed by Amritt before disbursing any funds. Sewer also inspected the construction work for Paragon. After hearing the foregoing facts, the district court determined that both Sewer and Romero were Paragon’s agents. Although Paragon argued that Sewer was an independent distributor of its products and that Romero was an independent contractor, the court found both had all the outward trappings of apparent authority to be Paragon’s agents.' Amritt was, therefore, reasonably led to believe they were Paragon agents. The Virgin Islands have adopted the Restatement, Agency 2d (1958), in 1 V. I.C. § 4. The Restatement 2d § 27 states: apparent authority to do an act is created as to a third person by written or spoken words or any other conduct of the principal which, reasonably interpreted, causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him. Liability of a principal for the negligent acts of agents whom he has endowed with apparent authority to act for him is provided by Restatement 2d §§ 265, 267. Paragon’s entire conduct — supplying all materials and forms through Sewer, requiring that the house be inspected by Sewer and built according to its plans, disbursing all construction payments — could reasonably have led Amritt to believe that by its conduct Paragon had authorized both Sewer and Romero to act as its agents. Any inter se arrangement between Paragon and Sewer or between Paragon and Romero establishing a relationship other than that of principal and agent is unimportant in determining the existence of apparent authority. The crucial question is what representations were made to the third party, Amritt. The agreement between Amritt and Paragon for purchase of materials stated it was not an agreement for construction, but such printed representations by Paragon were in marked contrast with its overall conduct. It was for the trial judge to determine what would have been reasonable for Amritt to believe under the circumstances. We find no error in his conclusion that Paragon had endowed both Sewer and Romero with apparent authority to act in its behalf. There was substantial evidence in the record that the home constructed for Amritt was unfit for habitation. We do not find the district court clearly erroneous in so finding. Fed.Rule of Civ. Proc. 52(a). The judgment of the district court will be affirmed.

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UNITED STATES of America, Plaintiff-Appellee, v. Kerry Edward KNOX, Defendant-Appellant. No. 72-2740. United States Court of Appeals, Ninth Circuit. March 5, 1973. Sol E. Scarantino, Los Angeles, Cal., for defendant-appellant. William D. Keller, U. S. Atty., William J. Rathje and Michael Solner, Asst. U. S. Attys., Los Angeles, Cal., for plaintiff-appellee. Before ELY and GOODWIN, Circuit Judges, and SCHWARTZ, District Judge. The Honorable Edward J. Schwartz, United States District Judge, Southern District of California, sitting by designation. PER CURIAM: Kerry Edward Knox was convicted after a court trial for refusal to complete induction processing in violation of the Selective Service Act of 1967, 50 U.S.C. App. § 462. Knox testified at the trial and the government submitted its case on his Selective Service file. At the trial, Knox testified that he was afraid he would be arrested if he filled out USAREC Form 191-R, “Statement of Law Violations,” as ordered (R. T. pp. 10-12). His refusal to complete Form 191-R resulted in his indictment. Knox urges three grounds for appeal: 1. the Selective Service file was improperly admitted into evidence; 2. there was no evidence that the defendant was properly warned of the consequences of his actions as required by AR 601-270 and due process; and 3. the defendant’s refusal to cooperate was within the Fifth Amendment privilege against self-incrimination. It is established in this Circuit that an authenticated copy of a registrant’s Selective Service file is properly admissible into evidence. United States v. Lloyd, 431 F.2d 160 (9th Cir., 1970) cert. denied 403 U.S. 911, 91 S.Ct. 2210, 29 L.Ed.2d 688 (1971). The defendant’s testimony to the effect that he was not informed of the consequences of his failure to complete Form 191-R was not believed by the trial court. (R.T. pp. 13-14, 35.) Furthermore, at pages 28 and 29 of the Selective Service file, there is evidence, in the form of statements by personnel at the Armed Forces Examining and Entrance Station, that Knox was warned of the consequences of his failure to complete induction processing as required by AR 601-270. The trial court found that Knox’s fear of self-incrimination was “inherently incredible” (R.T. 35). Form 191-R does not request information on offenses known only to the registrant or require details not already of public record. It requires only that the registrant list the date, place and disposition of offenses for which the registrant has been “arrested, cited, charged or held.” The credibility of the defendant’s claimed fear of self-incrimination is undercut by his testimony that he went to the Armed Forces Examining Station with the intent to refuse to complete any forms, and that this intent was formed with the advice of counsel (R.T. 14, 15). It is clear from an examination of the transcript and Selective Service file that there is substantial evidence to support the trial court’s finding of guilt. The judgment is affirmed.

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Charles LOVELACE, Petitioner-Appellee, v. E. B. HASKINS, Superintendent, Respondent-Appellant. No. 72-1606. United States Court of Appeals, Sixth Circuit. Argued Feb. 6, 1973. Decided March 21, 1973. Leo J. Conway, Columbus, Ohio, William J. Brown, Atty. Gen. of Ohio, Thurman E. Anderson, Asst. Atty. Gen., Columbus, Ohio, on brief, for respondent-appellant. Hugh E. Kirkwood, Jr., Columbus, Ohio, for petitioner-appellee. Before WEICK, CELEBREZZE and PECK, Circuit Judges. PER CURIAM. The appellee was tried to a jury in Lorain County, Ohio, and was convicted of burglary and unlawful possession of burglary tools; he received a sentence of from 1 to 15 years. On September 17, 1968, the trial court overruled his motion for a new trial. The following day, his appointed counsel wrote a letter in which he informed the appellee that he had an absolute right to an appeal within 30 days, but that he would not be able to represent the appellee for any such appeal. The letter informed the appellee how to obtain appointed counsel for a direct appeal. Through no fault of his own, the appellee did not receive this letter until after the expiration of the 30 days, and his subsequent attempts to obtain judicial review of his case were fruitless; the appellant concedes that the appellee has exhausted his state remedies. The appellee filed this petition for a writ of habeas corpus in which he alleged that he was denied his right to a direct appeal because he had not been informed by counsel or by the court of his right to an appeal and of his right to court appointed counsel on appeal. After an evidentiary hearing, the District Court found that the appellee was denied the equal protection of the laws when he was not timely advised of his rights. Accordingly, the Court ordered the writ to issue ninety days after the filing of the Order, and ordered that the appellee be released from custody unless the state initiate action for a new trial or permit a direct appeal from his conviction within that ninety days. The respondent has perfected this appeal from that judgment. The appellant’s single contention is that the District Court failed to inquire into whether the appellee could present any non-frivolous legal or factual contentions to the state appellate court should the writ be granted, as required by this Court’s opinion in Henderson v. Cardwell, 426 F.2d 150 (6th Cir. 1970). It must be conceded that the recent cases from this Court are inconsistent on the issue of whether meritorious issues need be presented to the District Court in the circumstances of this case, but we agree with the District Court and what appears to be the better reasoned authority that an indigent, no more than an accused with retained counsel, should not be required to show that he has meritorious claims which he might present to the appellate court on a direct appeal. In Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1962), the Supreme Court struck down a California Rule of Criminal Procedure that provided that state appellate courts make an independent investigation of the record of an indigent to determine whether it would be of advantage to the defendant or helpful to the appellate court to have counsel appointed. In holding that this rule denied the equal protection of the laws to indi gents, the Court noted: “At this stage in the proceedings only the barren record speaks for the indigent, and, unless the printed pages show that an injustice has been committed, he is forced to go without a champion on appeal. Any real chance he may have had of showing that his appeal has hidden merit is deprived him when the court decides on an ex parte examination of the record that the assistance of counsel is not required.” 372 U.S. at 356, 83 S.Ct. at 816. The same consideration is equally applicable were a District Court to require an indigent petitioner, often without the aid of counsel, to present issues which the District Court would deem meritorious. The petitioner with retained counsel is not required “to run this gantlet of a preliminary showing of merit” (372 U.S. at 357, 83 S.Ct. at 816) in order to justify the issuance of a writ which would entitle him to the direct appeal which it is conceded was unjustly denied. Similarly, the indigent need only show that he was not informed of his right to a direct appeal or of his right to appointed counsel on such appeal. This holding is in accordance with recent decisions of this court: Woodall v. Neil, 444 F.2d 92 (6th Cir. 1971); Goodwin v. Cardwell, 432 F.2d 521 (6th Cir. 1970); see also United States ex rel. Smith v. McMann, 417 F.2d 648 (2d Cir. 1969, en banc), cert. denied, 397 U.S. 925, 90 S.Ct. 929, 25 L.Ed.2d 105 (1970); United States ex rel. Singleton v. Woods, 440 F.2d 835 (7th Cir. 1971). The judgment of the District Court is affirmed.

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PEPPER & TANNER, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 72-1591. United States Court of Appeals, Sixth Circuit. Argued Feb. 1, 1973. Decided March 1, 1973. James E. Irwin, Memphis, Tenn., for petitioner. Michael F. Messite, N. L. R. B., for respondent; Peter G. Nash, Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Robert A. Giannasi, Daniel M. Katz, Attys., N. L. R. B., Washington, D. C., John J. A. Reynolds, Jr., Director Region 26, N. L. R. B., Memphis, Tenn., on brief. Before PHILLIPS, Chief Judge, and PECK and LIVELY, Circuit Judges. PER CURIAM. This case is before the Court on the petition of Pepper & Tanner, Inc. (the Company) to review an order of the National Labor Relations Board and the cross-application of the Board for enforcement of its order. The decision and order of the Board are reported at 197 N. L. R. B. No. 23, to which reference is made for a recitation of pertinent facts. This court holds that substantial evidence on the record as a whole supports the findings of the Board that the Company violated §§ 8(a)(1), 8(a)(3) and 8(a)(5) of the Act in the particulars set forth in the decision of the Board. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). The Board ordered that the Company upon request bargain collectively with Radio and Television Engineers, Local Union 1275, International Brotherhood of Electrical Workers, AFL-CIO. The Company asserts that Local Union 1275 is no longer in existence, but has merged with another local union which does not represent the majority of the employees in the appropriate bargaining unit and has never been certified by the Board as bargaining representative. The answer of the Company to the Board’s cross-application for enforcement asserts that, without the knowledge of the Company, Local 1275 had been merged into a “purely electricians” Local 474 prior to the hearing on the unfair labor practice charges and that the General Counsel failed to disclose this merger to the Trial Examiner. This court is unwilling to enforce a bargaining order requiring the Company to bargain with a union which the record indicates is no longer in existence. Neither are we willing to require the Company to bargain with a successor or merged Union when there has been no adjudication by the Board, supported by substantial evidence, that the successor or merged union is the authorized bargaining representative of the employees in the appropriate unit. See Union Carbide & Carbon Corp. v. N. L. R. B., 244 F.2d 672 (6th Cir. 1957); Dickey v. N. L. R. B., 217 F.2d 652 (6th Cir. 1954). The Company has filed a timely motion for leave to adduce additional evidence before the Board pursuant to § 10(c) of the Act. Attached to the motion is a copy of a petition filed October 12, 1971, on behalf of Local 474 for an AC amendment of the certification previously issued with respect to Local 1275. This later proceeding was designated as Case No. 26-AC-21. Another exhibit to the motion of the Company is a copy of the order of the Regional Director, dated November 9, 1971, withdrawing the notice of hearing and closing ease No. 26-AC-21. Another exhibit is a copy of the following letter, purported to have been signed by five employees: January 28, 1972 Mr. Albert T. Byars, Senior Business Manager Electrical Workers Union, Local #474 Dear Mr. Byars: On January 25, 1972, we received notice to vote on a merger on Local 1275 into Local 474. This is to notify you in writing that the undersigned are opposed to such a merger. We want this letter to be filed in the minutes, since we do not believe that members of local 474 should be allowed to vote on this par- . ticular matter that only effects Pepper & Tanner employees. This involves our job conditions and only people at Pepper & Tanner, Inc., should vote. Sincerely, /s/ KING BRUMLEY, JR. /s/ WILLIE LEWIS MOORE /s/ MARK A. GOODMAN /s/ JOSEPH B. DIXON /s/ BILLY L. TANNER Enforcement of the bargaining order of the Board is denied. Enforcement is granted as to all parts of the Board’s order except those parts requiring the Company to bargain with Local 1275. We deny enforcement of subparagraphs (f) and (g) of paragraph 1 and subpar-agraphs (a) and (b) of paragraph 2. The motion of the Company for leave to adduce additional evidence is granted to the extent set forth below. The case is remanded to the Board with directions that evidence be heard and a determination made on the following questions : (1) Is Radio and Television Engineers, Local Union 1275, International Brotherhood of Electrical Workers, AFL-CIO still.in existence? (2) If not, is there a successor or merged Union which is the duly certified and authorized collective bargaining representative of the majority of the employees of the appropriate unit? If necessary, the Board is directed to conduct a Board-supervised election to determine this issue. No costs are taxed. Each party will bear its own costs. . The decision of the Trial Examiner states that there were six employees in the unit.

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In the Matter of FINANCIAL COMPUTER SYSTEMS, INC., a California corporation, Debtor. EQUITABLE LEASING CO., Respondent-Appellant, v. Richard CLEMENTS, Trustee-Appellee. No. 25628. United States Court of Appeals, Ninth Circuit. Feb. 5, 1973. Rehearing Denied March 15, 1973. James B. Bertero (argued), Bruce E. Clark, of Musick, Peeler & Garrett, Stephen R. Wolfson, of Tiernan & Moneymaker, Los Angeles, Cal., for respondent-appellant. Donald Rothman (argued), of Sulmeyer, Kupetz & Alberts, A. J. Bumb, Los Angeles, Cal., for trustee-appellee. Before ELY, HUFSTEDLER, and WRIGHT, Circuit Judges. ELY, Circuit Judge: Equitable Leasing Company sought reclamation, in bankruptcy proceedings, of two air conditioning units in the possession of the bankrupt’s trustee under an alleged lease agreement. The trustee refused to turn over the two units, claiming contrary to the express provisions of the written contract, that the alleged lease was a security agreement, and, as such, void because of the failure of Equitable to file a financing statement with the Secretary of State. Cal. Comm.Code § 9302. At the referee’s hearing the trustee was allowed, over strenuous objection by Equitable, to introduce oral evidence that clearly contradicted the written terms of the otherwise complete and unambiguous lease agreement. The contested evidence suggested that an oral option had been granted by Equitable to Financial (the bankrupt) enabling the now bankrupt lessee to purchase the air conditioning units upon termination of the lease for $1,094.00. Equitable objects that this oral evidence was inadmissible under the provisions of the California Commercial Code § 2201 and the parol evidence rule. Equitable also contends, secondly, that it was error to conclude that the written agreement was a conditional sales contract and not a straight lease; thirdly, that it was error to give effect to the alleged oral option to purchase because such an agreement violates the statute of frauds, Cal.Comm.Code § 2201 and Cal.Civ.Code § 1624(1); and finally, that the referee erred in not applying the doctrine of offset after it had been stipulated by the parties that there were rentals due Equitable under the terms of the lease. Since we conclude that the admission of the contested oral evidence violated the Commercial Code we do not reach Equitable’s additional assignments of error. Cal.Comm.Code § 2201(1) (West 1964) provides: “Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.” The comment following this code section recites that: “Only three definite and invariable requirements as to the memorandum are made by this subsection. First, it must evidence a contract for the sale of goods; second, it must be ‘signed’, a word which includes any authentication which identifies the party to be charged; and third, it must specify a quantity.” The lease contract, which was the only memorandum or writing offered into evidence, contains no mention of an option to purchase the two air conditioning units. To the contrary, the written agreement clearly and expressly provides for a straight lease with ownership remaining with Equitable at all times: “a. ‘The personal property hereby leased (hereinafter called the Property) shall at all times remain and be the sole and exclusive property of Lessor, and Lessee shall have no right or title therein, . . . . ’ “b. Paragraph 5 — ‘At the expiration of the lease period or termination of the lease pursuant to the provisions hereof, Lessee will return the property to lessor in as good condition as received less normal wear, tear and depreciation.’ “c. Paragraph 11. ‘This lease constitutes the entire understanding of the parties and shall not be altered or amended except by an agreement in writing signed by the parties hereto.’ ” Financial argues, however, that § 2201(1) of the Commercial Code is inapplicable because evidence of the oral option to purchase was introduced only to prove that the agreement was a security device and not a lease. The trustee thus argues that there was no attempt to “enforce” the option. We disagree. By its terms § 2201 of the Commercial Code applies to agreements to sell regardless of whether enforcement is sought “by way of action or defense.” As a result of the introduction of Financial’s oral evidence the trustee was able to exercise the very power it claims under the alleged purchase option agreement: the power to defeat Equitable’s reclamation action and to relegate Equitable’s claim in the air conditioning units to the position of an unperfected security interest. In our view this was “enforcement” of Financial's rights under the alleged oral agreement, and as such it was improper in the absence of “some writing sufficient to indicate that a contract for sale has been made between the parties. .” Cal.Comm.Code § 2201. Reversed.

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Mary Elizabeth WILSON, Plaintiff-Appellant, v. RETAIL CREDIT COMPANY, Defendant-Appellee. No. 72-2984. Summary Calendar. United States Court of Appeals, Fifth Circuit. Feb. 20, 1973. W. Roberts Wilson, Jr., Pascagoula, Miss., for plaintiff-appellant. Webb M. Mize, Gulfport, Miss., for defendant-appellee. Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges. Rule 18, 5th Cir. See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I. PER CURIAM: In this diversity case Mrs. Wilson appeals from the district court judgment dismissing her complaint on the ground that it is now barred by Mississippi’s statute of limitations. Miss.Code Ann. § 722 (1942). Because we affirm the district court’s judgment on the basis of Mississippi’s collateral estoppel rule, we find it unnecessary to reach the several contentions presented by Mrs. Wilson. In an earlier action brought by Mrs. Wilson against Retail Credit Company, the district court granted summary judgment against her. We subsequently affirmed the decision of the lower court. Mary Wilson v. Retail Credit Co., 438 F.2d 1043 (5th Cir. 1971). She has now brought this action which involves the same transactions and same legal rights as did her previous action against Retail Credit Company. Under these circumstances we think the Mississippi doctrine of collateral es-toppel is dispositive. The late Chief Justice Ethridge, of the Mississippi Supreme Court fully explicated the doctrine in his learned opinion in Garraway v. Retail Credit Co., 244 Miss. 376, 141 So.2d 727 (Miss.1962) : Collateral estoppel is a doctrine which operates, following a final judgment, to establish conclusively a matter of fact or law for the purposes of a later lawsuit on a different cause of action between the parties to the original action. ... In short, where a question of fact essential to a judgment is actually litigated and determined by a valid and final judgment, that determination is conclusive between the parties in a subsequent suit on a different cause of action. Id. at 730. Every citizen is entitled to his day in court; however, our judicial system was not designed as an experimental laboratory to license losing parties to bring vexatious and repetitive claims based on the same transaction. Affirmed. . Mrs. Wilson's late husband instituted a similar claim which resulted in a summary judgment in favor of appellee, W. R. Wilson v. Retail Credit Co., 325 F.Supp. 460 (S.D.Miss.1971). We affirmed. 457 F.2d 1406 (1972). . Mrs. Wilson's original suit was instituted on the theory of libel. We affirmed the dismissal of her action because she did not bring the suit within one year as required by the Mississippi statute of limitations applicable to libel actions. Miss. Code Ann. § 742 (1942). The instant complaint is grounded in products liability, misrepresentation and deceit, invasion of privacy, and interference with property and contract rights. Regardless of the disingenuous characterization, no new facts are alleged in the present litigation which were not already decided by the previous suit. . See also, Seguros Tepeyac, S.A., Compania Mexicana de Seguros Generales v. Jernigan, 410 F.2d 718 (5th Cir. 1969) and 1B J. Moore, Federal Practice ¶ 0.410 [3] at. 1351-53 (2d ed. 1965).

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Angelo BRUNO, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. No. 72-1543. United States Court of Appeals, Eighth Circuit. Submitted Feb. 16, 1973. Decided March 12, 1973. Kenneth K. Simons, Kansas City, Mo., for plaintiff-appellant. J. Whitfield Moody, Asst. U. S. Atty., Kansas City, Mo., for defendant-appel-lee. Before HEANEY and ROSS, Circuit Judges, and BENSON, Chief District Judge. PER CURIAM. On October 16, 1934, the appellant, Angelo Bruno, an alien, pleaded guilty in the Western District of Missouri to an indictment charging him with narcotic trafficking. The resulting sentence made no recommendation on the matter of deportation, a collateral consequence of conviction. In 1956, Bruno was deported pursuant to 8 U.S.C. § 1251. Subsequently, he was convicted of unlawful entrance. United States v. Bruno, 328 F.Supp. 815 (W.D.Mo.1971). Just prior to that decision, Bruno filed a petition for relief under Rule 35, attacking the deportation order arising out of the 1934 conviction. The district court, determined that Rule 35 was not appropriate to the relief sought, and treated the motion as a petition for writ of cor-am nobis, 336 F.Supp. 204. As grounds for his motion, the appellant alleged that at the time of sentencing, he was not represented by competent counsel, and was not advised of the consequences of a guilty plea. Appellant contended he was represented by one Joseph Cartella, a nonlawyer. The district court, after a thorough review of the evidence, found the claim to be without merit and accordingly denied the petition. On appeal, Bruno raises the sole issue of whether the district court erred in its finding that appellant’s allegation of denial of effective counsel was without substance. The district court found that one Joseph Miniace, an attorney, had in fact represented Bruno before the United States Commissioner, and further, based on a preponderance of the credible testimony, that Bruno was offered counsel and was in fact represented by counsel in his 1934 guilty plea. Due to the passage of years, memories fail and witnesses become sparse, making a complete reconstruction of the 1934 proceedings impossible. The district court’s examination of the evidence in the form of testimony and transcripts, however, led it to the conclusion that the proceedings giving rise to appellant’s conviction were conducted with adherence to all of the then required procedures. Judge Blair, who was an Assistant United States Attorney in 1934, and who made many appearances before Judge Albert L. Reeves (the judge who accepted appellant’s plea), testified that Judge Reeves “invariably” made sure that an accused was given appointed counsel prior to accepting a guilty plea, “no one who wanted a lawyer was denied one”. It is clear from the record that some person appeared with appellant on appellant’s 1934, October 16, 18 and 24 court appearances relating to the sentencing, but the name of that person was not shown on the docket sheets. Judge Blair related that Judge Reeves knew the members of the local bar, and would never, under any circumstances, have permitted a nonlawyer to appear as counsel for an accused. Only when the record discloses errors of fact of such fundamental nature as to render the proceeding itself irregular and invalid or to compel action to achieve justice, will coram nobis relief be granted. Ybarra v. United States, 461 F.2d 1195 (9 Cir., 1972); United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954). The district court, in passing upon the motion for coram nobis, has the right to reject those portions which he does not believe to be true, and his findings will not be reversed where there is any competent evidence in the record, together with reasonable inferences and deductions to be drawn therefrom supporting the findings. 18 Am.Jur.2d Coram Nob-is § 7. Further in this regard, the Ybarra Court, supra, said that there is a presumption of regularity when a criminal judgment is assailed in a coram no-bis proceeding. The evidence supports the district court’s finding on the issues presented and the court did not err in denying the petition for writ of coram nobis. The judgment of the district court is affirmed.

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Owen M. FRYE, Petitioner-Appellant, v. J. D. HENDERSON, Warden, U. S. Penitentiary, Atlanta, Georgia, Respondent-Appellee. No. 72-3332 Summary Calendar. United States Court of Appeals, Fifth Circuit. March 14, 1973. Owen M. Frye, pro se. John W. Stokes, U. S. Atty., Anthony M. Arnold, Asst. U. S. Atty., Atlanta, Ga., for respondent-appellee. Before JOHN R. BROWN, Chief Judge, DYER and SIMPSON, Circuit Judges. Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I. PER CURIAM: Owen M. Frye appeals the district court’s denial of his petition for an injunction against J. D. Henderson, Warden of the United States Penitentiary at Atlanta, Georgia. We affirm. The appellant, who is presently incarcerated in the Atlanta penitentiary, sought to enjoin the prison officials from censoring any of his outgoing mail as well as his incoming mail from his attorney, the courts and public officials on grounds that such action amounted to a denial of his right to freedom of speech and violated his attorney-client privilege. In support, the appellant submitted as exhibits, four envelopes from, inter alia, the district court and his attorney, which he alleged were “sliced open” in such a way as to damage the contents of the correspondence. After an answer with a supporting affidavit was filed by the respondent, the district court denied the petition, finding that Frye was not entitled to relief. We agree. “The control of prison mail is a matter of prison administration.” Brown v. Wainwright, 5th Cir. 1969, 419 F.2d 1308; O’Brien v. Blackwell, 5th Cir. 1970, 421 F.2d 844. And as the district court held, “[t]he mere censorship of a prisoner’s mail, considered often by the courts, is but a proper adjunct to prison discipline, so long as it does not interfere with a prisoner’s right to communicate with the courts.” Here, the appellant has failed to indicate, much less allege, that the manner of processing his outgoing mail has denied him free access to courts which would warrant judicial interference in this internal prison matter. Schack v. Wainwright, 5th Cir. 1968, 391 F.2d 608, cert. denied 1968, 392 U.S. 915, 88 S.Ct. 2078, 20 L.Ed.2d 1375. See also Perry v. Jones, 5th Cir. 1971, 437 F.2d 759. Actual censorship of attorney-inmate mail — be it incoming or outgoing —might very well infringe unconstitutionally in the prisoner’s rights of access to the courts. However, the district court found on the record before it, that the mail from these sources is not being censored, but merely opened by an electric letter opener to determine whether contraband is being sent into the prison. This is a legitimate prison policy, which does not deny any federally-protected right that prisoners have. The judgment appealed from is due to be and is hereby affirmed. Affirmed. . As the district court found, the damage to the contents of the letters was purely accidental and caused by temporary malfunction of the opening machine.

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Mitchell HAYES et al., Appellee, v. Charles J. MORSE et al., Appellants, and Midwest Haulers, Inc. No. 72-1526. United States Court of Appeals, Eighth Circuit. Submitted Feb. 14, 1973. Decided March 12, 1973. Alan M. Levy, Milwaukee, Wis., for appellant. Burton H. Shostak, St. Louis, Mo., for appellee. Before GIBSON and ROSS, Circuit Judges, and BENSON, Chief District Judge. PER CURIAM. This is an appeal from a declaratory judgment rendered on Plaintiffs’ motion, under Rule 57, Federal Rules of Civil Procedure, in a proceeding brought under 28 U.S.C. § 2201. The appellees, owner/operators of highway tractors have, for several years, driven for Midwest Haulers, Inc., a company engaged in the trucking business. By reason of this association with Midwest, the appellees applied for pension fund benefits from the appellant, Central States, Southeast and Southwest Areas Pension Fund (“The Fund”), a trust fund jointly administered by an equal number of employees with union trustees, in accordance with Section 302(c) of the Taft-Hartley Act, 29 U.S. C. 186(e). Midwest is signatory to a Participating Agreement with The Fund. Payments in behalf of the owner/operators had been made to the Fund. The Fund trustees declined to pay-pension benefits to the owner/operators, determining that they were not employees within the meaning of the Pension Plan. The District Court, 347 F. Supp. 1081, found the trustees’ determination was arbitrary, unsupported by substantial evidence, and erroneous on a question of law under the general common law test incorporated in Article I, Section 7(d) of the Plan, which provided : “In all instances, the common law test, or the applicable statutory definition of master-servant relationship shall control.” The issue presented for review was stated by the appellant, to-wit: “The Court erred in holding that the Defendant Pension Fund Trustees acted arbitrarily and improperly when they determined that Plaintiffs were not employees for purposes of receiving pension benefits . . . ” The appeal relates only to that part of the judgment of the District Court which determined that Appellees Shoemaker, Martin and Hayes were entitled to pension benefits. The District Court found that substantial control of the owner/operators was in the hands of Midwest. Route assignments were delegated by Midwest and no deviation was allowed. The owner/operators could work for no one else and, in fact, were subject to call for work by Midwest during the interim they were not driving. The owner/operators were expressly forbidden to have a substitute drive their trucks unless such substitute had been approved by Midwest. Midwest financed the owner/operators’ tractors, deducting payments from their mileage payments. The tractors carried Midwest’s name and I.C.C. identification number. The Court concluded that Appellees Shoemaker, Martin and Hayes were employees entitled to pension benefits and ordered judgment entered accordingly. The essential characteristics of master and servant relation is the retention by the employer of the right to direct and control the manner in which the work shall be performed. Fruco Const. Co. v. McClelland, 192 F.2d 241, 244 (8th Cir. 1951). This ‘right to control’ test was early enunciated by Judge Learned Hand as being the “degree to which the principal may intervene to control the details of the agent’s performance”, Radio City Music Hall Corp. v. United States, 135 F.2d 715, 717 (2nd Cir. 1943). The Illinois cases dealing with this issue are in accord. See Henn v. Industrial Comm., 3 Ill.2d 325, 121 N.E.2d 492 (1954); Village of Creve Coeur v. Industrial Comm., 32 Ill.2d 430, 206 N.E.2d 706 (1965); Standard Accident Insurance Co. v. Industrial Comm., 39 Ill.2d 172, 233 N.E.2d 543 (1968). The judgment of the District Court is affirmed.

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Neville P. MATTHEWS, Petitioner-Appellant, v. John J. WINGO, Warden, Kentucky State Penitentiary, Respondent-Appellee. No. 72-1515. United States Court of Appeals, Sixth Circuit. Decided March 1, 1973. Certiorari Denied May 14, 1973. See 93 S.Ct. 2283. Neville Parker Matthews, pro se. Ed W. Hancock, Atty. Gen., Richard E. Fitzpatrick,. Asst. Atty. Gen., Commonwealth of Kentucky, Frankfort, Ky., on brief for respondent-appellee. Before PHILLIPS, Chief Judge, WEICK, Circuit Judge, and GUBOW, District Judge. Honorable Lawrence Gubow, Judge, United States District Court for the Eastern District of Michigan, sitting by designation. PHILLIPS, Chief Judge. Neville Matthews was adjudicated of unsound mind in 1951 and was committed to a State hospital until 1954. He has never been judicially declared to have been restored to a sound mind. In 1966 he was charged with two counts of armed robbery. While represented by privately retained counsel he entered a plea of guilty to both counts and was sentenced to life imprisonment on each indictment. No issue was raised at trial as to the competency of Matthews to stand trial. After sentencing, he filed a motion to vacate judgment under RCr 11.42 in Kentucky State court. He alleged that he had insufficient mental capacity to stand trial and therefore asked that his plea be set aside. Judge Hayes of the Jefferson Circuit Court conducted a full evidentiary hearing and denied the motion. This decision was affirmed by the Kentucky Court of Appeals, Matthews v. Commonwealth, 468 S.W.2d 313, cert. denied, 404 U.S. 966, 92 S.Ct. 341, 30 L.Ed.2d 285 (1971). In December 1971, Matthews filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Kentucky, alleging a violation of due process of law in that he was convicted at a time when he was not competent to enter a plea. His sole contention was that since he was never judicially declared to be restored to sound mind, he was incompetent. This petition was denied. No evidentiary hearing was held, the District Court relying upon the evidence presented at the State hearing. This decision was not appealed. Matthews filed a second petition for a writ of habeas corpus in which he alleged again that he was incompetent to enter a plea for the same reasons as averred before, and further that he was denied the effective assistance of counsel. This petition also was denied. The issue of the competence of Matthews was rejected on the basis of the prior adjudication, and the assistance of counsel issue was denied for failure to exhaust State court remedies. We affirm. The District Court had the right to reject the second petition to the extent it raised the same issues as had been resolved at the first proceeding. Under 28 U.S.C. § 2244(b) and the doctrine of Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), a federal district court may deny a petition for a writ of habeas corpus where the ground presented in the second petition has been determined, on the merits, adversely to the petitioner at a prior habeas corpus proceeding, and the ends of justice would not be served by reaching the merits again, 373 U.S. at 15, 83 S.Ct. 1068. Here the issue of the competency of Matthews had been previously determined and rejected in the first petition. The first dismissal was a proper adjudication on the merits even though no evidentiary hearing was held. 28 U. S.C. § 2254(d); Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). Since Matthews did not raise the assistance of counsel contention before the Kentucky courts, the District Court dismissed the claim for failure to exhaust State court remedies. However, this court consistently has held that where resort to a State court would be a mere exercise in futility, the exhaustion requirement will not be applied. Allen v. Perini, 424 F.2d 134 (6th Cir.), cert. denied, 400 U.S. 906, 91 S.Ct. 147, 27 L.Ed.2d 143 (1970); Lucas v. Michigan, 420 F.2d 259 (6th Cir. 1970); Coley v. Alvis, 381 F.2d 870 (6th Cir. 1967). We believe that since Matthews previously has petitioned the Kentucky courts to vacate his sentence under the Kentucky post conviction relief provision, a subsequent motion would be denied without a hearing. RCr 11.42(3); See Walker v. Wingo, 398 S.W.2d 885 (Ky.1966). RCr 11.42(3) provides: “The motion shall state all grounds for holding the sentence invalid of which the movant has knowledge. Final disposition of the motion shall conclude all issues that could reasonably have been presented in the same proceeding.” In view of this requirement, we believe that any effort by Matthews to return this issue to the Kentucky courts would be futile. It does not necessarily follow that a remand for an evidentiary hearing is required. If a criminal defendant is to prevail on an allegation of ineffective assistance of counsel he must demonstrate that what was done or not done by his attorney made his defense a farce and mockery of justice that would be shocking to the conscience of the court. Hayes v. Russell, 405 F.2d 859 (6th Cir. 1969); Schaber v. Maxwell, 348 F.2d 664 (6th Cir. 1965). In the instant case, we hold that even when the contentions and averments of Matthews are taken in the light most favorable to him, they still are insufficient to require an evidentiary hearing. The contentions are highly conclusory in nature. The only specific assertion is the allegation that since his counsel did not raise the issue of the competency of Matthews to enter a plea, he obviously was ineffective. The idea that Matthews was incompetent to enter a plea simply because of his adjudication of insanity fifteen years earlier has been previously rejected. Matthews has alleged nothing else to indicate that his attorney should have interposed the defense of insanity. Only the bald assertion of ineffective assistance of counsel remains. This assertion is not, by itself, sufficient to require an evidentiary hearing. Therefore we affirm the result reached by the District Court.

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The MAGNAVOX COMPANY OF TENNESSEE, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO AND ITS LOCAL 796, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Nos. 72-1121, 72-1201. United States Court of Appeals, Sixth Circuit. Argued Oct. 16, 1972. Decided March 8, 1973. George K. McPherson, Jr., Atlanta, Ga., for The Magnavox Co. of Tennessee; Ronald H. Janetzke, Kettering, Ohio, for International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC and Its Local 796, Petitioners; James Allan Smith, Smith, Currie & Hancock, Atlanta, Ga., on brief, for The Magnavox Co. of Tennessee. Walter Phillips, Director Region 10, N.L.R.B., Atlanta, Ga., Abigail Cooley Baskir, National Labor Relations Board, for respondent-appellee; Peter G. Nash, Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, on brief. Before EDWARDS and McCREE, Circuit Judges, and CECIL, Senior Circuit Judge. PER CURIAM. We consider petitions to review and a cross-application for enforcement of an order of the National Labor Relations Board. The Decision and Order of the Board is reported at 195 N.L.R.B. No. 40. The petitions have been consolidated for hearing and disposition. The complaint charged that the company violated Section 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1), by prohibiting its employees from distributing literature on behalf of the Union during the employees’ non-working time in non-working areas of the company’s premises. The Board found that for many years the company has maintained a rule prohibiting the distribution of literature on its parking lots and on other company property. Although the Board determined that such a rule is presumptively invalid under the standards in Stoddard Quirk Manufacturing Company, 138 N.L.R.B. 651, it observed that the company had interposed as a defense to the complaint the contention that the Union had contractually waived any objection it might have to the no-distribution rule. It then determined that the Union could not contractually agree to the prohibitions of the no-distribution rule to restrict the dissemination of literature in opposition to any labor organization or on behalf of any labor organization. In this respect, it amended its Gale Products rule and followed the decision of the Eighth Circuit in Int. Ass’n of Mach. & Wkrs. Dist. No. 9 v. N. L. R. B., 415 F.2d 113 (1969). It elected not to follow the rule in our circuit enunciated in Armco Steel Corporation v. N. L. R. B., 344 F.2d 621 (1965), and in General Motors Corporation v. N. L. R. B., 345 F.2d 516 (1965). The Board's order required the company to cease and desist from maintaining or enforcing any rule which prohibits distribution in nonworking areas on non-working time on behalf of any labor organization relating to the selection or rejection of a labor organization as the exclusive bargaining agent of the employees in a unit appropriate for collective bargaining, or other matters related to the exercise of Section 7 rights. It also required posting of appropriate notices. We determine that substantial evidence on the record as a whole supports the Board’s factual findings. However, on a less restricted review we might have found that the contract provision permitting the company to issue rules and regulations did not waive the right to distribute literature even in the context of a preexisting no-distribution rule. Waiver of a right of such importance should be the subject of an express provision. However, we are not persuaded that our ruling in Armco Steel should be overturned at this time, and we adhere to the position that the bargaining representative has authority to waive on-premises distribution rights of the employees at least in the absence of special circumstances not present here. The petition of Magnavox to review is granted and the order will be set aside and enforcement will be denied. Enforcement denied, review granted. . In Gale Products Div. of Outboard Marine Corp., 142 N.L.R.B. 1246, enforcement denied 337 F.2d 390 (7th Cir. 1964), the Board held that although certain statutory rights may be waived by a labor organization on behalf of employees whom it represents, an unlimited contractual probition against union solicitation and distribution would unduly hamper the employees in exercising their basic rights under the Act to select or reject a bargaining agent. Accordingly, it determined that a bargaining representative could waive solicitation on its own behalf but could not waive the right of employees to solicit on behalf of a labor organization other than the contracting one. Following Gale in another case, the Board said, “neither an employer nor an incumbent union is entitled to attempt to freeze out another union by waiving the employees’ right to urge a change in their collective-bargaining representative.” General Motors Corporation, 158 N.L.R.B. 1723, 1726 (1965). . “The Company will from time to time issue Rules and Regulations for the maintenance of orderly conditions on plant property. These rules will not be unfair or of a discriminatory nature. . . .” . “You are asked to refrain from distributing notices or handbills in the parking lots or on other Company property.”

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UNITED STATES of America, Plaintiff and Appellee, v. Raymondo ROBLES-PEREZ, Defendant-Appellant. No. 72-1789. United States Court of Appeals, Ninth Circuit. March 9, 1973. J. Perry Langford, Edgar G. Lang-ford, of Langford & Langford, San Diego, Cal., for defendant-appellant. Harry D. Steward, U. S. Atty., Jeffrey F. Arbetman, Donald F. Shanahan, and Stephen G. Nelson, Asst. U. S. Attys., San Diego, Cal., for plaintiff-appellee. Before ELY and HUFSTEDLER, Circuit Judges, and SMITH, District Judge. Honorable Talbot Smith, United States Judge for the Eastern District of Michigan, sitting by designation. PER CURIAM: Appellant was convicted for transporting three aliens who he knew were illegally in the United States. (8 U.S.C. § 1324(a)(2).) The Government’s case in chief consisted of the testimony (1) of Mr. Leupp, a border patrol agent, who stopped appellant’s car and who discovered that the passengers were illegal aliens, and (2) of two of the three alien girls. Their testimony, if credited, amply supported the elements of transportation and alienage. The key issue was appellants’ knowledge of their illegal alien status. The aliens also testified that they never saw appellant until he picked them up as they were hitchhiking, after some unidentified people took them across the border and dropped them, following the driver’s objection to their luggage. The only testimony that linked appellant to the aliens prior to his pickup and that tended to prove that appellant knew the girls were illegally in the country was Agent Leupp’s testimony, admitted over hearsay objection, that the aliens told him, outside the presence of appellant, that they had seen appellant in Mexico, and he was awaiting them as they crossed the border. The Government concedes, as it must, that the key testimony was hearsay; it argues, however, that it was admissible because appellant’s counsel opened the door by inquiring into part of that conversation on cross-examination. The question is a close one because the development of the testimony on direct and cross is rather fuzzy. However, it seems that there were two conversations between the aliens and the agent, one of them in appellant’s presence and one outside his presence. Appellant’s counsel tried to confine Agent Leupp to the first conversation. On redirect, the prosecution started into the second conversation. Upon ascertaining that appellant was not then present, appellant’s counsel interposed the hearsay objection. The court overruled it, and the agent gave the damaging hearsay testimony. We think that this course of events did not open the door to the second conversation. Without the second conversation, the evidence was insufficient to go to the jury on the knowledge element. Appellant’s motion to acquit should have been granted at the conclusion of the Government’s case in chief. The judgment is reversed with directions to dismiss the indictment.

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NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNIVERSAL MANUFACTURING & SUPPLY CO., Respondent. No. 72-2227. United States Court of Appeals, Fourth Circuit. Submitted Feb. 15, 1973. Decided March 8, 1973. Peter G. Nash, Gen. Counsel, N. L. R. B. , Patrick Hardin, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Joseph E. Mayer, and Wil-iam H. DuRoss, III, Washington, D. C., for the petitioner. Yelverton Cowherd, Jr., Columbia, S. C. , and George H. Grant, Aiken, S. C., for respondent. Before BUTZNER, RUSSELL and FIELD, Circuit Judges. PER CURIAM: On July 31, 1972 the National Labor Relations Board found that Universal Manufacturing & Supply Company had violated § 8(a)(1) of the National Labor Relations Act by engaging in unlawful surveillance of a union meeting and unlawfully interrogating an employee. The Board also found that Universal violated § 8(a)(3) and (1) of the Act by laying off two employees, Rodney Ready and Robert Wright, because of their pro-union activities. The decision and order are reported at 198 NLRB No. 88. Upon consideration of the briefs and administrative record, we enforce the Board’s order without oral argument because it is supported by substantial evidence. Enforcement granted.

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Leonard ROBINSON and Isaac Bailey, Petitioners-Appellants, v. STATE OF TENNESSEE and Weldon Cox, Warden, Tennessee State Penitentiary, Respondents-Appellees. No. 72-1547. United States Court of Appeals, Sixth Circuit. Argued Feb. 5, 1973. Decided March 7, 1973. Lowry F. Kline (Court appointed), Chattanooga, Tenn., for petitioners-appellants. R. Jackson Rose, Asst. Atty. Gen., Nashville, Tenn., David M. Pack, Atty. Gen., of counsel, for respondents-appel-lees. Before PHILLIPS, Chief Judge, and EDWARDS and MILLER, Circuit Judges. PER CURIAM. Appellants appeal from denial of their petitions for writs of habeas corpus by the United States District Court for the Eastern District of Tennessee, Southern Division. They present three appellate claims: 1) denial of effective assistance of counsel at their state court trial; 2) denial of due process in being refused the opportunity to call a particular witness, and 3) denial of due process by prejudicial remarks of the prosecuting attorney in his jury argument. On review of the appellate briefs and oral arguments the two orders filed by the District Judge in the District Court proceedings and the transcripts of the two state court trials, we affirm the judgment of the District Court denying habeas corpus relief, 340 F.Supp. 82. The remarks of the prosecutor complained of clearly do not rise to federal constitutional dimensions. The refusal of the state trial judge to allow a witness to testify when such witness had been in the courtroom all during the trial, in violation of a sequestration order, was within the discretion vested in the trial judge. See United States v. Brooks, 303 F.2d 851 (6th Cir. 1962). It certainly did not represent any deprivation of appellants’ constitutional rights. Review of the first state court trial record shows conclusively that the witness was not an eyewitness to the killing and that his testimony would have been of little if any help to appellants. Additionally, the record discloses that separate counsel had been appointed for each appellant, but that appellant Bailey voluntarily discharged his appointed counsel and retained the same counsel who had been appointed for appellant Robinson. In this set of circumstances, we find no deprivation of the Sixth Amendment right to counsel. The judgment of the District Court is affirmed.

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UNITED STATES of America, Plaintiff-Appellee, v. Oscar ROCA-ALVAREZ and Rene Valdez, Defendants-Appellants. No. 30554. United States Court of Appeals, Fifth Circuit. Feb. 14, 1973. Shaya Estrumsa, Miami, Fla. (Court Appointed), for Oscar Roca-Alvarez. Gino P. Negretti, Miami, Fla., for Rene Valdez. Robert W. Rust, U. S. Atty., Neal R. Sonnett, Harold F. Keefe, Asst. U. S. Attys., Miami, Fla., for the United States. Before GEWIN, GOLDBERG and DYER, Circuit Judges. ON PETITION FOR REHEARING PER CURIAM: It is ordered that the motion for rehearing filed on behalf of Appellant, Oscar Roca-Alvarez, in the above cause is hereby granted. “In view of the doubts and ambiguities regarding the legal significance of the psychiatric testimony in this case and the resulting difficulties of retrospectively determining the petitioner’s competency” as of more than two years after trial, we reverse the judgment of conviction, “and remand the case to the District Court for a new hearing to ascertain petitioner’s present competency to stand trial, and for a new trial if petitioner is found competent.” Dusky v. United States, 1960, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824.

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Jamie N. MOYE, Petitioner-Appellant, v. CLERK, DeKALB COUNTY SUPERIOR COURT, Respondent-Appellee. No. 72-3161 Summary Calendar. United States Court of Appeals, Fifth Circuit. March 9, 1973. William R. Gignilliat, III, Atlanta, Ga. (Court Appointed), for petitioner-appellant. Robert E. Mozley, Decatur, Ga., for respondent-appellee. Before BELL, GODBOLD and IN-GRAHAM, Circuit Judges. Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co of New York et al., 5 Cir., 1970, 431 F.2d 409. PER CURIAM: Jamie N. Moye, a prisoner of the State of Georgia, filed a pro se petition in the Northern District of Georgia requesting the court to compel the clerk of the DeKalb County Superior Coprt to comply with his request for production of the transcript and other documents relating to his state conviction. He. alleged a need for them as a basic tool necessary for the preparation of his state appeal process. The district court, construing the request as a petition for a writ of mandamus, summarily dismissed it for failure to exhaust state remedies. On appeal Moye alleges that he made numerous motions to the state court seeking production but has received no ruling thereon. The respondent herein has failed to file a brief. Although the writ of mandamus was abolished by Fed.R.Civ.P. 81(b), federal courts may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law, 28 U.S. C. § 1651. But a federal court lacks the general power to issue writs of mandamus to direct state courts and their judicial officers in the performance oí their duties where mandamus is the only relief sought. Lamar v. 118th Judicial District Court of Texas, 440 F.2d 383 (5th Cir., 1971); Haggard v. Tennessee, 421 F.2d 1384 (6th Cir., 1970). Since the present request sought only mandamus relief, it was properly denied. The judgment of the district court is affirmed.

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Application of Oscar BASS, Jr., et al. Patent Appeal No. 8660. United States Court of Customs and Patent Appeals. March 15, 1973. Baldwin, J., filed concurring opinion in which Almond, J., joined. Lane, J., concurred in the result and filed opinion. Norman F. Obion, Stanley P. Fisher, Marvin J. Spivak, Arlington, Va., Clifton T. Hunt, Jr., Charles R. Rhodes, Greensboro, N. C., attorneys of record, for appellant. S. Wm. Cochran, Washington, D. C., for the Commissioner of Patents. Fred W. Sherling, Washington, D. C., of counsel. Before RICH, Acting Chief Judge, ALMOND, BALDWIN and LANE, Judges, and ROSENSTEIN, Judge, United States Customs Court, sitting by designation. RICH, Acting Chief Judge. This appeal is from the decision of the Patent Office Board of Appeals affirming the examiner’s rejection of claims 1-9 of application serial No. 623,721, filed March 16, 1967, for “Air Control System for Carding Machines.” All claims are rejected on the ground of obviousness in view of the following references: Holden 1,612,581 Dec. 28, 1926 Reiterer 3,115,683 Dec. 31, 1963 Bass, Jr. et al. (Bass) 3,315,320 Apr. 25, 1967 (filed Aug. 23, 1965) Jenkins, Sr. (Jenkins) 3,348,268 Oct. 24, 1967 (parent filed Oct. 13, 1964) Fuji, Japanese Patent Application No. 1025/63, published Feb. 14, 1963. Claims 1-9 are all rejected as unpat-entable over Bass in view of Fuji. Jenkins was added in connection with claims 1, 6, 7, and 9 and Holden was also added in rejecting claim 9. The statutory basis of this rejection is primarily 35 U.S.C. § 103, which requires unobviousness of the claimed subject matter in view of “the prior art” of “the subject matter as a whole * * * at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” Additionally, however, 35 U.S.C. § 102(g) is relied on to establish that the prior inventions of Bass and Jenkins, as shown in their patents, are “prior art.” Claims 2-5 are further rejected under 35 U.S.C. § 103 alone as unpatentable over Reiterer and Fuji, each in view of the other, those two references having clear prior art status under § 102(a) and (b). The issues raised by this appeal are, first, whether § 102(g) makes available as “prior art,” within the meaning of § 103, the prior invention of another who has not abandoned, suppressed or concealed it. Section 102(g) is set forth in full in the margin. The remaining issues are the obviousness of the subject matter of the several claims in view of the available prior art. The Invention The joint invention of Bass, Jr., Jenkins, Sr., and Horvat is a vacuum system for controlling and collecting waste on carding machines. Carding is the process of cleaning, straightening, aligning, and forming textile fibers into sliver preparatory to spinning. The specification states: During the processing of a textile web on a carding machine, the web is fed by feed roll to a lickerin which in turn transfers the web to the main cylinder of the carding machine which rotates at a surface speed of up to and sometimes exceeding thirty-five miles per hour while the web is carried beneath working flats which align and attenuate the fibres in the web. Thereafter, the web is removed from the main cylinder by a doffer roll preparatory to forming it into sliver at the calender roll. The parts above referred to are identified in Fig. 1 of the application drawings here reproduced: On the left, the lickerin is shown at 12 with its feed roll 14 to the left of it. The large main cylinder is in the center at 11 and the doffer roll is to its right at 13. The flats are shown in the form of an endless belt at 15. All this is conventional. The problem in such machines to which the invention is directed is explained as follows: The rapid rotation of the lickerin and of the main cylinder creates surface air currents which swirl about the periphery of the main cylinder and are carried into the area beneath the main cylinder with the waste from the web. Such waste comprises short fibre, seeds, dirt and foreign matter, all of which is undesirable in the finished web. It is conventional practice to install a screen about the lower periphery of the main cylinder for the purpose of cleaning such waste material as just described from the card clothing on the main cylinder before that portion of the main cylinder passing over the screen again comes into contact with the web delivered to the main cylinder from the lickerin. In the drawing, the screen is shown at 16, under main cylinder 11. The specification further states: In the past, the surface air currents along the periphery of the main cylinder have passed through the screen with the waste material, and the air currents have propelled this waste material outwardly from the area beneath the main cylinder and into the atmosphere where it settles on webs being processed and lessens the quality of the webs. Attempts have been made to prevent the blowing of the waste material into the atmosphere by enclosing the air beneath the main cylinder in an effort to contain the waste within that area. However, the super-atmospheric pressure conditions created through continuous delivery of the surface air through continuous delivery of the surface air currents generated by the rapid rotation of the main cylinder into the area therebe-neath have invariably resulted in “blowouts”, that is, the propulsion of air-borne waste through openings left accidentally in the enclosure, it being virtually impossible to render the area beneath the main cylinder sufficiently air-tight to contain the ever-increasing air pressure therebeneath generated by the rotation of the cylinder and lickerin. Directed to the solution of these problems, appellants describe their invention in general terms as follows: To this end, there is provided a unique combination of elements which cooperate with each other to minimize the air pressure beneath the main cylinder without reducing its speed and to control the disposition of waste in the area beneath the main cylinder. More specifically, the invention comprises [1] an enclosure for the area beneath the main cylinder whereby it is rendered as airtight as practical, [2] means closely adjacent the transfer points of the web from the licker-in to the main cylinder and [3] from the main cylinder to the doffer for relieving or drawing off air pressure created through rotation of the main cylinder and lickerin to reduce the air pressure beneath the main cylinder and while also drawing off fly and lint released at said transfer points and, preferably, [4] means carried by the screen beneath the main cylinder for controlling the flow of air currents toward the center of the carding machine and away from its edges whereby to further minimize the danger of “blowouts” carrying waste into the atmosphere. [Bracketed numbers ours.] The elements above identified as 2, 3, and 4 are located as indicated on Fig. 1 by the letters B, F, and J which we have added and are more particularly described by appellants as follows: As to B— A lickerin suction nozzle 26 is * * * arranged to draw in air currents passing upwardly from beneath the main cylinder 11 between the main cylinder and the lickerin 12 and which would otherwise pass into the atmosphere carrying lint and fly and other waste material with them * * *. The suction nozzle 26 also preferably includes an opening directed to draw in air currents released adjacent the feed roll 14 and which carry with them short fibres and lint released from the web at the feed roll. The suction nozzle 26 is preferably of the type shown in prior application Serial No.. 481,659 filed August 23, 1965 by Oscar Bass, Jr. and Ivan Hor-vat and entitled PNEUMATIC CLEANING MEANS AND METHOD FOR CARDING MACHINES. [This is the Bass, Jr. et al. reference.] As to F— In order to further reduce the air pressure in the area beneath the main cylinder, a second suction nozzle 33 * * * is positioned between the doffer 13 and main cylinder 11 * * *. Positioned as illustrated * * * doffer plenum 33 * * * presents a negative pressure zone which attracts a significant portion of the air currents created through the clockwise rotation of the main cylinder before these currents are delivered into the area beneath the main cylinder. In so doing, the nozzle 33 contributes materially to the reduction of air pressure in the area beneath the main cylinder over prior known installations. The closer the air pressure in the area beneath the main cylinder is brought to atmospheric pressure, the less “blowout” occurs and the more the waste passing through the screen 16 is desirably retained within the enclosed area. As to J— Figure 3 is a partial plan view of the main cylinder screen removed from the carding machine for purposes of illustration: Bars or baffles 40, which extend parallel to the axis of the main cylinder, taper inwardly toward the central rib 41. The surface air currents generated by the main cylinder are thus channelled away from the sides of the screen, and towards its center. The screen is curved to fit the cylinder. The screen 16 * * * is of the type more fully described in prior co-pending applications Serial No. 403,-468 filed October 13, 1964 now abandoned, and Serial No. 582,191 filed September 6, 1966 by Robert Bain Jenkins, Sr. entitled SCREEN FOR CARDING MACHINES. [This is the Jenkins, Sr., reference.] Claims 1 and 2 are representative (emphasis ours): 1. A vacuum system for controlling and collecting waste on carding machines of the type having a licker-in, a main cylinder, a screen beneath the main cylinder, and a doffer roll; said device comprising: (a) a source of suction; (b) a, first suction nozzle disposed above the lickerin and arranged adjacent the point where the surfaces of the lickerin and cylinder diverge to draw off surface air currents created through rotation of the lickerin and main cylinder; (c) a second suction nozzle disposed between the main cylinder and the doffer adjacent the point where the surfaces of the doffer and main cylinder converge to draw off surface air currents generated through rotation of the main cylinder as well as lint and fly released at the transfer point of the web between the main cylinder and the doffer; (d) said screen comprising: i. ) a frame having a longitudinal axis and including a pair of longitudinally extending parallel side members spaced from each other and on opposite sides of said longitudinal axis; and ii. ) channeling means extending between said side members channeling more of said air currents through said screen intermediate said side members than at said side members, said channeling means comprising a plurality of air obstructing elements, each element having a face, the faces of said air obstructing elements being narrower adjacent said longitudinal axis than adjacent said side members; and (e) [sic] whereby air pressure in the area beneath the main cylinder is minimized and waste passing through the screen is collected in the central portion of the area beneath the main cylinder. 2. A vacuum system for controlling the disposition of waste generated by processing of a textile web on a carding machine having a lickerin, a main cylinder, and a doffer, said device comprising: (a) first suction means arranged adjacent the lickerin to draw off surface air currents generated through rotation of the main cylinder and lickerin; (b) second suction means arranged adjacent the point where the surfaces of the doffer and main cylinder converge to draw off surface air currents generated through rotation of the main cylinder at the. nip of the main cylinder and the doffer; and (c) [sic] said first and second suction means cooperating with one another to reduce the air turbulence in the area beneath the main cylinder. Claims 3-9 all depend either directly or indirectly on claim 2. Claim 3 recites that the lickerin, main cylinder, and dof-fer are mounted on a frame and that the area beneath them is enclosed. Claim 4 more specifically describes the two suction means. Claim 5 specifies air flow rates for the two nozzles. Claims 6 and 7 additionally recite appellants’ screen baffle structure. Claim 8 depends on claim 4 and describes the particular lickerin suction nozzle. Claim 9 depends on claim 6 and additionally recites a licker-in screen. The References Holden shows the use of a lickerin screen as recited in claim 9. Reiterer discloses the use of a suction nozzle adjacent the point where the lick-erin and main cylinders diverge. Bass essentially describes the likerin suction nozzle used by appellants. (B in Fig. 1). The patentees are the present appellants Bass and Horvat. Jenkins essentially shows the main cylinder screen used by appellants (J in Fig. 1) and the patentee is appellant Jenkins. Fuji discloses the use of a suction nozzle at the point where the main cylinder and the doffer converge (F in Fig. 1). Another reference, a U. S. Patent to O’Neal No. 3,304,582 with a filing date of October 2, 1964, no longer relied on, as well as the Jenkins and Bass references, caused appellants to file affidavits under Rule 131 in an effort to antedate these three references. The affidavits were accepted as overcoming O’Neal. As to the Bass and Jenkins references, the examiner said in his final rejection that while the affidavits may overcome them so far as 35 U.S.C. § 102(e) is concerned, because the affidavits antedate the filing dates of those two patents, they are not overcome as disclosing prior inventions of “another” under 35 U.S.C. § 102(g). He relied on the Board of Appeals decision in Ex parte Robbins and Porter, 156 USPQ 707 (1967), from which he quoted as follows, the opinion being by Federico, Examiner-in-Chief: However, assuming that the affidavits were sufficient, the reference is not necessarily removed (emphasis added) in view of the relationship of the parties and the common ownership. There is still section 102(g) to consider. Under this provision the prior invention of another, meeting the conditions specified [in § 102(g)], is prior art with respect to a later invention. The invention claimed in the Porter et al. patent is taken as having been made prior to the date the invention claimed in the present application was made * * *. That is the end of the examiner’s quotation but the board opinion continued, saying, “in view of the facts present in this case, and hence is available as prior art.” Applying the Robbins statement to the case before him, the examiner held: Therefore, under 35 U.S.C. § 102(g), the affidavits do not remove either Jenkins, Sr., or Bass, Jr., et al as a reference. In his Answer, the examiner adhered to this position, adding the following: Further, it should be noted that the structure of the screen in claims 1, 6, and 7 of the present application is defined word for word as the screen defined in claims 6 and 1 of the Jenkins, Sr. patent. The practice of antedating a reference is directed to proving that applicant’s invention is of earlier date than the invention of the reference and this could not be the case when both are of identical origin. The nature of the subject matter claimed in the patents and present application, the relationship of the parties and the apparent common ownership, and the respective order of the filing dates of the applications involved indicate the order in which the inventions were made. The board agreed with the examiner’s holding on the availability of the Bass and Jenkins patents as references to show prior art. It agreed with and approved his reliance on Ex parte Robbins. The significant thoughts added by the board are the following (emphasis added) : Proof that the over-all combination recited in the claims on appeal was made prior to the filing dates of the Bass, Jr. et al. and Jenkins, Sr. patents does not establish that such combination was invented prior to the subcombinations claimed in said patents. •x * ->f * * Under the circumstances here involved it does not appear that an affidavit under Rule 131 was the proper procedure to adopt. The proper subject of inquiry is not compliance with that Rule but rather what [the] evidence shows [as to] who invented the subject matter of the references which is relied upon and when. The board then proceeded to a discussion and affirmance of the rejection of all claims for obviousness on the bases first above recited. Appellants’ argument in this court is along three lines. They argue unob-viousness of the inventions of the appealed claims over all the references, unobviousness over the references exclusive of Bass and Jenkins, and the impropriety of using Bass and Jenkins as prior art under § 102(g). The last point certainly is the point principally argued. Appellants’ brief refers to the rejection in this case as “a section 102(g) rejection,” which it is not, and we therefore clarify that matter at the outset. The rejection is for obviousness under § 103 based in part on alleged prior inventions of others which are deemed to be “prior art” within the meaning of that term in § 103 by virtue of § 102(g). The essence of appellants’ argument against this use of § 102(g) is that it is concerned only with “identity of invention.” They say, “The applicants’ invention must be the same as the invention of another.”, Since that is obviously not the case here, so their argument runs, § 102(g) “is out and Rule 131 is in.” Appellants argue that the Robbins case is distinguishable because it was a case of identical inventions. This, however, is not so. The examiner had rejected the claims, inter alia, for obviousness and when the board rephrased his rejection, after pointing out certain errors, it did so as follows: The claims are rejected as unpatentable over Porter et al. and Fuchs et al. on the basis of sections 102 and 103 of the statute, the Porter et al. invention being available as prior art on the basis of 102(e) as disclosed in the specification of the patent, no proper affidavit having been filed, and on the basis of 102(g) as the prior invention of another. Rejections are not based on § 103 when they. are identical with the prior art. They rest, in such a case, on § 102 alone. In addition to contending that § 102(g) “is out” because the application is claiming separate and distinct inventions from what is claimed in the Bass and Jenkins patents, appellants argue that they are not proper references “since applicants [Bass, Jenkins, and Horvat] were working together on a common project, as evidenced by the facts in the Rule 131 affidavit * * ■/: » They then add that “the appellants freely admit that they did not invent the claimed subject matter of the Bass, Jr. patent or the Jenkins, Sr. patent * * OPINION § 102(g) Prior Invention as “Prior Art” under §103 Narrowly considered, the issue presented by the facts of this case is one of first impression in this court. This is by no means the first time we have passed on whether § 102(g) prior invention of another is prior art, as will be shown, or even the first time we have considered whether such prior invention can be combined with other prior art to sustain a § 103 obviousness rejection. However, it is the first time we have considered combining § 102(g) and § 103 in the context of an ex parte rejection entirely divorced from the award of priority in an interference which established the prior inventorship relied on in rejecting. In this situation the factual evidence we have to go on is what appears from the references themselves in their disclosures, their interrelationship with the application at bar and their filing dates, and what appellants have revealed in their Rule 131 affidavits as to who invented what and when. To these facts we have to apply the law. This court has several times approved of rejections based on a combination of § 102(g) with § 103. The first case so holding is believed to be In re Gregg, 244 F.2d 316, 44 CCPA 904 (1957). Our opinion in that case states (emphasis added): The award of priority in the interference was a final determination that any invention common to appellant’s application and that of Coakwell was made by Coakwell prior to appellant’s invention thereof. Coakwell’s disclosure 5 thus constitutes prior art within the meaning of Section 102\(g) of the Patent Act of 1952 and, in accordance with Section 103 of that Act, appellant may not obtain any claim which distinguishes from Coakwell’s disclosure only in matters which would have been obvious to a person having ordinary skill in the art at the time the invention was made. * * * * * -X- We are unable to agree with appellant that the prior art referred to in Section 103 of the 1952 Act is limited to art which was available to the public prior to the date of the applicant’s invention. In In re Taub, 343 F.2d 556, 52 CCPA 1675 (1965), the ex parte rejection under review was of claims to chemical compounds based on the count in an interference which appellant Taub had lost. We found error in the Patent Office notion that every compound within the scope of the lost count was “prior art” in the sense of § 102(g) as “[an] invention * * * made in this country by another,” “before the applicant’s invention.” The winning of priority on the broad count was based on evidence of priority with respect to one species only. Taub, however, was the prior inventor as to the species claimed in the application on appeal. We treated the whole question of the prior invention of another, as determined by an interference priority award, as under § 102(g), reversed the rejection, and remanded the case to the Patent Office for a determination of whether the species claimed by Taub was obvious. Obviousness being a § 103 issue, we were thus coupling § 103 with § 102(g) as a basis for determining patentability in the context of a post-interference ex parte patentability determination. On the same day as Taub, we decided In re Yale, 347 F.2d 995, 52 CCPA 1668, 146 USPQ 400 (1965), another post-interference ex parte rejection case. Therein we said that the pertinent portions of 35 U.S.C. were § 102(g) and § 103 and the significant statement in the opinion is this (emphasis added): As we recently pointed out in In re Harry, 333 F.2d 920, 51 CCPA 1541, the legislative history of 35 U.S.C. § 102 and § 103 makes it clear that the “prior art,” which section 103 requires us to compare with “the subject matter sought to be patented” in a given situation, refers to at least the statutory prior art material named in section 1021 It seems clear that the three chemical compounds which appellant lost in interference by concession of priority are materials of which it must be said “before the applicant’s invention thereof the invention was made in this country by another.” Those last-quoted words are, of course, from § 102(g). The opinion continues: Those compounds become “prior art” within the meaning of 35 U.S.C. § 103 and, in accordance with that provision, appellants may not obtain any claim which distinguishes over that “prior art” only in matters which would have been obvious to one having ordinary skill in the art at the time appellants’ invention was made. [Original emphasis.] This was a clear holding that § 102(g) prior invention is “prior art” within the meaning of that term in § 103, like the other prior art material named in § 102. Two years later we decided In re Risse, 378 F.2d 948, 54 CCPA 1495 (1967). Judge Almond, speaking for the court, said: Proceeding now to the matter of statutory prior art, we think it is well settled that prior art under 35 USC 103 includes prior invention under 35 USC 102(g). See, e. g., In re Yale, supra. He then set forth § 102(g), in part, and continued, At a minimum, prior invention under section 102(g) includes the subject matter of the interference counts, which may be used as evidence of prior art under section 103. Throughout the rest of the lengthy opinion § 102(g) and § 103 are jointly referred to repeatedly as the statutory basis on which the question of obviousness must be decided. Within a couple of days of Risse the Patent Office Board of Appeals decided Robbins, the ease relied on by the examiner herein. It held that a copending patent of Porter and Ellerbee, assigned to the assignee of the appealed Robbins and Porter application, could be relied on under § 102(g) with respect to the invention claimed therein as the invention of another, assumed to be prior under the circumstances which included a common assignee, different inventor entities, filing a year and a half before the application on appeal, and evidence in Rule 131 affidavits and in the application itself indicating the order in which the inventions were made. From the above decisions it is clear beyond question that in using § 102(g) prior art to support a rejection it has not been limited to situations involving “identity of invention,” as appellants contend, but has repeatedly been used to support the rejection of claims to different but obvious inventions under § 103. As a general proposition of law, and particularly considering the way in which full anticipation situations under § 102 shade into obviousness rejections under § 103 because of discernable differences, we cannot sanction an interpretation of the statute under which a prior invention is “prior art” under the former situation but not under the latter. The situation presents a close parallel to the situation under § 102(e) which was dealt with by this court in In re Harry, 333 F.2d 920, 51 CCPA 1541 (1964), and by the Supreme Court a year later in Hazeltine Research, Inc. v. Brenner, 382 U.S. 252, 86 S.Ct. 335, 15 L.Ed.2d 304 (1965). In Hazeltine the patentee tried in vain to do the very thing appellants attempt here, namely, to distinguish between § 102 full anticipation and § 103 obviousness rejections. A parallel attempt was made in Harry with respect to § 102(e). In Hazeltine the Court gave this answer (emphasis added): Petitioners suggest, however, that the question in this case is not answered by mere reference to § 102(e), because in Milburn [Alexander Milburn Co. v. Davis-Bournonville Co., 270 U.S. 390, 46 S.Ct. 324, 70 L.Ed. 651], which gave rise to that section, the co-pending applications described the same identical invention. But here the Regis invention is not precisely the same as that contained in the Wallace patent, but is only made obvious by the Wallace patent in light of the Carlson patent. We agree with the Commissioner that this distinction is without significance here. In Harry, in discussing the § 102(e) + § 103 rejection our summation reads (emphasis added): In our opinion, the “prior art" referred to in § 103 includes along with the patents, printed publications, public uses and sales of paragraphs (a) and (b) of section 102, prior invention as established by a copending application, if it becomes a patent, as contemplated by paragraph (e) and as held in the Milburn case. Such prior invention, as prior art, may be combined with other references to sustain a rejection for obviousness under section 103. Such being the law as to, prior invention established under § 102(e), as it surely is with the Supreme Court’s approval, we see no reason a different rule should prevail when the prior invention is otherwise established, as by the circumstances of the case, an adverse ruling in an interference, admissions by the applicant, or otherwise, the statutory basis for using the prior invention being § 102(g). It is not a new idea that what is prior art for one purpose is prior art for all purposes. Judge Learned Hand, speaking for the Second Circuit Court of Appeals in Western States Mach. Co. v. S. S. Hepworth Co., 147 F.2d 345 (1945), said, at the end of a long discussion of the “plausible” argument that there should be a distinction between a prior invention under the Milburn rule which fully anticipates and one which merely makes obvious, * * * once the first application is treated as prior art when it fully anticipates, there seems to be no reason to deny it whatever effect it would have as prior art, if it were literally such. [Emphasis added.] It is our view that the law as applied in the Patent Office must be uniform with the law as applied in the courts in passing on patent validity. It is our belief that that is what it is doing in this case. Cases directly in point are rare but we know of at least two, Sutter Products Co. v. Pettibone Mulliken Corp., 428 F.2d 639 (7th Cir. 1970) and Grinnell Corp. v. Virginia Electric & Power Co., 277 F.Supp. 507 (E.D.Va. 1967). In Sutter the Seventh Circuit Court of Appeals gave extended consideration to an obviousness defense based’on prior invention under § 102(g) as the prior art. It first held that a Harrison ’134 patent “may be considered as a prior invention under 35 U.S.C. § 102(g),” quoting the statute in full in a footnote. It then considered the argument that even if it could, be relied on to establish “anticipation,” it would not be considered “prior art” to show obviousness under § 103, the prior art of that section being confined to matters of public knowledge. That argument is found “without merit.” It cited the Hazeltine case as rejecting the notion that “prior art” included only “publicly available information.” It then said (emphasis added): Although Hazeltine Research dealt with the specific correspondence between Section 103 and Section 102(e), the considerations expressed are equally applicable to prior invention under Section 102(g). Application of Yale, 347 F.2d 995, 1000, 52 CCPA 1668 (1965); Application of Risse, 378 F.2d 948, 956, 54 CCPA 1495 (1967). The correspondence between the relevant “prior art” under Section 103 therefore includes all material which would be considered to determine novelty under Section 102. See Deep Welding, Inc. v. Sciaky Bros., Inc., 417 F.2d 1227, 1233 (7th Cir. 1969), certiorari denied 397 U.S. 1037, 90 S.Ct. 1354, 25 L.Ed.2d 648, 165 USPQ 290. On this construction of the law, the Sut-ter patents in suit were held invalid for failure to meet the requirements of § 103. In discussing standards of patent-ability, the Deep Welding case, cited in Sutter, said, inter alia, If the state of the art anticipated or made obvious the invention sought to be patented, 35 U.S.C. § 103 (as well as §§ 102(a), (b), (e) or (g)) requires a holding of invalidity. Now considering Grinnell, an earlier decision by a single District Court Judge, the discussion appears under the heading “IV. Suozzo’s Work.” Suozzo was working contemporaneously with the inventor of the patents in suit, and keeping his work secret. The defendant apparently asserted invalidity on the basis of § 102(g) + § 103 and the court found nothing wrong with such a legal proposition. It quoted § 102(g) as being applicable but found, in reliance on the express language of § 102(g), that Suozzo had “suppressed and concealed” his work, for which reason it could not be considered. The court stated (emphasis added): The same reasons of public policy which forbid prior suppressed and concealed activities from invalidating a patent under 35 U.S.C. § 102(g) are also applicable to 35 U.S.C. § 103. Clearly it was taking the two sections together as a basis for decision. The case is an example of how the “not * * * suppressed or concealed” clause serves to prevent the use of truly “secret” prior invention as prior art under § 103. In view of the foregoing decisions and principles, we rule against appellants and hold that the use of the prior invention of another who had not abandoned, suppressed, or concealed it under the circumstances of this case which include the disclosure of such invention in an issued patent, is available as “prior art” within the meaning of that term in § 103 by virtue of § 102(g). Prior Invention Having settled the question of law, it remains to determine what the evidence shows as to the priority of the Bass and Jenkins inventions, upon which their availability as prior art depends. From the evidence available to it, the initial burden of making out a prima facie case of prior invention is on the Patent Office. In re Warner, 379 F.2d 1011, 54 CCPA 1628 (1967) states: We think the precise language of 35 USC 102 that “[a] person shall be entitled to a patent unless,” concerning novelty and unobviousness, clearly places a burden of proof on the Patent Office which requires it to produce the factual basis for its rejection of an application under sections 102 and 103, see Graham [Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545] and Adams [United States v. Adams, 383 U.S. 39, 86 S.Ct. 708, 15 L.Ed.2d 572]. When the Patent Office has made out a prima facie case of priority the burden would then shift to the applicant to rebut it. The evidence of priority in the record consists of filing dates, the contents of the application and reference patents, statements in affidavits filed and accepted under Rule 131, and statements by appellants’ attorneys during prosecution. The earliest date of invention alleged by appellants for their combination is the date of conception, February 10, 1964. Reduction to practice is alleged in April 1964. Their effective filing date is October 11, 1965. First, we consider Jenkins, asserted to be the prior inventor of the tapered bar screen element of the claimed combination. The affidavit evidence asserts that the screen was conceived “before December 6, 1963” and built according to a drawing dated December 5, 1963. It was installed in the first prototype of appellants’ combination about April 17, 1964. Assuming that to be the first reduction to practice of the screen, as well as of the combination, the record contains an admission of its conception by Jenkins about two months before appellants claim to have conceived the combination. The Jenkins invention would appear, prima facie, to be prior on the basis of prior conception and simultaneous reduction to practice, which makes diligence irrelevant. Whittier v. Bor-chardt, 154 F.2d 522, 33 CCPA 1023 (1946), Lassman v. Brossi, 159 USPQ 182 (Bd.Pat.Intf.1967). In the absence of any traverse, even in appellants’ brief, this screen appears to be a prior invention under § 102(g). While we have said that there is no necessary relationship between the order of making inventions and the order of filing applications on them, In re Land and Rogers, 368 F.2d 866, 54 CCPA 806 (1966), we think there is further evidentiary significance in the fact that Jenkins filed October 13, 1964, and appellants did not file for nearly a year thereafter, on October 11, 1965. On the basis of all the evidence of record, we accept the Jenkins screen as described in his patent, to which reference is made in the application at bar, as prior art. We turn now to the Bass and Horvat reference (Bass). The invention of these patentees is the “first suction nozzle,” element “(b)” in claim 1, located at the lickerin end of the machine, “B” in Fig. 1. The only argument the solicitor makes on the priority issue is that “the affidavits make no attempt to show that the invention of Bass and Horvat was not prior to the invention of appellants.” We do not think it was incumbent on the applicants to prove it was not prior, merely because the Patent Office thinks it might have been. Like the solicitor, we are not able to find any evidence of priority on the part of Bass. The examiner mentioned none except the filing date of the Bass application “approximately 7 weeks before the earliest effective filing date of the present application.” We do not consider this probative of priority of invention. In re Land and Rogers, supra. The time is too short to be significant. The cross reference in the present application to the Bass application does not indicate that it was a prior invention. While the board correctly said that the proper subject of inquiry is what the evidence shows as to who invented the subject matter of the references and when, it failed to refer to any evidence of priority in Bass. Appellants’ position with respect to Bass is “that the Bass, Jr. et al lickerin plenum and the instant combination were part of the same research and development program and were invented simultaneously, as opposed to the Patent Office’s position that the Bass, Jr. et al lickerin plenum was invented previous to the combination merely because it was filed first.” Finding no substantial evidence of record tending to indicate priority in Bass, we believe the appellants’ position to be sound. In fact, it appears as logical on the facts of this case to find that the claimed combination was conceived before the Bass plenum as described in the reference patent. We therefore exclude Bass from consideration as prior art in passing on the obviousness rejection. The Rejections of Claims Claims 2, 3, 4, and 5 were rejected as obvious in view of Reiterer and Fuji. We have carefully considered appellants’ argument but agree with the decision on obviousness and this rejection is affirmed. The rejection of all remaining claims, 1, 6, 7, 8, and 9, was predicated on Bass combined with Fuji, Jenkins being added in rejecting claims 1, 6, 7, and 9. With the elimination of the Bass reference, there is no suggestion in the remaining references applied of the suction means at the lickerin side of the carding machine and no basis for a holding of obviousness of the combination of which it is a principal element. It is, therefore, necessary to reverse the rejection of these claims. Comments on Judge Baldwin’s Concurring Opinion This concurring opinion is in reality a dissent. The only concurrence is with the final disposition of the claims. On the principal point of law involved in this case there is total disagreement. The concurring opinion expresses the view that prior invention under § 102(g) is not “prior art” under § 103 unless the priority happens to have been established in an interference, when it is “prior art” under § 103. Since there has been no interference here, the position taken is that the Bass patented suction nozzle and the Jenkins patented main cylinder screen would not be “prior art” under § 103 even if the priority of these inventions were firmly established by evidence, and so these inventions must be ignored in determining obviousness under § 103, on which basis the same result is reached that we reach. It also expresses the view that although prior inventions under § 102(g) are prior art which can be used to sustain a full anticipation rejection under § 102, they cannot be used to sustain an obviousness rejection under § 103 — that prior art is not prior art for all purposes. We consider this position anomalous. Much of what this concurring opinion says is contradicted by what has already been said above but since certain fundamental considerations appear to have been overlooked they will bear summarizing in the interest of clarifying our position. First of all, it is tolerably clear that this opinion does not change the law as it has been for 20 years, if not longer, in this court as well as elsewhere. The concurrence has no answer for cases like Sutter Products v. Pettibone Mulliken, 428 F.2d 639 (7th Cir. 1970) and there is no “long line” of cases in this court being overruled. Only two are named, Newton and Frilette, about which more anon. We are charged with holding as we do while remaining “silent” as to reasons why we should do so. We have not been silent, we have been ignored. Reason No. 1, supra, is that full anticipation under § 102 shades so gradually into obviousness under § 103 that it is not practicable to try to operate a patent system on the basis that that which is prior art for full anticipation situations is not also prior art for determining obviousness (which is a partial anticipation, using “anticipation” in a nontechnical but realistic sense). Reason No. %, supra, is that it would be anomalous to have existing, side by side, the law of § 102(e), Hazeltine, and In re Harry, which is that an invention which is prior as of the U. S. filing date of an issued patent disclosing it is prior art for both § 102 anticipation and § 103 obviousness rejections, and law as the concurrence would have it, namely, that an invention otherwise established by evidence to be prior to an applicant’s invention is prior art only for § 102 anticipation and not in determining § 103 obviousness. Reason No.. S, supra, is that what we hold to be the law is already the law in infringement suits, as the concurrence tacitly admits, though it does not consider such decisions to be “binding on this court.” However, the law must be the same in this court and in other courts which pass on patent validity. Reason No. h is that if the question here decided were presented to the Supreme Court it would almost certainly, in view of Milburn and Hazeltine, affirm our decision on the applicability of § 102(g). In short, prior art for one purpose is prior art for all purposes and in all courts and in the Patent Office. On one matter the concurrence maintains a significant silence. Throughout, it takes it for granted that prior invention under § 102(g) is prior art which will support a rejection of claims to the same or substantially the same invention. Without emphasis on the fact, the entire concurrence carefully limits its discussion to the status of “a non-anticipatory reference.” It attempts to develop, as an assumed part of the law, a spurious distinction between “prior art” and “prior invention,” a “prior art defense” and a “prior invention defense.” Regardless of what may have been said in three opinions written in 1902, 1912, 1916, long before Milburn and Hazeltine, prior invention is prior art and always has been. The only distinction which exists is between anticipation and obviousness and the determination of either depends on what is in the prior art. Its status as prior art is not determined by whether it fully discloses or only partially discloses the claimed invention. The concurrence also admits that lost counts in interference — which is but one way of establishing prior invention — are properly used as the basis for rejections, not only of the same invention but also of those obvious in view of the prior invention thus established. We may now add as Reason No. 5 that it makes no sense to distinguish one prior invention from another according to the manner in which its priority has been established. This brings us to an error of reasoning in the concurrence which treats what we are doing as “pushing back” the effective dates of references and to the use made of our remarks in the first Hilmer opinion. We are not pushing back the dates of references. As shown above, the evidence of prior invention in this ease was not found in the references but in affidavits, admissions, and circumstances taken together with the disclosures of the references identifying the prior subject matter. Hilmer was a different situation altogether where we were asked to push back reference dates by reason of 35 U.S.C. § 119 to events taking place abroad, contrary to what we found to be the express desire of Congress and statutory limitations to events in the United States. The Hession ease and its “doctrine of election” by an assignee has no bearing at all on the problem here. The writer has some slight familiarity with that case as the author of the 20-page dissenting opinion. The case is irrelevant because it did not involve two inventions, two inventors, prior invention, or priority. There was a single invention made by a single inventor, Hession. Ziherl fraudulently, or at least erroneously, filed an application on Hession’s invention, having invented nothing himself, as he acknowledged. The election to which the concurring opinion refers was not “with respect to priority,” as alleged, but resided in issuing the patent on the Ziherl application instead of the Hession application when Ziherl was not the inventor. This court’s majority opinion says nothing about anyone being a “first” or a “prior” inventor because we were well aware there was but one inventor. The concurrence worries about our decision making a lot of issued patents invalid, which presumably would not otherwise be. The concern is misdirected. Since we are making no change in the law — certainly no change as it is applied by other courts in infringement suits— no more patents will be invalid than is already the case. (The Patent Office never has and never will be able to examine applications as to all defenses to validity. See 35 U.S.C. § 282(2). However, should the law be as the concurrence would have it, the Patent Office would be compelled to issue more invalid patents by being barred from applying the law as other courts apply it. This is the amazing choice the concurrence makes out of fear of nightmarish situations of its own imagining. In all the years we have had the law as we now declare it to be none of them has materialized. The concurrence makes the erroneous statement that in past cases we have based our thinking on “the proposition that everything in section 102 is prior art” (original emphasis). The anatomy of § 102 is fairly clear. As forecast in its heading, it deals with the two questions of “novelty and loss of right.” It also deals with originality in subsection (f) which says that one who “did not himself invent the subject matter” (i. e., he did not originate it) has no right to a patent on it. Subsections (c) on abandonment and (d) on first patenting the invention abroad, before the date of the U. S. application, on an application filed more than a year before filing in the U. S., are loss of right provisions and in no way relate to prior art. Of course, (c), (d), and (f) have no relation to § 103 and no relevancy to what is “prior art” under § 103. Only the remaining portions of § 102 deal with “prior art.” Three of them, (a), (e), and (g), deal with events prior to applicant’s invention date and the other, (b), with events more than one year prior to the U. S. application date. These are the “prior art” subsections. The concurrence discusses many of our prior decisions dealing with “double patenting” rejections. They are not germane to the present case. Rejections for double patenting have nothing in common with rejections based on prior invention. The two types of rejection rest on different legal footings. Among the cases classed by the concurrence as double patenting decisions are the two which constitute the “long line” of cases we are supposed to be overruling, Newton and Frilette. It is well to understand that they are double patenting cases and were decided as such and therefore are not germane. In Newton the issue was whether there was only one invention, on which two patents could not issue, or two inventions. The Patent Office said there was only one and rejected for double patenting. There was no § 103 rejection and hence no occasion to consider what is “prior art.” We held there were two inventions, that a terminal disclaimer overcame the double patenting rejection, and reversed. That was the case. The only way § 102(g) came to be mentioned in the opinion was that the Solicitor for the Patent Office said in his brief that the rejection “can be considered under 35 U.S.C. 102(g), such as to be immune from any avoidance by the terminal disclaimer.” But the rejection in no way involved § 102(g) and it was fitting we should have said “We find the solicitor’s reliance on 35 U.S.C. 102(g) * * * inapplicable here.” Truly, it had no applicability to the issue before us and we made no other decision about it. We cannot be said to have rejected a theory of law never relied on in the Patent Office in making the rejection and which was not before us. Briefs cannot create issues that do not exist or rejections that have not been made. In Frilette there were two rejections, one for double patenting and one based on § 102(e). We affirmed the latter. The concurrence can find no decision in the opinion relating to § 102(g) because there is none. The section is referred to only in footnote 8 in which we merely pointed out that at the time of Milburn the statutory law for first inventorship was in R.S. 4920, which had been repealed and replaced by § 102(g). The footnote concludes, “The requirement of first inventorship, considered in Mil-burn, is thus implicitly continued in the present statute.” That is all there is to Frilette. We are not overruling it any more than we are overruling Newton, both cases still being sound law and neither dealing with the issue here. On what basis it can be suggested that the present decision in any way touches any of our double patenting decisions escapes our comprehension. We are not here presented with any double patenting issues. Furthermore, even if, arguendo, we take Newton and Frilette as having said something inconsistent with the present opinion, there remain in opposition thereto, the contrary statements we have referred to in the four opinions in Gregg, Taub, Yale, and Risse. Conclusion The decision is affirmed as to claims 2, 3, 4, and 5 and reversed as to claims 1, 6, 7, 8, and 9. Modified. BALDWIN, Judge, concurring, with whom ALMOND, J., joins. On the basis of the Milburn case, which changed the effective date of a U.S. patent from its issue date to its filing date, the’ principal opinion would change the effective date of all U.S. references to the unknown point in time when their subject matter was invented. On the basis of cases dealing with the rejection of a losing interference party’s claims over the lost counts, the principal opinion condones the rejection of one applicant’s claims over the contents of a patent where the parties’ cases had never been in interference and in fact could not be put into interference under well established law. Further, the principal opinion fails to follow our previous cases which have decided the identical point of law. It would be impossible to describe in detail all of the problems adoption of the position taken in the principal opinion would cause.- The substantial problems caused by the reasoning behind the rejection before us will emerge soon enough if the position taken in the principal opinion is adopted. What is particularly disturbing about the principal opinion is that it overrules a long line of our previous cases when it is not even necessary to do so. It is found in the principal opinion that the record fails to establish that Bass and Horvat were prior to Bass, Horvat and Jenkins. That being the case, the rejection must be reversed whether or not the board’s theory regarding section 102 is correct, and there is no reason to hypothesize concerning the alleged relationships between sections 102(g) and 103 of the statute. The principal opinion takes the position that the term “prior art” as it is used in 35 U.S.C. § 103 should include all inventions which were made in this country before an applicant or patentee made his invention, regardless of when those inventions are made public or patent applications on them are filed, so long as those inventions are found not to have been abandoned, suppressed or concealed. I disagree with that conclusion for the reasons stated hereinafter. I. Our Previous Cases The principal opinion states: [This] is the first time we have considered combining § 102(g) and § 103 in the context of an ex parte rejection entirely divorced from the award of priority in an interference which established the prior inventorship relied on in rejecting. With all due respect, that statement is contrary to the facts. We have been-faced with precisely the same theory of rejection as is before us, in an ex parte situation, entirely divorced from any award of priority in an interference, in at least two cases. In re Newton, 414 F.2d 1400, 56 CCPA 1463 (1969); In re Frilette, 412 F.2d 269, 56 CCPA 1262 (1969). In In re Newton, supra, (opinion by Judge Almond for a unanimous court) the examiner had rejected the claims as “unpatentable over the claims of copend-ing application Serial No. * * Appellant admitted that the cases were commonly assigned, but pointed out that the eases could not be joined because of the difference in inventors. The co-pending application issued as the Ing-ham patent. The board considered that the question before it was “whether the Ingham, Jr., patent and the instant application set forth two different inventions capable of sustaining different patents.” The board concluded that “[o]n these facts, a second patent cannot be granted, whether the same applicant or different applicants with a common assignee are involved.” Taking this to be a double patenting rejection, appellant submitted a terminal disclaimer and relied on several cases, including In re Bowers, 359 F.2d 886, 53 CCPA 1590 (1966), holding that the terminal disclaimer avoids the rejection. The board dismissed the terminal disclaimer out of hand, stating: A terminal disclaimer cannot overcome the present rejection on the facts before us. See Commissioner’s notice of January 9, 1967, at 834 O.G. 1615. That notice states in pertinent part: In view of the uncertain situation which has arisen as a result of recent decisions dealing with “double patenting” it is thought to be advisable to restate the practice which should be followed in this area, particularly as regards the effect of terminal disclaimers. * * * •X- *X* 'X' * -X* -X- In situations involving cases filed by different inventive entities, regardless of ownership, Sections 102 and 103 of 35 U.S.C. preclude the granting of two or more patents when directed to identical inventive concepts or when one of the concepts would be obvious in view of the other. A terminal disclaimer can have no effect in this situation since the basis for refusing more than one patent is not connected with any extension of monopoly. In view of 35 U.S.C. 135, it is necessary to determine priority of invention whenever two different inventive entities are claiming a single inventive concept, and this determination should ordinarily be made before any patent is issued. This is true regardless of ownership, and the provision of Rule 201(c) that interferences will not be declared or continued between commonly owned cases unless good cause is shown therefor does not mean, that two patents are to be allowed in such cases, but that the common assignee should be called on to state which of the entities involved is prior to the other in date of invention. ->:• -x- -x- * -x- If a patent is inadvertently issued on one of two commonly owned applications by different inventive entities which at the time when the patent issued were claiming inventions which are not patently distinct, the assignee should be called on to make a determination of priority as in the ease of pending applications and, if no election is made, an interference should be declared. An election of the applicant as the first inventor should not be accepted without a complete (not terminal) disclaimer of the conflicting claims of the patent. [Emphasis added.] That notice was apparently issued to overcome to some degree this court’s cases in which terminal disclaimers were held to overcome obviousness type double patenting rejections, such as In re Bowers, supra. The board’s position was defended by the solicitor in Newton, who stated: Apart from “double patenting,” the examiner’s rejection of claims 6 and 7 as unpatentable over the claims of the Ingham patent can be considered under 35 U.S.C. 102(g), such as to be immune from any avoidance by terminal disclaimer. * * * [Here the brief points out that such a rejection was actually made by the examiner, although not clearly labeled.] Here, there should be no need to go beyond the claims of Ingham as prior art under 35 U.S.C. 102(g), in line with the discussion of lost interference counts in In re Risse et al., 378 F.2d 948, 54 CCPA 1495. The foregoing “doctrine of election” by a common assignee was discussed at length in In re Hession, 296 F.2d 930, 49 CCPA 809. [Emphasis added.] Reliance on the notice was the sole reason the board held the terminal disclaimer ineffective to overcome the rejection. We did not duck the board’s rejection in Newton. Indeed, we could not duck it and still hold the terminal disclaimer to be effective. Rather, we rejected the solicitor’s suggestion that In re Risse was controlling and stated: We find the solicitor’s reliance on 35 U.S.C. 102(g) and his “doctrine of election” inapplicable here where different inventive entities are pursuing claims to different inventions. See In re Frilette, supra. We are not unmindful that the board believed that a terminal disclaimer would have no effect here and of its reference to the Commissioner’s notice in 834 O.G. 1615 4 [footnote 4 sets forth the pertinent parts of the notice] dealing with double patenting. We note only that this procedural memorandum sets forth guidelines for the Patent Office which were not even followed in this case and hence can have no bearing on its outcome here. [Footnote omitted, emphasis in original.] Nor was this court in Newton relying on some imaginary part of Frilette. In Frilette (opinion by Judge Baldwin for a unanimous court) we considered and rejected the “doctrine of election” theory and the Hession case where “the different inventive entities * * * are pursuing claims to different inventions.” 412 F.2d at 276, 56 CCPA at 1271, emphasis in the original. That the theory which we rejected in both Frilette and Newton is exactly the same as the theory of rejection which the principal opinion suggests we adopt in this case is made clear from the solicitor’s statement of it in Frilette: Where the inventors are different, * -x- x- the common assignee, by electing to issue one patent, has, in effect, determined priority of invention as to any common subject matter in favor of the patentee. Taking that view, the issued patent becomes prior art under Section 102(g), and a terminal disclaimer would necessarily be ineffective to avoid the rejection. [Emphasis added.] In the Hession case, relied on by the Patent Office in both Newton and Fri-lette, the pertinent facts are that two applications had been filed on the same invention by two different inventors, Ziherl and Hession. At the time of filing, both applications were assigned to the same company. This court held that in spite of the fact that Ziherl, who filed first, had filed on the latter's invention, the common assignee had made an irrevocable election with respect to priority under the cases following In re Dunbar, 278 F. 334, 51 App.D.C. 251 (1922) and In re Mann, 47 F.2d 370, 18 CCPA 1020 (1931). It was held that Hession, who had recovered ownership of his application from the original assignee, was bound by the “election” made by the original assignee when the first application was filed, and thus could not obtain a patent even though he was the original and first inventor, the original assignee had agreed to disclaim the patent which had issued to Ziherl, and an offer had been made to disclaim the term of any Hession patent beyond the expiration date of the Ziherl patent. In Hession, the court quoted with approval the following extract from In re Fischel, 136 F.2d 254, 30 CCPA 1085 (1943): We think the true doctrine of election in patent cases is grounded upon one or more of three fundamental propositions. First, the application of the doctrine prevents two patents being issued for the same invention. Second, it prevents an avoidance of the determination of priority. Third, it prevents an extension of monopoly. The court was of the view that while there was no extension of monopoly in view of the proffered terminal disclaimer in Hession, the other evils could not only be prevented by holding the original assignee’s “election” to be irrevocable. Judge Rich dissented on the grounds inter alia that the disclaimer avoided the threat of extension of monopoly and that an assignee’s election was not made irrevocable under the previous cases and there was no reason for establishing such a rule of law. The dissent contains an excellent discussion of the “doctrine of election” cases and their relationship to the cases dealing with double patenting. In In re Frilette, supra, we stated that the doctrine of election as applied in In re Hession and In re Frischel does not apply when the applications are claiming different inventions. This distinction was recognized in the Hession case as being the basis for the allowance of the claims in In re Howard, 53 F.2d 896, 19 CCPA 759, (1931). See In re Hession, 296 F.2d at 933, 49 CCPA at 815. It is the identical distinction this court has maintained between double patenting rejections in which the inventions claimed are the same and double patenting cases in which the inventions claimed are different albeit not patenta-bly different, terminal disclaimers being held effective to overcome the rejections in the latter cases. See In re Robeson, 331 F.2d 610, 614, 51 CCPA 1271, 1275 (1964); In re White, 405 F.2d 904, 56 CCPA 870 (1969). It is the only distinction between In re Hession and the many cases in which we have held terminal disclaimers filed by a common as-signee effective to overcome obviousness-type double patenting rejections where the inventive entities are different. See, In re Bowers, supra, 359 F.2d at 889, 53 CCPA at 1595. Other cases involving the Bowers situation include In re Heyl, 379 F.2d 1018, 54 CCPA 1608 (1967); In re Borg, 392 F.2d 642, 55 CCPA 1021 (1968); In re Rogers, 394 F.2d 566, 55 CCPA 1092 (1968); In re Frilette, supra; In re Newton, supra; and others. Of course, this court has the power to overrule all of the above cases. However, if that is the course we must take, it seems to me that we owe some explanation to the appellants in those cases and to the others who now hold patents issued on the basis of those cases why the law therein declared is erroneous. More importantly, if the law followed in those cases is wrong, let us overrule that law, and not institute some new law, which not only invalidates those cases, but also spawns far-reaching changes in interference law, in the law governing the use of Rule 131 affidavits and their effect, and elsewhere. The principal opinion would so change the law, in a case where, under the facts it finds, the legal question which precipitates all of these changes need not ever be reached. The only cases cited in the principal opinion which are in point are Sutter Products Co. v. Pettibone Mulliken Corp., 428 F.2d 639, (7th Cir. 1970) and the dicta in Ex parte Robbins, 156 USPQ 707 (1967), neither of which is binding on this court. Both are inconsistent with the view we took of the question in Newton and Frilette. II. The Statute The pertinent parts of the statute read as follows: § 102. Conditions for patentability; novelty and loss of right to patent A person shall be entitled to a patent unless— (a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or (b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States, or (c) he has abandoned the invention, or * ->:• -x- * -x- -x- (e) the invention was described in a patent granted on an application for patent by another filed in the United States before the invention thereof by the applicant for patent, or (f) he did not himself invent the subject matter sought to be patented, or (g) before the applicant’s invention thereof the invention was made in this country by another who had not abandoned, suppressed, or concealed it. In determining priority of invention there shall be considered not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one who was first to conceive and last to reduce to practice, from a time prior to conception by the other. § 103. Conditions for patentability; non-obvious subject matter A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made. The statute does not contain a definition of the term “prior art.” Nor does section 103 require that everything referred to in section 102 must be considered as “prior art” as that term is used therein. Indeed, using the “common meaning of the words” approach to ascertain the meaning of section 103, one might easily conclude that the “prior art” was intended to include only that material in section 102 in which something is “disclosed or described.” However, the history of section 103 contains indications that such an interpretation would be too restrictive. We are not called upon here to consider all aspects of the interrelationships between 102 and section 103. Our task is rather to decide whether a secret invention is within the meaning of “prior art,” as that term is used in section 103, by virtue of section 102(g). Before dealing specifically with section (g), a short discussion of secret prior knowledge is in order. III. Prior Public Knowledge or Use The doctrine that prior knowledge or use of an invention must be public before it can prevent the issuance of, or invalidate, a patent to another for that invention is an old one in patent law. It was firmly adopted as a ruling doctrine of United States law in the case of Pen-nock v. Dialogue, 27 U.S. (2 Pet.) 1, 7 L.Ed. 327 (1829). The statute governing that case was the Act of 1793, Ch. 11, 1 Stat. 318, section 1 of which provided for the grant of a patent for a: New and useful art * * * not known or used before the application. The court held that “not known or used” meant not publicly known or used by others: What then is the true meaning of the words “not known or used before the application?” They cannot mean, that the thing invented was not known or used before the application, by the inventor himself, for that would be to prohibit him from the only means of obtaining a patent. * * * The words, then, to have any rational interpretation, must mean, not known or used by others, before the application. But how known or used? If it were necessary, as it well might be, to employ others to assist in the original structure or use by the inventor himself, or if before his application for a patent, his invention should be pirated by another, or used without his consent, it can scarcely be supposed, that the legislature had within its contemplation such knowledge or use. We think, then, the true meaning must be, not known or used by the public, before the application. The validity of the above reasoning has not diminished one scintilla in the 143 years since it was put down on paper. To be sure, there has been an exception created to the rule that the prior knowledge must be public, in the case of an application for a United States patent. Under 35 U.S.C. § 102(e), which was derived from Alexander Milburn Co. v. Davis-Bournonville Co., 270 U.S. 390, 46 S.Ct. 324, 70 L.Ed. 651 (1926), a U.S. patent is effective as a reference as of its application date, even though the knowledge contained in the application was not made public until the patent issued. Hazeltine Research, Inc. v. Brenner, 282 U.S. 252, 86 S.Ct. 335, 15 L.Ed. 2d 304 (1965); In re Harry, supra. But as this court said in In re Hilmer, 359 F.2d 859, 877, 53 CCPA 1288, 1311 (1966): What has always been pointed out in attacks on the Milburn rule, or in attempts to limit it, is that it uses, as prior knowledge, information which was secret at the time as of which it is used — the contents of U.S. patent applications which are preserved in secrecy, generally speaking, 35 USC § 122. This is true, and we think there is some validity to the argument that that which is secret should be in a different category from knowledge which is public. Nevertheless we have the rule. However, we are not disposed to extend that rule, which applies to the date of filing application in the United States, the actual filing date when the disclosure is on deposit in the U.S. Patent Office and on its way, in due course, to publication in an issued patent. The board’s new view, as expressed in this ease * * *, has the practical potential effect of pushing back the date of the unpublished, secret disclosures, which ultimately have effect as prior art references in the form of U.S. patents, by the full one-year priority period of section 119. We think the Milburn rule, as codified in section 102(e), goes far enough in that direction. We see no valid reason to go further, certainly no compelling reason. To push the effective date of a non-anticipatory reference backwards beyond the point where the knowledge it contains was made public to the time when its author obtained that knowledge, as we are asked to do here, would be to extend the exception to the point where it essentially swallows the rule. Section 102(e) would be turned into mere sur-plusage, for the application date of the patent would no longer be important, except as showing a constructive reduction to practice and except insofar as it evidences an intent not to suppress, conceal or abandon. The Milburn and Hazeltine decisions are strictly limited to applications for U.S. patents. The question in Milburn was whether unclaimed anticipatory disclosure in an earlier filed application was a bar to the claims in the later filed application. The Court held that it was, stating: We understand the Circuit Court of Appeals to admit that if Whitford had not applied for his patent until after the issue to Clifford, the disclosure by the latter would have had the same effect as the publication of the same words in a periodical, although not made the basis of a claim. * * * The invention is made public property as much in the one case as in the other. But if this be true, as we think that it is, it seems to us that a sound distinction cannot be taken between that case and a patent applied for before but not granted until after a second patent is sought. The delays of the patent office ought not to cut down the effect of what has been done. The description shows that Whitford was not the first inventor. Clifford had done all that he could do to make his description public. He had taken steps that would make it public as soon at [sic] the Patent Office did its work, although, of course, amendments might be required of him before the end could be reached. We see no reason in the words or policy of the law for allowing Whitford to profit by the delay and make himself out to be the first inventor when he was not so in fact, when Clifford had shown knowledge inconsistent with the allowance of Whitford’s claim, [Webster] Loom Co. v. Higgins, 105 U.S. 580, 26 L.Ed. 1177, and when otherwise the publication of his patent would abandon the thing described to the public unless it already was old. The Court in Hazeltine Research, Inc. v. Brenner, 382 U.S. 252, at pages 255-256, 86 S.Ct. 335, at page 338, 15 L.Ed.2d 304 (1965) expressly followed the identical reasoning as that in Milburn, stating: The basic reasoning upon which the Court decided the Milburn case applies equally well here. When Wallace filed his application, he had done what he could to add his disclosures to the prior art. The rest was up to the Patent Office. Had the Patent Office acted faster, had it issued Wallace’s patent two months earlier, there would have been no question here. As Justice Holmes said in Milburn, “The delays of the patent office ought not to cut down the effect of what has been done.” In neither case did the Court push the effective date of a U.S..patent backward in time any further than its filing date. Both of the cases rely on the proposition that a prior applicant when he filed his application “had done what he could to add his disclosures to the prior art.” They did nothing to extend the effective date to a point before the inventor filed his application — a point in time when he has done absolutely nothing towards “adding his disclosures to the prior art.” Such a result conflicts with the rationale behind those cases. How can filing an application be a step towards adding an invention “to the prior art” if the invention itself is prior art at the moment it is conceived? Note that the Court in Hazeltine did not adopt the reasoning or the dicta of In re Harry, supra, — it nowhere said or implied that all the material contained in section 102 is prior art within the meaning of section 103. It merely held that Milburn made U.S. patents prior art as of their filing date and that that result was not changed by the enactment of section 102(e). As will be seen, no parallel situation, under which inventions were considered a part of the prior art before an application was filed on them or they were otherwise publicly disclosed, existed before the 1952 Act, and the 1952 Act was not intended to institute such a system. IV. Legislative History of Section 102(g) 35 U.S.C. § 102(g) deals with priority of invention. The House Report on it states: Subsection [102] (g) relates to the question of priority of invention between rival inventors. and further: Paragraph [102] (g) is derived from title 35, U.S.C., 1946 ed., § 69 (R.S. 4920, amended (1) Mar. 3, 1897, ch. 391, § 2, 29 Stat. 692, (2) Aug. 5, 1939, ch. 450, § 1, 53 Stat. 1212), the second defense recited in this section. This paragraph retains the present rules of law governing the determination of priority of invention. The language of section 102(g) was not settled on until late in the game. In H.R. 3760, it appeared in the following form: (g) before the applicant’s invention thereof the invention was in fact made in this country by another who had not abandoned it and who was using reasonable diligence in this country in reducing it to practice or had reduced it to practice. Prior to hearings on that bill, that language was objected to by many parties, on the ground that it “may be interpreted to constitute a secret reduction to practice an anticipation of an issued patent.” The story of how the final language was obtained is stated in the Coordinating Committee’s report of the May, 1951 meeting mentioned above: Paragraph (g): The coordinating committee was not satisfied with either the language of the Bill or the suggested changes proposed at the meeting since none of them wholly took care of the situation. The matter was left to Mr. Federico to prepare a redraft. After consultation with others Mr. Federico recommends the following paragraph which is intended to codify the existing law: [Emphasis added.] Section 102(g) followed thereafter in its present form. Whether or not the other suggested changes were an attempt to codify existing law or an attempt to do away with or modify the defense of prior invention by another, it is clear from the statement of the coordinating committee and the statements in the House and Senate reports that the final intent behind section 102(g) was merely to codify the existing rules of law on priority of invention. V. Priority of Invention Prior to 1952 Determinations of priority of invention are made in two situations — in interference proceedings at the Patent Office, and in infringement actions, where “prior invention by another” is available as a defense. The rules of law governing both situations are the same. Morgan v. Daniels, 153 U.S. 120, 14 S.Ct. 772, 38 L.Ed. 657 (1894). As interference may be defined as a proceeding instituted for the purpose of determining the question of priority of invention between two or more parties claiming the same or substantially the same invention. Ewing v. Fowler Car Co., 244 U.S. 1, 37 S.Ct. 494, 61 L.Ed. 955 (1917); Haudenschild v. Huyck, 1910 C.D. 64, 154 O.G. 515; Brailsford v. Lavet, 318 F.2d 942, 50 CCPA 1367 (1963); Patent Office Rule 201(a); I Rivise & Caesar, Interference Law and Practice § 1 (1940); B. Baker, Outline of Patent Office Interference Practice 1 (16th ed. 1971); H. Underwood, Interference Practice § 1 (1928); II Walker on Patents § 189 (A. Deller ed. 1937); II Robinson on Patents § 586 (1890). For the history of the statutory provisions governing interferences see Rivise & Caesar, supra, § 2 (citing Allen v. United States ex rel. Lowry, 26 App.D.C. 8 (1905)); and Robinson, supra, § 587. It was extremely well settled interference law long prior to 1952, that the question of priority of invention did not arise unless the parties claimed the same, or substantially the same, invention. See Rivise & Caesar, supra, §§ 14, 31, 62. Like the law governing interferences, the defense of “prior invention of another” has a long history, dating back to the Act of 1793. Section 6 of that Act listed as a defense to an infringement action “that the thing thus secured by patent was not originally discovered by the patentee, but had been in use, or had been described in some public work, anterior to the supposed discovery of the patentee.” It was continued as a special defense in section 15 of the Act of 1836, and was the defense raised in Gayler v. Wilder, 51 U.S. (10 How.) 477, 13 L.Ed. 504 (1850). It was ruled in that case that the prior invention had to be publicly used. See also Agawan Co. v. Jordan, 74 U.S. (7 Wall.) 583, 19 L.Ed. 177 (1868); Seymour v. Osborne, 78 U.S. (11 Wall.) 516, 20 L.Ed. 33 (1870); and Coffin v. Ogden, 85 U.S. (18 Wall.) 120, 21 L.Ed. 821 (1873). The defense was subsequently adopted in section 61 of the Act of 1870, which became R.S. 4920, the immediate predecessor of section 102(g): Section 61. * * * That in any action for infringement the defendant * * * may prove on trial any one of the following special matters: •X -X- -X- -X- * X Second. That [the patentee] had surreptitiously or unjustly obtained the patent for that which was in fact invented by another, who was using reasonable diligence in adapting and perfecting the same; or -X- * X X X X Fourth. That [the patentee] was not the original and first inventor or discoverer of any material and substantial part of the thing patented: X X X There has long been a distinction in the law between the defense of invalidity based on unpatentability over the prior art and the defense of invalidity based on the prior invention of another. Framed in the terminology of our present statute, that distinction is merely this: if the defense or rejection is based on prior art, the claim under consideration is not patentable if the differences between the subject matter claimed and the prior art relied on are ' such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. On the other hand, when the defense or rejection is not based on prior art, but rather is based on prior invention, i. e., the prior invention made in this country by another who had not abandoned, suppressed or concealed it, the claimed invention loill be patentable unless the prior invention is the same as or substantially the same as the claimed invention. Diamond Drill & Machine Co. v. Kelly Brothers, 120 F. 282 (E.D.Pa.1902), aff’d 123 F. 882 (3d Cir. 1903); Sundh Electric Co. v. Inter-borough Rapid Transit Co., 198 F. 94 (2 Cir. 1912); Farmer’s Handy Wagon Co. v. Beaver Silo & Box Mfg. Co., 236 F. 731 (7th Cir. 1916); cf. Bates v. Coe, 98 U.S. 31, 25 L.Ed. 68 (1878); Parks v. Booth, 102 U.S. 96, 26 L.Ed. 54 (1880). In other words, the differences allowed between inventions under the prior invention defense were exactly the same as the differences allowed between inventions when a determination is to be made as to whether an interference should be declared between them and exactly the same as the differences we have allowed in distinguishing between same invention type double patenting rejections and the obviousness type double patenting rejections. See In re White, supra. The nature of the distinction is made particularly clear by the Second Circuit’s opinion in Sundh, supra. In that ease the defendant contended that Sundh’s patent was invalid in view of a device disclosed in a patent to one Ihlder. The Ihlder application had been filed prior to Sundh’s, and the Ihlder patent issued after Sundh’s patent issued. The defendant relied on the Ihlder patent both as a basis for a prior art defense, and as a basis for a prior invention defense. Concerning the Ihlder patent, the court stated: Among the patents introduced by defendant was one to Ihlder, No. 742,031, which, as was said by the Circuit Court, “so. clearly resembles the Sundh patent in suit that the supposition arises that both Ihlder and Sundh were engaged at the same time in solving the problem and each invention performs substantially the same function.” If either of these devices were in the prior art, there would certainly be no invention in devising the other. [Emphasis added.] This was the equivalent to a holding that the two inventions were obvious in view of each other. The court denied the prior art defense, however, holding that Ihlder’s prior filed application was not “prior art” as to Sundh, and that part of the court’s holding was clearly overruled by Milburn. Concerning the prior invention defense, however, the court stated: This is a separate and distinct defense from the third one, and while evidence is not admissible to carry back the date of a later patent, by showing that application for it was filed earlier, the fact that the person who took out such later patent was himself the original and first inventor of the invention in controversy earlier than the plaintiff may be proved, as any other fact is, by competent proof. Barnes Automatic Sprinkler Company v. Walworth Mfg. Company, 7 Cir., 60 F. 605, 9 C.C.A. 154; Diamond Drill & Machine Company v. Kelly Brothers (C.C.) 120 F. 295. The various authorities cited in Judge Hazel’s opinion and on the brief of appellee are concerned wholly with the other defense, prior patenting or publication. ■X- •X* ■Jf *x* •x> In order to maintain this fourth defense it must, of course, appear that the invention of the patent in suit and the invention of the prior application are the same. Thus in Diamond Drill Company v. Kelly, supra, the patent in suit dealt with a beltfastener, the prior application with a bed-spring. That court held that even though it should be found that these were analogous arts, and that the presence of either in a prior field of art left no room for invention in the production of the other, it could not be said that both had invented the same thing. But it does not follow that the two devices must be Chinese copies of each other to warrant the application of this particular defense. The Court went on to compare the claims of the two patents, and pointed out that an interference should have been declared. Is this legal distinction between prior art rejections and prior invention rejections at odds with the holdings in Mil-burn or Hazeltine or Western States Mach. Co. v. S. S. Hepworth Co., 147 F.2d 345 (2d Cir.. 1945) or Detrola Radio & Television Corp. v. Hazeltine Corp., 313 U.S. 259, 61 S.Ct. 948, 85 L.Ed. 1319 (1941) ? It is not. Those cases are all to the effect that a United States Patent is prior art as of its filing date. A rejection based on section 102(e) is a prior art rejection, and section 103 of the statute therefore applies. While the Seventh Circuit in Sutter Products apparently reads the Milburn line of cases as charging an inventor with knowledge of all the inventions in his art being pursued in the United States, and thus declines to follow its own Farmer’s Handy Wagon Co. case, there is absolutely nothing which requires us to so depart from the position taken by the Second Circuit in Sundh and by the Third Circuit in Diamond Drill. With regard to Grinnell Corp. v. Virginia Electric & Power Co., 277 F.Supp. 507 (E.D.Va.1967), that case lends more support to my position than it does to that of the principal opinion, for the court agreed with the defendant that Suozzo’s work, although prior to the patentee’s effective date, was not part of the prior art because it was not published. 277 F.Supp. at 517. The defendant did not contend that Suozzo’s work, or prior invention, as it were, was part of the prior art. Rather, the defendant relied on a line of cases which indicate that simultaneous or prior invention by others, even though it is not “prior art” within the meaning of section 103 because it was never made public, may still be evidence under section 103 of the statute of the level of ordinary skill in the art at the time the invention. See Grinnell, supra, 277 F.Supp. at 518-519; Servo. Corp. of America v. General Electric Co., 337 F.2d 716 (4th Cir. 1964), cert. denied, 383 U.S. 934, 86 S.Ct. 1061, 15 L.Ed.2d 851 (1966); Felburn v. New York Central R. R. Co., 350 F.2d 416 (6th Cir. 1965); United States Pipe & Foundry Co. v. Woodward Iron Co., 327 F.2d 242, rehearing denied 329 F.2d 578 (4th Cir. 1964). In Grinnell the court rejected that line of cases on the grounds that the same public policy which prohibits the use of abandoned, suppressed or concealed materials as a basis for a prior invention defense under section 102(g) should prevent their use in a prior art rejection under section 103. Thus: The same reasons of public policy which forbid prior suppressed and concealed activities from invalidating a patent under 35 U.S.C. § 102(g) are also applicable to 35 U.S.C. § 103. VI. The Doctrine of Lost Counts My position is not in conflict with the holdings, as distinguished from the dicta, in In re Risse, 378 F.2d 958, 54 CCPA 1495 (1967); In re Yale, 347 F.2d 995, 52 CCPA 1668 (1965), and In re Taub, 348 F.2d 556, 52 CCPA 1675 (1965). Those cases merely follow the doctrine of lost counts, under which the losing party’s claims defining inventions which would have been obvious in view of the invention defined by the counts are rejected as unpatentable over the counts. As indicated in Risse, this doctrine is somewhat of an off-shoot from the doctrine of interference estoppel. It is apparently based on the proposition that the interference decision should, to the extent possible, put an end to the litigation between the parties in the Patent Office. Cf. In re Sola, 77 F.2d 627, 22 CCPA 1313 (1935); In re Capen, 43 App.D.C. 342 (1915); In re Wickers, 29 App.D.C. 71 (1907). The doctrine was established in this court and our predecessor in patent jurisdiction long prior to the 1952 Act, and thus the counts of an interference are presumably within the meaning the term “prior art” had attained when that statute was enacted, as against the losing party to that interference. The doctrine of lost counts has never been extended outside of the interference situation to cover separate inventions which could never have been placed in interference. As pointed out above, this court has specifically rejected the contention that Risse applies in such a situation. In re Newton, supra; In re Frilette, supra. Judge Rich himself has indicated that the doctrine has not been so extended. In In re Hilmer, 424 F.2d 1108, 57 CCPA 985 (1970) (opinion by Judge Rich for a unanimous court), the opinion described the proposition “that prior ‘invention * * by another’ is ‘prior art’ within the meaning of § 103” as being a substantial assumption. 424 F.2d at 1112, n. 3, 57 CCPA at 989, n. 3. The Hilmer opinion further states: As we understand the meaning of the term “priority,” it refers either (a) to the issue which exists in the interference proceedings, namely, which of two or more rival inventors attempting to patent the same invention shall be deemed prior or first in law and entitled to the patent or (b) preservation of an effective filing' date during a period such as the “convention” year as against acts which would otherwise bar the grant of a patent, for the protection of an applicant against loss of right to a patent. Nothing we have seen tends to indicate that this matter of “priority” has been intended to modify the longstanding provisions of our statutes as to what shall be deemed “prior art” under § 103.6 [Emphasis in original.] Footnote 6 reads as follows: We have considered the views expressed by the author of the board majority opinion herein in a concurring opinion in Ex parte Raspe, 156 USPQ 217 (1967), in a somewhat different factual situation. We think it necessary to distinguish between the right to a patent, which is only a right to exclude others, and a right to practice an invention or to be free of liability for infringement. If the law as it has been written by Congress creates anomalous situations, then it is for Congress to decide whether to change the law. In the present case we do not see the anomalous situation that was seen in Raspe since allowance of claims 10 and 16 would not give appellants coverage of Habicht’s claim 1 compound. Ex parte Raspe was a board decision decided 10 days after the ease of Ex parte Robbins, 156 USPQ 707 (1967) relied upon for support in the principal opinion. The Raspe concurring opinion referred to in Hilmer was authored by Examiner-in-chief Federico, and his reasoning in Raspe essentially follows his reasoning in Robbins. In the present case, the Patent Office has not advanced any new reasons for extending the doctrine of lost counts to situations not involving lost counts. There can be no question, or at least there could have been no question prior to the Commissioner’s Notice of January 9, 1967, that the inventions involved here are materially different and thus no interference could have been declared between them. See McCutchen v. Oliver, 367 F.2d 609, 611, 54 CCPA 756, 759 (1966); Brailsford v. Lavet, 318 F.2d 942, 945-946, 50 CCPA 1367, 1372-1373 (1963); Ex parte Manson, 146 USPQ 620 (1964); Ex parte Mercer, 1913 C.D. 195, 193 O.G. 1017; Hauden-schild v. Huyck, 1910 C.D. 64, 154 O.G. 515; but see Moore v. McGrew, 170 USPQ 149 (Bd. Pat. Intf. 1971). I would therefore hold that the doctrine of lost counts has no applicability to the case before us. In passing, it should be noted that In re Gregg, 244 F.2d 316, 44 CCPA 904 (1957), does not stand for the proposition for which it was cited in the principal opinion. From the material omitted between the portions of Gregg quoted in the principal opinion and from the material following those portions in the Gregg opinion, it is clear that the holding was based on section 102(e), not section 102(g). See In re Taub, supra, 348 F.2d at 563, 52 CCPA at 1683, stating that Gregg “was founded on the fact that ‘there is no evidence to show completion of the invention covered by the appealed claims by appellant at any time prior to Coakwell’s filing date,’ that is, ‘the Coakwell patent is a reference under Section 102(e)’ * * To the same effect is In re Risse, supra 378 F.2d at 955, 54 CCPA at 1503. VII. Practical Considerations Since the law of priority of invention prior to 1952 was distinctly different from the law regarding prior art, and since it could be no clearer that the intent of the drafters of the 1952 Act was to enact the law regarding priority of invention exactly as it was at that time, the correct answer to the question before us should be crystal clear. Yet the question might be asked whether we should change that law for something better. The principal opinion would have us change that law, but it is silent as to reasons why we should do so. I have thoroughly considered the system the principal opinion would have us establish, and I have been unable to find anything desirable about it. Consider the case before us. Here the private knowledge of the inventors, developed during the period which led to the claimed combination, is being used to set the standard of the knowledge of the man of ordinary skill in the art. What has happened to the objective standard of section 103? On the record before us this knowledge could not possiblly have been known by one of ordinary skill in the art; it was not published anywhere, nor was it the subject of a pending U.S. patent application at the time the combination under consideration was made. Indeed, whoever issued the Bass and Horvat patent and the Jenkins patent considered the crucial elements of the present combination to be unobvious to one of ordinary skill in the art. At best, the knowledge relied on for the rejection before us represents the level of one skilled in the art who worked in a proprietary environment with the other two inventors for who knows how many years and had been assigned the task of reducing carding machine blowouts. If we allow this subjective, secret knowledge to become the standard against which patentability is judged, we will do the public a disservice by watering down the incentive that the patent system provides for the advancement of the useful arts. Very few inventions are arrived at by a “flash of genius” or accidently, for example, by spilling a rubber composition onto the stove. Most are the result of carefully planned scientific research, often with numerous persons working on various aspects of a given problem. Invention is often reached via a large number of small steps forward. Given the possibility that the special knowledge of the inventor’s coworkers developed during the pursuance of the invention would be usable against any patent based on the invention which is the end result of the research effort, investors and corporate management would, or should, be most wary of using the patent system to protect any commercially valuable invention, rather than following the trade secret route. The problems presently faced under section 102(e), see, e. g., Franz, Prosecution Problems with a Plurality of Inventions From a Single Project, 51 J.P.O.S. 559 (1969), are nothing compared to the problems which would ensue if the effective date of a patent were changed from its filing date, which is at least a definite date, to the date of “invention.” The system proposed by the principal opinion would also reek havoc with the law concerning affidavits under Rule 131 and its predecessor, Rule 75, which have long been a part of U.S. patent law. While the examiner in the case before us accepted appellants’ Rusle 131 affidavits as showing invention prior to the effective date of the O’Neal reference, if “prior invention” is also “prior art,” we do not really know the effective date of the O’Neal reference, since clearly O’Neal must have conceived his invention prior to the date on which he filed his application. Since the Patent Office has no way of knowing what a reference patent’s actual date of invention is, it would have to issue patents in cases where the filing date of the reference is overcome, even though a large number of such patents would be invalid. Consider the plight of two inventors who independently develop inventions which are materially different from, but obvious in view of, each other. The reasoning of the principal opinion would force both inventors into an expensive and burdensome interference contest in which they could only lose. While the winning party could keep the claims .he had, he could not claim the loser’s invention because the winner “did not himself invent the subject matter.” 35 U.S.C. § 102(f). The loser, of course, would gain nothing, and his application would ordinarily never be published. We need not further dwell on the vagaries of a system under which priority contests must be waged between inventions which differ substantially but would have been obvious one in view of the other, for there is absolutely no indication that such a radical change in the law was intended by the drafters of the 1952 Act. As noted above, all indications are that no change at all was intended. An even stronger indication of the same intent is to be found in the Act itself, section 135(b) of which discusses interferences between applications and issued patents for “the same or substantially the same subject matter * * Are we to rule that interferences must now be declared between inventors whose inventions are substantially different from one another but those differences are such that the one would have been obvious in view of the other? Such a result would inevitably follow from a holding that the prior invention of § 102(g) must be applied as the standard against which a determination must be made as to whether a patent may be granted under 35 U.S.C. § 103. In fact, such an interference was the only course the board left open to appellants in the present ease by which they might overcome the Bass and Jenkins references. The board stated: The first three lines of Rule 131 are as follows: “When any claim of an application is rejected on reference to a domestic patent which substantially shows or describes but does not claim, the rejected invention,” (Emphasis added.) In our opinion, it is claimed subject matter rather than the unclaimed subject matter of the Bass, Jr. et al. and Jenkins, Sr. patents which is being relied upon. The specific manner in which the claims of the Bass, Jr. et al. and Jenkins, Sr. patents are drawn does not indicate otherwise. Under the circumstances here involved it does not appear that an affidavit under Rule 131 was the proper procedure to adopt. The “proper procedure” to overcome a domestic patent which claims the rejected invention is to file an affidavit under Rule 204 and provoke an interference. The prospect of a two or three way interference between appellants Bass, Hor-vat and Jenkins, patentees Bass and Horvat and patentee Jenkins seems ludicrous indeed. It should be noted, however, that before the board appellants pointed out that “[tjhere is nothing in the affidavits to suggest that the Jenkins screen or the Bass plenum were used separately before they were brought together in the claimed combination,” and the principal opinion itself concludes that there is no showing that the plenum is prior to the combination. There was no application filed on, and thus no constructive reduction of, either the plenum or the screen prior to the alleged actual reduction to practice of the presently claimed combination. If either the plenum or the screen had not been actually reduced to practice prior to the first use of the combination, the question as to which was actually the first conceived would be presented. The Rule 131 affidavits submitted here were clearly not directed to that question. Apparently the board felt that that question could only be resolved by such an interference. Indeed, the last paragraph of the Commissioner’s Notice quoted supra requires that an interference be declared, contrary to the law of priority of invention embodied in section 102(g), contrary to the specific language of 35 U.S.C. § 135(b), and contrary to the settled case law that claims do not interfere unless they are directed to the same, or substantially the same invention. Such a course has been followed by the Patent Office at least once. See Moore v. McGrew, supra, note 1. On the other hand the Patent Office could follow the established law and hold that claims to different inventions do not interfere even if the inventions are obvious in view of each other. The net result of that holding would be to eradicate all the methods by which an applicant could find out the actual effective date of any reference, whether the reference was filed or published before or after the applicant’s filing date, save one — he will find out the actual effective date of the reference when it is interposed against his patent in an infringement or a declaratory judgment action. Conclusions At the heart of the reasoning b.ehind Yale, Taub and Risse is the proposition that everything in section 102 is prior art. That reasoning is an easy trap to fall into, for much of what is in section 102 is also prior art under previous law. However, as I have endeavored to show, that reasoning conflicts with the real intent behind the statute. Rather than make such a broad generalization about section 102 and then follow it blindly, this court should carefully scrutinize each section thereof to determine the meaning of the statutory language and the intent behind it. That was the course followed by Judge Jackson in the opinion which the Supreme Court affirmed in Hazeltine v. Brenner, supra. There he said: [I]n view of the fact that the “prior art” under 35 U.S.C. § 103 is not limited to materials which an inventor knows or could reasonably be expected to know, the question of whether a copending patent is to be considered a part of the “prior art” under 35 U.S.C. § 103 is a matter of policy. Because of the fact that the policy, the case law prior to the 1952 Act was to include “copending patents” in the prior art in situations analogous to those now covered by Section 103, it is the opinion of the Court that there would have to be clear, unmistakable language in the Patent Act of 1952, or in its legislative history before a Court would be warranted in holding that “copending patents” are not “prior art” under 35 U.S.C. § 103. The Court has not found, nor has Counsel for plaintiffs directed its attention to any such language. The Patent Act is unclear on this point •x- * *_ [Footnote omitted, emphasis added.] Hazeltine v. Ladd, 226 F.Supp. 459 (D.C.D.C.1964) aff’d per curiam, 119 U.S.App.D.C. 261, 340 F.2d 786 (1964), aff’d 382 U.S. 252, 86 S.Ct. 335, 15 L.Ed.2d 304 (1965). To summarize my position, the legislators clearly intended to enact the law of priority of invention exactly as it stood in 1952. As it stood then the question of priority only arose between inventions which were the same, or substantially the same. The decisions dealing with references which are U.S. patents do not conflict with that law and it has not otherwise been overruled. There are no policy considerations which would dictate changing that law, and many policy considerations against such a change. I would reverse the rejection of claims 1 and 6-9 on the basis that the elements invented by Jenkins and by Bass and Horvat are not prior art with regard to the Bass-Horvat-Jenkins combination. I note that no rejection of these claims on the basis of double patenting is before us, although absent a terminal disclaimer such a rejection would appear proper. I agree with the affirmance of the rejection of claims 2-5. LANE, Judge (concurring). I concur in the result reached by both Judge Rich and Judge Baldwin in this case. I affirm the rejection of claims 2, 3, 4 and 5 as obvious under § 103 in view of Reiterer and Fuji. I reverse the rejection of claims 1, 6, 7, 8 and 9 on Bass combined with Fuji and Jenkins. I agree with Judge Rich that there is no substantial evidence of record tending to indicate priority in Bass and I therefore exclude Bass from consideration as prior art here in passing on the obviousness rejection of these claims. Both Judge Rich and Judge Baldwin have expounded at great length on whether or not § 102(g) makes available as prior art within the meaning of § 103 the prior invention of another who has not abandoned, suppressed or concealed it. In my opinion, the inconsistent conclusions of these judges on this point constitute statements of law which I consider not necessarily involved nor essential to the disposition of this appeal. However, since the particular court which heard this appeal argued is obviously divided on this proposition, as evident from the extensive treatment accorded it in both opinions, I deem it advisable for me to make of record my view that the prior invention of another who had not abandoned, suppressed, or concealed it, under the circumstances of this case which include the disclosure of such invention in an issued patent, is available as “prior art” within the meaning of that term in § 103 by virtue of § 102(g). . The application is stated to be a continuation-in-part of application serial No. 494,391, filed October 11, 1965. . § 102. Conditions for patentability; novelty and loss of right to patent A person shall be entitled to a patent unless— * * * * * (g) before the applicant’s invention thereof the invention was made in this country by another who had not abandoned, suppressed, or concealed it. In determining priority of invention there shall be considered not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one who was first to conceive and last to reduce to practice, from a time prior to conception by the other. . This and related discussion in the case may be characterized as dicta for two reasons: The affidavits were held not to be sufficient and the claims on appeal were held to be unobvious even when the Porter et al. patent was treated as prior art. Even as dicta, the statements stand as the view of at least that panel of the board on the legal effect of § 102(g) in establishing the prior invention of another as prior art under § 103. . Compare this statement with footnote 4 in In re Facius, 408 F.2d 1396, 56 CCPA 1348 (1969), and footnote 11 in In re Land and Rogers, 368 F.2d 866, 54 CCPA 806 (1966). . In order not to mislead, attention is called to the fact that, as to using the whole disclosure, Gregg was later modified in this respect by a number of decisions including Taut, Yale, and Risse, discussed hereinafter, and also by In re Bandel, 348 F.2d 503, 52 CCPA 1775 (1965). Bandel likewise recognizes using § 102(g) prior art in making a § 103 rejection, but without specific reference to either section. . Recently in In re Smith, 458 F.2d 1389, 59 CCPA- (1972), another part of the Risse opinion was modified but the matter of using § 102(g) prior invention as “prior art” under § 103 was not thereby affected. . It may be wondered why, in the twenty years since § 102(g) came into effect, there have not been more adjudicated cases reported relying on it to show “prior art” in support of a § 103 rejection. The answer probably is that there are many other defenses much easier to establish and it is a rare case where the effort of going back to the date of invention of a prior inventor is worth the cost. In particular, § 102(e) makes patents unquestioned prior art for all purposes as of their United States filing dates and the date of invention is usually not enough earlier to make a difference in the result. . The affidavit states, apparently erroneously, that the drawing was “made Decem-ber 6, 1963.” The drawing is dated “12-5-63.” . 359 F.2d 859, 53 CCPA 1288 (1966). . See [1973] APLA Bull, at 16-18, discussing the difficulties created by the case of Moore v. McGrew, 170 USPQ 149 (Bd. Pat.Intf.1971), which decided an inter-ferenee declared between two applications which disclosed substantially different inventions. . In re Harry, 333 F.2d 920, 923, n. 1, 51 OCPA 1541, 1545, n. 1 (1964). . On close examination none of the legislative history discussed in footnote 2 of Harry is inconsistent with tire proposition that some of the material in § 102 would remain as merely “anticipatory prior art.” 333 F.2d at 923-924, 51 CCPA at 1545-1546. See note 4, infra. No one would oontend that section 102(c) has anything to do with prior art. Thus the statement in footnote 2 of Ilarry that “ ‘prior art’ means at least those things named in section 102” is, at best, inaccurate — some of the “things” in section 102 are prior art, such as those in 102(a), and some are not, such as in 102(c). The question remains whether those in 102(g) belong to the former category or the latter. . The embryos of present sections 102 and 103 of the statute first appeared in House Comm, on the Judiciary, Slst Cong., 2d Sess., Proposed Revision and Amendment of the Patent Laws, Preliminary Draft, (Comm. Print 1950) as sections 22 and 23, respectively. Section 22 did not contain anything comparable to present sections 102(e), (f) or (g). Section 23 read as follows: A patent may not be obtained though the invention is not identically disclosed or described in the material specified in section 22 of this title, if the differences between the subject matter sought to be patented and said material are such that the subject matter as a whole would be obvious to an ordinary person skilled in the art. [Emphasis added.] The pertinent language was substantially the same in section 103 of II.R. 9133, 81st Cong., 2d Sess., introduced July 17, 1950. In section 103 of H.R. 3760, introduced April 18, 1951, the pertinent language had been changed to read “disclosed or described in the prior art set forth in section 102 of this title, if the differences between the subject matter sought to be patented and that prior art are such * * ®.” In May of 1951, the Coordinating Committee (see Rich, Congressional Intent — or, Who Wrote the Patent Act of 1952? Patent Procurement and Exploitation 61, 67, 71 (BNA, 1963)) met to consider H.R. 3760. Among the changes they then suggested was the rewording of section 103, apparently in response to a suggestion from the Patent Law Committee of the Bar Association of the City of New York, which changed “in the prior art set forth in section 102” to “as set forth in section 102” and changed “that prior art” to “the prior art.” According to the suggestor: “The purpose of this is to make it clear that all prior art is here meant and not merely the prior art referred to in section 102 which is limited to anticipatory art.” See Hearings on H.R. 3760 before Subcomm. No. 3 of the House Comm, on the Judiciary, 82nd Cong., 1st Sess. ser. 9 at 33, 221 (1951) [hereinafter cited as 1951 hearings]. Thus it can be seen that while each change made section 102 less of a definition of what can be utilized in determining unobviousness under section 103, the phrase “disclosed or described” remained unchanged throughout this metamorphosis. . 27 U.S. (2 Pet.) at 18-19. . See note 3, supra. . H.R.Rep.No.1923, 82d Cong., 2d Sess. at 7 [hereinafter House Report]. The Senate Report, S.Rep.No.1979, 82d Cong., 2d Sess. (1952), U.S.Code Cong. & Admin. News, p. 2394 is identical to the House Report in all pertinent respects. . Id., at 17-18, emphasis added. . Report of the Laws and Rules Committee of the American Patent Law Association, 1951 Hearings, supra, at 44 (emphasis added). Similar objections were voiced on behalf of the Department of Defense, id., at 79, the National Association of Manu-facturera, id., at 51, and others, e. g., id., at 93, 192. . 3951 Hearings, supra, at 33. . Ch. 11, 1 Stat. 318. . Ch. 357, 5 Stat. 117. . 51 U.S. at 496-497. That case was also the first Supreme Court case in which it was held that the abandonment of a prior invention precluded its use to invalidate a later patent. 51 U.S. at 497--498.

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Application of Olof H. HELLSUND. Patent Appeal No. 8607. United States Court of Customs and Patent Appeals. March 15, 1973. Rich, Acting Chief Judge, concurred in result and filed opinion. Baldwin, J., concurred and filed opinion. Richard E. Lyon, James W. Geriak, Thomas D. Kiley, Los Angeles, Cal., Francis D. Thomas, Jr., Washington, D. C., Lyon & Lyon, Los Angeles, Cal., attorneys of record, for appellant. S. Wm. Cochran, Washington, D. C., for the Commissioner of Patents. Raymond E. Martin, Washington, D. C., of counsel. Before RICH, Acting Chief Judge, ALMOND, BALDWIN and LANE, Judges, and RAO, Judge, United States Customs Court, sitting by designation. ALMOND, Judge. This is an appeal from the decision of the Patent Office Board of Appeals affirming the rejection of claims 1, 2, 4, 7-10, and 21-23 of appellant’s application entitled “Continuous Casting Process and Apparatus.” No claims were allowed. The invention relates to the continuous casting of polymers into sheets. Appellant’s apparatus can best be understood with reference to Figs, la, lb and 2, reproduced below: Appellant casts polymeric sheets by feeding a monomer between two moving endless belts and curing (polymerizing) the monomer while it is contained within the space between the belts. Liquid monomer is fed to the top of lower belt 12 at point 18. The monomer is carried between rollers 13 and 16, at which point it becomes enclosed between the lower run of upper belt 11 and the upper run of lower belt 12. The two belts move through the curing zone 29 at the same speed. Curing is effected by heating the monomer, preferably by spraying belts 11 and 12 with hot liquid. The liquid, such as water, is sprayed from nozzles 33 which are positioned above and below the monomer as shown in Fig. 2. The polymer sheet may be postcured in zone 30. Belts 11 and 12 are supported at the desired distance from each other by rolls, such as rolls 37 and 38 in Fig. 2, which are spaced at short distances throughout the curing and post-curing zones. As can be seen from the drawings, belts 11 and 12 follow a downward inclined path from the point defined by rolls 13 and 16 until they reach postcur-ing zone 30. The path is inclined in order to avoid problems previously encountered in polymer casting. It appears that continuous polymer casting between horizontal endless belts had previously been known, but that it had been impossible to maintain the spacing between the belts. This resulted in the lack of control over the thickness of the product. This problem was overcome by running the belts at an angle to the horizontal for the length of the curing zone so that a pressure head of the liquid monomer is developed which is sufficient to maintain the spacing between the belts until the liquid is polymerized. Appellant did not discover the use of the inclined path to maintain the spacing between the belts. Appellant’s contribution resides in the suggestion that while the belts are inclined they should follow a curved path which is defined by their own natural curvature. Claim 1 is illustrative: 1. A process for preparing substantially rigid sheets and the like which comprises passing a fluid composition comprising a polymerizable organic monomer between and in contact with two moving surfaces, providing a pair of seals between said surfaces such that said fluid composition is confined in a space bounded on two opposing sides by said seals, allowing said fluid to fill the cavity defined by said surfaces and said seals, passing said composition and moving surfaces through at least one zone in which said composition is subjected to conditions which cause said monomer to polymerize, one of said surfaces being disposed above the other of said surfaces in said zone, said upper surface being of such a size and weight that it would bow downwardly into said fluid and toward said second surface if said surfaces were horizontal in said zone, the path of said surfaces through said zone being defined by the natural curvature of said moving surfaces and maintaining said surfaces at an incline to the horizontal in said zone to cause a fluid head to be developed by said fluid composition whereby the fluid pressure exerted by said fluid composition is sufficient to maintain said surfaces substantially parallel to each other and the spacing between said surfaces at a predetermined distance in said zone, said natural curvature being substantially that which said surfaces would assume if supported only at the upper and lower limits of said incline, bringing said surfaces together to an extent sufficient to compensate for any shrinkage of the composition during polymerization such that said surfaces are maintained in contact with said composition during polymerization, and removing the resultant polymerized sheet from both of said surfaces. The other claims add limitations concerning the monomer used, specify that the moving surfaces are made of stainless steel, add a postcuring step, or differ from claim 1 in other respects not pertinent here. No distinction between the claims has been drawn, and accordingly they will stand or fall together. The rejection of the claims was made on the basis of a patent to Opel et al. (Opel). It is clear from the patent that it was Opel who solved the problems associated with horizontal belt continuous casting by arranging the endless belts so that they are “inclined in such a manner that the pressure of the materials between the belts is sufficient to maintain the spacing between them at a desired predetermined distance.” The Opel patent refers to the present application, treating appellant’s “natural curve” process as a specie of the generic invention of placing the belts at an incline : As claimed herein, the inclined path of the moving belts may be a straight line or, as claimed in copending application Ser. No. 490,897, filed on the same date as the present application in the name of Hellsund, and assigned to the assignee of the present application, these belts may follow a curved path which is defined by the natural curvature of the belts. The patent further states: It is to be understood that the word “inclined” as used in the present specification and claims is intended to include straight, curved, angular or other paths which may be defined by a belt moving between a first roller and a second roller wherein the first roller is at a height greater than that of the second roller. Figures la, lb, and 2-5 of the Opel patent are essentially identical with Figs, la, lb, and 2-5 of the present application, and the description of the apparatus depicted in those figures is correspondingly similar. The patent also contains Figs. 6 and 7, which are directed to the straight line inclined path process apparently invented by Opel. Appellant does not contend that he invented the straight line or generic variation of the process. ' On the contrary, appellant’s application specifically states: However, it was not until the process and apparatus described and claimed in copending application Serial No. [490,945, now the Opel patent], filed on the same date as the present application in the names of Opel et al and assigned to the same assignee as the present application was developed that continuous easting of monomers on a commercial scale became possible. Certain problems continued to be experienced with regard to the use of the Opel et al process and apparatus including the need for extremely tall buildings to house the inclined portion of an apparatus of substantial length and the difficulty in maintaining the inclined portion in the desired position. Furthermore, the inclined portion of the Opel et al apparatus required rather massive supporting structures, and it was desired to simplify this portion of the apparatus. The examiner rejected the claims under both section 102 and section 103 of the statute. The section 102 rejection, based on the premise that some “natural sag” would occur in even the straight line inclined path embodiment of Opel, was not sustained by the board. Appellant argued before the board that the section 103 rejection should be reversed on two grounds: (1) that the Opel disclosure was not prior art with respect to appellant’s application since they were both filed on the same day; and (2) that even if the Opel disclosure were available as prior art, appellant’s invention would not have been obvious to one of ordinary skill in the art in view of the Opel disclosure. In his Answer, the examiner contended that appellant had admitted that the Opel invention was prior to his invention, pointing to the statements in appellant’s application quoted above and also referring to statements allegedly made at an interview. The examiner postulated that the Opel disclosure was available as prior art under 35 U.S.C. § 102(a), (f) or (g)- Appellant submitted a brief in reply to the examiner’s Answer. Whether or not appellant had previously admitted that part of the disclosure of the Opel patent was available as prior art, such an admission was clearly made in that reply brief. The pertinent portions of the reply brief are set forth below, with almost all emphasis being ours: It is pointed out that the disclosure of Patent No. 3,376,371 is not available in its entirety, but only insofar as the disclosure therein [is] acknowledged as prior art in the present application. Indeed, it is expressly pointed out at column 2, lines 66-70 of Patent No. 3,376,371 that the embodiment comprising the use of curved belts is not the invention of the paten-tees but rather the invention of Hell-sund, the applicant here. The Examiner appears to recognize this distinction at pages 6 and 7 of the Examiner’s Answer, but goes on to find that it is “obvious” because: 1. Natural curvature is known; and 2. “It is not an unobvious result that continuous casting through a curved path is as feasible as continuous casting through a straight inclined path”. * * Furthermore, the acknowledged prior art represented by part of the disclosure of Patent No. 3,376,371 in no way encompasses many of the specific limitations set forth in the appealed claims. For example, the shape of the curve recited in claim 23 is in no way disclosed or suggested by that part of the disclosure of Patent No. 3,376,371 which is available as a reference. The board devoted much of its opinion to the determination of “what prior art is available for use, and, if any, the statutory basis on which [it] is [to be] used.” The board concluded that the prior invention of Opel was available as prior art by virtue of 35 U.S.C. § 102(g). Before us, appellant argues that the board’s holding was in error, and that the Opel patent is not available as prior art. We find no need to treat the board’s discussion of 35 U.S.C. § 102(g) in view of the above-quoted portions of appellant’s reply brief and the acknowledgments in his application concerning the Opel invention. We are not convinced that the board committed error in holding what appellant has termed “that part of the disclosure of Patent No. 3,-376,371 [the Opel patent] which is available as a reference” to be usable against appellant’s invention. In re Garfinkel, 437 F.2d 1000, 58 CCPA 883 (1971); In re LoPresti, 333 F.2d 932, 52 CCPA 755 (1964); cf. S. N. Turner, Admissions as Prior Art Under 35 USC 103, 52 J.P.O. S. 249 (1970). Of course, the board did not use that part of the Opel patent which discloses what it acknowledges to be appellant’s invention as prior art against the instant claims. See In re Mathews, 408 F.2d 1393, 56 CCPA 1033 (1969); In re Facius, 408 F.2d 1396, 56 CCPA 1348 (1969). As appellant point out, the Opel patent is usable against the instant claims “only insofar as the disclosure therein [is] acknowledged as prior art in the present application.” Having decided that Opel was usable as prior art, the board went on to find that appellant’s claimed invention would have been obvious in view of Opel. The board considered that “straight or natural sagging, and horizontal or sloping, conveyor belts are all well known as engineering matters.” The board discredited appellant’s argument that the use of the curved path decreased the necessary height of the casting apparatus by showing that the height of the apparatus used in appellant’s example, which utilized a curved path, was actually greater than the height of the apparatus used in an essentially identical process in Opel Example 2, which utilized a straight line inclined path. We agree with the board’s reasoning on this issue, and conclude that the claimed invention would have been obvious to one of ordinary skill in the art in view of the portion of the Opel disclosure relied on. The decision of the board is affirmed. Affirmed. RICH, Acting Chief Judge (concurring) . There are several cogent reasons why I cannot join Judge Almond’s opinion. I shall first name them and then discuss them. 1. The opinion does not deal with the issue raised by the board’s decision and briefed and argued in this court. 2. The opinion does not accurately state the ground of rejection before us and is confusing as to the role played in that rejection by the Opel et al. patent. 3. In accepting appellant’s admissions as the sole basis for affirming the board and as support for an obviousness rejection under § 103, the opinion goes further than this court has ever gone before, further than the Patent Office has gone, goes contrary to what the Patent Office did in this ease, and creates a very dangerous precedent. (See 5 below.) 4. The opinion declines to consider what, if any, statutory basis exists for using an applicant’s admission as establishing “prior art” under § 103. Admitted prior invention is not necessarily “prior art” under § 103. 5. By refusing to consider § 102(g) or to relate the use of the admission of prior invention by Opel et al. to it in any way, the opinion discards safeguards carefully written into § 102(g) to prevent the use of prior abandoned, suppressed, or concealed, inventions as “prior art,” opening the way to the use of such inventions as “prior art.” DISCUSSION It first becomes necessary to state clearly what is the sole rejection on appeal. The rejection is for obviousness under § 103 which says: A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. [My emphasis.] As the board said, The major question presented for decision in this appeal is the determination of what prior art is available for use and, if any, the statutory basis on which [it] is used. [My emphasis.] We said in In re Hilmer, 359 F.2d 859, 879, 53 CCPA 1288, 1313 (1966) : Much confused thinking could be avoided by realizing that rejections are based on statutory provisions, not on references, and that the references merely supply the evidence of lack of novelty, obviousness, loss of right or whatever may be the ground of rejection. We then discussed an illustrative case in which a certain patent was relied on to show what invention had been found, in an interference, to be a prior invention and pointed out, after using that patent for that limited purpose, that the “patent had no relevance as such.” (As I will show, this has a bearing on what Judge Almond’s opinion says about the Opel et al. patent.) The above quotation from Hilmer has been applied in In re Land and Rogers, 368 F.2d 866, 875, 54 CCPA 806, 819 (1966); In re Facius, 408 F.2d 1396, 1406, 56 CCPA 1348, 1357 (1969); and In re Bergstrom, 427 F.2d 1394, 1399, 57 CCPA 1240, 1246 (1970). What, then, is the statutory basis of the rejection before us in this case? All are agreed that Hellsund’s claims were rejected for obviousness under § 103 in view of the prior art. Judge Almond’s opinion correctly states that, “The board concluded that the prior invention of Opel was available as prior art by virtue of 35 U.S.C. § 102(g).” (Emphasis mine.) Since the board’s opinion is unpublished and has not been quoted from, we can see what it actually concluded, and what issue was appealed, only by setting forth its reasoning (all emphasis mine): The examiner predicates the availability of the subject matter he is using as prior art upon paragraphs (a), (f) and (g) of Section 102. The “subject matter” the examiner was using, as the board had just pointed out, was the invention of Opel et al. which was described in their patent (along with Hellsund’s invention). Rejection was not based on the Opel et al. patent as such. The board continued: Paragraph (e) of 102 is not applicable since the applications have the same filing date. Paragraph (a), referred to by the Examiner, is not, by itself, considered applicable since the prior knowledge and use referred to in this paragraph is now generally interpreted as referring to public prior knowledge and use. Paragraph (f) would be applicable but the use of this paragraph would require that the present applicant had knowledge of the prior subject matter at the time he made his improvement. This may very well be the case here, but it is unnecessary to consider this matter in view of the presence of paragraph (g) under which this fact would be irrelevant. Paragraph (g) of Section 102 refers to the prior invention of another. This paragraph is not restricted to interference proceedings, but is the basis upon which the defense of prior invention may be raised against the validity of a patent in an infringement suit and which, if proven, would render the patent invalid. The board cited no precedents in support of the last statement but I will supply some: These two are from the Solicitor’s brief: Armour & Company v. Swift & Company, 320 F.Supp. 433 (D.C.N.D.Ill.1970), (Findings of Fact 18, 19 and Conclusion of Law 2); Lorenz v. Berkline Corp., 137 USPQ 29 (D.C.N.D.Ill.1963) (Conclusions of Law 11, 17, and 21.) See also Sutter Products Co. v. Pettibone Mulliken Corp., 428 F.2d 639 (7th Cir. 1970); Grinnell Corp. v. Virginia Electric & Power Co., 277 F.Supp. 507 (E.D.Va.1967). There are others which the Patent Office cited to us. The board opinion continues: Normally, this type of rejection is not made in ex parte prosecution of applications since necessary evidence relating to prior invention is not at hand and is not searched for as such, and a rejection of this kind is normally only applied when an antecedent interference contest between the same parties has established a prior invention. However, when the facts are matters of record, or acknowledged, or not in dispute, 102(g) is used as a basis for rejection in ex parte practice. In this particular case there is no dispute as to the invention of Opel and Bottoms being prior to the time appellant made his improvement; this is readily evident from the presentation of the cases and is freely acknowledged by appellant. * * "• The prior art used in this case is the prior invention of Opel and Bottoms, and this is made available by paragraph (g) of Section 102. The Opel et al. patent and its claims are used for the purpose of delineating this prior invention * * *. In this sense the patent is the reference as containing a disclosure of the prior invention. -x- -x- -x- * -x- * * * the prior invention of another is acknowledged (or admitted) and the statute in Section 1Ó2 makes the prior invention available as prior art. This, then, was the decision from which appeal was taken to this court. The single reason of appeal filed asserted, inter alia, that the record does not permit reliance on the invention disclosed in the Opel et al. patent, “assert-edly made available as prior art under 35 U.S.C. § 102(g).” Appellant’s brief argues this case on the basis of what the conclusion of that brief says are the “primary issues raised by this appeal,” namely “whether or not Section 102(g) has any applicability whatsoever in an ex parte proceeding, and, if so, the extent to which Section 102(g) stands as a source of Section 103 prior art.” The first two points of the Patent Office brief are: 1. Prior invention by another is a proper basis for ex parte rejection under section 102(g) 2. The facts of the case justify a holding that the pertinent portions of Opel are “prior art” made available under section 102(g). Judge Almond’s opinion declines to deal with these issues raised by the appeal, passing them by with the statement that “We find no need to treat the board’s discussion of 35 U.S.C. § 102(g) in view of” Hellsund’s admission. Hellsund’s admission goes only to the existence of the Opel et al. prior invention. He has vociferously denied in this court that it could be used against him as “prior art” under § 103. Judge Almond’s opinion uses admissions about the priority of the Opel et al. invention without answering that argument and without saying what, if any, statutory basis exists for using it as § 103 prior art. So far as the opinion goes, the admitted prior invention is used without any statutory basis. The evident effect, if not the intent, of Judge Almond’s reasoning is to make all admissions by applicants of prior invention by others “prior art” without limitation. The Patent Office tied its use of the Opel et al. prior invention as “prior art” under § 103 to § 102(g) which contains the safeguard that the prior invention is not usable, as § 103 “prior art” or otherwise, if “abandoned, suppressed, or concealed.” Judge Almond’s opinion discards this safeguard. It does not limit use of another’s prior invention to § 102(g) or to § 103 but makes it available even for a § 102(a) rejection which the board was careful to limit to knowledge or use which was public. Admitted prior invention under this opinion could thus be held to be support for a § 102(a) rejection on the ground that “the invention was known * * * by others in this country •x- * * before the invention thereof by the applicant” even though the invention of the other had been abandoned, suppressed, or concealed. Discovery procedures might well bring to light such prior invention of others. I am not imagining this. The examiner made that very rejection in this case. The Board of Appeals refused to sustain him. In point (2), supra, I said the role of the Opel and Bottoms patent as a basis for the rejection, as explained in Judge Almond’s opinion, is confusing. I will explain why. In its initial discussion of the rejection, the opinion says: “The rejection of the claims was made on the basis of a patent to Opel et al. (Opel),” and points out in a footnote that the application for that Opel and Bottoms patent was filed on the same day as the Hellsund application at bar. Though the opinion does not mention the legal results which necessarily follow from that fact, they are that the patent is not a reference as of its issue date (35 U.S.C. § 102(a) or (b)) and not a reference as of its filing date (35 U.S.C. § 102(e)) to show prior invention. The rejection was not “on the basis of a patent to Opel”. It was on the basis of evidence, only part of which is in the patent, of a prior invention by Opel and Bottoms, and its statutory ground is found in both § 102(g) and § 103. That is what this case is all about. The priority of Opel’s invention rests entirely on admissions, without which the Opel patent would have no effect whatever, but the use of the admissions is predicated on § 102(g) or on nothing. Finally, I refer to the fact that this court has limited statutory jurisdiction in ex parte patent appeals, limited to review of “the decision of the Board of Appeals,” a jurisdiction still further restricted by the points raised by the reasons of appeal. 35 U.S.C. §§ 141-144. Ordinary notions of procedural due process dictate that our decision should be based on and limited to the issues decided below and raised here by the appeal and argued by the parties. The issue decided below, except for the obviousness question, raised by the solitary reason of appeal, and argued and briefed by the parties, is whether a prior invention of another, made in this country, and established by evidence and admissions of the appellant, constitutes “prior art,” within the meaning of that term in § 103, by virtue of § 10S\(g). My answer to that question is in the affirmative. Judge Almond’s opinion finds “no need to treat the board’s discussion of 35 U.S.C. § 102(g).” On this point, appellant’s brief concludes that “much has been said in this regard — it is time the matter be decided.” It has now been decided in In re Bass, 474 F.2d 1276 (CCPA), decided concurrently herewith, but not applied here. One issue never present or argued in this case is whether all admitted prior invention — -regardless of abandonment, suppression or concealment — is to be considered “Prior art” under § 103. If there had ever been such an issue, we surely would have had arguments that we have not had; yet, without benefit of argument, that is what Judge Almond’s opinion seems to regard as the law. The opinion cites In re LoPresti and In re Garfinkel, neither of which cases has ever been considered to stand for any such broad proposition. Of course, the article cited, by Turner, whose qualifications are missing, is authority for nothing. It is mere discussion and speculation. In Garfinkel we said (437 F.2d at 1004, 58 CCPA at 887): Because appellant has from the beginning treated the information in Kis-tler [a publication] as “prior art,” we will do likewise. By contrast, Hellsund has argued from the beginning of this case that the Opel and Bottoms prior invention is not “prior art” under any part of the statute. In LoPresti we said “The Craggs and McCann patent * * * is prior art as expressly provided in 35 USC 102(e).” Rule 131 affidavits overcame it as such but LoPresti admitted in his application and brief that his invention was an improvement upon the prior Craggs and McCann invention as disclosed in the § 102(e) reference patent. We used that admitted prior invention as a basis for affirming a § 103 rejection. We neglected to say what section of the statute authorized us to use the admitted prior invention as § 103 prior art. We considered that we had the patent before us as “prior -art” under § 102(e) and we said “the case must be decided on the assumption it is prior art notwithstanding the affidavits.” It is not one of our better-reasoned opinions and has long been an anomaly in the law. The board opinion in this case has bailed us out, saying, in discussing Lo-Presti, Our analysis of the question merely expands the court’s condensed reference to an admission of prior art and gives the statutory basis 10^(g)~\; the prior invention of another is acknowledged (or admitted) and the statute in Section 102 makes the prior invention available as prior art. [Emphasis mine.] The present ease is the first in which it has been proposed to altogether detach admitted prior invention of another from the statute, relying only on the admission without any statutory basis whatsoever for doing so. In Garfinkel we were sure a basis was to be found somewhere in § 102; in LoPresti we thought we had it in § 102(e). In Judge Almond’s opinion it is said to be unnecessary to discuss § 102(g), the only part of the statute which authorizes use of Opel’s invention as prior art. I consider that a very dangerous legal proposition for the reasons hereinabove stated. Since I consider the Opel and Bottoms prior invention to be available under § 102(g) and § 103 “prior art” and as I agree that Hellsund’s invention has been shown to be obvious within the terms of § 103, I agree to affirmance. It will be evident from the opinions in the ease of In re Bass, 474 F.2d 1276 (CCPA), decided concurrently herewith, that a majority of the court deciding that case holds the view that prior invention of another within the terms of § 102(g) constitutes “prior art” under § 103. I deem it to be in the best interest of a sound patent system to make that point entirely clear and to base rejections on statutory grounds whenever they apply. I consider it highly undesirable to affirm a rejection which was squarely based on the statute on an applicant’s admission without tying it to any statutory provision, as is being done here, for the reasons I have stated. An admission of prior invention, as distinguished from an admission of “prior art,” is not enough to create a statutory ground of rejection and the opinion here leaves the law afloat without compass or' rudder. The Bass majority opinion also contains an analysis of § 102 which answers some comments in Judge Baldwin’s concurring opinion in this case. BALDWIN, Judge (concurring). I fully agree with the majority opinion. I would add some further observations. The majority opinion merely follows In re LoPresti, 333 F.2d 932, 52 CCPA 755 (1964) and In re Garfinkel, 437 F.2d 1000, 58 CCPA 883 (1971). In view of the language in appellant’s reply brief before the board it cannot seriously be questioned that appellant has admitted that part of the disclosure of the Opel patent is available as prior art for the purposes of the section 103 rejection. That being the case, LoPresti and Garfinkel are in point and controlling. No substantial reason has been advanced why those cases should be overruled. The statutory basis for the rejection before us is 35 U.S.C. § 103. I wish to point out that the present case, LoPresti and Garfinkel are all fully consistent with, and lend some support for, my interpretation of that section of the statute, particularly with regard to the meaning of the term “prior art” as used therein. Nowhere in the 1952 Act is it stated that the term “prior art” as used in section 103 is defined by section 102. After reviewing the legislative history of the 1952 Act, especially sections 102 and 103, I have concluded that the term was used in section 103 as a term of art. That is, the drafters intended the term “prior art” to have the same meaning in section 103 as had been established by the courts over the years, rather than giving it some special meaning to be defined in the statute. Since section 102 does not define what is “prior art,” material may be “prior art” within the meaning of section 103 although that material is not mentioned in section 102. Likewise, while much of what is mentioned as defeating novelty or establishing loss of right under section 102 is also “prior art” under section 103, much of section 102 deals with matter which is not prior art at all. Section 102(c) is one obvious example. I contend that section 102(g) is another. I am aware, of course, that my view of the statute is not absolutely compelled by LoPresti, Garfinkel and the present case. With regard to the other concurring opinion, most of the arguments made therein fall of their own weight. I would point out that appellant’s sole reason for appeal was clearly intentionally drawn with language broad enough to claim error in the use of any part of the Opel patent as prior art on any basis. Such a broad reason of appeal is to be expected, since the board found it unnecessary to consider all of the bases upon which the examiner concluded that part of the Opel patent was available as prior art. While it is true that large parts of the parties’ briefs are devoted to the question of whether prior invention under section 102(g) is prior art under section 103, the parties, by agreeing that that issue is presented, cannot compel us to act as if appellant’s admissions had never been made. The other concurring opinion states that LoPresti “is not one of our better-reasoned opinons and has long been an anomaly in the law.” That case was cited by the board as support for the proposition that prior invention under section 102(g) is prior art within the meaning of section 103, and it has been cited elsewhere for the same proposition. The other concurring opinion apparently condones the board’s infusion of a section 102(g) rejection into the LoPresti case some five years after that case was decided. There was no section 102(g) rejection in that case, and the Rule 131 affidavit had removed section 102(e) as a basis for rejection. There, as here, the statutory basis for the rejection was section 103, and the “prior art” used was that which appellants had admitted was prior art. It is submitted that the LoPresti decision as handed down by this court, and not as the board endeavored to amend it, is controlling in this case. We can not ignore appellant’s admissions that part of the disclosure of the Opel patent is prior art. I additionally note that it has been the practice in this court in separate opinions, either concurring or dissenting, to refer to the opinion concurred in or dissented from as “the majority opinion” if it represents the majority view of the court, or as “the principal opinion” if it represents a minority view but contains the recitation of the facts necessary for understanding of the case. It is elementary that the opinions of this court speak for those judges who voted for them, and not just for their authors. . Serial No. 490,897 filed September 28, 1965. . U.S. Patent No. 3,376,371, issued April 2, 1968, to C. J. Opel and P. H. Bottoms, on an application filed September 28, 1965, the same day appellant’s application was filed. . While there may be a possibly unique exception to this truism in obviousness-type double patenting rejections, which are based on case law, In re Zickendraht, 319 F.2d 225, 50 CCPA 1529 (1963), concurring opinion, the statement is certainly true of the kind of issues in this case, lack of novelty or obviousness over prior art. These are certainly rejections based on statutory grounds. . It would be a public service to publish it in view of the importance of the real issue in this case and in the companion case of In re Bass, 474 F.2d 1276 (CCPA) decided concurrently. . From the record we are uncertain whether the type of “prior art” referred to is of the § 102(f) or § 102(g) variety or whether it is of the “known * a- * in this country” type as in § 102(a). What is clear, however, is that appellant has admitted that as to him the information in Kistler is prior art of some type. [My emphasis.] . See my concurring opinion in In re Bass, 474 F.2d 1276 (COPA), decided concurrently herewith. . That matter not mentioned in section 102 may be prior art is at least implied in the statement in In re Harry that: Thus “prior art” means at least those things named in section 102. 333 F.2d 920, 923, n. 2, 51 COPA 1541, 1546, n. 2 (1964). Of course, I disagree with that reasoning. . The reason of appeal reads as follows: 1. In rejecting claims 1, 2, 4, 7-10, 21, 22 and 23, as unpatentable as obvious in view of the invention of Opel and Bottoms disclosed in Opel et al. Patent 3,376,371 assertedly made available as prior art under 35 U.S.O. § 102(g). The record does not permit reliance upon Opel et al. Patent 3,376,371, or the invention disclosed therein as prior art and the terminal disclaimer filed in the present application precludes reliance on the claims of Opel et al. as a ground of rejection. Furthermore, the appealed claims are not obvious in view of the invention of Opel et al.

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Application of Dennis B. FREEMAN and Peter Burden. Patent Appeal No. 8798. United States Court of Customs and Patent Appeals. March 8, 1973. Richard P. Mueller, William J. Schramm, Niagara Falls, N. Y., attorneys of record, for appellants. S. Wm. Cochran, Washington, D. C., for the Commissioner of Patents; Fred E. MeKelvey, Washington, D. C., of counsel. Before MARKEY, Chief Judge, and RICH, ALMOND, BALDWIN, and LANE, Judges. BALDWIN, Judge. This appeal is from the decision of the Patent Office Board of Appeals sustaining the examiner’s rejection of all the claims in appellants’ application, on the basis of 35 U.S.C. § 103. The Invention Appellants’ invention concerns a phosphate-containing composition suitable for coating metal surfaces and serving as a base to which paint will adhere. The specification states: At the present time * * * many articles which are to be phosphate coated are made of more than one metal, and, thus, may have surfaces of any two or all three of iron, zinc and aluminum. Additionally, it has now become a more common practice to handle iron, zinc and aluminum articles at the same coating line location, so that the development of a coating solution and process which may be used satisfactorily to coat all three of these metals is highly desirable. Unfortunately, up to the present time it has not generally been possible to coat steel, zinc and aluminum in the same * * * phosphate coating bath, so as to provide an amorphous coating on the surface of all three of these metals which will permit the deformation of the painted metal surface without adversely affecting the paint film. Appellants solve this problem by using a coating composition such as that set forth in claim 11: 11. A composition suitable for coating surfaces of zinc, steel and aluminum which consists essentially of an acidic aqueous solution, substantially free of alkali metal ions, containing an ammonium primary phosphate, fluoride ions and an accelera-ator selected from water soluble compounds of tungsten and molybdenum, said fluorides being selected from water soluble fluorides, fluoroborates and silieofluorides. The preferred composition contains primary ammonium phosphate, ammonium flouride, either ammonium molybdate or ammonium tungstate, and phosphoric acid. Appellants also claim a coating method, exemplified by claim 6: 6. A method of forming a paint-base coating on the surfaces of zinc, steel, and aluminum, which comprises contacting the surface to be treated with the coating solution as claimed in Claim 11, and maintaining the solution in contact with the surface for a period of time sufficient to form the desired coating thereon. The References The primary reference is a patent to Ross et al. (Ross) Ross deals with phosphate coating compositions for ferrous metal surfaces. Ross discloses coating compositions containing an alkali metal phosphate, e. g., sodium dihydrogen phosphate, and also containing sodium silicofluoride and sodium molybdate. The molybdate is added merely to impart a bluish color to the coating, and not for its properties as an accelerator. In fact, one of the objects of the Ross invention was to provide a phosphate coating composition which would not require accelerators. Amundsen et al. [Amundsen] is directed to surface coatings for “metals, such as iron, steel and zinc.” Amundsen states that by using “mono alkali metal or mono ammonium phosphates in conjunction with alkali or ammonium fluorides, or bifluorides, coating solutions can be made up for iron, steel or zinc, which * * * form uniform films in a very short time.” Dodd et al. [Dodd] discloses phosphate coatings for the surface of “metals such as ferrous metals and other metals such as aluminum, zinc, magnesium and template * * The Dodd composition combines a primary alkali metal or ammonium phosphate with a molybdenum or tungsten accelerator compound and a small quantity of a phenolic substance. Among the compounds mentioned as suitable accelerators are the ammonium, sodium and potassium molybdates and tungstates. Dodd acknowledged that phosphatizing baths using water soluble molybdenum compounds as accelerators had previously been known, but stated that such baths tend “to have poor adherence to the metal surface and have an undesirable soft or ‘spongy’ nature rendering them inefficient as rust retarders and of poor quality in forming a strong bond with paint, enamel and other organic finishes.” Dodd states that he solved that problem by the addition of his phenolic material, which is preferably a tannin or a tannin derivative. Stapleton discloses compositions for forming phosphate coatings on iron or steel. Stapleton’s invention is aptly summarized in the following exerpt from that patent: It has been discovered that excellent, fine grained, uniform, tenaciously adherent iron phosphate coatings may be formed on the alkali treated metal surface after rinsing with water by treating the metal surface with a phosphate coating solution consisting essentially of alkali metal dihydrogen phosphate containing an accelerator which consists essentially of alkali metal nitrate combined with a small proportion of alkali metal molybdate. * * -X- In referring herein to “alkali metal” dihydrogen phosphates, “alkali metal” nitrate, and “alkali metal” molybdate, it is of course intended that the sodium, potassium and ammonium compounds of those radicals be included, together with lithium and the other well known alkali metals. The Rejection The examiner rejected the claims over Ross in view of Stapleton, Amundsen and Dodd. The examiner stated that “Ross is fully responsive to applicant’s claimed invention except that alkali metal cations are recited in lieu of ammonium ions.” The examiner took the position that it would have been obvious to substitute ammonium for alkali metal in Ross’s composition, since all three of the other references teach that they are equivalent. The examiner stated: It would also be obvious to coat any of the substrates recited in applicant’s preamble because all the references teach that ferrous substrates can be coated and Dodd teach [sic] that all three substrates are equivalent. In order to overcome the examiner’s rejection, appellants submitted an affidavit of one Karim I. Saad, under Patent Office Rule 132. Mr. Saad had received a B.S. in chemical engineering in 1959, and from that time until December, 1968, the date of the affidavit, he had worked in the area of phosphate coatings. In view of the importance of the affidavit to our decision, it appears in major part below: THAT, under his direction, the following experimental work was carried out: Three aqueous coating baths were formulated containing the following components in the amounts indicated: Bath A — Components Grams/Liter Sodium dihydrogen orthophosphate 12.5 Sodium flouride 3.4 Phosphoric acid (75% H3PO4) 4.1 Sodium molybdate (Na2MoO<t.2H20) 1.35 Bath B — Components Grams/Liter Ammonium dihydrogen ortho phosphate 12.0 Ammonium fluoride 3.0 Phosphoric acid (75% H3PO4) 4.1 Ammonium molybdate (54% Mo) 1.0 Bath C — Components Grams/Liter Sodium dihydrogen ortho phosphate 7.5 Sodium dihydrogen pyrophosphate 6.0 Sodium silico fluoride 0.75 Sodium molybdate 0.022 Igepal CA 630 wetting agent 0.75 Each bath was made up in a total bath volume of nineteen liters. The above bath concentrations and a bath temperature of 150°F were mentioned [sic. maintained?] while 4-inch x 12-inch panels of cold rolled steel, hot dip galvanized and aluminum, alloy 3003, were processed through the bath, six at a time, two each of steel, zinc and aluminum. The contact time of the bath with each of the panels was one minute. After processing a total of about forty-one square feet each of steel, zinc and aluminum, the last panels of each metal treated were examined to determine the characteristics of the coatings obtained. This examination showed that, while all three baths produced a visible, uniform coating on the steel, only baths A and B produced a visible coating on the hot dip galvanized and only Bath B produced a uniform, dark coating on the aluminum. On the aluminum, Bath B produced a good, uniform, dark-colored coating, while Bath A produced a mottled, nonuniform coating which was very light in color and barely visible and Bath C did not produce a visible coating. Samples of the panels evaluated are attached as an Exhibit. THAT, based on the above results, he has concluded as follows: 1. Although all three baths produce a satisfactory, visible coating on steel, only Baths A and B produce such a coating on hot dip galvanized (zinc) and only Bath B produces a uniform, dark colored coating on aluminum. 2. The results obtained, in terms of the coatings produced on aluminum, are not the same with all three baths. 3. The dark colored coating produced on aluminum with Bath B is more uniform and because of its dark color, more satisfactory from a commercial standpoint because of the ease of making a visual inspection of it. 4. It was surprising and unexpected to find that this much darker and more uniform coating could be produced on aluminum by using ammonium ions in the bath (Bath B) rather than sodium ions (Baths A or C). While the affidavit says nothing about why baths of the particular concentrations used were chosen, the following appears in a letter from appellants’ attorney, which accompanied the affidavit: In this Affidavit, three baths were formulated, Bath A being a bath comparable to those of the present invention except that sodium cations were substituted for the ammonium cations. Bath B is a bath formulated with ammonium cations in accordance with Example 1 of the present application and Bath C is a bath formulated in accordance with Example 1 of the Ross et al patent 3,060,066. The examiner’s response to the affidavit and the arguments accompanying it was as follows: If one accepted applicant’s argument that a showing of unexpected results would permit him to obtain a patent [,] applicant would not be able to obtain a patent because the affidavit only shows that at 1 minute exposure and at 150 °F applicant obtains a difference in coating each metal. The parameters for coating the substrates are not recited in the claims. The board sustained the rejection, stating: All the claims stand rejected as un-patentable over Ross et al. in view of the remaining references (35 U.S.C. 103). We have carefully reviewed Appellants’ arguments, but we agree with the rejection. Appellants apparently concede that the combined references would render the claimed process obvious to workers of ordinary skill in this art for coating an iron surface, but not for aluminum. They urge that the unobvious aspect of their process and composition is that their one bath can coat the three metals (Fe, Al and Zn), whereas the reference baths will coat only iron, or in some eases only iron and zinc. Assuming that this is adequately shown by the Rule 132 affidavit of record, the claims cannot be held to be patentable. The composition is obviously the same, whether iron or aluminum is to be treated. The process claims cover the reference process for treating iron. Clearly, Appellants are not entitled to a monoply that includes obvious variations of the prior art. Opinion Appellants argue that the teachings of the references are incompatible for various reasons, and that the claimed invention would not have been obvious even if the references were properly combinable. They point to the Saad affidavit as establishing that their composition has the unexpected ability to coat all three metal surfaces — aluminum, zinc and iron. The solicitor, on the other hand, refutes the existence of the infirmities found by appellants in the references. The solicitor further takes the position that the claimed invention is obvious for coating iron, and thus would have been obvious within the meaning of section 103 of the statute, notwithstanding any alleged “unexpected results.” That was essentially the position taken by the board. The solicitor argues that the Patent Office position is fully supported by In re Mod, 408 F.2d 1055, 56 CCPA 1041 (1969) and In re de Montmol-lin, 344 F.2d 976, 52 CCPA 1287 (1965). In order for us to ignore appellants’ evidence that their composition has un-obvious properties, it would be necessary for us to hold that whenever it is determined that the prior art provides any justification or suggestion for making a compound or composition, one of two things must happen. Either (1) the un-obvious properties of the compound or composition must somehow cease to be evidence that the compound or composition itself is unobvious, or (2) the case for obviousness of the compound or composition must become unassailable — -in effect allowing any indication of desirability of a compound or composition to create an irrebutable presumption that it is obvious. Nothing has been placed before us which would justify either holding. We have recently pointed out that the rule derived from Mod and de Mont-mollin by the Patent Office is. not supported by those cases. In re Murch, 464 F.2d 1051, 1055-1056, 59 CCPA 1257 (1972). In the de Montmollin case, the court said: Although appellants cite no decision in support of their statement that “There is no basis in law for ignoring any property in resolving an issue of ‘obviousness,’ ” that proposition is expressed in haec verba in In re Papesch, 315 F.2d 381, 50 CCPA 1084 [(1963)]. We do not agree with appellant that a single variance in the properties of new chemical compounds will necessarily tip the balance in favor of pat-entability where otherwise closely related chemical compounds are involved. * * * It goes without saying that all evidence of record tending to establish obviousness or unobviousness must be considered. This reasoning was cited with approval in Mod, 408 F.2d at 1057, 56 CCPA at 1044. As in Murch, supra, we are of the opinion the board and the solicitor were in error in effectively ignoring, and urging us to ignore, the evidence of unobviousness presented in the record. In order to determine whether the board’s decision was correct (as opposed to the opinion supporting that decision), we must proceed to examine the basis upon which it was concluded that the claimed subject matter was not patentable under 35 U.S.C. § 103, to see whether it is supported by the facts disclosed by the art relied on. In re Heldt, 433 F.2d 808, 811, 58 CCPA 701, 706 (1970). If the evidence that the claimed subject matter is strong enough to establish a prima facie case, i. e., one which would prevail in the absence of rebuttal evidence, we must go on to examine the evidence of non-obviousness before the legal conclusion called for by section 103 can be reached. 1. The case for obviousness We have no difficulty in concluding that the prior art relied on strongly indicates that the claimed phosphatizing composition and process would have been obvious to one of ordinary skill in the art at least as of the effective date of the Ross reference, the most recent one relied on. The claims would be met by the Ross composition made with ammonium salts instead of alkali metal salts, and the use of ammonium salts instead of alkali metal salts, for both the phosphates and the accelerators, is clearly shown by all of the secondary references. Indeed, in that part of Stapleton quoted above the patentee goes so far as to set up an artificial definition of “alkali metal” which includes the ammonium radical. The main contention that appellants urge with regard to the Ross reference is that Ross deals exclusively with ferrous surfaces, while “ [appellants’ claims require that all three surfaces must be treated.” Appellants further state: How then can the board hold * * * that “the process claims cover the reference process for treating iron.”? Applicant’s claims do not cover a process useful only for the treatment of iron. Applicants’ claims only cover the situation where all three metals are treated simultaneously as in complicated multimetal parts or when one processor treats all three metals. Assuming, arguendo, that this is one of those cases in which a statement of intended use constitutes a real limitation on a composition claim, see In re Szajna, 422 F.2d 443, 57 CCPA 899 (1970); Kropa v. Robie, 187 F.2d 150, 38 CCPA 858 (1951), we must still agree with the Patent Office that the appellants’ composition claims reasonably cover compositions for the treatment of surfaces consisting solely of steel, the surface material with which Ross deals. Appellants’ ease regarding their process claims is even weaker. Appellants concede that the claims are broad enough to cover the situation where “one processor treats all three metals.” That situation is described in appellants’ specification as the “common practice [of handling] iron, zinc and aluminum articles at the same coating line location * * Thus appellants’ claims reasonably cover the treatment of steel and if appellants’ composition or process would have been obvious to one desiring to coat steel articles, the claims are at least prima facie unpatentable because they are too broad in the sense of 35 U.S.C. § 103. In re Landgraf, 436 F.2d 1046, 58 CCPA 929 (1971). Moreover, even were we to accept appellants interpretation of their claims, that would not destroy the Patent Office’s case. As the examiner pointed out, there is evidence here that the art considered the three claimed substrates equivalently, or at least alternately, phos-phatizeable. Dodd uses a molybdate- or tungstate-accelerated phosphating composition for use on ferrous metals, aluminum, zinc, magnesium and terneplate. As appellants point out, Dodd’s improvement over previous phosphate baths with molybdate accelerators was to require the presence of a phenolic compound, but the ability of his bath to coat various metals was never tied to the presence or absence of that compound. Furthermore, the facts that Stapleton and Ross only specifically mention iron and steel and Amundsen only specifically mentions iron, steel and zinc are not equivalent to teachings that their compositions would not work on any metals other than those specifically named. In fact, all of those references broadly state that their inventions pertain to phosphate coatings for “metals” or “metallic articles.” Appellants advance other criticisms of the secondary references, but point to nothing which would detract from their disclosures that ammonium salts may be substituted for the alkali salts in such phosphate coating baths. In sum, we think that the evidence in this record that appellants’ composition and its use would have been obvious is very strong, much stronger than the minimum necessary to establish a prima facie case. 2. The rebuttal evidence Appellants contend that by using ammonium salts rather than alkali metal salts, one obtains a composition which, unlike Ross’ composition, gives an acceptable coating on all three metals— steel, zinc and aluminum. Appellants argue that that result is. unexpected, is substantiated by the Saad affidavit, and is not suggested by any of the references. The examiner was of the opinion that the affidavit was insufficient to establish patentability of the instant claims, because “the affidavit only shows that at 1 minute and at 150° F. applicant obtains a difference in coating each metal.” In order for a showing of “unexpected results” to be probative evidence of non-obviousness, it falls upon the applicant to at least establish: (1) that there actually is a difference between the results obtained through the claimed invention and those of the prior art, In re Klosak, 455 F.2d 1077, 59 CCPA 862 (1972); and (2) that the difference actually obtained would not have been expected by one skilled in the art at the time of invention, Id.; In re D’Ancicco, 439 F.2d 1244, 58 CCPA 1057 (1971). We think that those requirements would have been met in this ease if appellants had established either (1) that their invention resulted in an unexpected improvement over the Ross invention; or (2) the broad proposition that substituting ammonium salts for alkali metal salts, the aspect of the invention for which the secondary references were relied on, unexpectedly gives a bath suitable for all three metals. We find appellants’ evidence to be insufficient to support either proposition. We turn first to the comparison of the present invention, bath B in the affidavit and the prior art of record, bath C, which is allegedly the same as the bath used in Ross. Ross states the following with regard to the way in which his composition is to be applied: The dry composition is dissolved in water to give concentrations of from about 1 to about 5 ounces per gallon of water, and preferably about 2 ounces per gallon of water, thereby producing a coating solution having a pH in the range of from about 3.8 to about 5.2. The desired phosphate coating is then produced by spraying a ferrous metal surface with this solution at a temperature in the range of from about 140°F. to about 180°F., and preferably at about 160°F. A coating is normally effected in about 1 to 2 minutes. In the tests referred to in the Saad affidavit, the metal plates were apparently dipped in the test bath for a period of one minute at a temperature of 150°F. While the one minute contact time would appear at first blush to correspond to the lower limit expressed by Ross, it should be remembered that Ross specifies spray application of his coating. That the method employed in the affidavit adversely effect the amount of time needed to obtain a suitable coating as compared to a spray application is indicated by appellants’ own specification, wherein it is stated: As is known in the art, the contact times for obtaining the desired coating will vary widely, depending upon the application techniques used, suitable contact times normally being within the range of several seconds to 10 or more minutes. Typically, coatings are obtained when using about 10 seconds to 2 minutes in spray applications, and in about 1 to 5 minutes when the metal surface is immersed in the coating solution. No explanation is given why an immersion technique was chosen for the comparison in spite of the fact that Ross called for spraying. Nor is there any explanation given as to why the contact time was not lengthened to compensate for the change in coating techniques. There are other discrepancies which, by themselves, would probably not fatally taint the comparison, but nevertheless tend to weaken it. For example, no reason is given why 150° F. was chosen for the comparison. That temperature is within Ross’s range, but Ross’s preferred temperature is 160°F., and both of the examples in appellant’s specification were run at 70°C. (158°F.) While the record shows that these temperatures are not critical, a test of Ross’s composition under his preferred conditions would have carried more weight. In summary, we find appellants’ evidence insufficient to establish that the properties of appellants’ compositions are expectedly better than those of Ross’s compositions. The situation with regard to the comparison between bath A and bath B is somewhat different. Here we have two coating baths having the same concentrations of phosphate, fluoride and molybdate anions, bath A containing sodium cations and bath B containing ammonium cations; with identical metallic materials undergoing identical treatment. While bath A did produce a coating on aluminum, the coating produced by bath B is much darker. We think that this is some evidence that substitution of ammonium for the alkali metal cations would have a real effect on the composition’s ability to coat aluminum. We consider that this evidence, together with Saad’s statement that the darker coating obtained through bath B was “surprising and unexpected,” is probative on the question of obviousness, and that it gives some indication that the substitution of ammonia for alkali metal ions would not have been obvious. However, considering the qualitative nature of the results, the fact that the testing was performed at the lower limit of the contact times specified in appellants’ specification for immersion coating techniques, and the fact that the prior art contains indications that similar phos-phating compositions would have been expected to operate effectively on various metals including aluminum, we conclude that appellants have not established as a general proposition that the substitution of ammonium for alkali metal ions results in a composition which gives unexpectedly improved coatings on aluminum. The results obtained using bath C on aluminum lend but little support to appellants’ ease, for, as noted above, that composition was used in a manner other than that specified by Ross, and there was no comparison made between bath C and a bath identical to bath C except for the use of ammonium salts instead of the sodium salts. Thus appellants’ evidence, though probative, is insufficient to rebut the case for obviousness established by the Patent Office. Finding that the case for obviousness of the claimed subject matter has been neither rebutted nor shown to be based on erroneous reasoning or misinterpretation of the references, we affirm the decision of the board. Affirmed. . Serial No. 574,578, filed August 24, 1966. . U.S. Patent No. 3,060,036, issued October 23, 1962. . U.S. Patent No. 2,665,231, issued January 5, 1954. . U.S. Patent No. 2,502,441, issued April 4, 1950. . “Terneplate” is defined in Webster’s Third New International Dictionary at page 2359 (1961) as “sheet iron or steel coated with an alloy of about 4 parts lead to 1 part tin.” . U.S. Patent No. 2,839,439, issued June 17, 1958. . 344 IT .2d at 978, 52 OOPA at 1289, emphasis supplied in part.

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Application of Larry H. KLINE and Milosh L. Ukmar. Patent Appeal No. 8870. United States Court of Customs and Patent Appeals. March 22, 1973. Rehearing Denied June 7, 1973. Albert L. Ely, Jr., Cleveland, Ohio, Ely Golrick & Flynn, Cleveland, Ohio, attorneys of record, for appellant. S. Wm. Cochran, Washington, D. C., for the Commissioner of Patents; Fred W. Sherling, Washington, D. C., of counsel. Before MARKEY, Chief Judge and RICH, ALMOND, BALDWIN and LANE, Judges. RICH, Judge. This appeal is from the decision of the Patent Office Board of Appeals, adhered to on reconsideration, sustaining the examiner’s rejection of claims 2-11 and 15-20 of appellants’ patent application serial No. 430,418, filed February 4, 1965, for “Antenna With Rotatable Sensitivity Pattern.” Three claims are allowed. The only issue of patentability raised before us by appellant, and the issue on which we decide the appeal, is the board’s affirmance of the rejection of obviousness over the prior art under 35 U.S.C. § 103. However, we will also dispose of appellants’ contention relative to the examiner’s refusal to enter an amendment and will discuss a matter pertaining to a recommendation under Patent Office Rule 196(c) as to certain rejected claims. Appellants’ invention relates to a stationary antenna which has a rotatable sensitivity pattern. The preferred embodiment will be described with references to Figs. 2 and 4 of the application drawings: The antenna comprises an array of three identical units 11, 12, and 13 which are supported in fixed spacial relationship by a supporting means, not shown. Each unit is half-wavelength dipole which is center-fed through coaxial cables 28, 29, and 30 extending from a relay box 10 which contains relays operable selectively to connect any one of the antenna units to a radio transmitter-receiver unit. At the time one antenna unit is so connected, the other two units are disconnected through their relays and, in the words of appellants’ brief, “made electrically, rather than physically, longer so as to provide the greater ‘length’ necessary for them to function as so-called ‘parasitic’ reflectors for the radiation from the energized unit in front of them.” This electrical lengthening of the dipoles may be accomplished by making the coaxial cables 28, 29, and 30 of such length as to present an inductive reactance when open-circuited at the relays through disconnection from the radio apparatus. As alternatives, cables of a length which presents an inductive impedance when short-circuited may be used in an appropriate manner or inductive reactances separate from the cables may be selectively connected across the center gap of the disconnected dipole units. The application states that the spacing between units 11, 12, and 13 is “adjusted empirically to provide the optimum directional pattern for the array.” It further states that a 0.15 wavelength spacing as indicated in Fig. 2 was found to give a directional pattern as shown in Fig. 4 in which the configurations 60, 61 and 62 represent the sensitivity characteristics of the array when antenna units 11, 12, and 13, respectively, are activated. While only a three-unit array is shown and described, the application concludes with the following statement: * * if desired, instead of three antenna units there may be four or more in the array, energized separately one at a time and provided with inductive reactances when idle so as to provide a parasitic reflector for the antenna unit which is then energized. Claim 2, used by appellants as illustrative, reads: An antenna for producing a rotatable sensitivity pattern comprising three or more center-fed dipole antenna units spaced apart from each other and each having a pair of radiating elements separated by a dipole gap, switching means having connections to said antenna units and operable selectively to energize the latter one at a time, and means connected to said switching means and providing an inductive reactance between the radiating elements of each of the remaining de-energized antenna units to enable the latter to act as parasitic reflectors for the energized antenna unit. Claims 3-11 and 15-20 are somewhat more specific but will not be treated individually because appellants have not pointed out, and we do not find, any additional limitations in them that would make their subject matter unobvious if that of claim 2 is not. The references relied on are: Wernick et al. (Wernick) 3,175,219 Mar. 23, 1965 Matsudaira 2,349,976 May 30, 1944 Yagi 1,860,123 May 24, 1932 Wernick discloses an antenna array which can be electrically switched to offer its greatest effectiveness in a selected direction. As described in appellants’ brief : * * Wernick shows a four-cornered, five element array whose radiation sensitivity pattern may be rotated angularly to provide maximum gain along the line of any selected corner antenna unit 17, 21, 22, or 23. Each of these four corner units is a center-fed, half wavelength dipole. The switching arrangement causes only one corner unit at a time to be energized, or “driven”. A dimensionally longer fifth element * * * at the center of the array acts as a reflector for whichever corner unit is energized at any particular time. The other three corner units are grounded; being dimensionally and electrically the same length as the active corner unit, they do not and cannot act as reflectors for the active unit. [Emphasis by appellants.] Matsudaira relates to an antenna system comprising two spaced, vertical, center-fed dipole units of one-half wavelength. The system is particularly useful for producing radiation that identifies a runway for blind landing of aircraft. The reference discloses that radiation fields extending in opposite directions from the respective units are obtained by switching between a condition where a first unit is activated and the second serves as a reflector and a reverse condition where the second is activated and the first serves as a reflector. In each ease the unaetivated unit functions as a reflector by reason of its being made electrically more than one-half wavelength long through the open-circuited feed line connected thereto acting as an inductance. Yagi discloses an antenna system comprising an energized center antenna element and a plurality of split antenna units disposed thereabout on circles concentric with the center antenna and of different diameters. The operative direction of the system is adjusted as desired by means for selectively connecting some of the split elements to have an effective length greater than one-half wavelength so as to act as reflectors, and for disconnecting others so that they have a length less than one-half wavelength and act as directors. Claims 2-11 and 15-20 stand rejected for obviousness under 35 U.S.C. § 103 in view of Wernick considered with Matsu-daira or Yagi. OPINION We find no error in the rejection under section 103. As the board recognized, Matsudaira teaches not only that an unenergized dipole adjacent to an energized dipole may be made to serve as a reflector by changing its effective length but also that the condition of the two dipoles can be reversed to reverse the direction of sensitivity of the antenna array. That disclosure would, we think, suggest to one of ordinary skill in the art that the grounded dipoles in each of the four conditions possible in Wer-nick be similarly connected to have increased electrical length to serve as reflectors. In addition, Yagi’s disclosure of making a plurality of associated antenna units effectively more than one-half wavelength long to serve as reflectors for an energized element in the same array would similarly suggest modification of Wernick by adapting Werniclc’s grounded dipoles to serve as reflectors. Appellants have based their argument to a considerable extent on matters related to the examiner’s questioning of the sufficiency of appellants’ disclosure as to an array using “more than three” antenna units. As background, the examiner, in response to an argument by appellants concerning the spacing of the antenna units, questioned how the 0.15 wavelength separation disclosed in appellants’ application (see Fig. 2, supra, “.151”) could be obtained with an array of more than three units, as for example, a five-unit array. When appellants subsequently sought to add an amendment including a drawing showing five units spaced along on a circle so that each element was 0.15 wavelength from its two adjacent units but a greater distance from the remaining two, the examiner refused entry on the ground that new matter was involved. The examiner also rejected all the claims now on appeal under 35 U.S.C. § 112 on the ground that the recitation of “three or more” units in the claims covered a class of arrays not adequately disclosed in the original application. The board held the question of entry of the amendment was petitionable to the Commissioner rather than appealable and did not rule on it. However, the board did consider the rejection for lack of supporting disclosure and reversed it, stating: It is our opinion that one of ordinary skill in the art having Appellants’ disclosure before him and being aware of the prior art as exemplified by the Yagi patent, for example, would find it merely a matter of design to choose the proper spacing for more than three antennas. This is borne out by the affidavit of Mr. Horn filed April 7, 1969. Appellants consider this ruling by the board and its affirmance of the § 103 rejection to represent * * * the self-contradicting position to the effect that, if applicants’ combination would work for four or more units — and the prior art teaches that it wouldn’t — then the enlarged combination [more than three units] must be obvious despite the contrary teachings of the very prior art relied on for obviousness. This position is simply unsound. There is no inconsistency in finding, as the board did, both that appellants’ application is adequate to enable any person skilled in the art to make and use the invention, under the first paragraph of § 112, and that the invention is also obvious in view of the prior art under § 103. Appellants would have us make a determination with respect to the board’s refusal to decide whether the proposed amendment showing a five-unit antenna array was properly refused entry by the examiner. However, this is primarily a matter of Patent Office procedure which does not affect our review of the rejection of the appealed claims, and we fail to see any reason why we must decide it. The board also affirmed a rejection of claims 6, 7, 19, and 20 for indefiniteness under the second paragraph of § 112, recommending under Patent Office Rule 196(c), on reconsideration, that this rejection be withdrawn if certain changes suggested by appellants were made in claims 6 and 19. At the same time, the board expressly stated that the recommendation did not affect its af-firmance of the rejection of these same claims under § 103. We agree with the board that the recommended changes, as shown in the record, would not affect the applicability of that rejection to these claims. The decision is affirmed. Affirmed. . The Horn affidavit was submitted by appellants with the unentered amendment. It states that a five-element array as described in the amendment was built and operated under the affiant’s supervision in January of 1969. It also asserts that this “five element antenna array is identical in all respects to the three element array shown in Figs. 1-4 of * * * [the] application and described with reference to those Figures, except for use of five equally-spaced vertical antenna units instead of three.” . Appellants further state in their brief that “All the appealed claims call for arrays of ‘three or more’ and, thus, cover arrays of more than three units, as well as arrangements having just three units * * i\t ” . Claims 7 and 20 are dependent on claims 6 and 19, respectively. . Appellants do not ask review of the indefiniteness rejection itself, apparently considering it “overcome” because of the recommendation.

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ROYAL CROWN COLA COMPANY, Appellant, v. ESKIMO PIE CORPORATION, Appellee. Patent Appeal No. 8904. United States Court of Customs and Patent Appeals. March 29, 1973. Brumbaugh, Graves, Donohue & Raymond, New York City, attys. of record, for appellant. Richard G. Fuller, Jr., Russell H. Falconer, Joseph D. Garon, New York City, of counsel. Browne, Beveridge, DeGrandi & Kline, Washington, D. C., attys. of record, for appellee. Richard G. Kline, Francis C. Browne, Washington, D. C., of counsel. Before MARKEY, Chief Judge, RICH, BALDWIN and LANE, Associate Judges, and ALMOND, Senior Judge. PER CURIAM: This appeal is from the decision of the Trademark Trial and Appeal Board, abstracted at 167 USPQ 293 (1970), dismissing the opposition of appellant, registrant of DIET-RITE for dietetic soft drinks and concentrates for making the same, to appellee’s application to register ESKIMO DIET BITE for frozen desserts, namely, ice milk, in the following stylized form: The critical issue lies in whether the marks are so similar as to be likely, when applied to the respective goods, to cause confusion, mistake or deception. The board found no likelihood of confusion when “ESKIMO DIET BITE” and “DIET-RITE” are applied to the respective goods of the parties. The marks were considered in their entireties including the word “ESKIMO”. While “DIET-RITE” and “DIET-BITE” are quite close in sound they are not identical terms and are composed of well-known words with established and different meanings. We agree with the conclusion that confusion is unlikely. The decision of the board is accordingly affirmed. Affirmed. . Reg. No. 600,085, December 28, 1954. . Serial No. 246,059, filed May 19, 1966.

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The J. B. WILLIAMS COMPANY, INC., Appellant, v. Glynn A. BEARD, Appellee. Patent Appeal No. 8893. United States Court of Customs and Patent Appeals. Feb. 22, 1973. Edward G. Fenwick, Jr., Washington, D. C., Mason, Fenwick & Lawrence, Washington, D. C., attorney of record, for appellant. Richard D. Law, Denver, Colo., Francis Thomas, Jr., Washington, D. C., attorneys of record, for appellee. Arthur Schwartz, Washington, D. C., of counsel. Before MARKEY, Chief Judge, and RICH, ALMOND, BALDWIN, and LANE, Judges. PER CURIAM. This appeal is from the decision of the Trademark Trial and Appeal Board, result reported at 167 USPQ 372 (1970), dismissing an opposition lodged by appellant. The board opinion, including footnotes, reads, in full: An application [(Serial No. 301,-798)] has been filed [(June 24, 1968)] to register “FIRON” for medicinal tablets containing ferrous fumarate, use since January 30, 1959 being asserted. Registration has been opposed by The J. B. Williams Company, Inc., registrant of “FUMIRON” for [an] ethically sold medicinal for the treatment of iron deficiency anemia. Neither party has taken testimony. While the goods of the parties are obviously closely related medical products for treating iron deficiencies, it is our considered opinion that “FI-RON” does not so closely resemble “FUMIRON” in sound, appearance or significance as to lead to a likelihood of confusion. Upon careful consideration of the record before us and the briefs and arguments of counsel, we find ourselves in agreement with the conclusions expressed by the board. The decision below is, accordingly, affirmed. Affirmed. . Reg.No.654,716, issued Nov. 19, 1957 to a predecessor-in-title. . In making this conclusion, we have disregarded the parts of applicant’s brief which refers to third-party registrations and other materials not made of record herein.

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Application of Lawrence Anthony CESCON. Patent Appeal No. 8884. United States Court of Customs and Patent Appeals. March 22, 1973. William R. Moser, ’ James T. Corle, Wilmington, Del., attorneys of record, for appellants; Gerald A. Hapka, Washington, D. C., of counsel. S. Wm. Cochran, Washington, D. C., for the Commissioner of Patents; Jack E. Armore, Washington, D. C., of counsel. Before MARKEY, Chief Judge, and RICH, ALMOND, BALDWIN, and LANE, Judges. MARKEY, Chief Judge. This appeal is from the decision of the Board of Appeals sustaining rejections of claims 1, 2, 4, 5 and 11 under 35 U.S.C. § 103 and claims 1, 41-44 and 51 under 35 U.S.C. § 112' of appellant’s application serial No. 622,085, filed March 10, 1967, for “Phototropic 2, 4, 5-Tri-phenylimidazolyl Radicals and Dimers Thereof.” We reverse. The Invention The invention relates to novel photo-dissociable, substantially colorless imida-zolyl dimers and colored radicals formed therefrom under light stimulation. Claim 1 is illustrative: 1. A composition of matter selected from the class consisting of A. A light-stable imidazolyl maintained under the influence of ultraviolet light represented by the formula wherein R has a sigma value below 0.7 and is selected from lower alkyl, lower alkoxy, lower alkoxycarbonyl, lower al-kylthio, di (lower alkyl)-carbamoyl, diGower alkyl )sulfamoyl, lower alkanoy-loxy, N-lower alkyl-lower alkanamido, phenyl, naphthyl, phenyloxy, naphthy-loxy, phenylthio, naphthylthio, halo or cyano; R2 through R10 are each individually selected from hydrogen, lower alkyl, lower alkoxy, lower alkoxycarbonyl, lower alkylthio, di (lower alkyl) carbamoyl, di (lower alkyI)suIfamoyl, lower alkanoyloxy, N-lower alkyl-lower alkanamido, phenyl, naphthyl, phenyloxy, naphthyloxy, phenylthio, naphthylthio, halo or cyano; and any two R1 through R10 substituents in adjacent positions on the same phenyl ring of the above formula can be joined together to form a — CH=CH— group; and with the proviso that only one of R5 through R7 and only one of R8 through R10 can be in a position or-tho to the phenyl carbon that is attached to the imidazolyl nucleus of the above formula; said imidazolyl having an unpaired delocalized electron and having four electrons paired; and said imidazolyl being maintained upon the surface of an inert substrate or in solution in a solvent that is inert to said imidazolyl; and B. dimers thereof, said dimers having the property of forming color in solution in an inert solvent upon exposure to ultraviolet radiation corresponding to the ultraviolet light absorption spectrum of the dimer, which color fades upon removal of the radiation. Claims 2, 4, 5 and 11 are restricted to compositions consisting essentially of the imidazolyl form and substrate or solvent (A in claim 1), varying in scope as to substitutents R1 through R10. Claims 41-44 are drawn to the dimer form, without specification as to linkage, varying in scope as to R substituents. In claim 51 the general imidazolyl radical formula of claim 1 is set forth as being in reversible equilibrium with the dimer in an inert solvent. The phototropic nature of the compositions, i. e. their change in color upon exposure to light and reversal upon removal of the stimulus, renders them useful as automatic sun shades. The phenomenon of phototropism itself is not unexpected. Appellant’s contribution lies instead in the discovery that the presence of an ortho substituent in the 2-phenyl ring imparts an improved responsiveness to changes in light intensity. Greatly increased color fading rates are obtained. Furthermore, such a sub-stituent raises the temperature required to dissociate the dimer, reducing unwanted color due to thermal dissociation in the dark. Other distinguishing properties are increased stability and a higher number of color reversals before composition failure. The 103 Rejection The references relied upon by the examiner and the board were: Green U.S. 3,205,083 Sept. 7, 1965 Neugebauer et al. German Patent May 10, 1961 1,106,599 Deliwala et al. Chem. Abstracts, volume 45, cols. 6177-78 (1951) Radziszewski Chem. Abstracts, volume 4, pages 2265-66 (1910) Hayashi et al. Bull. Chem. Soc. (Japan) volume 33, pages 564-66 (1960) Zimmerman et al. Angew. Chem., volume 73, page 808 (1961) Gould Mechanism and Structure In Organic Chemistry, pages 672-82, New York, Holt (1959). Green, Neugebauer, Deliwala and Radziszewski (the primary references) disclose several substituted 2, 4, 5-triphe-nylimidazoles wherein there is an ortho substituent of the type encompassed by R1 of the claims in the 2-phenyl ring. Hayashi and Zimmerman teach two different methods for obtaining the free radical form from unsubstituted 2, 4, 5-triphenylimidazole or triphenylimidazoles having para-methyl or methoxy substituents on the 2-phenyl ring. Gould merely provides background information on free radicals, having no specific disclosure directed to imidazoles. Claims 1, 2, 4, 5 and 11 were rejected under 35 U.S.C. § 103 as unpatentable over the cited references. It was the examiner’s position that the claimed imi-dazolyl radicals were obvious in view of the precursor imidazoles disclosed by the primary references considering the known methods of Hayashi and Zimmerman for preparing related imidazolyl' free radicals from such an imidazole form. Since the prior art imidazoles relied upon had ortho substitution in the 2-phenyl ring, the examiner considered any differences of the claimed imidazol-yl radicals resulting from such substitution to be irrelevant to the issue involved herein. In sustaining the rejection, the board added that in view of the known methods of preparation and the availability of the precursors of appellant’s claimed compounds, “unobviousness cannot be predicated merely on an emphasis on compounds with a particular locus of substitution.” While the showings of improved properties alleged to be dependent on ortho substitution were not totally disregarded, as was the case with the examiner, the board found the same to be inadequate, holding: * * * Appellant’s argument or implication that the claimed free radicals necessarily must have “beneficial” properties not possessed by isomeric free radicals, having for instance, para instead of ortho substituents on the 2-phenyl group, is neither adequately supported nor implicit as to particular beneficial properties universally present in various solutions of all the claimed compounds. The specification (pages 40 and 41) gives no convincing and unequivocal assurance that the relative values given for color fading in a benzene solution have a general significance as to solvents in general and inert substrates such as adsorbent particles. Appellant now comes before us, urging that the issue lies in whether it was obvious to make imidazolyl radicals and dimers bearing an ortho substituent on the 2-phenyl ring, not in whether it was obvious how to make them once their desirability was ascertained. Failure to give any, or at least proper, weight to the evidence of unexpected differences between the claimed subject matter and the prior art is said to be clearly contrary to prior decisions of this court. We agree. It has long been our position that a compound and its properties are inseparable and that no property can be ignored in determining patentability over the prior art. In re Papesch, 315 F.2d 381, 391, 50 CCPA 1084, 1097 (1963); In re Wagner, 371 F.2d 877, 881, 54 CCPA 1031, 1037 (1967). The pertinence of unexpected properties to the issue of obviousness to make, as distinguished from how to make, is set forth in the main opinion in In re Larsen, 292 F.2d 531, 533, 49 CCPA 711, 713 (1961): * * * Since there was nothing to indicate that the compounds, when made, would have these properties, it was not obvious to make the compounds. In such a case the allowance of claims to the compounds must depend on the proposition that it was unobvious to conceive the idea of producing them, within the meaning of Title 35 U.S.C., § 103. Here the inventive concept lies in the selection of a particular group of substituted triphenylimidazoles for preparation of the corresponding dimers which in turn result in the claimed free radicals in the presence of ultraviolet light. Nothing in the prior art suggests any relationship between ortho substitution in the 2-phenyl ring and the properties disclosed and illustrated in appellant’s specification. We cannot accept even the premise of the solicitor’s contention that inasmuch as the most relevant prior art disclosed similar preparation from imidazoles having no or para substitution in the 2-phenyl ring, selection was limited to the four possibilities of mono-substitution on the 2-phenyl ring so that “to find that ortho substitution is more effective or superior does not amount to a patentable contribution.” The references relied upon, namely Hay-ashi et al. and Zimmerman et al., simply demonstrate the phototropic nature of the systems formed. No suggestion is given that a particular substitution on any one of the three phenyl rings would result in the improved light responsiveness and other characteristics achieved by appellant. The fact that ortho-sub-stituted triphenylimidazoles, along with many other substituted triphenylimid-azoles, were available for possible conversion adds no direction to the selection. The only remaining question lies in the sufficiency of the evidence presented in appellant’s specification to support the alleged interrelationship of ortho substitution and improved properties. The board having considered this evidence, we see no need for remand for the examiner’s review of the same. Our disagreement with the action of the Patent Office at this level arises from the overly stringent standards set up for evaluating appellant’s objective evidence. It is true that the claims are broadly drawn to the presence of the imidazolyls in the environment of an inert solvent or substrate. The examples providing comparisons with analogously substituted isomers or unsubstituted imidazoles, on the other hand, are limited to the use of a benzene solution. Not all compounds encompassed by the claims are tested. But ample data has been provided to establish the correlation between ortho substitution on the 2-phenyl ring and greatly increased col- or fading rates. Moreover, no factual basis appears in the record for expecting the compounds to behave differently in other environments. Accordingly, we reverse the 103 rejection. The 112 Rejection Claims 1, 41-44 and 51 were rejected under 35 U.S.C. § 112, paragraph one, as being based on a specification which does not sufficiently disclose the preparation of dimers having four of the six linkages encompassed by the claims. The examiner’s view was that inasmuch as “each linkage in the dimer is being claimed” and statements in the specification make it clear that different conditions resulted in different linkages, disclosure of the exact conditions for each isomer is essential. Production of a particular linkage was deemed “an important part of the invention even though the manner in which the imida-zoles are linked together in the dimer does not appear to be of importance with regard to the formation and properties of the free radicals.” The board concurred, adding that: * * * Appellant, in fact, asks persons who may want to utilize various distinct isomers covered by the claims and undoubtedly differing in their properties * * * to carry out experiments to discover the reaction conditions and product properties for isomers which appellant could not, or did not describe. As set forth in In re Moore 58 CCPA 1042, 1047, 439 F.2d 1232, 1236, 169 USPQ 236, 239 (1971), the relevant inquiry under the “how to make” requirement of paragraph one of 35 U.S.C. § 112 is whether the scope of enablement provided to one of ordinary skill in the art by the disclosure is commensurate in scope with the protection sought by the claims. The claimed subject matter here involved consists of certain substituted imidazole dimers “having the property of forming color in solution in an inert solvent upon exposure to ultraviolet radiation corresponding to the ultraviolet light absorption spectrum of the dimer, which color fades upon removal of the radiation.” Particular linkage or linkages are unspecified. As illustrated in claim 51, the free radical formed on dissociation is identical, regardless of the isomeric form of dimer. The dimer or dimers obtained on recombination may vary from the original isomers, dependent upon temperature, according to the specification. Hence we find disclosure of general procedures for preparation of the initial dimers without delineating exact conditions for each isomer of each imidazole in every environment adequate to practice the claimed invention. Isolation of individual isomers is neither necessary nor within the ambit of these claims. The decision of the board is reversed. Reversed. . This application is a continuation-in-part of serial No. 388,010, filed August 6, 1964, which was a continuation-in-part of serial No. 181,475, filed March 21, 1962.

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UNITED STATES of America, Plaintiff-Appellee, v. Obadiah STEPHENSON, Defendant-Appellant. No. 72-2400. United States Court of Appeals, Fifth Circuit. March 19, 1973. Jack C. Ciolino, New Orleans, La. (Court-Appointed), for defendant-appellant. Gerald J. Gallinghouse, U. S. Atty., Harry Hull, Jr., Mary Williams Cazalas, Asst. U. S. Attys., New Orleans, La., for plaintiff-appellee. Before GEWIN, GOLDBERG and DYER, Circuit Judges. DYER, Circuit Judge: ’ Stephenson was named as the sole defendant in a three-count indictment for possession of heroin. The first count charged him with possession of approximately 25 grams of heroin contained in 233 glassine envelopes in violation of 21 U.S.C.A. § 174. Counts two and three charged him with the possession of the same quantity of heroin in violation of 26 U.S.C.A. §§ 4704(a) and 4724(c) respectively. Stephenson was tried by a jury and convicted on all counts. He received three consecutive sentences of five-years imprisonment. We reverse. Stephenson’s principal contention on appeal is that it was error for the district court to deny his motion for a judgment of acquittal at the close of the Government’s case. We agree with Stephenson that, as a matter of law, there was insufficient evidence of his guilt to submit the case to the jury. On January 27, 1971, Special Agent Fenger of the Bureau of Narcotics and Dangerous Drugs (BNDD) obtained a warrant to search Stephenson’s person and his 1970 Buick Riviera for narcotics. Another warrant was obtained to New Orleans. About 9 p. m. on the search Big Mary’s Number 3 Bar in night of the 27th, Fenger and several other BNDD agents observed Stephenson arrive and park his Buick Riviera across the street from Big Mary’s. After approaching the vehicle, the agents informed Stephenson that they had a warrant to search him and his car. Stephenson stepped out of his automobile, and Fenger conducted the search. No narcotics were found. Fenger than asked Stephenson to accompany him into Big Mary’s. They proceeded into the bar, and Fenger advised the barmaid that he had a warrant to search the bar and all adjoining rooms. Stephenson sat at the bar with Fenger while the other agents conducted the search. During this search, the 233 glassine envelopes of heroin were found in a locked storage room in the rear of the bar. The room had been used as sleeping quarters for one Felix Ballazar. Ballazar’s clothes and suitcases were in the room, and the envelopes of heroin were found under the mattress .of his bed on which he was sitting when the agents entered. Also discovered during the search in a separate locked storeroom were three cartons of cellophane envelopes similar to the ones containing the heroin. The only evidence of any link between Stephenson and the heroin was latent fingerprints of his found on seventeen of the envelopes. Moreover, unlike Stop-pelli v. United States, 9 Cir. 1950, 183 F.2d 391, which is so heavily relied upon by the Government, no evidence was ever offered in the case sub judiee that Stephenson’s fingerprints were placed on these envelopes when they contained heroin. On the contrary, the F.B.I. fingerprint expert testified that the prints could have been placed on the glassine envelopes as long as a year before the seizure when the envelopes were empty. Because glassine is porous, any sweat or grease on the fingertips is absorbed into the material so that the resulting print is almost permanent; it cannot be removed by wiping. Additionally, if a person handling glassine does not have any moisture on his fingertips he will not leave a fingerprint. Finally, since fingerprints on glassine depend on the presence of sweat or moisture on the fingertips, it is possible for a person to handle many glassine envelopes and leave fingerprints on only a few, because the sweat on the friction ridges of the fingers would be absorbed by the first glassine envelopes touched. We recognize that proof of actual possession is not necessary to sustain a conviction for violation of the statutes involved; constructive possession is sufficient. Such possession need not be exclusive, but may be shared with others. Moreover, it may be proven by circumstantial as well as by direct evidence. Garza v. United States, 5 Cir. 1967, 385 F.2d 899, 901; Smith v. United States, 5 Cir. 1967, 385 F.2d 34, 38-39. However, whatever the nature of the evidence, it must be such that a jury may reasonably infer that the person charged with constructive possession had dominion and control over the drug. United States v. Mendoza, 5 Cir. 1970, 433 F.2d 891, 896. By the same token, mere presence in the area where the narcotic is discovered or mere association with the person who does control the drug or the property where it is located, is insufficient to support a finding of possession. United States v. Davis, 3 Cir. 1972, 461 F.2d 1026, 1035, 1036; United States v. Holland, 1971, 144 U.S.App.D.C. 225, 445 F.2d 701, 703; Smith v. United States, 5 Cir. 1967, 385 F.2d 34, 39 n. 16. In this case no connection between Stephenson and Ballazar was ever proven. Indeed, the Government offered no evidence whatsoever to establish any kind of relationship between the two of them, much less a working relationship. Moreover, although Stephenson was known to frequent Big Mary’s, as he lived in the area at one time, he had no proprietary interest in the bar.. Nor did he have any keys to the bar or to either of the locked storage rooms where the heroin and envelopes were found. In circumstantial evidence eases, the test of the sufficiency of proof on a motion for judgment of acquittal, and on review of the denial of such a motion, is whether, taking the evidence most favorable to the Government, Glas-ser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680, the jury might reasonably conclude that the evidence is inconsistent with the hypothesis of the accused’s innocence. United States v. Warner, 5 Cir. 1971, 441 F.2d 821, 825; United States v. Andrews, 5 Cir. 1970, 427 F.2d 539, 540; Surrett v. United States, 5 Cir. 1970, 421 F.2d 403, 405. If the evidence is such that a rea^ sonable person may have a reasonable doubt as to the defendant’s guilt, the case should be submitted to the jury. On the other hand, a trial judge should not permit a case to go to the jury if the evidence is so scant as to allow the jury merely to speculate or to conjecture as to the defendant’s guilt. In other words, a motion of acquittal must be granted when the evidence, viewed in the light most favorable to the Government, is such that a reasonably minded jury must have a reasonable doubt as to the existence of any of the essential elements of the crime charged. See United States v. Bethea, D.C.Cir. 1970, 442 F.2d 790, 792. Considering all of the circumstances, we think that the bare presence of Stephenson’s fingerprints on seventeen of the glassine envelopes was not, without more, sufficient evidence of guilt to have submitted the case to the jury. Where, as here, we reverse on the insufficiency of the evidence we may remand for a determination by the district court whether in light of any new evidence which the Government might bring forward a retrial is warranted — e. g., Watkins v. United States, 5 Cir. 1969, 409 F.2d 1382; Brock v. United States, 5 Cir. 1967, 387 F.2d 254 — but under the circumstances presented by this record we feel that “no good purpose could be served in ordering a new trial” in this case. South v. United States, 5 Cir. 1969, 412 F.2d 697; Nagell v. United States, 5 Cir. 1968, 392 F.2d 934; Argent v. United States, 5 Cir. 1963, 325 F.2d 162. The judgment of conviction is reversed, and the cause is remanded to the district court with directions to vacate the judgment and to enter an order granting the motion of acquittal and a judgment acquitting Stephenson. Reversed and remanded with directions.

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UNITED STATES of America, ex rel. Gary G. RUSH #42029, Appellant, v. Edward G. ZIEGELE, Superintendent of Leesburg (NJ) State Prison. No. 72-1513. United States Court of Appeals, Third Circuit. Argued Jan. 8, 1973. Decided March 5, 1973. Ralph J. Kmiec, Kmiec & Palumbo, Camden, N. J., for appellant. George F. Kugler, Jr., Atty. Gen. of New Jersey, Fred H. Kumpf, Deputy Atty. Gen., Department of Law & Public Safety, East Orange, N. J., for appellee. Before McLAUGHLIN, VAN DU-SEN and ROSENN, Circuit Judges. OPINION OF THE COURT ROSENN, Circuit Judge. State prisoner Gary G. Rush appeals from the order of the District Court for the District of New Jersey denying his petition for a writ of habeas corpus. Rush claims that he is-being held in custody unconstitutionally because (1) an involuntary confession was admitted into evidence during his trial, and (2) a number of trial court errors, when taken as a whole, amounted to deprivation of his right to a fair trial. We find no merit in either of appellant’s claims and therefore affirm the order of the district court. Rush was tried and convicted in 1964 for the January 18, 1962, felony murder of the co-owner of the Farm Tavern, Camden County, New Jersey. A confession that he was involved in the murder, which Rush had made to detectives on December 26, 1962, was entered into evidence. Its admissibility had been approved by the trial court judge after a suppression hearing was held outside the presence of the jury. Evidence presented at the suppression hearing established that Rush was 17 years old at the time he was questioned while confined as a juvenile offender at the Annandale Reformatory. He had a below average IQ, had been treated for mental illness at the Trenton State Mental Hospital from July 3 to September 17, 1962, and may have been schizophrenic at age 13. The testifying doctors also stated that Rush had been discharged from the state hospital because he had undergone a remission. The detectives who questioned Rush testified that the interrogation from 1:00 P.M. to 4:45 P.M. on December 26 had been conducted without threats, beatings or use of profanity. They said Rush had been allowed to attend supper and had voluntarily returned to confess after the meal. A quite different version of the interrogation — eight hours of constant questioning accompanied by beatings, threats and profanities — was given by Rush at trial, but he refused to testify at the suppression hearing: MR. KMIEC [Attorney for Rush]: If your Honor pleases at this time, I think the defendant Gary Rush wishes to make a statement for the record. GARY RUSH: I’d rather not take the stand. At this point I would rather tell my story to the jury. THE COURT: All right. MR. KMIEC: I have advised Mr. Rush it’s his decision to make, and that was his response to me, and I wish to make it clear for the purposes of the record. THE COURT: All right, I would like to ask the defendant, is this a decision of your own free will ? GARY RUSH: Yes sir it is. THE COURT: All right. Based on the evidence presented at the hearing, the trial judge found that Rush was mentally sane at the time of his confession and that “he did know the nature and quality of his acts.” He concluded: I am satisfied that the testimony of the State Police officers is quite accurate, there appears to be nothing from their testimony which I have here which would lead me to any different conclusion than that these confessions were voluntary and [it] should be noted at this time that the defendant on his own motion has declined to take the stand to deny any of the testimony or to shed any light on the situation, which might have otherwise been helpful to the court. On direct appeal, the trial court’s determination of voluntariness was affirmed. The New Jersey Supreme Court stated that the admissibility of the confession could not be questioned because Rush advanced no sufficient reason to explain his refusal to testify at the suppression hearing. 212 A.2d at 382. On petition for a writ of habeas corpus, the district court also denied Rush’s claim that the confession was made involuntarily. It held no evidentiary hearing, evidently believing that a full and fair hearing had been given by the state court. 335 F.Supp. at 436-437. On this appeal of the denial of a writ of habeas corpus, appellant Rush bases his claim that the confession was given involuntarily on his statement of the facts surrounding the interrogation, as he testified to them at trial. He claims the interrogation was coercive in light of the protracted time it took, Johnson v. Pennsylvania, 340 U.S. 881, 71 S.Ct. 191, 95 L.Ed. 640 (1950), and the low mental capacity of defendant, Fikes v. Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957). The State, relying on the description of the interrogation given by the detectives, argues that Rush’s will was not “overborne,” and thus the confession was voluntary. United States ex rel. Russo v. New Jersey, 438 F.2d 1343 (3d Cir. 1971); United States ex rel. Bishop v. Rundle, 309 F.Supp. 312 (E.D.Pa.1970). The trial judge must determine whether a confession was made voluntarily before allowing it to be submitted to a jury. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). Rush’s trial was completed before Jackson was written, but the Court’s holding is to be given retroactive effect. See Johnson v. New Jersey, 384 U.S. 719, 727-729, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Linkletter v. Walker, 381 U.S. 618, 639 n. 20, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). Factual findings in state court proceedings are presumed correct unless the fact-finding procedures were not adequate to afford a full and fair hearing, or unless material facts were not adequately developed. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), now codified in 28 U.S.C. § 2254(d)(2) and (3). Determination of whether a confession was made voluntarily, however, is a mixed question of fact and law. Federal courts exercising habeas corpus jurisdiction, therefore, cannot abdicate their responsibility to assess whether state court judges have correctly applied federal constitutional standards. Watts v. Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801 (1949); United States ex rel. Thomas v. New Jersey, 472 F.2d 735, 738 (3d Cir. 1973). Two questions thus are presented by appellant’s claim that his confession should not have been submitted to the jury: (1) Was an adequate fact-finding hearing conducted by the state trial court? and (2) Was the trial court correct in determining Rush’s confession was given voluntarily? We find that the fact-finding procedure employed in the state court was adequate to give appellant a full and fair hearing. Rush was given an opportunity to rebut the statements of detectives as to the details of the interrogation. Had Rush testified at the suppression hearing, as he did subsequently at trial, to eight hours of beatings and threats, the trial judge would have had to weigh his credibility against that of the detectives. In the absence of Rush’s testimony, however, the judge did not have such an opportunity. Rush’s refusal to testify at the hearing was a knowing and voluntary waiver of his right to present evidence to demonstrate the involuntariness of the confession. Inexcusable neglect of a defendant to present evidence crucial to his constitutional claims precludes defendant from having the right to a second opportunity, such as a habeas corpus hearing, to set forth evidence supporting his allegations. Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); compare Price v. Johnston, 334 U.S. 266, 289-290, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948), Wong Doo v. United States, 265 U.S. 239, 44 S.Ct. 524, 68 L.Ed. 999 (1924). The trial judge here explicitly asked Rush whether his refusal to testify was voluntary. Rush said it was. Rush’s lawyer informed the court that he had discussed this decision with his client. Rush has not alleged in his petition for habeas relief that his decision not to testify was involuntary, or that it was based on a misunderstanding of the possible consequences of refusal. In light of such a waiver, Rush is foreclosed from arguing at this point that he has a right to a second hearing on the voluntariness of his confession. Respect for the integrity of the state fact-finding process demands that defendants not be allowed to intentionally withhold information from it in order to assure a second federal hearing on the same issue. The state suppression hearing was, therefore, as full and fair a fact-finding process as appellant would allow it to be. Having found that the state suppression hearing was adequate, it is still necessary to determine whether the trial court applied the correct federal standards in determining the confession was voluntary. The evidence presented at the hearing, although not demonstrating that Rush was insane at the time of the confession, did portray him as a man with a history of mental illness and low mental capacities. Such proof is important in determining what amount of coercion will render a confession involuntary. Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959); Fikes v. Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957); Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948); Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936). The evidence before the trial judge at the suppression hearing, however, did not indicate the presence of coercion. Questioning had continued for less than four hours when detectives told Rush the interrogation was completed and allowed him to go to dinner; he voluntarily returned after dinner to make his confession. In the absence of any showing of coercion, we cannot find that Rush’s mind was overborne, despite his history of intermittent mental illness. The trial court was correct in its determination that Rush’s confession was voluntary and could be submitted to the jury. Although a different conclusion as to whether the confession was made voluntarily might be drawn if all, or even parts, of Rush’s at-trial story of the interrogation were accepted, those facts were not before the trial judge at the crucial point in the judicial process when the determination as to voluntariness was made. A defendant may waive his right to exclude from the jury evidence, even evidence obtained unconstitutionally, as long as his waiver is made knowingly and voluntarily. After such a waiver, a defendant cannot ask that the issue of admissibility be retried de novo. Moreover, in compliance with his request at the suppression hearing, petitioner had an opportunity at trial to state his version of the allegedly coerced confession to the jury. He sought by his testimony before the jury to show them that he had been subjected to physical and psychological coercion by the police during their questioning of him at An-nandale. The trial judge instructed the jury to “disregard . . . completely and accord no evidential weight whatsoever” to the confession unless they determined it was given voluntarily. Appellant’s other contentions, which he claims taken together amount to a deprivation of the right to a fair trial, include: (1) precautionary instrue-tions given the jury, telling it to consider admissions made by Rush to psychiatrist Spradley only in connection with the issue of Rush’s mental competency, were inadequate; (2) two pictures of the murder victim should not have been allowed into evidence; (3) prosecutorial closing remarks were prejudicial; and (4) Rush should have been granted a severance from his co-defendants. Contentions (1) and (4) are fully discussed in the district court opinion, 335 F.Supp. at 437-439, and we find them without merit. Neither the admission of the pictures nor the prosecutor’s comments rendered appellant’s trial unfair nor denied him due process. The order of the district court will be affirmed. . The district court opinion is reported at 335 F.Supp. 434 (D.N.J.1971). . The facts of the crime are more fully set out in the affirmance of Bush’s conviction on direct appeal. State v. Ordog, 45 N.J. 347, 212 A.2d 370 (1965). . Long periods of interrogation have been deemed to constitute coercion which will render a confession involuntary, Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961); Turner v. Pennsylvania, 338 U.S. 62, 69 S.Ct. 1352, 93 L.Ed. 1810 (1949); Johnson v. Pennsylvania, 340 U.S. 881, 71 S.Ct. 191, 95 L.Ed. 640 (1950) ; but none of these eases involved a period as short as four hours. . Appellant also argues that his confession was involuntary because he was given no Miranda warning. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), however, was not given retroactive effect. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). . The issue of defendant’s admissions to a psychiatrist here differs from the unconstitutional use of similar admissions in United States ex rel. Smith v. Yeager, 451 F.2d 164 (3d Cir. 1971), in two important respects: (1) no claim is made in this appeal that there was any error in the trial judge’s finding that Rush’s admissions to the psychiatrist were made voluntarily ; and (2) the jury here was explicitly instructed to consider the admissions only with regard to the issue of defendant’s sanity, not as in Smith to consider the admissions as proof of defendant’s commission of the charged offense.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Margaret Coll BOLENDER, Administratrix of the Estate of James P. Coll, Deceased, Appellant, v. FARM BUREAU MUTUAL INSURANCE COMPANY and Nationwide Insurance Company. No. 71-2000. United States Court of Appeals, Third Circuit. Argued Nov. 30, 1972. Decided March 7, 1973. Kalodner, Circuit Judge, filed dissenting opinion. Norman Paul Harvey, Harvey, Pennington, Herting & Renneisen, Timothy B. Barnard, Philadelphia, Pa., for appellant. John J. Walsh, Jr., LaBrum & Doak, Edward R. Paul, Philadelphia, Pa., for appellee. Before BIGGS, KALODNER and ADAMS, Circuit Judges. OPINION OF THE COURT BIGGS, Circuit Judge. This appeal is concerned with the proper application of the Pennsylvania statute of limitations, 12 P.S. § 31 (1953), to a proceeding by Bolender, ad-ministratrix of the estate of Coll, to recover as a third party beneficiary pursuant to a contract of insurance issued by the appellees to Laura L. Longs-treth. Jurisdiction is founded upon diversity of citizenship, 28 U.S.C. § 1332 (1970). The law of Pennsylvania applies. A judgment in favor of Bolender in the amount of $22,000 was entered on May 9, 1956 in wrongful death and survival actions against William Longs-treth, the son of Laura Longstreth who had been given permission by the latter to operate her automobile, and Bishop, who was operating the automobile at the request of William Longstreth when said car struck and killed Coll. Farm Bureau Mutual Insurance Company had defended William Longstreth in the lawsuit under a reservation of rights agreement and had refused to defend Bishop. The judgment remaining unsatisfied, Bolen-der filed the present suit against the insurer on December 27, 1967, claiming that either or both William Longstreth and Bishop were covered under the insurance policy issued to Laura Longs-treth and that the insurer was estopped from asserting the policy limitation of $10,000 due to its lack of good faith in defending the prior suit and negotiating a settlement. Bolender is suing to enforce the following promise of the insurer contained in the insurance contract: “Coverage F —Bodily Injury Liability: To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile.” Bolen-der’s right to sue the insurer directly as a third party beneficiary of such promise to pay stems from the following provision: “No action shall lie against the Company, unless, as a condition precedent thereto, the Insured shall have fully complied with all the terms of this policy, nor until the amount of the Insured’s obligation to pay shall have been finally determined either by judgment against the Insured after actual trial or by written agreement of the Insured, the claimant and the Company. “Any person or organization or the legal representative thereof who has secured such judgment or written agreement shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy it The appellees do not contest Bolender’s right under the above policy provision to bring an action against the insurer as a third party beneficiary of the insurance contract, and Pennsylvania law is clear that such a suit may be maintained. But in light of the fact that this action was instituted 11% years after the judgment against the insured was rendered, the court below granted appellees’ motion to dismiss on the ground that this action was barred after six years by the Pennsylvania statute of limitations applicable to contract actions, 12 P.S. § 31. We agree. It is of course fundamental that a statute of limitations does not begin to run until a cause of action has accrued. But determining the time when a cause of action has accrued is often the subject of dispute, and this case is no exception. Pennsylvania law is replete with simplistic statements concerning the times causes of action accrue. For example, it is said that “the time specified in a statute of limitations does not begin to run until there is an existing right to sue forthwith.” New York and Pennsylvania Co. v. New York Central R. R. Co., 300 Pa. 242, 245-246, 150 A. 480, 481 (1930). In Philadelphia, Baltimore, and Washington R. R. v. Quaker City Flour Mills Co., 282 Pa. 362, 367, 127 A. 845, 847 (1925), the Pennsylvania Supreme Court said, “A cause of action accrues at the moment the party has a legal right to sue.” And in Bell v. Brady, 346 Pa. 666, 669, 31 A.2d 547, 549 (1943), the Court stated that “a cause of action accrues . . . when one has the right to institute a suit.” If the contract is conditional, the statute runs from the time the condition is performed or exists. Tonkin v. Baum, 114 Pa. 414, 7 A. 185 (1886). Application of the above rules requires affirmance of the dismissal of this action. Bolender’s right to sue to enforce the insurer’s promise to pay was complete at the time the prior judgment was rendered. As is stated in the policy, “[a]ny person or organization or the legal representative thereof who has secured such judgment . . . shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy.” (Emphasis added.) Securing judgment was a condition precedent to Bolender’s right to sue the insurer directly, and upon satisfying this term, she clearly had “an existing right to sue forthwith,” which under Pennsylvania law, starts the running of the statute of limitations. In an effort to escape the obvious, Bolender contends that since the insurance policy contains no time limitation on an injured party’s right to claim payment, that right exists as long as the judgment against the insured remains valid and enforceable. The lack of such an express limitation in the policy is irrelevant, however, for the law, 12 P.S. § 31, imposes one. Bolender’s position that a refusal of payment by the insurer is necessary to start the statute running is untenable. Refusal by the insurer is not a prerequisite to the right to institute suit to enforce the insurer’s promise to pay, a right which Bolender ignored for 11V2 years, and the promise to pay was not part of a continuing contract. We would end this opinion here were it not for our Brother Kalodner’s dissent. We believe that the fundamental misconception of the dissent is its belief that the policy grants the right to sue on a judgment. The right to sue is on the contract, and the judgment is only relevant insofar as it is a condition precedent to the creation of the third-party beneficiary right in the plaintiff. The judgment will be affirmed. KALODNER, Circuit Judge (dissenting). The insurance policy here involved provides that an action may be instituted against the insurer for recovery of a judgment against its insured to the extent of the policy’s coverage, without specification as to the time in which the action must be brought. The majority holds that the suit here is upon the contract and not upon the judgment, and that accordingly, it is barred by the Pennsylvania Statute of Limitations, 12 P.S. § 31, which fixes a six-year limit for action on a contract. The Achilles’ heel of the stated holding is that it limits its consideration to the single circumstance that the policy confers the right-to-sue on a judgment and disregards the inherent attributes of a judgment and its force insofar as time limitation for its enforcement is concerned. The majority, in other words, has seen fit to focus its attention on the packaging, and not the content, of the judgment privilege. I disagree with the majority’s disposition for these reasons: It is settled Pennsylvania law that (1) an action on a judgment is not governed by the six-year Pennsylvania Statute of Limitations applicable to contract actions, and (2) the vitality of a judgment prevails undiminished for a period of twenty years inasmuch as a presumption of payment arises only after a lapse of twenty years. The policy here provides that the insurer may be sued for recovery of a judgment obtained against its insured to the extent of its coverage. It does not fix a time limit for the institution of such an action although it could have done so under prevailing Pennsylvania law. Since the policy fixes no time limitations respecting the exercise of its right-to-sue provision we must resort to Pennsylvania decisions applicable to the construction of an insurance policy. These settled Pennsylvania principles are applicable: “It is well settled that an insurance policy will be construed most strongly against the insurer who has prepared it,” and “[i]n case of doubt and ambiguity, a provision of an insurance policy will be construed against the insurer who drafted the instrument.” “In determining what constitutes the obligation of a contract, no principle is more firmly established than that the laws which were in force at the time and place of the making of the contract enter into its obligation with the same effect as if expressly incorporated in its terms.” Beaver County Building and Loan Association v. Winowich, 323 Pa. 483, 489, 187 A. 481, 484 (1936) (emphasis supplied). The majority has not given effect to the foregoing principles. It has not construed the policy “most strongly against the insurer who has prepared it.” It has not accorded the appellant the benefit of the Pennsylvania rule that an action on a judgment is not subject to the six-year Pennsylvania Statute of Limitations. It has barred a suit upon a judgment which is less than twenty years old although it concedes that the vitality of the judgment exists for twenty years under Pennsylvania law. (footnote 4, majority opinion). It has made a shambles of the right accorded by a policy to sue the insurer on a judgment by its ruling that when such an action is instituted it must be regarded as a suit upon the contract and not upon the judgment. The net effect of the majority’s ruling is that it makes a judgment subject to the impact of the six-year Pennsylvania Statute of Limitations, applicable to contracts, in disregard of the Pennsylvania rule that a judgment is not governed by this statute. “Rich gifts wax poor when givers prove unkind.” In paraphrase: “Rich gifts wax poor when judges prove unkind.” There remains this to be said: There is no precedent in Pennsylvania, or any other jurisdiction, state or federal, for the majority’s holding that when a policy grants a right to sue the insurer on a judgment, such an action must be regarded as a suit upon a contract and not upon a judgment. The majority here sets an unfortunate precedent of transcending importance in insurance law. I would vacate the Order of the District Court. . Appellee Farm Bureau Mutual Insurance Company, which had issued the insurance policy in question, was merged with or otherwise acquired by appellee Nationwide Insurance Company several years prior to the institution of the present proceeding. . In 1963, Bolender filed a Writ of Execution on the judgment, but according to Bolender, “[t]he whereabouts of Bishop being unknown and Longstreth having become a clergyman, the Writ was not acted upon.” . Rose and Son, Inc. v. Zurich General Accident Co., 296 Pa. 206, 145 A. 813 (1929); Ferguson v. Manufacturers’ Casualty Insurance Company of Philadelphia, 129 Pa.Super. 276, 195 A. 661 (1937); Philadelphia Forrest Hills Corporation v. Bituminous Casualty Corporation, 208 Pa.Super. 461, 222 A.2d 493 (1966). Absent such a clause, Bolender could not sue the insurer directly to recover on the judgment rendered against the insured. Ferguson v. Manufacturers’ Casualty Insurance Company of Philadelphia, supra; Philadelphia Forrest Hills Corp v. Bituminous Casualty Corp., supra. A second remedy is also available however, that of issuing an attachment execution naming the insurer as garnishee. Ferguson v. Manufacturers’ Casualty Company of Philadelphia, supra at 280, 195 A. at 663; Wilkosz v. Employers’ Liability Assurance Corp., 13 Pa.Dist. & Co.R.2d 746, 748 (1957). . Under Pennsylvania law, a judgment is presumed discharged after 20 years. Smith v. Shoenberger, 176 Pa. 95, 34 A. 954 (1896). . Contrast Thorpe v. Schoenbrun, 202 Pa. Super. 375, 195 A.2d 870 (1963). . Paragraph 6 of “CONDITIONS” of the policy, captioned “Action Against Company” provides as follows: “No action shall lie against the Company unless, as a condition precedent thereto, the Insured shall have fully complied with all the terms of this policy, nor until the amount of the Insured's obligation to pay shall have been finally determined either by judgment against the Insured after actual trial or by written agreement of the Insured, the claimant and the Company. “Any person or organization or the legal representative thereof who has secured such judgment or written agreement shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy. Nothing contained in this policy shall give any person or organization any right to join the Company as a co-defendant in any action against the Insured to determine the Insured’s liability. “Bankruptcy or insolvency of the Insured or of the Insured’s estate shall not relieve the Company of any of its obligations hereunder.” (Emphasis supplied). . Evans v. Cleary, 125 Pa. 204, 211, 17 A. 440, 442 (1889); Stewart v. Peterson’s Executors, 63 Pa. 230, 234 (1870); Vincent v. Watson, 40 Pa. 306, 309 (1861); Henry’s Estate (No. 1), 28 Pa. Super. 541, 543 (1905); 22 Pennsylvania Law Encyclopedia, Limitation of Actions, § 29. . Smith v. Shoenberger, 176 Pa. 95, 34 A. 954 (1896); Gregory v. Commonwealth, 121 Pa. 611, 15 A. 452 (1888); Reed v. Reed, 46 Pa. 239, 242 (1963); Peoples Loan & Investment Co. v. Perl, 45 Lackawanna Jurist 199 (C.P.1944); Baker’s Estate, 48 Pa.Dist. & Co.R. 163, 166 (C.P. Montgomery County 1943). . Ferguson v. Manufacturers’ Casualty Insurance Company of Philadelphia, 129 Pa. Super. 276, 280-282, 195 A. 661, 663-664 (1937). There the policy granted a right to sue the insurer for recovery of a judgment against the insured provided such suit was “brought within ninety (90) days after the right of action accrues. . . .” . Blue Anchor Overall Co. v. Pennsylvania Lumbermens Mutual Insurance Company, 385 Pa. 394, 397, 123 A.2d 413, 415 (1956). . Walter v. Dunlap, 368 F.2d 118, 120 (3 Cir. 1966) (citing Pennsylvania cases). See, too, Miller v. Boston Insurance Company, 420 Pa. 566, 570, 218 A.2d 275, 277 (1966); Papadell v. Harleysville Mutual Casualty Company, 411 Pa. 214, 216, 191 A.2d 274, 275 (1963). . Hamlet, Act III, Scene i. . The District Court’s Order under review is premised solely on the conclusion “that plaintiff’s claim is barred by the statute of limitations.” The majority has directed its consideration to the stated premise of the District Court’s disposition. This dissent lias likewise done so.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Appellee, v. Lemuel Leon ORR, Jr., Appellant. No. 506, Docket 72-1864. United States Court of Appeals, Second Circuit. Argued Dec. 22, 1972. Decided March 13, 1973. Alfred Lawrence Toombs, New York City, for appellant. John W. Nields, Jr., Asst. U. S. Atty., New York City (Whitney Nor.th Seymour, Jr., U. S. Atty. for Southern District of New York, and George E. Wilson, Sp. Asst. U. S. Atty., New York City, of counsel), for appellee. Before MOORE, FEINBERG and MULLIGAN, Circuit Judges. MULLIGAN, Circuit Judge: This is an appeal by Lemuel Orr, Jr., from a judgment of conviction entered on June 14, 1972 after a non-jury trial before Hon. Edward Weinfeld, United States District Judge. Orr was found guilty of unlawfully failing to report for induction into the Armed Forces (50 U.S.C. App. § 462(a)) and was sentenced to a prison term of six months. Affirmed. I. The evidence shows that appellant registered with Local Board 12 in New York City in September 1969. He also submitted his classification questionnaire (SSS Form 100) in which he asserted a claim for conscientious objector status. On July 2, 1970, the Board mailed to appellant the Special Form for Conscientious Objectors (SSS Form 150). He, however, did not return the form and the Board, on October 27, 1970, classified him I-A, noting on his file “doubt sincere C.O.” He was duly notified of his classification and of his right to a personal appearance and an appeal. On November 18, 1970, appellant made a personal appearance before Board Chairman David Edwards, who prepared a written summary of the interview: Registrant appeared and was sworn. States he failed to return Form 150 because it was lost or destroyed in a fire. States he is a member of the Muslim religion and has been so for the past 8 or 9 months. He participates regularly in their activities and works in one of their health food stores. Produced membership card. He claims conscientious objector exemption by reason of his religious beliefs and membership in the Muslim religion that he should not take part in wars which take human lives. However, he states he is not opposed to participation in all wars; that he would participate in a war in self defense which he thought was a threat to him, his family, his mosque, his loved ones or intimate community. Board believes he is sincere in his beliefs. Registrant informed to complete & return form 150 and consideration to be given upon receipt of same. Appellant returned SSS Form 150 in which he made the following statement in describing the nature of his belief: We believe that we who declared ourselves to be rightous [sic] Muslims, should not participate in wars which take the lives of humans. We do not believe this nation should force us to take part in such wars, for we have nothing to gain from it, unless America agrees to give us the necessary territory wherein we may have something to fight for. On December 16, 1970, the Local Board noted: Unable to determine sincerity without personal interview. Call in for interview. Thus, the appellant made a second personal appearance on February 16, 1971. The Board summarized the interview as follows: Registrant appeared and affirmed to tell the truth. He is a member of Muslim religion. He cannot participate in armed services as his present work is more meaningful. Present wars and conflicts have no value to him. However, he could participate in a war that has value or meaningful benefit to him. Not eligible for C.O. classification. Reopening not warranted. Appellant’s conscientious objector claim was rejected by the Local Board by a vote of 4-0, and on March 25, 1971 the Appeal Board unanimously (5-0) classified him I-A. Appellant was then ordered to report for induction on May 11, 1971. Upon his failure to report, this prosecution was commenced. II. The issue before a district court reviewing a Selective Service Board’s decision to deny a registrant conscientious objector status, is indeed the narrow one of whether or not the Board had a “basis in fact” for that decision. United States v. Seeger, 380 U.S. 163, 185, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965); Lovallo v. Resor, 443 F.2d 1262 (2d Cir. 1971). It would also seem clear that it was not the intent of Congress that the district judge permit a trial de novo as to whether or not he would classify the registrant as a conscientious objector; rather, Congress intended that the judge decide only whether there was a “basis in fact” for the classification in the Selective Service file. United States v. Lloyd, 431 F.2d 160, 166 (9th Cir. 1970), cert. denied, 403 U.S. 911, 91 S. Ct. 2210, 29 L.Ed.2d 688 (1971). Finally, in applying the tests for conscientious objector status “the Selective Service System must be concerned with the registrant as an individual, not with its own interpretation of the dogma of the religious sect, if any, to which he may belong.” Clay v. United States, 403 U.S. 698, 700, 91 S.Ct. 2068, 2070, 29 L.Ed.2d 810 (1971). In light of these principles we affirm the decision below. The major attack of the appellant here is that the district court erred in failing to recognize the applicability of Sicurella v. United States, 348 U.S. 385, 75 S.Ct. 403, 99 L.Ed. 436 (1955). There the Supreme Court held that the willingness of a Jehovah’s Witness to participate in a “theocratic war,” in the “Armageddon” where the forces of good would clash with the forces of evil but without “carnal weapons,” did not prevent his classification as a conscientious objector. Appellant’s scholarly brief and argument on appeal are in effect an attempt to equate the Black Muslim tenets with those of Jehovah’s Witnesses in the area of conscientious objection to war. In view of the holdings of the Supreme Court we have referred to, the question is not the tenets of the church but the beliefs of the registrant as expressed to the Board which had the responsibility of classifying him. Judge Weinfeld carefully considered Sicurella in his opinion and there is little we need add to his scholarly analysis. Orr’s statement to the Board on his SSS Form 150 provided it with an ample basis in fact to determine that his objection to war, was selective and conditional. He was not opposed to all wars. His willingness to fight in a war was conditioned on America’s giving the Black Muslims “the necessary territory wherein [he would] have something to fight for.” The appellant now urges that the territory was really theocratic like the Kingdom of Jehovah and the fighting would be without “carnal weapons” but by means of the power of Allah operating through the bodies of his followers. The Board, on the basis of Orr’s statement, had the right to consider that the territorial acquisition suggested would be material, not spiritual, and that the “war” to defend it would be conventional. Appellant is relying not on evidence before the Board but on extrapolations of his own testimony before Judge Weinfeld who, although trying the case without a jury, had to caution Orr’s counsel on several occasions not to lead the defendant. Orr admittedly did not simply repeat the testimony he had given before the Board but stated that when he had appeared he had just come into the temple and did not have a full understanding of what he said or “should have said.” We do not believe that Orr’s evolving understanding of what he believes is an appropriate criterion for judging whether or not the Board had a basis in fact for the determination it was required to make from the record before it. Nevertheless, if any error was committed by Judge Weinfeld in permitting the examination of Orr to continue as to his present views which were not held or articulated at the time of his appearance before the Board, it was not prejudicial to the appellant. Appellant contends that the failure of the Appeal Board to provide a “statement of reasons” precludes a meaningful judicial review and the conclusion of Judge Weinfeld that the Appeal Board was not required to state reasons was “plainly erroneous.” This contention has no merit. The emerging doctrine in the Selective Service cases, that the Board must furnish reasons, is based on general administrative law principles. SEC v. Chenery Corp., 318 U.S. 80, 94, 63 S.Ct. 454, 87 L.Ed. 626 (1943). We know of no authority which precludes an appellate administrative tribunal from affirming the findings of a subordinate board without restatement. The Local Board’s stated reason was in effect that Orr was not “conscientiously opposed to participation to war in any form.” Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971). Had the Local Board proceeded on more than one ground and if one of them was in fact invalid, a simple affirmance would make it impossible for a court to determine the basis of the decision. No such problem exists here. Appellant argues further that the Local Board erred by finding that Orr’s willingness to use force to defend himself, his mosque, his loved ones or intimate community “foreclosed him from the C.O. exemption.” While the use of force to repel an assailant or an attack on one’s family or friends would not be inconsistent with conscientious objector status, United States v. Purvis, 403 F.2d 555, 563 (2d Cir. 1968), there is nothing in the record to suggest that the Board based its decision on this position. As Judge Weinfeld pointed out in his opinion below the only mention made by Orr of his willingness to fight in a war in self defense, was in his November 18, 1970 appearance before the Board. It was after this appearance that the Board provided him with a C.O. form (SSS Form 150) advising him to fill it out and that consideration would be given upon its receipt. The Board did not deny him C.O. status on the basis of this view. It was only after he returned the form and the Board called him back for a second personal interview on February 16, 1971 that he was denied C.O. status. The Board then clearly indicated that its reason was that Orr was willing to participate in a war which had “value or meaningful benefit to him”, i.e., to defend territory given by America to the Black Muslims. Appellant’s argument that the Board based its decision on the erroneous “self defense” position, is based not on the record but on Chairman Edwards’ testimony before the Court regarding the Local Board’s policy and practice. This is testimony which the appellant curiously urges was erroneously admitted citing Lenhard v. United States, 405 U.S. 1013, 92 S.Ct. 1296, 31 L.Ed.2d 477 (1972), which vacated our affirmance of Lenhard’s conviction, 455 F.2d 1406 (2d Cir. 1971), and remanded the case for our consideration of points raised in the memorandum of the Solicitor General; those points have no application here. In Lenhard the local board had dismissed a claim of conscientious objection without stating reasons. Thus there was no opportunity to rebut the local board’s position on appeal — there was no opportunity for a meaningful administrative review. Here there is no question of the reasons for the Board’s decision. Whether or not Edwards’ testimony was properly admissible, no prejudice is established by the defendant. In fact, Edwards had no independent recollection of Orr’s case and could only testify as to general procedures of the Board. Having considered all of the arguments made on this appeal, we affirm. . The District Court opinion, filed on May 11, 1972, is reported at 343 F.Supp. 178 (S.D.N.Y.). . Orr did not dispute the fact that he intentionally and willfully failed to report for induction. Rather, he claimed that he had erroneously been denied conscientious objector status under 50 U.S.C. App. § 456(j) which provides that any registrant who “by reason of religious training and belief, is conscientiously opposed to participation in war in any form,” is entitled to exemption from military service. . Congress in the 1971 amendments to the Selective Service Act of 1967 (Act of Sept. 28, 1971, Pub.L.No.92-129, 85 Stat. 348) provided that “[i]n the event of a decision adverse to the claim of a registrant, the local or appeal board making such decision shall, upon request, furnish to such registrant a brief written statement of the reasons for its decision.” (50 U.S.C. App. § 471a (b)(4)). This section however, does not by its terms, purport to be retroactive. As we noted in United States ex rel. Checkman v. Laird, 2 Cir., 469 F.2d 773 (1972), “it is arguable” that a local board’s statement of reasons was required prior to the 1971 amendments, see also Fein v. Selective Serv. Sys., 405 U.S. 365, 380-381, 92 S.Ct. 1062, 31 L.Ed.2d 298 (1972); but we did not indicate that the argument would have equal force with regard to an appeal board, when the local board has given reasons. . See generally, Clay v. United States, 403 U.S. 698, 704-705, 91 S.Ct. 2068, 29 L.Ed.2d 810 (1971). . This Court first considered the Lenhard ease in 437 F.2d 936 (1970). There, noting that neither the Local Board nor the State Appeal Board had given any explanation for their denial of the C.O. classification, we remanded the case to the district court to allow the government to show the reasons upon which the Board had acted. In view of new testimony by Local Board members that they had found Lenhard’s claim insincere, the district court reinstated the conviction and sentence, and we affirmed without opinion (455 F.2d 1406 (1971)). On remand from the Supreme Court’s vaeature of judgment (405 U.S. 1013, 92 S.Ct. 1296, 31 L.Ed.2d 477 (1972)) we reversed Len-hard’s conviction. 461 F.2d 1268 (1972).

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Jeanette GRAY, Plaintiff-Appellant, v. Elliot L. RICHARDSON, Secretary of Health, Education and Welfare, Defendant-Appellee. No. 72-1416. United States Court of Appeals, Sixth Circuit. Argued Nov. 30, 1972. Decided and Filed March 1, 1973. John L. Wolfe, Akron, Ohio, for plaintiff-appellant. Donald D. Weisberger, Asst. U. S. Atty., Cleveland, Ohio, for defendant-ap-pellee; Frederick M. Coleman, U. S. Atty., Cleveland, Ohio, on brief. Before PHILLIPS, Chief Judge, KENT, Circuit Judge, and O’SULLIVAN, Senior Circuit Judge. PHILLIPS, Chief Judge. The legitimacy of a minor child is the issue presented in this Social Security case. The District Court, 340 F.Supp. 680, upheld the decision of the Secretary to the effect that the child is not the daughter of the wage earner. We reverse. The child is Tamara Lynn Gray, who was born November 24, 1962. Her mother, the plaintiff-appellant in this case, contends that Tamara is the legitimate daughter of Freddie M. Gray, who died in 1970 while insured under the Social Security Act. Mr. and Mrs. Gray were married August 11, 1960. They lived together until January 1961, a period of four to five months. Mr. Gray sued for divorce. Mrs. Gray filed a cross-petition asking for alimony and contesting the divorce petition. She stated that she did not consent to a divorce at that time because she was still in love with her husband and was hopeful for a reconciliation. Mrs. Gray further testified that after their separation her husband continued to visit her sporadically for two or three days at a time and that these visits continued until the end of January 1962. She testified further that she was visited by her husband on the last day of January or the first day of February 1962, and during that visit they had sexual relations which were carried to completion on at least two occasions so as to make conception possible. She denied having sexual relations with any other man prior to that time or during the months immediately following that time. Subsequent to the alleged visit by her husband she missed her menstrual periods, and in April was advised by an obstetrician that she could expect a baby approximately on November 3, 1962. Mrs. Gray said that the baby was three weeks past due when she was born, and that she weighed nine pounds, two ounces, and was 21 inches long. Prior to his death Mr. Gray denied that he ever had any sexual relations with his wife after their separation. He further alleged that he had undergone an operation for a vasectomy in 1950, making it impossible for him to become father of a child. The allegation of sterility resulting from the vasectomy was supported by Mr. Gray’s surgeon, who conceded, however, that this operation is less than one hundred per cent effective. Mr. Gray refused to submit to a blood test. After all reconciliation attempts had proved ineffective, a divorce was granted on January 15, 1965, in a contested proceeding in the Common Pleas Court of Summit County, Ohio. Mr. Gray’s attorney informed the Common Pleas Court of his client’s claim of sterility, but the court expressly found that “one child, Tamara Lynn Gray, has been born to the plaintiff during lawful wedlock as the issue of said marriage.” On January 25, 1965, Mrs. Gray filed a claim with the Social Security Administration on behalf of herself and the child. Despite the finding of the Ohio Court to the contrary, the Secretary found that Tamara was not the daughter of Freddie Gray. Although the record contains substantial evidence supporting the findings of the Secretary, we hold that under the particular facts of this case and in consideration of the law of Ohio, the Secretary should have followed the holding of the State court. Section 216(h)(2)(A) of the Social Security Act (42 U.S.C. § 416(h)(2) (A)) provides: “In determining whether an applicant is the child or parent of a fully or currently insured individual for purposes of this subchapter, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death, or, if such insured individual is or was not so domiciled in any State, by the courts of the District of Columbia. Applicants who according to such law would have the same status relative to taking intestate personal property as a child or parent shall be deemed such.” The controlling question is whether, under the law of Ohio, Tamara would be entitled to share in the distribution of Mr. Gray’s intestate personal property as his child. If Tamara is deemed to be a legitimate child of Freddie Gray, she would be entitled to a share under the Ohio statute of descent and distribution. § 2105.06, Ohio Rev. Code. Ohio follows the common law rule that a child conceived during the existence of a lawful marital relation is presumed to be the legitimate issue of the marriage. This presumption is not conclusive. It may be rebutted by clear and convincing evidence to the contrary. State ex rel. Walker v. Clark, 144 Ohio St. 305, 58 N.E.2d 773 (1944). The presumption applies to questions of heirship. Harris v. Seabury, 30 Ohio App. 42, 164 N.E. 121 (Fayette Cty.Ct. of App.1928). In the present case the right of the child to Social Security benefits is controlled by the Ohio law of intestate succession of personal property. We have no doubt that an Ohio probate court, in determining an issue of intestate succession, would follow an adjudication of legitimacy made by an Ohio Court of Common Pleas in a contested divorce case. Although the Secretary is not bound by the decision of a State trial court in a proceeding to which he was not a party, we hold that he is not free to ignore an adjudication of a state trial court where it is fair and consistent with the law as enunciated by the highest court of the State. Legory v. Finch, 424 F.2d 406 (3rd Cir. 1970). We are convinced that the Supreme Court of Ohio would hold, under the facts of the present case, that the right of Tamara Lynn Gray under the Ohio law of intestate succession would be controlled by the decision of the Common Pleas Court in the contested divorce proceedings. Since this is a situation falling within the general category of domestic relations, special deference should be given by federal tribunals to the resolution by the State court. Traditionally the states, not the federal government, have been considered the exclusive arbiter of these problems. In re Burrus, 136 U.S. 586, 10 S.Ct. 850, 34 L.Ed. 500 (1890); Harris v. Turner, 329 F.2d 918 (6th Cir.), cert. denied, 379 U.S. 907, 85 S.Ct. 202, 13 L.Ed.2d 180 (1964), rehearing denied, 379 U.S. 985, 85 S.Ct. 673, 13 L.Ed.2d 578 (1965); Carqueville v. Woodruff, 153 F.2d 1011 (6th Cir. 1946). We therefore hold that the Secretary should have accepted the determination made by the State court. Such a holding is proper in the present case where the following prerequisites are found: 1) An issue in a claim for social security benefits previously has been determined by a State court of competent jurisdiction; 2) this issue was genuinely contested before the State court by parties with opposing interests; 3) the issue falls within the general category of domestic relations law; and 4) the resolution by the State trial court is consistent with the law enunciated by the highest court in the State. We find that the present case is distinguishable from the cases relied upon by the Secretary. In both Cruz v. Gardner, 375 F.2d 453 (7th Cir.), cert. denied, 389 U.S. 886, 88 S.Ct. 160, 19 L.Ed.2d 184 (1967), and Cain v. Secretary of Health, Education and Welfare, 377 F.2d 55 (4th Cir. 1967), ex parte State trial court decisions were involved. Both decisions speak of serious questions as to the consistency of the decision of the trial courts with the law enunciated by the highest State court. Our decisions in Dowell v. Gardner, 386 F.2d 809 (6th Cir. 1967), and Old Kent Bank & Trust Co. v. United States, 362 F.2d 444 (6th Cir. 1966), also involved ex parte trial court decisions. We reemphasize that the divorce decree which adjudicated Tamara Lynn Gray to be the lawful issue of the marriage of her mother and Freddie M. Gray, was rendered in a contested proceeding. This finding was in accord with the strong presumption under Ohio law that a child conceived during the existence of a lawful marriage is the legitimate issue of the marriage and is consistent with the law enunciated by the appellate courts of Ohio. Reversed and remanded for a determination of benefits. . The Act was amended in 1965 by the addition of § 216(h)(3) (42 U.S.C. § 416 (h) (3)). The amendment provides that a child of an insured not qualifying under § (h) (2) may nevertheless be deemed a child of the insured if: “(B) in the case of an insured individual entitled to disability insurance benefits, or who was entitled to such benefits in the month preceding the first month for which he was entitled to old-age insurance benefits— “(i) such insured individual — • “(I) has acknowledged in writing that the applicant is his son or daughter, “(II) lias been decreed by a court to be the father of the applicant, or “(III) has been ordered by a court to contribute to the support of the applicant because the applicant is his son or daughter, and such acknowledgment, court decree, or court order was made before such insured individual’s most recent period of disability began This 1965 amendment was not in effect at the time the application was filed in the present case. . The record in the present case reveals that Tamara Lynn Gray was listed as Mr. Gray’s heir when his estate was released from administration by the Probate Division of the Common Pleas Court of Stark County. . For results contrary to Cruz and Cain see Collins v. Celebrezze, 250 F.Supp. 37 (S.D.N.Y.1966); and Zeldman v. Celebrezze, 252 F.Supp. 167 (E.D.N.Y.1965).