author: GIBSON, Circuit Judge. WEBSTER, Circuit Judge

text:
    Norman Eugene LEE, Appellant, v. UNITED STATES of America, Appellee.
    No. 73-1653.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 15, 1974.
    Decided Aug. 1, 1974.

      John T. Lavey, Little Rock, Ark., for appellant.
    Kenneth Stoll, Asst. U. S. Atty., Little Rock, Ark., for appellee.
    Before VOGEL, Senior Circuit Judge, GIBSON and WEBSTER, Circuit Judges.
   GIBSON, Circuit Judge.

Petitioner filed this 28 U.S.C. § 2255 action in the United States District Court, Eastern District of Arkansas, alleging inter alia, constitutional deprivation of due process rights by delay of the United States Board of Parole (Board of Parole) in executing a parole violator warrant and in the failure of the Board of Parole to hold a parole revocation hearing in 1968, the original date of the revocation warrant. The facts and actions of various courts are complex and require detailed consideration.

On March 2, 1962, petitioner pled guilty to five counts of violating the Dyer Act (interstate transportation of stolen vehicles, 18 U.S.C. § 2312) in the United States District Court, Eastern District of Arkansas. Judge Henley sentenced petitioner to a total of nine years imprisonment on this “Arkansas” conviction. On December 26, 1966, petitioner was paroled from the sentence for the “Arkansas” conviction and, sometime during the spring of 1968, violated his parole. On May 8, 1968, the Board of Parole issued a parole violator warrant, which was delivered to the United States Marshal for the Southern District of Indiana.

For reasons unknown to us, Kansas state authorities had custody of petitioner during July, 1968, and released him to federal authorities in Kansas on July 23, 1968. The May 8, 1968, parole violator warrant was delivered to the United States Marshal for Kansas on August 11, 1968, but was not served on petitioner at this time. On September 19, 1968, a federal grand jury in Kansas indicted petitioner for new violations of the Dyer Act, and on December 5, 1968, petitioner pled guilty to these “Kansas” counts. The Honorable George Templer, United States District Judge for the District of Kansas, sentenced petitioner to four years imprisonment for the “Kansas” violations. On February 3, 1969, petitioner commenced serving the four-year sentence for the “Kansas” conviction. The May 8, 1968, parole violator warrant remained lodged, but was not served, on the petitioner while he served the sentence for the “Kansas” conviction in the United States Penitentiary in Terre Haute, Indiana. On July 14, 1971, the petitioner completed serving his sentence for the “Kansas” conviction, and, on that same day, the May 8, 1968, parole violator warrant was served on petitioner at the penitentiary in Terre Haute, Indiana. The Board of Parole pursuant to this warrant arrested the petitioner.

On July 16, 1971, an attorney in Indiana was appointed by a United States Magistrate to represent petitioner at a parole revocation hearing at the United States Penitentiary, Terre Haute, Indiana, which was held August 9, 1971. Petitioner objected to the hearing on the ground that the Board of Parole lacked jurisdiction over petitioner and informed it that he would file a habeas corpus action in the federal district court in Indiana. After the hearing, petitioner’s parole granted on December 26, 1966, was revoked. The petitioner commenced serving the remainder of his nine-year sentence for the “Arkansas” conviction first in Terre Haute and then in Minnesota. Petitioner was paroled again, subject to the supervision of parole authorities in Indiana. He again violated his parole, which again was revoked. The briefs and record do not indicate exactly when this revocation occurred and whether a hearing was held. By last notice to this court, the petitioner is incarcerated in Indiana and serving the remainder of the nine-year sentence for the “Arkansas” conviction.

On August 26,1971, while incarcerated in Indiana, the petitioner filed a pro se habeas corpus action before the Honorable James E. Noland, United States District Judge, Southern District of Indiana, Terre Haute Division. According to counsel for petitioner in the reply brief before this court, the basis of petitioner’s “writ of habeas corpus filed with Judge Noland on August 26, 1971, was that the United States Board of Parole executed its May 8, 1968 parole violator warrant on the last day of appellant’s Kansas Dyer Act sentence, which caused him to serve the remainder of the sentence imposed on him by Judge Henley on March 2, 1962.” On November 26, 1971, Judge Noland dismissed the habeas corpus action and held that petitioner’s proper action was a § 2255 motion before the sentencing judge. In denying petitioner’s motion to appeal in forma pauperis pursuant to 28 U.S.C. § 1915(a), Judge Noland on December 21, 1971, explained:

The decision merely said that petitioner was asking the wrong judge for relief. This Court expressed concern over the Parole Board’s action in preempting the trial judge’s responsibilities in sentencing. The trial judge sentenced as to the Dyer Act violation; the Parole Board decided that the parole violation merited consecutive sentences. This Court feels that the sentencing judge should be able to review that determination. Parole Boards commonly do what petitioner here complains of, and the judge in this case may not care -to review the sentencing. However, those determinations should be made by him. This Court therefore recommended that petitioner apply to the sentencing judge for relief, either as per the relief granted in Gernie [United States v. Gernie, 228 F.Supp. 329 (S.D.N.Y.1964)] or under a petition to alter sentence under 28 U.S.C. § 2255.
As stated previously, Sec. 2255 is the proper remedy for prisoners in this petitioner’s position. It is the finding of this Court that petitioner can make no valid argument on law or facts that his remedy lies in this Court instead of in the sentencing court * * *.

The petitioner did not appeal Judge Noland’s dismissal of the habeas corpus action.

On January 3, 1973, petitioner filed the action here involved, a pro se document entitled “motion pursuant to Title 28 U.S.C. 2255,” which, very liberally construed, was based on the same grounds as his habeas corpus complaint filed with Judge Noland in Indiana. On May 24, 1973, petitioner, this time represented by employed counsel, amended his § 2255 motion with express claims that his constitutional rights were abridged due to the delay by the Board of Parole in executing its parole violator warrant. Judge Henley first ruled on the original petition and held that petitioner was not entitled to relief since “there was nothing ambiguous or illegal about the consecutive sentences imposed on petitioner.” Considering the amended petition, Judge Henley first stated:

[W]ith all due respect to the District Court in Indiana, this Court gravely doubts that it has power to entertain the allegations of the amended petition under section 2255 or under the “all writs” provision of 28 U.S.C.A., section 1651(a).
* -X- * * -X- *
[F] rankly, this Court thinks that the United States District Court in Indiana was the proper legal forum for litigation of the question of the legality of the revocation of petitioner’s parole.

Nevertheless, Judge Henley entertained the § 2255 motion, “since petitioner has applied for relief in Indiana and was denied relief on the ground that he should have come here, * * * since' time for appeal from the Indiana ruling has long since expired, and since the Government has responded to the amended petition on the merits.” Concerning the delay of the Board of Parole in executing the parole violator warrant, Judge Henley on July 24, 1973, denied relief on the merits. With the added discussion concerning other possible post conviction relief, we hold that the District Court did not have jurisdiction to hear petitioner’s claim concerning the delay of the Board of Parole in executing the parole violator warrant.

Jurisdiction is always the first issue to decide; for without the power to hear an action and to execute a decision the sitting tribunal is actually not a court at all. In the overview, courts stay within the legislatively determined limits so that their power is properly used for the citizenry. The overstepping of the jurisdictional limits can lead at least to confusion, at the worst to a corruption of the granted power. Here we have confusion. Such underlying principles on the limits of jurisdiction must continually be realized when dealing with the individual case, for minor inroads to necessary and established principles may destroy the principles a slight step at a time.

Concededly, if the District Court lacked jurisdiction to hear this case, the parties cannot waive jurisdiction by proceeding to a hearing on the merits. Ahrens v. Clark, 335 U.S. 188, 193, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948); United States v. Sahli, 216 F.2d 33, 37 (7th Cir. 1954). The petitioner’s filing of this § 2255 motion in federal district court in Arkansas and the Government’s responding on the merits do not necessarily grant the District Court jurisdiction to hear the claim.

First, petitioner’s claim is not properly cognizable under § 2255, for the District Court lacked subject matter jurisdiction to hear the motion. We restate the petitioner’s .two claims made in the District Court and on appeal: (a) the Board of Parole unreasonably and in denial of constitutional rights waited until July 14, 1971, to serve the parole violator warrant; and (b) the Board of Parole did not hold a parole revocation hearing in July, 1968, in violation of Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), for the revocation of the parole granted petitioner on December 26, 1966.

In Tanner v. Moseley, 441 F.2d 122 (8th Cir. 1971), this court was faced with the exact facts and issue presented in petitioner’s first claim, and Tanner’s rationale applies to both of petitioner’s above claims. In quoting Stinson v. United States, 342 F.2d 507, 508 (8th Cir. 1965), this court held:

“[Ajppellant is not attacking the validity of the sentence imposed upon him * * * rather, he is questioning .the United States Board of Parole regarding the manner in which that sentence is being executed. Appellant may not utilize 28 U.S.C.A. § 2255 to secure the relief he seeks. This is clear from the language itself, and from the cases where the question arose. (Citing cases). If appellant is being illegally detained, his remedy is by habeas corpus in the proper judicial district.”

Tanner v. Moseley, supra, 441 F.2d at 124 (emphasis in original).

The unstated but necessarily underlying rationale of Tanner is that the district court lacked subject matter jurisdiction of the claim presented under § 2255. The subject matter of Tanner’s claim, the matter of the execution of the sentence, is not one of the recognized grounds for relief under § 2255. In other words, the claim herein raised is not cognizable under § 2255.

The Supreme Court has said that the bill enacting § 2255 was a “jurisdictional bill” with the major purpose of shifting the hearing of previous habeas corpus actions to the more convenient forum of the sentencing court. Hill v. United States, 368 U.S. 424, 427, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962); United States v. Hayman, 342 U.S. 205, 212-214, 72 S.Ct. 263, 96 L.Ed. 232 (1952); Hartwell v. United States, 353 F.Supp. 354, 357 (D.D.C.1972). Prior to the enactment of § 2255 in 1948, federal district courts were being deluged with claims for relief from prisoners who were incarcerated in the territorial areas of these district courts. Section 2255 was enacted to create a jurisdictional basis in the sentencing court for certain types of post conviction claims, in general those dealing with the imposition of the sentence in which the sentencing court would have the previous knowledge and the immediate access to the necessary files. Therefore, § 2255 granted in personam jurisdiction in the sentencing court over the petitioner and the custodian of the petitioner, even though they would not necessarily be within the territory of the district court. This grant of jurisdiction by Congress was a departure from the rule in habeas corpus actions announced in Ahrens v. Clark, supra, that required the physical presence of the defendant and his custodian within the territorial confines of the district court.

Section 2255, however, did not grant subject matter jurisdiction over all types of post conviction claims. It established subject matter jurisdiction for the enumerated claims in the statute, which relate to the legality of the sentence. Cf. Tanner v. Moseley, supra, 441 F.2d at 124; Stinson v. United States, supra, 342 F.2d at 508; Allen v. United States, 327 F.2d 58, 59 (5th Cir. 1964); Halprin v. United States, 295 F.2d 458, 459 (9th Cir. 1951); Hartwell v. United States, supra, 353 F.Supp. at 357-58; Halprin v. United States, 293 F.Supp. 1186, 1187 (S.D.N.Y.1968). To allow jurisdiction under § 2255 in this case would defeat its purpose in creating subject matter jurisdiction over those claims concerning the imposition of the sentence. Congress only intended to shift jurisdiction over specific types of claims in order to distribute post conviction cases more efficiently. In this case, the claims involving the Board of Parole do not relate to Judge Henley’s imposition of the nine-year “Arkansas” sentence; rather they involve the matter of the execution of petitioner’s sentences.

Petitioner is not attacking the legality of the “Arkansas” sentence, and according to his brief:

£He] is not attacking the proposition “who is to decide the method of service of the unexpired first sentence as related on the new, second sentence.” This has already been decided by the Parole Board, but appellant is attacking the term of the unexpired first sentence * * * because he was denied a Morrissey hearing shortly after the Parole Board issued its May 8, 1968 parole violator warrant.

Judge Henley had no part in the parole violation proceeding, and that proceeding cannot affect the validity of the “Arkansas” sentence. Whether or not that proceeding is legally proper so as to affect the detention of the petitioner relates to the legality of the detention, not the sentence, and is cognizable in habeas corpus.

We do not dismiss petitioner’s action here only upon the failure to allege a justiciable case under § 2255. Petitioner’s first § 2255 motion in Arkansas was filed pro se, and we will liberally review the facts alleged to determine whether there are any jurisdictional grounds for the District Court to hear his claims. We look to the “essence of his complaint and do so, without controlling reference to the label or title of his pleadings, in order that we may determine whether the court had jurisdiction under any theory which might afford relief.” Booker v. Arkansas, 380 F.2d 240, 242 (8th Cir. 1967).

If petitioner’s § 2255 motion is construed as a federal habeas corpus action, the District Court in Arkansas would still lack jurisdiction, the petitioner being confined in Indiana. The Supreme Court in a different context has recently construed the jurisdictional requirements of federal habeas corpus under 28 U.S.C. § 2241(a). Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). Braden reversed the rigid rule of Ahrens v. Clark, supra, that required the presence of the defendant and his custodian for in personam jurisdiction of a federal habeas corpus action. Braden does not require that the habeas corpus plaintiff be physically present within the district in which the action is filed; however, it still at least requires that the “court issuing the writ have jurisdiction over the custodian.” Braden, supra at 495, 93 S.Ct. at 1130. Although Braden discusses the convenience of the forum, a venue consideration, the minimum jurisdictional requisite of the presence of the custodian within the territorial confines of the district court must be satisfied before venue considerations are balanced.

In this ease, no custodian of petitioner is within the confines of the Eastern District of Arkansas. The warden of the United States Penitentiary in Terre Haute, Indiana, can be called petitioner’s immediate custodian, and the Board of Parole, located in Washington, D. C., can be called another custodian due to its procedures in detaining petitioner. As of last notice to us, petitioner is still incarcerated in Terre Haute, Indiana. Therefore, neither the petitioner nor his custodian is located within the Eastern District of Arkansas. The District Court, therefore, lacks in personam, jurisdiction in a federal habeas action to hear petitioner’s claim.

Certainly, the District Court in Arkansas lacks power to entertain a reduction of his Kansas sentence under Fed.R.Crim.P. 35, the Kansas sentence being the interlude confinement that has had the effect of prolonging the service of the Arkansas sentence. The sentencing judge in that case is Judge Templer in the District of Kansas, who could have reviewed petitioner’s sentence for the “Kansas” conviction in light of the parole violator warrant lodged but not served on petitioner. This was the procedure employed in Tanner. Cf. United States v. Ellenbogen, 390 F.2d 537, 543 (2d Cir. 1968); E. B. Hunter, Post Conviction Remedies, 50 F.R.D. 153, 154. Nevertheless, even if the requirements of Rule 35 are met and even if Judge Henley is the proper sentencing judge to petition for relief, Judge Henley has already held that there was “nothing * * .* illegal about the consecutive sentences imposed on petitioner.” The reduction of a sentence is addressed to the discretion of the District Court, and we will not disturb the District Court’s denial of relief under Rule 35. Jacobsen v. United States, 260 F.2d 122, 123 (8th Cir. 1958). Also, relief under Fed.R.Crim.P. 35, part of which allows for the correction of an illegal sentence at any time, is not allowable, since the judgment of conviction authorized the sentence rendered by Judge Henley. United States v. Morgan, 346 U.S. 502, 506, 74 S.Ct. 247, 98 L.Ed. 248 (1954).

Further, coram nobis relief pursuant to the all-writs section of the Judicial Code, 28 U.S.C. § 1651(a), is inappropriate under the facts of this case. See United States v. Morgan, supra at 506, 74 S.Ct. 247. Even assuming that the District Court had the jurisdiction to entertain such a writ of error, we do not think that this is the type of compelling circumstance in which this extraordinary writ should be allowed. United States v. Morgan, supra at 512, 74 S.Ct. 247; Booker v. Arkansas, 380 F.2d at 240. While petitioner may still present his Morrissey v. Brewer revocation-of-parole argument before a proper forum, it appears his whole case lacks substance in light of Wolff v. McDonnell, 418 U.S. 539, 573-576, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).

In addition to our above comments relating to the availability of other post conviction relief, we dismiss petitioner’s § 2255 motion for lack of jurisdiction without prejudice to asserting his claim in a proper forum.

Petitioner’s § 2255 motion is dismissed without prejudice.

WEBSTER, Circuit Judge

(concurring).

' Judge Henley ruled, and I believe correctly, against petitioner on the merits. Since the court today dismisses the petition without prejudice, it seems unlikely that either side will pursue the question which in my view remains to be resolved. That question is whether the United States, on full notice of petitioner’s claim, can enter its appearance and supply the needed jurisdiction without personal service upon a particular federal warden who happens not to be within the court’s territorial jurisdiction.

This case illustrates an anomaly which now exists between a § 2255 case and federal prisoner habeas cases outside the purview of § 2255. The respondent in a § 2255 action is the United States of America; the respondent in other federal prisoner cases is the warden of the institution having custody over petitioner. This seems to be so notwithstanding in this case it is the action of the United States Parole Board, and not the warden, which petitioner challenges.

In Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973), the Supreme Court rejected the argument that 28 U.S.C. § 2241(a) limited a district court’s habeas corpus jurisdiction to cases where the prisoner seeking relief is confined within its territorial jurisdiction. In so doing, it expressly rejected any implication in Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948), that the presence of the petitioner is required as an inflexible jurisdictional rule. The necessary ingredient, it held, was “jurisdiction over the custodian”. The Court said:

So long as the custodian can be reached by service of process, the court can issue a writ ‘within its jurisdiction’ requiring that the prisoner be brought before the court for a hearing on his claim, or requiring that he be released outright from custody, even if the prisoner himself is confined outside the court’s territorial jurisdiction.
410 U.S. at 495, 93 S.Ct. at 1130.

Since Braden, it seems clear that it is only necessary to obtain service of process upon the “custodian” in order for the district court to exercise jurisdiction. Thereafter, traditional principles of venue apply. Braden involved a state institution, state convictions and multiple sovereignties. Here we deal only with the federal penal system, and all of the related convictions are federal. The Bureau of Prisons and the Parole Board are national in scope. It seems to me that in a purely federal context the requirement of personal jurisdiction over the warden of the institution hangs by a very thin thread. It has been abandoned by statute in § 2255 cases. What public interest is served by requiring that the local “branch manager” be served before the court can consider a challenge to the action of the national board? Of what advantage is it to the system that this challenge be heard only in Indiana? In this case, I can see no advantage or disadvantage to either side if Judge Henley were permitted to deal with the merits of the case in Arkansas. A recent comment sums it up this way:

So long as the petitioner names as respondent a person or entity with power to release him, there is no reason to avoid reaching the merits of his petition. If he is confined by state judicial process or executive action of the state or federal government, he should be permitted to name as respondent either the government or the official holding him in custody.

If we adhere to strict concepts of personal jurisdiction in a purely federal context, we leave in an orphaned state those habeas corpus claims of federal prisoners which do not fall strictly within § 2255. If on the other hand the problem is viewed as one of venue rather than jurisdiction, the balance of convenience could be satisfied by dismissal or transfer to another district where it might have been brought. 28 U.S.C. §§ 1404(a), 1406(a). This is exactly what was done in Wilkins v. Erickson, 484 F.2d 969 (8th Cir. 1973). And venue, unlike jurisdiction, may be waived.

In this case, the United States entered its appearance and responded on the merits. In light of Braden, can it still be said that a federal district court cannot hear the case because the warden cannot be served within its district? I believe that future eases will make clear that the appearance of the United States supplied the needed persona! jurisdiction and that venue was waived. But because the weight of authority still appears to the contrary and the petitioner is plainly not prejudiced by our holding in this case, I concur.

      . The Honorable J. Smith Henley, Chief Judge, United States District Court, E'astern District of Arkansas.

      . We shall refer to this first Dyer Act conviction in Arkansas as the “Arkansas” conviction and the second Dyer Act conviction in Kansas, to be discussed infra, as the “Kansas” conviction.

      . We noted in Tanner v. Moseley, 441 F.2d 122, 125 (8th Cir. 1971) (Bright, J., concurring), that “[u]nder the rule of Zerbst v. Kidwell, 304 U.S. 359 [58 S.Ct. 872, 82 L.Ed. 1399], (1938), the Board of Parole, not the district court, generally determines whether the balance of the -first sentence shall be served consecutively with the second sentence.”

      . We think Judge Noland’s reference to “the sentencing judge” meant Judge Templer on the “Kansas” conviction, as he was the only judge who could possibly vary the term of the Kansas sentence in relation to the parole violation reincarceration.

      . Petitioner on appeal first states that Mor-rissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), required a hearing on July 23, 1968, the day that federal authorities knew that a parole violator warrant would he lodged against petitioner. Petitioner’s amended § 2255 action in Arkansas did not allege a violation of Morrissey; however, our decision on jurisdictional grounds does not require us to inquire further into this issue. Petitioner should be aware of the Supreme Court’s recent statement concerning the retroactivity of Morrissey. See note 10 and text accompanying, infra.

      . The subject matter grounds for relief under § 2255 are:
      (1) that the sentence was imposed in violation of the Constitution or laws of the United States ; (2) that the court was without jurisdiction to impose such sentence; (3) that the sentence was in excess of the maximum authorized by law; and (4) that the sentence is otherwise subject to collateral attack.
      Jackson v. United States, 495 F.2d 349, 351 (8th Cir. 1974), quoting Hill v. United States, 368 U.S. 424, 426-427, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962).

      . United States v. Hayman, 342 U.S. 205, 218, 72 S.Ct. 263, 96 L.Ed. 232 (1952).

      . For a discussion of post conviction remedies in federal courts see Developments in the Law — Federal Habeas Corpus, 83 Harv.L. Rev. 1038 (1970) ; E. B. Hunter, Post Conviction Remedies, 50 F.R.D. 153.

      . In United States v. Morgan, 346 U.S. 502, 505 n. 3, 74 S.Ct. 247, 249, 98 L.Ed. 248 (1954), quoting Darr v. Burford, 339 U.S. 200, 203-204, 70 S.Ct. 587, 94 L.Ed. 761 (1940), the Court viewed a motion for an order voiding the judgment as a writ of error oorarn nobis with the expressed goal of judging “the papers by the simple statutory test of whether facts are alleged that entitle the applicant to relief.”

      . We strongly point out to petitioner a recent statement by the Supreme Court: “[T]lie due process requirements there announced [in Morrissey'] were to be ‘applicable to future revocations of parole,’ 408 U.S. at 490 (emphasis supplied).” Wolff v. McDonnell, 418 U.S. 539, 573, 94 S.Ct. 2963, 2983, 41 L.Ed.2d 935 (1974).

      . We should note that petitioner’s first § 2255 motion in Arkansas raised various collateral attacks concerning his 1962 conviction. Of course, Judge Henley did have jurisdiction to hear those claims and dismissed them. Those matters were not appealed.

      . Writs of habeas coitus may be granted by the Supreme Court, any Justice thereof, the district courts and any circuit judge within their respective jurisdictions. The order of a circuit judge shall be entered in the records of the district court of the district wherein the restraint complained of is had.

      . In formulating a post conviction remedy for federal prisoners, Congress ignored the traditional rule regarding choice of a proper respondent. The district courts are responsible for giving notice to the government, and the United States is the respondent of record. Developments in the Law — Federal Habeas Corpus, 88 Harv.L.Rev. 1038, 1167 (1970).

      . Id. at 116R. In military habeas cases, the Supreme Court has adopted a concept of “presence” through contacts in sustaining jurisdiction over superior officers outside the District. Strait v. Laird, 406 U.S. 341, 92 S.Ct. 1693, 32 L.Ed.2d 141 (1972).

      . If relief is possible under § 2255, it is the exclusive remedy and habeas corpus is barred for a federal prisoner. The writ [habeas corpus] may be used only by those who are not within the scope of § 2255, such as a person committed for mental incompetency, or one confined in prison without any judgment of court, or one who does not challenge his conviction or his sentence but claims he is being held after expiration of the sentence.

      2 C. Wright & A. Miller, Federal Practice and Procedure § 592, at 584-85 (1969) (emphasis added)

      . For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.

      . The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such ease to any district or division in which it could have been brought.

      . 5 C. Wright & A. Miller, Federal Practice and Procedure § 1352 (1969), and cases cited therein.

      . I realize that in other factual circumstances the United States may refuse to be named as respondent in a non-§ 2255 case. There may nonetheless be superiors to the warden amenable to the court’s jurisdiction in such cases.

      . See, e. g., Hensley v. Municipal Court, San Jose-Milpitas Judicial District, Santa Clara County, 411 U.S. 345, 350, 93 S.Ct. 1571, 1574, 36 L.Ed.2d 294 (1973) :
      Thus, we have consistently rejected interpretations of the habeas corpus statute that would suffocate the writ in stifling formalisms or hobble its effectiveness with the manacles of arcane and scholastic procedural requirements. The demand for speed, flexibility, and simplicity is clearly evident in our decisions concerning the exhaustion doctrine, Fay v. Noia, 372 U.S. 391 [83 S.Ct. 822, 9 L.Ed.2d 837] (1963) ; Brown v. Allen, 344 U.S. 443 [73 S.Ct. 397, 97 L.Ed. 469] (1953) ; the criteria for relitigation of factual questions, Townsend v. Sain, 372 U.S. 293 [83 S.Ct. 745, 9 L.Ed.2d 770] (1963) ; the prematurity doctrine, Peyton v. Rowe, 391 U.S. 54 [88 S.Ct. 1549, 20 L.Ed.2d 426] (1968) ; the choice of forum, Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484 [93 S.Ct. 1123, 35 L.Ed.2d 443] (1973) ; Strait v. Laird, 406 U.S. 341 [92 S.Ct. 1693, 32 L.Ed.2d 141] (1972) ; and the procedural requirements of a habeas corpus hearing, Harris v. Nelson, supra [394 U.S. 286, 89 S.Ct. 1082, 22 L.Ed.2d 281].


source: Caselaw Access Project

author: GIBSON, Circuit Judge.

license: Public Domain

text:
    AMERICAN SMELTING AND REFINING COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION et al., Respondents.
    No. 73-1721.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 13, 1974.
    Decided July 15, 1974.

      Daniel M. Gribbon, Washington, D. C., for petitioner.
    Anthony J. Steinmeyer, Atty., Dept, of Justice, Washington, D. C., and A. E. Lawson, Pittsburgh, Pa., for respondents.
    Before VOGEL, Senior Circuit Judge, and GIBSON, and WEBSTER, Circuit Judges.

      . Congress found that hazardous working environments constitute a burden on interstate commerce causing a loss of man hours of productive activity, loss of workers’ health and efficiency, and untold misery and death to its victims. 3 U.S.Code Cong. & Admin, News 5177, 5177-5178, S.Rep.No.91-1282, 91st Cong.2d Sess.1970.

      . Secretary, U. S. Department of Labor v. American Smelting and Refining Co., OSHRC Docket No. 10 (Hearing Examiner’s Report, filed March 1, 1972).

   GIBSON, Circuit Judge.

Petitioner, American Smelting and Refining Company, upon complaint of the United Steelworkers of America (Union), was charged with a violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (hereafter the Act or OSHA), in allowing the existence of a health hazard at its Omaha, Nebraska plant. Specifically, Petitioner, was charged with exposing its employees to hazardous airborne concentrations of lead. The Act’s general purpose and its “general duty” clause evidence a clear Congressional purpose to provide employees a safe and nonhazardous environment in which business, including commercial and industrial, operations, is to be conducted.

The complaint of the Union about unsafe working conditions triggered an investigation of plant conditions and monitoring of the working environment present in the Petitioner’s plant by personnel of the Secretary of Labor’s office. The airborne lead concentrations within the plant varied depending on the type of industrial operation being performed in certain work areas, but the results obtained were adequate to indicate that long-range preventative engineering practices should be instituted within a six-month period, preceded by immediate administrative controls of approved respirators, rotation of employees, and any other appropriate measures.

The complaint and investigation, with its monitoring tests, resulted in a citation being issued pursuant to § 658(a). The citation was contested by Petitioner, causing the matter to be forwarded to the Commission for processing, which includes an opportunity for hearing. After a hearing, the Administrative Law Judge on March 1, 1972, found that airborne concentrations of inorganic lead at American Smelting and Refining Company’s Omaha plant presented “a recognized hazard that [was] likely to cause, if continued unabated, death or serious physical harm to employees, and as such, constituted a violation of Section 5(a)(1) [the general duty provision] of the Act.” The Occupational Safety and Health Review Commission (the Commission) directed review and on August 17, 1973, upheld the Administrative Law Judge’s finding of a violation. Chairman Moran vigorously dissented. The Petitioner filed this appeal for review of the Commission’s order. Respondents are the Commission; Peter J. Brennan, Secretary of Labor; the United Steelworkers of America; and Local 461 of the Union. We sustain the Commission and deny relief to the Petitioner.

The Petitioner, a New Jersey corporation, operates a lead refining plant in Omaha, Nebraska, and employs 390 to 400 workers there. Receiving lead bullion in solid blocks, the plant produces commercial grades of refined lead and lead alloys by separating impurities from the lead. Recovery of the impurities is also accomplished where possible. The Omaha plant, one of the Petitioner’s lead refineries, was purchased before 1910 and has since produced refined lead and lead alloys.

Three representatives of the Secretary visited Petitioner’s Omaha plant on June 30, 1971, to evaluate the presence of harmful concentrations of airborne lead. The plant’s personnel director and plant manager fully cooperated and conducted a tour of the plant. Of the 390 to 400 workers, approximately 95 work in areas that may be affected periodically by high levels of airborne concentrations of lead. Of these 95, 60 work in the lead smelting area, 15 in the retort area (a furnace operation), 10 in the cupel area (another furnace operation), and 10 to 12 in the crane operating area. These are the areas of higher concentrations of airborne lead.

While inspecting the plant, the Secretary’s representatives — Charles Adkins, an OSHA Regional Hygienist from Kansas City; Gail Adams, an OSHA Compliance Officer from Omaha; and Howard Ludwig, a United States Public Health Sanitary Engineer from Salt Lake City — observed that all but one of the employees had their company-supplied respirators hanging around their necks, rather than properly wearing them over their noses and mouths. After the tour of the plant, the representatives decided to take air samples of the melting, cupel, retort, and crane areas. Respondent chose seven employees and placed an air sampling pump on each employee. An air sampling pump is a device employed by industrial hygien-tists to collect contaminants in the air that an individual would normally breathe. Each air sampling pump consisted of a small pump powered by a battery, a rotometer to calibrate the air flow rate through the apparatus, a flow stabilizer device, a transport tube, and a membrane filter or monitor sender from which the sample of air contaminants is taken. The pump and battery were attached to a belt ■ around the worker’s waist, the flow stabilizer device was connected to the pump, the tube was connected to the pump, and at the end of the transport tube was connected the membrane filter, which was clipped to the worker’s lapel as near the breathing zone of the nose and mouth as possible. The representatives activated the pumps on each of the seven workers, and the pumps were in place for approximately two hours and fifty-seven minutes. This period of time was sufficient to allow each worker to complete at least one complete cycle of his normal work throughout the plant. While the pumps were in place, none of the seven tested employees was wearing his respirator. A pump was not attached to the one worker who was wearing his respirator and working in a large kettle that melts lead. This worker had been chipping solid lead from a dry kettle with an air hammer, and since this job exposes workers to a very high level of lead contaminants, the worker wisely was wearing his respirator. The Secretary’s representatives fairly did not sample the air in this work area.

The pumps were carefully calibrated for air flow at the Public Health Service Laboratory in Salt Lake City and at the plant, and each membrane filter was inserted in the apparatus at the plant. The filters were removed and sent to Salt Lake City to analyze them for the lead contaminant. The following results were obtained:

Employee's Name_ His Working Area_ Concentration of Lead_
Minard Furnace 0.16 mg/M?
Mikinovie Furnace 0.22 mg/M!?
Marion Floor 0.10 mg/M?
Alley Crane 0.25 mg/M?
Zandijas Retort 2.70 mg/M:?
Gulizia Retort (cupel) 0.75 mg/M:?
Rojas_ Retort (cupel) 2.85 mg/M'

The Respondents throughout these proceedings have maintained that the industry recognizes that any lead concentration above .2 mg/M3 constitutes a hazardous condition. The Petitioner counters by claiming generally that air sampling is inferior to periodic biologi-. cal testing of each employee’s blood and urine and acting upon those results with medical care and transfers to work areas of lesser lead concentrations. Mainly because of its biological monitoring of each employee, the Petitioner argues that there was not a recognized hazard in the plant causing or likely to cause death or serious physical harm to the employees.

On July 7, 1971, the Kansas City, Missouri, Regional Administrator cited the Petitioner for a serious violation of § 5(a)(1) of the Act. 29 U.S.C. § 654(a)(1). The citation contained the following description of the alleged violation :

Airborne concentrations of lead significantly exceeding levels generally accepted to be safe working levels, have been allowed to exist in the breathing zones of employees working in the lead melting area, the retort area, and other working places. Employees have been, and are being exposed to such concentrations. This condition constitutes a recognized hazard that is causing or likely to cause death or serious physical harm to employees.

The citation allowed Petitioner 60 days to complete “the implementation of feasible engineering controls to reduce the concentration of the airborne contaminants” and proposed a civil penalty of $600.

On March 1, .1972, Administrative Law Judge Brennan filed an extensive report of 47 pages. He found that .2 mg/M3 of airborne lead concentration is generally recognized by the industry as the safe level, that a “recognized hazard” existed in violation of the general duty clause due to concentrations of airborne lead greater than .2 mg/M3, and that the Petitioner’s “preventive program” including biological monitoring, the required use of respirators, and transfers of employees with high levels of lead concentration in blood and urine samples did not negate a finding of a recognized hazard. Having found a violation of the general duty clause, the Administrative Law Judge required the Petitioner to complete feasible engineering controls to reduce the concentration of airborne lead contaminants to .2 mg/M3, or below within six months from the entry of a final order. He also approved the Secretary’s assessment of a $600 fine, specifically finding it was a civil penalty and constitutional.

On August 17, 1973, Commissioner Van' Namee, joined by Commissioner Cleary for the majority, upheld the Administrative Law Judge’s factual findings and interpretation of the law with one exception. The Commission held that neither it nor the administrative law judges have the authority to rule on the constitutionality of provisions of the Act.

The Petitioner first argues that the work conditions at its Omaha lead refinery did not constitute a “recognized hazard” in violation of the general duty clause. This argument has two facets: (a) the legislative history of the Act purportedly indicates that the general duty clause does not apply to hazards that only can be detected by testing devices; and (b) the Petitioner has a program of protective measures that prevented any likelihood of harm to its employees from airborne concentrations of lead. We reject both arguments and conclude that there is substantial evidence on the record considered as a whole to. support the Commission’s factual findings and no error of law appears.

Relying on limited though express legislative history, the Petitioner argues that the general duty clause was not intended to cover hazards that can be detected only by testing devices. Since the airborne concentrations of lead in excess of .2 mg/M3 were discovered by air sampling pumps instead of the human senses, Petitioner argues that no recognized hazard existed. In short, “recognized” only means recognized directly by human senses without the assistance of any technical instruments. The Petitioner relies on a statement made by Representative Steiger on December 17, 1970, just prior to the House roll call enacting OSHA. Representative Steiger said:

The conference bill takes the approach of this House to the general duty requirement that an employer maintain a safe and healthful working environment. The conference-reported bill recognizes the need for such a provision where there is no existing specific standard applicable to a given situation. However, this requirement is made realistic by its application only to situations where there are “recognized hazards” which are likely to cause or are causing serious injury or death. Such hazards are the type that can readily be detected on the basis of the basic human senses. Hazards which require technical or testing devices to detect them are not intended to be within the scope of the general duty requirement * * *. It. is expected that the general duty requirement will be relied upon infrequently and that primary reliance will be placed on specific standards which will be promulgated under the Act.

116 Cong.Rec, 11899 (daily ed. Dec. 17, 1970) (emphasis supplied).

Although Representative Steiger’s statement is unequivocally clear concerning his interpretation of “recognized,” it does not follow that his interpretation is correct; nor is it indicative of the entire Congress’ understanding of “recognized.” We must review the legislative history in further detail.

The Administration bill introduced by Senator Dominick required “employers to maintain the workplace free from ‘readily apparent’ hazards.” 3 U.S.Code Cong. & Admin.News 5177, 5222, S.Rep.No. 91-1282 (91st Cong. 2d Sess.1970 (hereinafter 3 U.S.Code Cong. & Admin. News) However, Senator Javits’ amendment, adopted by the Senate, substituted the words “recognized hazards” for “readily apparent hazards.” 3 U.S. Code Cong. & Admin.News at 5222 (1970). Senator Javits added these remarks in Senate Report No. 91-1282 for the Senate Labor and Public Welfare Committee:

As a result of this amendment the general duty of employers was clarified to require maintenance of a workplace free from “recognized” hazards. This is a significant improvement over the Administration bill, which requires employers to maintain the workplace free from “readily apparent” hazards. That approach would not cover non-obvious hazards discovered in the course of inspection.

3 U.S.Code Cong. & Admin.News at 5222 (1970).

The House of Representatives also debated the wording of the. general duty clause. Representative Daniels proposed that the clause require employers to “furnish to each of his employees employment and a place of employment which is safe and healthful.” Committee Print, Legislative History of the Occupational Safety and Health Act of 1970, 92d Cong. 2d Sess. at 726-27, 833 (hereinafter Legislative History). Representative Steiger proposed the “readily apparent” language identical to the Administration bill; however, Representative Daniels, changing his position, proposed the “recognized hazards” language of the Senate bill and said:

Our modified General Duty * * * differ [s] in important respects from the General Duty provision in the Steiger substitute.
The first difference is that my amendment protects against “recognized” hazards while the Steiger substitute protects only against “readily apparent” ones.
******
•x- * * i am afraid that “readily apparent” used in the substitute means apparent without investigation, even though a prudent employer would investigate under the circumstances. A danger, in other words, may be recognized as such in the industry, but may not be apparent to an employer who is ill-informed and does not choose to investigate the danger of the situation. That is not sufficient protection for employees.

Legislative History at 1007.

The House replaced “readily apparent hazards” with “recognized hazards.” 3 U.S.Code Cong. & Admin.News at 5229, Conference Report No. 91-1765, Statement of the Managers on the Part of the House (1970). On December 17, 1970, Representative Steiger explained what he thought “recognized hazards” meant, defining it not to include “[h]azards which require technical or testing devices to detect them * * 116 Cong.Rec. 1189 (daily ed. Dec. 17, 1970) (quoted more fully supra,). The House went on to pass the bill with the words “recognized hazards,” as originally amended in the Senate. 29 U.S.C. § 654(a)(1).

No court has specifically interpreted the meaning of “recognized hazards.” In Brennan v. Occupational Safety and Health Review Commission and Vy Lac-tos Laboratories, Inc., 494 F.2d 460 (8th Cir. 1974), this court held that “recognized hazards” include “an employer’s actual knowledge [and] the generally recognized knowledge of the industry as well.” That case was remanded to the Commission to factually determine whether Vy Lactos Laboratories, Inc., had “actual knowledge” so as to constitute a recognition of a hazard. However, Vy Lactos Laboratories, Inc., did not interpret “recognized” any further. Also National Realty and Construction Company, Inc. v. Occupational Safety and Health Review Commission, 489 F.2d 1257, 1265 n. 32 (D.C.Cir. 1973) (hereinafter National Realty), did not expressly decide this issue and only held that “recognized” may take into account the standard of knowledge in the industry.

In this case, the Commission by a divided vote has first expressed its view as follows:

It is also clear that Congress by rejecting the readily apparent hazards test and accepting the recognized hazards test in its place intended that non-obvious hazards be within the scope of the general duty requirement. There can be no question that non-obvious hazards include those that can only be detected by instrumentation.

Chairman Moran dissented. He first said that Senator Javits’ views, including his approach to “non-obvious hazards,” were expressed two months before enactment of OSHA and before a conference committee report which “reconciled the differing versions of the general duty requirement.” Chairman Moran placed heavy reliance on the fact that “[n]o Member of the House of Representatives or the Senate, at anytime subsequent to the conference committee report took issue with Representative Steiger’s view that the general duty clause would not cover hazards requiring technical or testing devices to detect them.” (footnote omitted). The fact that no senator or representative expressed a view on Representative Steiger’s comments does not necessarily compel a conclusion that Congress agreed with Representative Steiger.

We find Petitioner and Chairman Moran’s views unpersuasive. Looking to the words of the Act itself, “recognized hazards” was enacted instead of “readily apparent hazards.” From the commonly understood meanings of the terms themselves, “recognized” denotes a broader meaning than “readily apparent.” The remarks of Senator Javits demonstrate that non-obvious hazards were intended to fall within the meaning of “recognized hazards.” Further, the House earlier had the opportunity to accept Representative Steiger’s proposal of “readily apparent,” but chose not to. Undoubtedly, it is clear that Representative Steiger desired that the general duty clause be limited to “readily apparent hazards.” We think that it is also clear that Representative Steiger according to his comments on December 17, 1970, interpreted “recognized hazards” to mean apparent only to the human senses. In short, we conclude that Representative Steiger interpreted “recognized hazards” in the same manner that he would have interpreted “readily apparent hazards,” but that Congress decided otherwise by enacting the words “recognized hazards” with its meaning in the context of Senator Javits’ and Representative Daniels’ statements.

We further think that the purpose and intent of the Act is to protect the health of the workers and that a narrow construction of the general duty clause would endanger this purpose in many cases. To expose workers to health dangers that may not be emergency situations and to limit the general duty clause to dangers only detectable by the human senses seems to us to be a folly. Our technological age depends on instrumentation to monitor many conditions of industrial operations and the environment. Where hazards are recognized but not detectable by the senses, common sense and prudence demand that instrumentation be utilized. Certain kinds of health hazards, such as carbon monoxide and asbestos poisoning, can only be detected by technical devices. 29 C.F.R. §§ 1918.83(a) and 1910.93a. The Petitioner’s contention, though advanced by arguable but loose legislative interpretation, would have us accept a result that would ignore the advances of industrial scientists, technologists, and hygienists, and also ignore the plain wording, purpose, and intent of this Act. The health of workers should not be subjected to such a narrow construction.

Chairman Moran also eased his dissent on the rationale that the use of the general duty clause for the type of alleged violation in this case circumvents the spirit and purposes of the Act, which places much reliance on the promulgation of specific standards. Cf. Brennan v. Occupational Safety and Health Review Commission, 491 F.2d 1340, 1343 (2d Cir. 1974). Pursuant to 29 U.S.C. § 655(a), the Secretary must promulgate specific standards for the safety and health of employees. That section establishes a complex procedure whereby the Secretary may request the appointment of ah advisory committee to promulgate a specific standard; interested persons may object to the standard; a hearing may be held; the Secretary may promulgate, modify, or revoke the specific standard; and an employer can be granted a temporary order or variance from the specific standard. 29 U.S.C. § 655(b). The Secretary under 29 U.S.C. § 655(c)(1) also has the authority to enforce emergency temporary standards if the health of employees is subject to grave danger.

Chairman Moran argues that the Secretary’s use of the general duty clause renders the variance procedure unavailing, allows little advance warning to the employer of what the Government considers a safe and healthful working place, establishes standards on an ad hoc basis, renders the use of the temporary emergency standards provision a nullity, and extends the general duty clause beyond its limited purpose for coping with hazards that are obvious and admitted by all concerned and for which no specific standard has been promulgated. This argument is based on sounder grounds than the legislative history contention.

Generally, Chairman Moran’s analysis is sound. The Act does focus on the promulgation of specific standards and an elaborate procedure involving all interested parties in fairly arriving at those standards. Though the ancient ills of the lack of safety in certain industries are well documented, this Act is admittedly a new approach to insuring a safe and healthful working place. In the past, our law, both state and federal, has placed primary reliance on tort liability in an attempt not only to compensate victims, but also to encourage employers to provide a safe and healthful working environment. National Realty, supra, 489 F.2d at 1260 n. 6. The Act wisely understands that the correction of unsafe conditions requires a transition period in which standards may be agreed upon. Section 655(a) specifically provides for a two-year period in which the Secretary had to promulgate specific standards according to a national consensus. The use of the general duty clause ordinarily should not be available when a’ specific standard has been promulgated. Also, in an emergency situation, the Secretary can proceed under the procedure of an emergency temporary standard. 29 U.S.C. § 655(c)(1). Yet we think that the general duty clause should be available at least under the facts of this case in which a specific standard was under review and in which the Petitioner was allegedly violating a health standard that had been recognized nationally for many years.

In this case, we cannot agree with either Petitioner or Chairman Moran that the general duty clause should not have been available for citing the alleged violation. On April 28, 1971, the entire Act became effective. On May 29, 1971, the Secretary published in the Federal Register the standard of .2 mg/M3 of maximum allowable concentrations of airborne lead particles, 36 Fed. Reg. 10466 (1971), which became effective August 27, 1971. 28 C.F.R. § 1910.-93, Table G-2. The Secretary’s representatives inspected the Omaha plant on June 30, 1971; the citation was issued on July 7, 1971; and a pretrial hearing was held on September 28,1971.

Chairman Moran claims that the Secretary “jumped the gun” in issuing this citation under the general duty clause. That observation may well be apt in certain cases, but not in this one. The evidence in this case strongly demonstrates that .2 mg/M3 of airborne lead has been a nationally recognized standard of safety for years. Although the Secretary could be said to have “jumped the gun” in relation to enforcing a specific standard under consideration as a violation of the general duty clause, he certainly did not “jump the gun” in recognizing that the national standard of .2 mg/M3 of airborne lead has been recognized as the safe level. This is not a situation in which a new danger is involved or in which there is any serious debate on a national standard of industrial health.

A brief understanding of the hazards of industrial lead poisoning is necessary to place this issue in perspective. In short, lead has been known for years as a heavy metal poison and in excess affects a myriad of bodily functions. The Senate Report of the Labor and Public Welfare Committee states that “ [occupational diseases which first commanded attention at the beginning of the Industrial Revolution are still undermining the health of workers” and that “[substantial numbers, even today, fall victim to ancient industrial poisons such as lead and mercury.” 3 U.S.Code Cong. & Admin.News at 5178 (1970). Dr. Robert A. Kehoe in a chapter titled “Industrial Lead Poisoning” in a recognized book in this field, Industrial Hygiene and Toxicology, Frank A. Patty, editor, stated in 1962 that severe forms of industrial lead poisoning are seen less frequently now in the United States, but that partial and temporary disability among a large number of workmen continues in a wide variety of industrial occupations. He wrote that few types of occupational exposure to lead offer insurmountable or even serious obstacles to modern engineering methods and that technical skills applied to the problem of production should also be applied to the problem of safe specifications for exposure to lead contamination.

Dr. Kehoe at trial and in his chapter explained that the danger of industrial lead poisoning is mainly through inhalation. He further said in his chapter that “it is feasible to express the general magnitude of the lead hazards of a plant * * * in terms of the lead content of sufficient numbers of properly selected air samples, and to anticipate with reasonable accuracy the results of exposure thereto.” Patty, supra at 950.

In his chapter written in 1962, Dr. Kehoe further stated that .2 mg/M3 of lead in the air of workrooms is the accepted standard at which “cases of disabling lead intoxication will not occur among the men who work many years on the usual schedule and in such workrooms, and cases of questionable or mild intoxication will occur only rarely, if at all.” Patty, supra at 952. Dr Kehoe, the Petitioner’s expert, also stated at trial: “.2 is the thing that we’re quite prepared to accept. This is our standard in this country, .2.” He further said that “[i]f it was an average higher than this, I would regard it as unsafe.”

Although Petitioner makes certain other arguments concerning the .2 mg/M3 lead standard, no expert of Petitioner contended that this standard was not the acceptable one for the industry. In fact, the record shows that two of Respondents’ experts at trial, seven experts through their books introduced at trial by Respondents (including Dr. Kehoe), and one of Petitioner’s experts (Dr. Kehoe) agreed that .2 mg/M3 of lead is the acceptable nation-wide standard.

The air sampling tests conducted on the seven employees demonstrated that pumps attached to five employees showed concentrations of lead greater than .2 mg/M3. Rojas’ sample was 14% times greater than .2 mg/M3 of lead, Zandijas’ sample was 13% times greater, Gulizia’s sample was 3% times greater, and Alley and Mikinovie’s samples were slightly higher. The expert testimony, including Dr. Kehoe’s, indicated that air sampling is a scientifically acceptable manner of detecting hazardous concentrations of airborne lead. In light of the heavy concentrations of airborne lead detected, we think that any discrepancies in testing as advanced by Petitioner must fail. There was considerable evidence to prove that there was a nationally recognized standard of .2 mg/M3 of lead and that this standard was violated by Petitioner.

In light of the above evidence, we reject the position that use of the general duty clause in this case destroys the spirit and purpose of the Act. Though a specific standard for concentration of lead was under consideration at tfye time the Secretary cited the Petitioner for the alleged violation, the standard for airborne lead relied upon by the Secretary had been recognized for years. Dr. Kehoe’s chapter agreeing on that same .2 mg/M3 of airborne lead was written in 1962. Lead poisoning is an ancient ill, not a new danger for which new standards and technology would have to be developed. The general duty clause should still be available for use by the Secretary, when an employer is violating a standard of health concerning a well-known industrial ill that is recognized as a hazard by the industry through its own nationally accepted criteria, even though a specific standard is under consideration at the time the Secretary cites an employer for violation under the general duty clause.

The Petitioner’s second major contention is that it has instituted many protective measures that prevent the likelihood of harm to the employees. We agree with the Administrative Law Judge that Petitioner’s program has not reduced the likelihood of serious physical harm.

Petitioner does have a program to attempt to eliminate the dangers of lead poisoning. It has spent over $400,000 since 1960 on various engineering controls to reduce airborne lead contamination. Industrial hygienists and physicians are employed. Respirators are supplied, but admittedly are awkward to wear and seldom used.

Most important in the Petitioner’s view is a reliance on a biological monitoring program, which involves the testing of each employee’s blood and urine to determine the concentration of lead. Dr. Nelson, the Petitioner’s Director of Environmental Sciences, stated that this testing is “a far more effective way of securing the safety of employees.” Dr. Kehoe prefers biological monitoring, since air measurement “is not a standard which we regard as crucial in relation to the individual.” For as yet unexplained reasons, differing individuals can be exposed to higher amounts of lead without becoming ill. The candid Dr. Kehoe, however, had this exchange with the Administrative Law Judge:

[Administrative Law Judge]: Which procedure, Doctor, in your opinion would most greatly detect a change in the lead environment of a workplace, biological sampling or air sampling ?
[Dr. Kehoe]: Either one. I don’t know that there is too much to choose from in this. But what I, as a physician am concerned with is John Doe.

Although a carefully conducted biological monitoring system might prevent the likelihood of lead poisoning harm to employees, we think it was more than reasonable for the Secretary to rely on the effective and efficient air sampling method. In addition, the disadvantages of the biological sampling system are demonstrated in this case. About 10% of employees tested from 1970-71 were found to have unsafe levels of lead concentration in their blood and urine, yet generally these employees were not tested frequently enough, according to Petitioner’s expert testimony, to ascertain whether they should be changed to another working area in the plant. In fact, the plant manager had no direct involvement with the monitoring plan. The plant’s physician did not “follow up” with what happened to individual employees who had high concentrations of lead in their blood and urine. Further, disruption of employees’ working habits and the plant operation would result from transferring employees to new positions within the plant where exposure would be lessened. Most significantly, the record does not indicate that any employee was transferred due to high levels of lead concentration discovered by biological monitoring. The biological monitoring did not eliminate or even reduce the hazard ; it merely disclosed it. Although testing of the blood and urine is the most important test for each individual, the use of air sampling tests is the most efficient and practical way for the Secretary to check for a hazard likely to cause death or serious physical harm to the workers as a group. We think it also the most efficient manner for the employer to check the existence of a hazard. We do not intend to minimize the importance of the biological monitoring program; obviously, medical examinations of the individual are the most significant manner of assuring safety of the individual worker, provided that remedial steps are taken at the first indication of a hazardous concentration of lead accumulating in the blood and urine of a worker. The evidence showed that each human responds differently to exposure to lead. Yet we think that the safety of the workers and the practicality of detecting unsafe levels of airborne lead concentrations are best served by the air sampling method. Workers should not be subjected to hazardous concentrations of airborne lead; biological monitoring should complement an industrial hygiene program for clean or at least safé air, but is not a substitute for a healthful working environment.

In addition, the Petitioner knew or should have known that the respirators would not reduce the likelihood of serious physical harm to the employees. During the unannounced tour of the plant by the Secretary’s representatives, only one employee was properly wearing his respirator. The reasonable inference is that employees rarely used the awkward and uncomfortable respirators. It was reasonably foreseeable to the Petitioner that the respirators would not be properly worn. We hold that there was adequate evidence on the record considered as a whole that the biological monitoring program would not prevent a likelihood of harm to employees.

The Petitioner also argues that the $600 assessed pursuant to 29 U..S.C. § 666(b), though labeled a civil penalty, is punitive in nature and an unconstitutional abridgment of Petitioner’s right to criminal enforcement only through the courts. Civil penalties are not uncommon in federal law, and Congress here clearly intended to create a civil sanction. Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 82 L.Ed. 917 (1938).

Affirming the decision of the Commission, we deny relief to Petitioner.

      . The “general duty” provision of the Act requires the employer to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654(a) (1).

      . Secretary of Labor v. American Smelting and Refining Co., OSHRC Docket No. 10 (Commission’s Decision, filed Aug. 17, 1973).

      . Any person adversely affected or aggrieved by an order of the Commission may obtain review of that order in any United States Circuit Court of Appeals. 29 U.S.C. § 660(a). The Secretary of Labor may also obtain a review or enforcement of the Commission’s final order. 29 U.S.C. § 660(b).

      . 29 U.S.C. § 657(a) authorizes the Secretary to enter without delay, inspect, and investigate places of employment at reasonable times. Any employee or representative of employees may request an inspection by the Secretary. 29 U.S.C. § 657(f)(1). The Union thought that the Petitioner was violating a safety or health standard that threatened physical harm or imminent danger due to the results of high concentrations of lead shown in blood tests conducted on certain employees.

      . The symbol “mg/M 3 ” represents milligrams per cubic metre of air and is the commonly used measure.

      . This .2 mg/M3 of lead is known as a threshold limit value defined by a Government expert witness to mean a “concentration * * * that an individual could be exposed to for 8 hours a day, 40 hours a week, without any adverse effects.”

      . 29 U.S.C. § 660(a) adopts the “substantial evidence” standard of review. See also, Brennan v. Occupational Safety and Health Review Commission and Interstate Glass Co., 487 F.2d 438, 442 (8th Cir. 1973) ; National Realty and Construction Company, Inc. v. Occupational Safety and Health Review Commission, 489 F.2d 1257, 1260 n. 4 (D.C.Cir. 1973).

      . For a brief discussion of the legislative history, see Morey, The General Duty Clause of the Occupational Safety and Health Act of 1970, 86 Harv.L.Rev. 988, 992-96 (1973).

      . Commentator Richard S. Morey says: “Steiger further suggested that specific standards alone were the appropriate way to regulate hazards not detectable by the senses [Legislative History at 1217]. Steiger’s limitation is neither confirmed nor contradicted elsewhere in the legislative history.” Morey, The General Duty Clause of the Occupational Safety and Health Act of 1970, 86 Harv.L.Rev. 988, 996 n. 40 (1973).

      . 29 U.S.C. § 655(c) (1). If an emergency exists, as defined by the Act, the Secretary may promulgate and enforce a temporary emergency standard.

      . Cf. Brennan v. Occupational Safety and Health Review Commission, 491 F.2d 1340, 1343 (2d Cir. 1974).

      . Tlie Senate Labor and Welfare Committee reported that “the number of disabling injuries per million man hours is today 20% higher than 1958.” 3 U.S.Code Gong. & Admin.News at 5178 (1970). Over 14,500 workers are killed annually due to industrial accidents and over 2.2 million workers are disabled. 3 U.S.Code Cong. & Admin.News at 5178 (1970).

      . Dr. Kehoe, a physician in the occupational health field who began work “on the lead problem in a systematic way in 1924,” was an expert witness for the Petitioner. The chapter referred to in the text was introduced into evidence at the hearing by the Secretary.

      . Dr. Kehoe, according to his testimony and in his article, however, prefers to rely on biological monitoring as an industrial hygienic measure to protect workers from lead poisoning.

      . Some other countries have adopted a more restrictive standard. For example, according to the American Governmental Industrial Ilygienists, the following countries have established these limits of concentration: Soviet Union, .01 mg/M3; Czechoslovakia, Poland, and Japan, .05 mg/M3 ; and Great Britain and Yugoslavia, .15 mg/M3.

      . Many employees also worked a 6-day week or 48 hours, which would lower the .2 mg/M3 of lead standard to some lower threshold limit value. That standard of .2 mg/M3 is calculated on an eight-hour day and 40-hour week. The ceiling concentrations promulgated by the Secretary also assume an eight-hour work shift and a 40-hour week. 29 C.F.R. § 1910.93(a) (2).

      . Lead concentration in blood in excess of ,08 milligrams per 100 grams of whole blood is considered unsafe, and .20 milligrams of lead per liter of urine is considered unsafe.

      . The Regulations require the use of respirators “[w]hen effective engineering controls are not feasible.” 29 C.F.R. § 1910.-134(a) (1). The control of airborne contaminants must first be “accomplished as far as feasible by accepted engineering control measures.” 29 C.F.R. § 1910.134(a) (1).

      . This court has held that “[n] either the general duty clause nor section .17 (k) requires any actual death or physical injury for a violation to occur.” Brennan v. Occupational Safety and Health Review Commission and Vy Lactos Laboratories, Inc., supra, 494 F.2d at 463. There was no evidence in the record that any employee was suffering from any form of lead poisoning. Of course, tlxere was evidence, as described above, that many employees had high concentrations of lead in their blood and urine. The fact that no employee was shown to be sick from lead poisoning does not mean that the high levels of airborne lead found may not result in future serious physical injury. Although a prima facie case under the general duty clause does not require the showing of death or serious physical harm, evidence of such actualities is admissible to indicate actual knowledge by the employer of a recognized hazard. Brennan v. Occupational Safety and Health Review Commission and Vy Laetos Laboratories, Inc., supra at 464.


author: SPRECHER, Circuit Judge. PELL, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Joe Charles NIX, Defendant-Appellant.
    No. 73-1449.
    United States Court of Appeals, Seventh Circuit.
    Argued April 15, 1974.
    Decided Aug. 8, 1974.
    Leslie G. Foschio and John A. Lancaster, Senior Law Student, Notre Dame, Ind., for defendant-appellant.
    Henry A. Schwarz, U. S. Atty., Jack Strellis, Asst. U. S. Atty., East St. Louis, 111., for plaintiff-appellee.
    Before CUMMINGS, PELL and SPRECHER, Circuit Judges.
   SPRECHER, Circuit Judge.

This appeal concerns the effect of a defendant’s intoxication on a prosecution for escape or attempted escape.

Defendant Nix was confined in the United States Penitentiary at Marion, Illinois. On May 9, 1972, Nix was excused from working because of illness and was “deadlocked” in his cell during the day. On the following day, he again asked to be locked in his cell so other inmates would not disturb him. The guard conducting the count of prisoners in their cells noticed Nix’ bunk was occupied at the 4 p.m., 7 p.m. and 10 p.m. counts. When a new guard began his shift at the midnight count, however, he discovered the occupant of Nix’ bunk was a dummy.

After a 45-minute search, officers found Nix locked in the rear of a trailer truck parked on a lot outside the prison walls. The trailer had been loaded with desks during the day and was moved outside to the parking lot shortly after 10 p.m.

Nix was indicted under 18 U.S.C. § 751(a) for “unlawfully and wilfully attempt [ing] to escape.”

At the trial several inmates testified they had seen Nix either before his disappearance or after his capture. They described him as “roaring drunk,” “drunk as hell” or noted particular behavior that led them to believe Nix was intoxicated.

The following instructions were given:

Three essential elements are required to be proved in order to establish the offense charged in the indictment:
First, the defendant had been in custody of any institution or facility in which he is confined by direction of the Attorney General, or from any custody under or by virtue of any process issued under the laws of the United States by any court, judge or magistrate.
Second, the defendant escaped or attempted to escape.
Third, the escape is from a confinement based upon the conviction.
Defendant has offered evidence that he was intoxicated at the time of the commission of the crime charged in the indictment. The crime does not involve specific intent. Therefore, the evidence that defendant acted or failed to act because of intoxication does not constitute a defense.

Nix’ attorney objected to the first instruction because it did not include “some standard of mental state” in the definition of escape. He objected to the second instruction on the ground that every “attempt” crime requires specific intent which may be negated by intoxication. The court overruled the objections without explanation. Nix was convicted and sentenced to five years’ im prisonment, to run consecutive to his present sentence.

On the day after Nix’ appeal was argued, a different panel of this court heard the appeal of Samuel Peterson, No. 74-1074. Peterson had been drinking heavily throughout the day of May 27, 1973, at the honor camp at Marion. So intoxicated that he vomited, Peterson then took a towel and some toiletries to clean up. On his way to the lavatory, he again felt ill and wandered outside to rest against a tree. Peterson testified that the next thing he remembered was walking along some railroad tracks the next morning, trying to get back to the camp. He was apprehended about eight miles from Marion, the towel and toiletries still in his possession.

Peterson was also indicted under § 751, but charged with escape rather than attempted escape. He was tried before the same district judge, who gave virtually the same instructions as in the Nix trial. Peterson’s lawyer objected on the theory that escape is a specific-intent crime to which intoxication is a defense. Peterson was convicted and sentenced to only one year, consecutive to his present sentence.

Both defendants urge this court to employ the traditional analysis of specific intent versus general intent. Nix argues, with substantial support, that all crimes of attempt are classified as specific-intent crimes. Peterson claims, with somewhat less authority, that the specific-intent label should be applied to escape as well as to attempted escape. If either crime requires specific intent, defendants argue, then the jury should have been allowed to consider whether the prisoner was so intoxicated he could not form the requisite intent.

Under the traditional analysis, specific intent is indeed required for attempted escape. We could end the inquiry here and remand this case because the instruction given erroneously states the law. Simplistic as the traditional analysis is, however, it does not further a logical resolution of the problem. This is true for several reasons.

Implicit in Nix’ argument is an ac-knowledgement that escape is a general-intent crime. Nix would say that, by choosing to charge him with attempted escape, the prosecutor injected the element of specific intent into the case. Therefore intoxication would be relevant in his case but not in Peterson’s.

The trouble with this approach is the impossibility of drawing a line between escape and attempted escape. Was the difference between Nix’ act and Peterson’s the eight miles Peterson traveled? Or an overnight absence versus the hours Nix was missing? Any escapee brought to trial was ultimately unsuccessful.

On reflection it will be seen that in eases arising under this statute [§ 751] the line of demarcation between an escape and an attempt to escape is often too shadowy to permit of the laying down of absolutes.

We believe the distinction between the two crimes is too flimsy to support a rule of law that would attach great importance to the prosecutor’s choice between a charge of escape and one of attempted escape.

This deficiency in the traditional analysis might be overcome by labeling both crimes as general-intent crimes, as the district judge did, or as specific-intent crimes, as Peterson urges. These labels are “often used in the eases but seldom defined.” United States v. Williams, 332 F.Supp. 1, 3 (D.Md.1971). They were developed, at least with regard to intoxication, primarily to allow drunkenness as a defense to first-degree murder but not to lesser degrees of homicide. The attempt to apply the terms to nonviolent crimes such as escape has produced confused reasoning and disparate results.

Categorizing all crimes as either having “general” or “specific” intent seems too mechanical and often forecloses evaluation by the court of the important consideration involved, i. e., what elements are involved in the crime and whether the prosecution has satisfactorily established them.

“Intoxication as a Criminal Defense,” 55 Colum.L.Rev. 1210. 1217 (1955).

Whenever intoxication (or coercion or mistake) is raised as a mitigating factor, use of the “specific” and “general” intent labels interferes with the crucial analysis a court should make in escape cases: what constitutes the “escape” element of the crime ?

Most courts, confronted with evidence that a defendant could not or did not form an intent to leave and not to return, have held such an intent essential to proof of the crime of escape. “We hold that the felony of escape has as a necessary element the intent of the accused to evade the due course of justice. It seems to us that the very word ‘escape’ connotes an attitude of mind as well as an act. One does not ‘escape’ without desire and intent to avoid confinement.” Gallegos v. People, 159 Colo. 379, 387, 411 P.2d 956, 960 (1966). In Gallegos the court allowed defendant to introduce evidence that he was so drunk • he could not form the state of mind required. For other intoxication cases in agreement, see Chandler v. United States, 378 F.2d 906 (9th Cir. 1967); Mills v. United States, 193 F.2d 174 (5th Cir. 1951), cert. denied, 343 U.S. 969, 72 S.Ct. 1067, 96 L.Ed. 1365 (1952); People v. Dolatowski, 94 Ill.App.2d 434, 237 N.E.2d 553 (1968).

Only a voluntary departure from custody is an escape. Although defendants in the following cases failed to prove their departures were coerced by others or compelled by necessity, the courts recognized that such proof would establish lack of necessary criminal intent. United States v. Snow, 157 U.S.App.D.C. 331, 484 F.2d 811 (1973); United States v. Chapman, 455 F.2d 746 (5th Cir. 1972); People v. Richards, 269 Cal.App.2d 768, 75 Cal.Rptr. 597 (1969).

A prisoner who was released from jail upon presentation of a bond which he did not know was defective was not guilty of escape. State v. Pace, 192 N.C. 780, 136 S.E. 11 (1926). Nor did defendant escape after being told by an officer with apparent authority that he was discharged. People v. Weiseman, 280 N.Y. 385, 21 N.E.2d 362 (1939).

In a variety of other circumstances, intent to escape has been included as an element of the crime: United States v. McPherson, 436 F.2d 1066 (5th Cir.), cert. denied, 402 U.S. 997, 91 S.Ct. 2181, 29 L.Ed.2d 163 (1971); United States v. Locke, 425 F.2d 313 (5th Cir. 1970); State v. Lakin, 131 Vt. 82, 300 A.2d 554 (1973); State v. Hendrick, 164 N.W.2d 57 (N.D.S.Ct.1969); Cassady v. State, 247 Ark. 690, 447 S.W.2d 144 (1969); State ex rel. Sublett v. Adams, 145 W.Va. 354, 115 S.E.2d 158 (1960), cert. denied, 366 U.S. 933, 81 S.Ct. 1652, 6 L.Ed.2d 392 (1961).

The courts have been close to unanimous in requiring intent to escape probably for two reasons. The first is “the desire to have one human element of ‘blameworthiness’ as a basis for punishment.” The other reason is the knowledge that a prisoner who has no intent to escape — because he is grossly intoxicated, or thinks his jailer has told him to leave, or mistakes the boundaries of his confinement, or has a gun held to his head by another inmate — is not likely to endanger society, as a wilful escapee is. Escape is prohibited not only because the state wants its prisoners to remain confined until their sentences expire or their paroles are granted, but also because a determined escapee may kidnáp a hostage, kill a guard, steal an automobile or rob a store to facilitate his escape. A prisoner who leaves his custody without an intent to escape will not use force to leave the prison nor resist capture when he is found.

These cases lead us to a definition of escape as a voluntary departure from custody with an intent to avoid confinement. Whatever label is placed on this intent, a defendant under § 751 is entitled to an instruction that includes this mental component as an element of the crime which the government must prove. If the defendant offers evidence that he was intoxicated at the time of the offense, the jury must be instructed to consider whether he was so intoxicated he could not form an intent to escape. The instructions in this case withdrew the mental element from the jury’s consideration. In overruling Nix’ objections to the two instructions quoted earlier, the district court erred. Defendant’s conviction is vacated and the case is remanded to the district court for a new trial.

Vacated and remanded.

PELL, Circuit Judge

(dissenting).

I wholeheartedly approve of and concur in the perceptive analysis in Judge Sprecher’s opinion for the majority in which he has cut through the semantical mishmash that frequently seems to evolve from judicial sallies into the obscure vistas of differentiation between general and specific intent.

I am unable, however, to concur in the result reached in the majority opinion and respectfully dissent therefrom.

The only close aspect that I find in this case is that part of the court’s instructions to the effect that if the defendant acted or failed to act because of intoxication it was not a defense. I do not quarrel, nor do I understand that the majority does, with the immediately preceding statement in the charge that the crime does not involve specific intent. I would accept the majority standard that escape is a voluntary departure from custody with an intent to avoid confinement.

Looking at the record in the light of this standard I am convinced that Nix had a fair trial and that the jury found him guilty under instructions, which with the one questionable exception, properly were applicable under the standard stated in the majority opinion. While the reference to intoxication not being a defense might be prejudicially erroneous in some conceivable factual situations, I do not deem it so here.

Intoxication unless it is pursued to the point of unconsciousness does not prevent an act from being voluntary nor from being participated in for the purpose of accomplishing a desired end. The fact that a prisoner might be less inclined to attempt an escape if his sense of derring-do were uninfluenced by spirits should be no defense any more than it would be in a driving-under-the-influence case to the still ambulatory besotted person who fancies that he can perform feats of driving which he would not have considered attempting if sober.

From the testimony of the defendant’s fellow inmates (five of whom were serving time for bank robbery, one for kidnapping, and one for conspiracy and assault with a deadly weapon) home brew and occasionally whiskey were flowing with the freedom of water at the Marion federal penitentiary. Accepting their testimony at face value (despite the patent incredibility of much of it) Nix was drunk on May 10, 1972. The only testimony which corresponded at all timewise with Nix’s apprehension in the truck outside the prison walls was from Richard Montgomery who had been reading in his cell at about 1:00 a.m. on May 11. When Nix was brought by the cell Nix told Montgomery that he was being put in segregation for being drunk. Montgomery further testified that he could smell alcohol on Nix’s breath, that he observed Nix as having bloodshot eyes, and that Nix was wobbling and unsure on his feet. One other witness testified that at some time during the day preceding Nix’s apprehension he had observed Nix “knocked out, the last time I seen him, laying on one of them crates.” No witness described Nix’s condition as either being sober or intoxicated at any time during the evening. Nix or the dummy was in Nix’s cell at the checks at 4 p.m., 7 p.m., and 10 p.m. The truck had been loaded sometime before it was moved out of prison confine after the 10 p.m. check. Nix was standing inside the truck when the fastened rear door, the only entrance to the truck, was opened after midnight.

Despite the fact that the judge stated that intoxication was not a defense, it is clear that the jury was informed that a conviction required a determination that Nix had intentionally committed the act of attempting to escape.

As a background matter, the indictment, which was read to the jury and a copy of which was taken to the jury room during deliberations, charged that Nix “did unlawfully and willfully attempt to escape from such custody [of the Attorney General].”

Counsel for Nix presented the case during final summation consistently with what I conceive to be the standard of intent laid down in the majority opinion. Thus:

“Very briefly, let me explain something to you that’s been left out of the final argument, that wasn’t mentioned in the opening argument about what we’re involved in, and that simply, ladies and gentlemen, is that this is a criminal case. We have accused a man of committing a crime.
“It depends upon two things, as I believe the judge is going to instruct you; .one, that he did a certain act, and secondly, that he intended to that act. [sic] ,
“Two elements that the prosecution must prove. Two things. Not just that Joe Charles Nix was out in the van in the lot, but also that he intended to be out in the van in the lot, and that was his desire and where he intended to be at this time and — -involved in this situation. Two things.
* * * * * *
“If, when you go in that jury room, there is a reasonable doubt in your mind as to whether or not this man had that intention and committed that-act, it’s your duty under the law to return a verdict of not guilty.
X * X- X- X X
“Do you think that’s the kind — that that sort of circumstance shows that this man intended to escape? I suggest to you it does not, that was not his intention at the time.
X X X X X X
“The key of what’s going on here has to do with intention. Let’s examine these exhibits and see what we had.
X X X X X X-
“Take the exhibits one by one, and study them one by one, and see where there was an intention to perform this act. See where it’s proved beyond a reasonable doubt.
X- X X- X X X
“I suggest to you there’s nothing in this case, when you start fitting these pieces together to see what they mean in relation one to another, that suggest anything other than reasonable doubt about what this man’s intention was, what his mind was, what is going on in his mind, and that’s what the element of intent to commit the act is all about. If it were enough, because he’s outside the wall, to say that this man’s guilty of escape, we wouldn’t be here today. Everybody says he’s outside.
* * -» * * *
“Let’s see if it’s not plausible, and it’s simply this, that he got drunk; with everything else that goes in and out of this penitentiary, I suggest to you that it’s quite believable that there’s alcohol going in and out of it, too.
*X- -X- -X- -X- “X- -X-
“I ask you to go over every bit of this evidence, if you will, as I’ve suggested it to you, and study it, and see if it isn’t very equivocal, very doubtful, and see if there is really one iota of conclusive, undisputed evidence which says this man intended to be secretive in that van outside that yard.”

The judge, consistently with his view that this was a crime requiring for conviction only proof of general intent, charged in part as follows:

“To constitute the crime charged in the indictment, there must be the joint operation of two essential elements, an act forbidden by law and an intent to do the act.
“Before a defendant may be found guilty of a crime, the prosecution must prove beyond a reasonable doubt that under the statute described in these instructions, the defendant was forbidden to do the act charged in the indictment, and that he intentionally committed the act.
“In these instructions the terms knowingly, willfully and unlawfully are used. I will define those terms for you now.
“An act or failure to act is done knowingly if done voluntarily and intentionally, and not because of mistake or accident or other innocent reason.
“An act is done willfully if done voluntarily and intentionally, and with the specific intent to do something the law forbids; that is to say, with bad purpose either to disobey or disregard the law.
“Unlawfully means contrary to law. So to do an act unlawfully means to do willfully something which is contrary to law.”

Since, in my opinion, it was sufficient that the jury understand that there must be an intent to commit the crime, and inasmuch as the jury was fully informed to that effect and the evidence overwhelmingly supported the fact that there was an intent on the part of Nix to attempt to escape, I would affirm the judgment of conviction.

I think it is a fair observation that following the publication of the majority opinion no escapee apprehended within a relatively short time after leaving prison walls will admit to being a teetotaler.

      . “Whoever escapes or attempts to escape from tiie custody of the Attorney General or his authorized representative, or from any institution or facility in which he is confined by direction of the Attorney General, or from any custody under or by virtue of any process issued under the laws of the United States by any court, judge, or magistrate, or from the custody of an officer or employee of the United States pursuant to lawful arrest, shall, if the custody or confinement is by virtue of an arrest on a charge of felony, or conviction of any offense, be fined not more than $5,000 or imprisoned not more than five years, or both. . . .”

      . “Specific intent, as the term itself suggests, requires more than a mere general intent to engage in certain conduct. A person who knowingly does an act which the law forbids, or knowingly fails to do an act which the law requires, intending with evil motive or bad purpose either to disobey or to disregard the law, may be found to act with specific intent.” Part of instruction approved in Rivers v. United States, 368 F.2d 362, 364 (9th Cir. 1966).

      . “The necessity of proving a specific intent as one of the specific requirements for the crime of attempt is illustrated by the fact that if intoxication is sufficiently great to prevent a defendant’s entertaining a specific intent, he cannot be convicted for an attempt.” 41 Harv.L.Rev. 821, 841 n. 72 (1928).

      . People v. Dolatowski, 94 Ill.App.2d 434, 237 N.E.2d 553 (1968) ; Gallegos v. People, 159 Colo. 379, 411 P.2d 956 (1966).

      . State v. Wharff, 257 Iowa 871, 134 N.W.2d 922 (1965) ; People v. Haskins, 177 Cal.App.2d 84, 2 Cal.Rptr. 34 (1960).

      . Giles v. United States, 157 F.2d 588, 590 (9th Cir. 1946), cert. denied, 331 U.S. 813, 67 S.Ct. 1197, 91 L.Ed. 1832 (1947). The court rejected defendant’s claim of variance from the charge of attempted escape. Defendant argued his escape was consummated because he traveled three and a half miles from Alcatraz.

      . In United States v. Woodring, 464 F.2d 1248 (10th Cir. 1972), the court said specific intent was not an element of § 751, but approved a jury instruction that specific intent must be proved because the indictment charged “willful” escape. See also Mills v. United States, 193 F.2d 174 (5th Cir. 1951), cert. denied, 343 U.S. 969, 72 S.Ct. 1067, 96 L.Ed. 1365 (1952).

      . The district court in Mills submitted a drug-influence defense to the jury; the court of appeals was equivocal as to the propriety of the defense. For cases contra to those noted above, see State v. Wharff, 257 Iowa 871, 134 N.W.2d 922 (1965) ; People v. Haskins, 177 Cal.App.2d 84, 2 Cal.Rptr. 34 (1960).

      . Contra, People v. Siegel, 198 Cal.App.2d 676, 18 Cal.Rptr. 268 (1961).

      . “Criminal Attempts — The Rise and Fall of an Abstraction,” 40 Yale L.J. 53, 69 (1930).

      . There was enough evidence of Nix’ intoxication to let the jury decide whether the drunkenness was so severe that he could not form the requisite intent. Cf. Heideman v. United States, 104 U.S.App.D.C. 128, 259 F.2d 943 (1958).

      . As the dissent notes, several of the instructions given mentioned “intent” and “intentionally.” But the district judge did not define or explain such intent except to say that “specific intent” was not involved and that evidence of defendant’s intoxication could not be considered by the jury.

      . The government in the Peterson brief cites a number of cases where the same instruction on the elements of escape under § 751 was given. In none of these cases was a question of intent to escape raised. United States v. McCray, 468 F.2d 446 (10th Cir. 1972) ; United States v. Morris, 451 F.2d 969 (8th Cir. 1971) ; United States v. Rudinsky, 439 F.2d 1074 (6th Cir. 1971) ; Strickland v. United States, 339 F.2d 866 (10th Cir. 1965) ; Hardwick v. United States, 296 F.2d 24 (9th Cir. 1961).

      . For example, if the proof showed that Nix had climbed into a truck, and had then consumed alcoholic beverages to the point of becoming unconscious, after which the truck was moved outside the prison walls, the matter of intoxication might have some relevancy.

      . Montgomery’s description of Nix’s general aptitude as a drinker of alcoholic beverages was as follows:
      “When Joe Nix — when I have seen Joe Nix drinking alcohol, he — he just — through talking real loud, his eyes get real bloodshot, he gets acting like a real jolly person, just a jolly, happy-go-lucky person, and as — the more he gets to drinking, the more ignorant he becomes, and it’s obvious he can’t handle his liquor.”

      . As indicative of the uncertainties involved in the use of specific and general intent, the trial judge in connection with doing something the law forbids did use the term “specific intent” although later in the charge he stated that the crime itself did not involve specific intent.