author: BELL, Circuit Judge:

text:
    William Fletcher GEE, for himself and all others similarly situated and Mrs. Louise Gee, Plaintiffs-Appellants, v. Colonel James M. SMITH, as Commanding Officer, Armed Forces Induction and Physical Examination Station, et al., Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellee, v. William Fletcher GEE, Defendant-Appellant.
    Nos. 29038, 31005.
    United States Court of Appeals, Fifth Circuit.
    June 19, 1973.
    Rehearings and Rehearings En Banc Denied July 30, 1973.
    See also D.C., 306 F.Supp. 891.

      Howard Moore, Jr., John R. Myer, Atlanta, Ga., for appellants.
    John W. Stokes, Jr., U. S. Atty., Allen I. Hirsch, Stanley M. Baum, Asst. U. S. Attys., Atlanta, Ga., for the United States.
    John W. Stokes, Jr., U. S. Atty., Mathew Robins, Asst. Atty. Gen., Atlanta, Ga., Morton Hollander, Chief, Appellate Section, Ralph A. Fine, Robert E. Kopp, William D. Appier, Attys., U. S. Dept, of Justice, Washington, D. C., for Col. James M. Smith and others.
    Before BELL, INGRAHAM and RONEY, Circuit Judges.
   BELL, Circuit Judge:

The appeal in No. 31005 is from the conviction of appellant under the Military Selective Service Act of 1967, 50 U.S.C.A. Appendix, for failing to report for induction.

Appellant’s first induction date was July 24, 1969, but as will be seen he received two postponements. Upon being denied a further postponement, he filed a civil suit to enjoin his induction on the grounds that he had been erroneously classified as 1-A when he should have received either a III-A deferment or a I-S(C) deferment. He also contended that his induction order was invalid because Negroes were systematically excluded from representation on his draft board in Atlanta and draft boards in Georgia generally, and because a majority of the members of his draft board lived outside the area of the jurisdiction of the board.

Relief was denied in the civil case and the appeal from the order denying relief is the subject matter of No. 29038. The criminal conviction followed the denial of relief in the civil case.

We have consolidated the appeals for opinion purposes. We turn first to a consideration of the appeal in the civil case.

NO. 29038

The following are the pertinent facts. Appellant registered for the draft on April 17, 1967. Upon his graduation from high school in June of 1967, he was re-classified from I-S(H) (high school deferment) into I-A (available for service). In July of 1967, following receipt by his Local Board of notice that he had been accepted for admission to the Georgia Institute of Technology, he was re-classified II-S (undergraduate student deferment).

In September of 1968, appellant withdrew from the Georgia Institute of Technology and entered as a first year student at another college. He was then reclassified I-A because he had not completed 25 per cent of his four-year course of undergraduate study during his first year as required by 32 C.F.R. 1622.25 (c). He then requested and was afforded a personal appearance before his Local Board. His Local Board retained him in I-A and he appealed this classification. On April 11, 1969, the Appeal Board unanimously affirmed his I-A classification.

Appellant was then directed to report for a physical examination on May 28, 1969, but this date was postponed at his request. He was thereafter found to be acceptable for service and, on July 8, 1969, his Local Board mailed him an “Order to Report for Induction” (SSS Form 252), directing him to report on July 24, 1969. On July 21, 1969, three days before he was scheduled to report for induction, he requested a III-A (dependency deferment) on the ground that his induction would constitute a hardship to his ill mother. On July 22, 1969, he requested the form for conscientious objector status and his induction date was postponed until August 24, 1969. (The conscientious objector status was not pursued.)

By letter dated September 2, 1969, appellant was informed that his postponement of induction had expired and that he was to report on September 22, 1969. Appellant then submitted additional evidence with respect to his hardship claim and, on September 22, 1969, his induction was again postponed so that consideration could be given to that claim. On October 22, 1969, appellant’s Local Board advised him that there was no basis in fact for reopening of his classification. He was directed to report for induction on November 6,1969.

On October 24, 1969, appellant, again attending school, requested a I-S(C) deferment (until end of the academic year), until May 1, 1970. This request was denied by his Local Board because he was not in school at the time he was mailed his induction order and was therefore not eligible for the I-S(C). Appellant thereupon filed the suit to enjoin his induction. The district court temporarily restrained his induction pending hearing and decision. The complaint was dismissed by the district court on November 26, 1969. Gee v. Smith, N.D.Ga., 1969, 306 F.Supp. 891. This court denied a stay pending appeal on January 14, 1970.

On January 5, 1970, appellant was ordered to report for induction on January 15, 1970. He reported but refused to submit to induction. His indictment and conviction followed.

There are four assignments of error in this appeal of the civil case. Two of these, whether appellant was entitled to an end of term student deferment (IS(C)), or to a hardship deferment (III— A), turn on the breadth of the bar of § 10(b)(3) of the Military Selective Service Act, 50 U.S.C.A. Appendix, § 460(b) (3), to pre-induction review.

This section provides that a challenge to a classification may be judicially reviewed only as a defense to a criminal prosecution after the registrant has responded to an order to report for induction. The claims to deferment here were considered and denied on the merits by the Local Board and that is the end of the matter under the teachings of Fein v. Selective Service System, 1972, 405 U.S. 365, 92 S.Ct. 1062, 31 L.Ed.2d 298. There the Supreme Court stated in melding its prior holdings in Oestereich v. Selective Service Board, 1968, 393 U. S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402; Clark v. Gabriel, 1968, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418; Boyd v. Clark, 1969, 393 U.S. 316, 89 S.Ct. 553, 21 L.Ed.2d 511; and Breen v. Selective Service Board, 1970, 396 U.S. 460, 90 S. Ct. 661, 24 L.Ed.2d 653:

“Thus Oestereich, Gabriel, Breen, and Boyd together establish the principles (a) that § 10(b)(3) does not foreclose pre-induction judicial review in that rather rare instance where administrative action, based on reasons unrelated to the merits of the claim to exemption or deferment, deprives the registrant of the classification to which, otherwise and concededly, he is entitled by statute, and (b) that § 10(b)(3) does foreclose pre-induction judicial review in the more common situation where the board, authoritatively, has used its discretion and judgment in determining facts and in arriving at a classification for the registrant. In the latter case the registrant’s judicial review is confined— and constitutionally so — to the situations where he asserts his defense in a criminal prosecution or where, after induction, he seeks a writ of habeas corpus. By these cases the Court accommodated constitutional commands with the several provisions of the Military Selective Service Act and the expressed congressional' intent to prevent litigious interruption of the selective service process.”

The denial of the deferments here were, in each instance, on a determination of the facts pertaining to the claims. There can be no pre-induction review in such circumstances. This case is unlike the cases of Oestereich and Breen, supra, where proper classifications were taken from registrants for reasons unrelated to the factual merits of their respective original classifications. Cf. Crowley v. Pierce, 5 Cir., 1972, 461 F.2d 614.

It is also the case that pre-induction review was not available on the questions that Negroes were systematically excluded from the draft boards in Georgia and appellant’s board in particular, or that members of appellant’s Local Board resided outside its jurisdiction. In Sumrall v. Kidd, 5 Cir., 1972, 468 F.2d 951 (en banc), we affirmed the denial of pre-induction relief where a draft registrant attacked his induction order as being invalid because of the racial composition of his draft board. The affirmance was on the merits and without discussion of the § 10(b)(3) bar of review. However, § 10(b)(3) was applied to prevent pre-induction review of such a question in Wright v. Ingold, 7 Cir., 1971, 445 F.2d 109.

In our view, the claims of racial discrimination and improper residence of board members fall into the denial of procedural due process class. They are analogous to the due process attack on the appeal procedures involved as one question in Fein, supra. There the Supreme Court held that § 10(b)(3) precluded preinduction review of a challenge to the constitutionality of the administrative procedures in question which had been employed against the registrant. 405 U.S. at 375, 92 S.Ct. 1062. We conclude that the due process claims asserted here were likewise- precluded from pre-induction review.

The district court did not err in denying the relief sought in the civil suit.

No. 31005

The appeal from the judgment of conviction in the criminal case involves substantially the same assignments of error but they may now be reviewed on the merits.

We turn to the claim that Negroes were systematically excluded from draft boards in Georgia and from appellant’s board in particular, and to the claim that a majority of the members of appellant’s board did not reside within its jurisdiction. Each claim must be rejected.

It is now settled that a claim of racial discrimination in the composition of a draft board, even if factually sustained, is not a defense to a criminal charge based on refusing to submit to an induction order. The underlying basis for this conclusion is that the orders of such draft boards are de facto valid. See Clay v. United States, 5 Cir., 1968, 397 F.2d 901, vacated and remanded on other grounds sub nom. Giordano v. United States, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969); Sellers v. McNamara, 5 Cir., 1969, 398 F.2d 893, cert. denied sub nom. Sellers v. Laird, 395 U.S. 950, 89 S.Ct. 2022, 23 L.Ed.2d 470; Nelloms v. United States, 5 Cir., 1968, 399 F.2d 295, cert. denied, 393 U. S. 1071, 89 S.Ct. 724, 21 L.Ed.2d 716; Simmons v. United States, 5 Cir., 1969, 406 F.2d 456, cert. denied, 395 U.S. 982, 89 S.Ct. 2144, 23 L.Ed.2d 770.

The same principle is applicable in those cases where the attack rests on the claim that a majority of the members of the draft board reside outside the district. The orders of such a board are de facto valid. United States v. Steiner, 5 Cir., 1972, 469 F.2d 760. See also Ryan v. Hershey, 8 Cir., 1971, 445 F.2d 560. The dicta to the contrary in United States v. Cabbage, 6 Cir., 1970, 430 F.2d 1037, 1042, has been dissipated. See United States v. Hart, 6 Cir., 1971, 449 F.2d 340; United States v. Potter, 6 Cir., 1972, 457 F.2d 1316.

We likewise find no merit in the claims to deferment. The claim to a III-A deferment based on hardship in connection with the need of appellant to support and maintain his mother was entirely a fact question and there was a basis in fact for denying the deferment. Moreover, given the facts, it was not error to refuse to reopen the I-A classification so as to afford appellant an administrative appeal. This claim falls squarely into the teaching of Mulloy v. United States, 1970, 398 U.S. 410, 416, 418, Fn. 7, 90 S.Ct. 1766, 26 L.Ed.2d 362, that a classification need not be reopened if the facts asserted, even if true, would not warrant reclassification.

The claim to a II-S(C) deferment was on the theory that appellant was entitled to complete a school year. The weakness in his position is that he began the school year in question after having received his orders to report for induction and after having had his induction twice postponed at his request so that the draft board could consider his claims to deferment. He was not in school on the date he was ordered to report for induction. We conclude that the Local Board did not err in denying deferment until the end of the next school year on this basis. Appellant began school in the face of an order to report for induction.

We find no error in any of appellant’s contentions with respect to the criminal conviction.

The judgment in No. 29038 is affirmed. The judgment in No. 31005 is affirmed.

      . § 460(b)(3) in pertinent part:
      “. . . No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution . . . after the registrant has responded either affirmatively or negatively to an order to report for induction, or for civilian work in the case of a registrant determined to be opposed to participation in war in any form: Provided, That such review shall go to the question of the jurisdiction herein reserved to local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to such registrant. . . .”


source: Caselaw Access Project

author: LAY, Circuit Judge.

license: Public Domain

text:
    Jane DOE, Individually and on behalf of her minor child, Jennifer, and on behalf of all others similarly situated, Appellees, v. James N. GILLMAN, Commissioner, State of Iowa, Department of Social Services, and Alva C. Edwards, Director of Clayton County Department of Social Services, Appellants.
    No. 72-1605.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 16, 1973.
    Decided June 6, 1973.
    Rehearing Denied July 17, 1973.

      Lorna Lawhead Williams, Sp. Asst. Atty. Gen., Des Moines, Iowa, for appellants.
    David H. Correll, Waterloo, Iowa, for appellees.
    Before LAY and ROSS, Circuit Judges, and NICHOL, District Judge.

       The Honorable Fred J. Nichol, Chief Judge of the United States District Court, District of South Dakota, sitting by designation.

      . In Iowa all agency regulations must be scrutinized by the attorney general, a bipartisan legislative departmental rules review committee, and the appropriate committees of the legislature dealing with the subject matter. See Iowa Code Ann. ch. 17A (1972).

   LAY, Circuit Judge.

Section 239.5 of the Iowa Code Ann. (1972) provides, inter alia:

“No payment for aid to dependent children shall be made unless and until the county board of social welfare, with the advice of the county attorney shall certify that the parent receiving the aid for the children is co-operating in legal actions and other efforts to obtain support money for said children from the persons legally responsible for said support.”

The plaintiff brought this class suit individually and on behalf of her minor daughter and all others similarly situated challenging the Iowa law as being violative of the Social Security Act of 1935 and its regulations which provide aid to families with dependent children (AFDC). See 42 U.S.C. §§ 601-610. Consistent with several decisions by three-judge courts the district court found the quoted portion of Section 239.5 to be inconsistent with and in violation of federal law in that it imposes a requirement for eligibility in addition to need and dependency. The district court declared the statute, insofar as it requires cooperation in a support action for eligibility, void and unenforceable. The court further ordered the defendants to notify individuals previously denied AFDC benefits under Section 239.5 that they are now eligible and to make retroactive payments.

The defendants have appealed and seek to justify their action on the ground that only the mother’s AFDC benefits, not the child’s, were eliminated. The state officials also seek to invoke the Eleventh Amendment to the Constitution of the United States as granting immunity to the state from liability for retroactive benefits. We hold the quoted portion of the Iowa statute wholly unenforceable and find it unnecessary in view of the Iowa regulations to pass on the immunity question.

The AFDC provisions of the Social Security Act envision aid to strengthen the entire family unit, including the dependent child’s parent, so as to encourage the care of the child within his own home. See 42 U.S.C. § 601. A procedure which directly or indirectly lessens the benefits flowing to the dependent child should not be approved. Woods v. Miller, 318 F.Supp. 510 (W.D.Pa.1970); Doe v. Harder, 310 F.Supp. 302 (D.Conn.1970), appeal dismissed, 399 U.S. 902, 90 S.Ct. 2202, 26 L.Ed.2d 557; cf. Doe v. Swank, 332 F. Supp. 61 (N.D.Ill.1971), aff’d sub nom., Weaver v. Doe, 404 U.S. 987, 92 S.Ct. 537, 30 L.Ed.2d 539; Taylor v. Martin, 330 F.Supp. 85 (N.D.Cal.1971), aff’d sub nom., Carleson v. Taylor, 404 U.S. 980, 92 S.Ct. 446, 30 L.Ed.2d 364.

The defendants urge a plea of sovereign immunity under the Eleventh Amendment. In Rothstein v. Wyman, 467 F.2d 226 (2 Cir. 1972), the Second Circuit ruled that retroactive payments were violations of the Eleventh Amendment, absent the state’s consent, because they create a liability which must be met by public funds. Id. at 236-242. But see Jordan v. Weaver, 472 F.2d 985 (7 Cir. 1973) and McDonald v. Department of Public Welfare of the State of Florida, 430 F.2d 1268 (5 Cir. 1970).

We should not decide constitutional questions unless they are imperative to our decision. Once the rights of these parties have been determined, we cannot presume that the Iowa officials will not follow their own designated procedure for awarding relief. Iowa regulations specifically provide for retroactive payments. Section 53.16(217) of the 1973 Iowa Departmental Rules governing fair hearings for public assistance programs reads in part:

“When the hearing decision is favorable to the claimant, or when the agency decides in favor of the claimant prior to the hearing, corrective payments, retroactive to the date of the incorrect action, shall be made.” (Emphasis ours.)

The Iowa Department of Social Welfare Employees’ Manual on Appeals and Fair Hearings, VI-13-2, states:

“When, as a result of complaint by an applicant or recipient, the county department determines that policy was misapplied in his case, or that a decision, action or payment was in error, corrective action shall be taken immediately. If assistance has been underpaid, the corrective action shall include retroactive payments to the date of the incorrect action. However, this shall not in any way abridge the right of the individual to appeal the erroneous action and have a hearing before a representative of the Department of Social Services if he so desires.” (Emphasis ours.)

We can only assume that the defendants will follow their own regulations and retroactive payments will be made. See Grubb v. Sterrett, 315 F.Supp. 990, 995-996 (N.D.Ind.1970), aff’d, 400 U.S. 922, 91 S.Ct. 187, 27 L.Ed.2d 182; cf. Francis v. Davidson, 340 F.Supp. 351, 371 (D.Md.1972), aff’d, 409 U.S. 904, 93 S.Ct. 223, 34 L.Ed.2d 168.

That portion of the district, court’s judgment relating to sovereign immunity is vacated, since we find it was unnecessary to decide; the judgment holding the last paragraph of Section 239.5 of the Iowa Code unenforceable and requiring defendants to send a notice of eligibility to those previously denied benefits is otherwise affirmed.

ADDENDUM

After this case was submitted the Iowa Commissioner called our attention to the new proposed federal regulation which makes clear that AFDC payments may not be denied to the child but may be denied to the uncooperative caretaker relative. 37 Fed.Reg. 27637. This regulation is to take effect on July 2, 1973. It obviously has prospective effects only. We need make no comment here as to its validity vel non.

      . See Doe v. Swank, 332 F.Supp. 61 (N.D.Ill.1971), aff’d sub nom., Weaver v. Doe, 404 U.S. 987, 92 S.Ct. 537, 30 L.Ed.2d 539; Meyers v. Juras, 327 F.Supp. 759 (D.Ore.1971), aff’d, 404 U.S. 803, 92 S.Ct. 91, 30 L.Ed.2d 39; Taylor v. Martin, 330 F.Supp. 85 (N.D.Cal.1971), aff’d sub nom., Carleson v. Taylor, 404 U.S. 980, 92 S.Ct. 446, 30 L.Ed.2d 364; Woods v. Miller, 318 F.Supp. 510 (W.D.Pa.1970); Doe v. Shapiro, 302 F.Supp. 761 (D.Conn.1969), appeal dismissed, 396 U.S. 488, 90 S.Ct. 641, 24 L.Ed.2d 677 (1970). See also 45 C.F.R. § 235.70(a) (1972); Handbook of Public Assistance Administration, Part IV, § 8120.

      . The notice was to be confined to those individuals refused aid during the two-year period immediately preceding September 1, 1972, the date of the district court decree.

      . The state misconceives Lavine v. Shirley, 409 U.S. 1052, 93 S.Ct. 555, 34 L.Ed.2d 506 (1972), wherein the Supreme Court vacated the judgment of a three-judge federal district court which reached a similar, conclusion as the district court here. It is contended that Lavine distinguishes the denial of aid to the child from denial of aid to the non-cooperative parent, condoning the latter. This is patently incorrect. In vacating the district court judgment the Supreme Court remanded the case to the district court to reconsider its decision in view of the fact that the New York social services law had been amended. In doing this the Supreme Court called attention to Diffenderfer v. Central Baptist Church, 404 U.S. 412, 92 S.Ct. 574, 30 L.Ed.2d 567 (1972). In Diffenderfer the Court observed:
      “We must review the judgment of the District Court in light of Florida law as it now stands, not as it stood when the judgment below was entered.” Id. at 414, 92 S.Ct. at 575.
      The obvious thrust of the Supreme Court’s decree related to the change in New York law, not to any disagreement with the three-judge court decision.
      The defendants also cite Wyman v. James, 400 U.S. 309, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971), upholding the denial of benefits when home visits by welfare officers are refused; however, this inappropriate analogy is convincingly discarded in Taylor v. Martin, 330 F.Supp. at 89 n. 5, aff’d sub nom., Carleson v. Taylor, 404 U.S. 980, 92 S.Ct. 446, 30 L.Ed.2d 364, and Meyers v. Juras, 327 F.Supp. at 762, aff’d, 404 U.S. 803, 92 S.Ct. 91, 30 L.Ed.2d 39.

      . The Fifth Circuit in McDonald relies on the Supreme Court’s affirmance of a three-judge court in Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), aff’g, 270 F.Supp. 331 (D.Conn.1967), where retroactive relief was granted. The Supreme Court has affirmed numerous other Social Security cases awarding retroactive relief. See, e. g., Doe v. Swank, 332 F.Supp. 61 (N.D.Ill.1971), aff’d sub nom., Weaver v. Doe, 404 U.S. 987, 92 S.Ct. 537, 30 L.Ed.2d 539; Gilliard v. Craig, 331 F. Supp. 587 (W.D.N.C.1971), aff’d, 409 U.S. 807, 93 S.Ct. 39, 34 L.Ed.2d 66 (1972); Grubb v. Sterrett, 315 F.Supp. 990 (N.D.Ind.1970), aff’d, 400 U.S. 922, 91 S.Ct. 187, 27 L.Ed.2d 182; cf. Rivera v. Dunn, 329 F.Supp. 554 (D.Conn. 1971), aff’d, 404 U.S. 1054, 92 S.Ct. 742, 30 L.Ed.2d 743 (1972). The issue of retroactive relief has definitely been raised before the Supreme Court. See discussion in Jordan v. Weaver, supra at 472 F.2d 989-990. See also Alexander v. Weaver, 345 F.Supp. 666 (N.D.Ill. 1972). Cf. 45 C.F.R. § 205.10(b)(2) (1972).


author: McCREE, Circuit Judge. JOHN W. PECK, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Wendell BLOUNT, Defendant-Appellant.
    No. 72-2040.
    United States Court of Appeals, Sixth Circuit.
    Argued April 2, 1973.
    Decided June 8, 1973.
    John W. Peck, Circuit Judge, filed concurring opinion.
    Frederick Taft, Cleveland, Ohio, for defendant-appellant; James D. London (Court Appointed), Public Defender, Cleveland, Ohio, on brief.

      Clarence B. Taylor, Asst. U. S. Atty., for plaintiff-appellee; Frederick M. Coleman, U. S. Atty., Charles A. Caruso, Dept, of Justice, Atty., Office for Drug Abuse Law Enforcement, Cleveland, Ohio, on brief.
    Before PECK, McCREE and LIVELY, Circuit Judges.
   McCREE, Circuit Judge.

We consider an appeal from a judgment following jury convictions on both counts of a two-count indictment charging illegal distribution of heroin, in violation of 21 U.S.C. § 841(a)(1). Appellant was sentenced to three years imprisonment on each count, to be served consecutively. Five issues are presented on appeal.

Two issues attack the sufficiency of the evidence to refute the defense of entrapment. We determine that they are without merit. The record contains ample evidence to support the finding that appellant was not entrapped and it was therefore proper to submit that issue to the jury.

A third contention assigns error to the trial judge’s failure to give a limiting instruction about testimony of criminal acts not charged in the indictment, offered solely to negative appellant’s contention that he had been entrapped. Appellant’s counsel did not request a limiting instruction either at the time the evidence was introduced or before the ease was submitted to the jury. Since the testimony was relevant to an issue in the case, we find no error in the court’s failure to give a limiting instruction sua sponte.

Appellant’s remaining assignments of error have more substance. During the voir dire examination of the prospective jurors, the district court refused appellant’.s request to ask if they could accept the proposition of law that a defendant is presumed to be innocent, has no burden to establish his innocence, and is clothed throughout the trial with this presumption. Appellant contends that this refusal constituted reversible error. We agree.

Federal Rule of Criminal Procedure 24(a) invests wide discretion in trial judges in determining the questions to be asked of veniremen, and the prevailing rule is that the court’s determination about the questions to be put to the jury will not be disturbed without a clear showing of abuse of discretion. 5A Moore’s Federal Practice ¶ 47.06 (2d ed. 1967); United States v. Crawford, 444 F.2d 1404 (10th Cir. 1971); United States v. Owens, 415 F.2d 1308 (6th Cir.), cert. denied, 397 U.S. 997, 90 S.Ct. 1138, 25 L.Ed.2d 406 (1969).

The primary purpose of the voir dire of jurors is to make possible the empanelling of an impartial jury through questions that permit the intelligent exercise of challenges by counsel. Wright, 2 Federal Practice and Procedure ¶ 382 (1969). It follows, then, that a requested question should be asked if an anticipated response would afford the basis for a challenge for cause. See e. g., United States v. Carter, 440 F.2d 1132 (6th Cir. 1971); Brown v. United States, 119 U.S.App.D.C. 203, 338 F.2d 543 (D.C. Cir. 1964); United States v. Napoleone, 349 F.2d 350 (3d Cir. 1965). Certainly, a challenge for cause would be sustained if a juror expressed his incapacity to accept the proposition that a defendant is presumed to be innocent despite the fact that he has been accused in an indictment or information. It is equally likely that careful counsel would exercise a peremptory challenge if a juror replied that he could accept this proposition of law on an intellectual level but that it troubled him viscerally because folk wisdom teaches that where there is smoke there must be fire. Accordingly, the failure of the trial judge to ask the question upon request was erroneous and since the failure may have resulted in the denial of an impartial jury, the error cannot be dismissed as harmless. See Brown v. United States, supra (Burger, J.). It matters not that the putting of the question might also, as appellee contends, have constituted anticipatory argument to precondition the jury. This is an unavoidable consequence of the voir dire jury examination.

The remaining contention concerns the denial of appellant’s request for a continuance. At arraignment on June 8, 1972, without benefit of counsel, appellant pled not guilty and assured the district court that he intended to retain his own attorney prior to trial. To prevent delays and ensure a speedy trial, the district court appointed the Cleveland Public Defender’s Office to act as defense counsel of record and marked the case for trial on June 19, eleven days later. The Defender’s Office was promptly notified that same day, and appellant was told that the court would permit the substitution of counsel once a private attorney was retained. Appellant contends that such a short time to obtain counsel and prepare a defense constituted a violation of due process.

The trial judge’s concern to expedite the trial is most commendable, but expedition should not be pursued at the cost of the quality of justice. Fundamental to due process is the effective assistance of counsel, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L. Ed.2d 799 (1963). And a defendant with sufficient means should be afforded the opportunity to employ counsel of his own choice. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L. Ed. 680 (1942); United States v. Balk, 318 F.2d 288 (6th Cir. 1963).

Blount lived in Akron, was incarcerated before trial in Youngstown, and was scheduled to be tried in Cleveland. These cities form the vertices of a scalene triangle, one leg of which is 35 miles long, another 50, and the third 70. Appellant was afforded only 11 days, with two intervening weekends (seven work days), within which to obtain counsel from a jail cell, in a city not his residence. And it does not appear that he had ready access to a telephone and a legal directory. Because of our disposition of the voir dire issue, we find it unnecessary to decide whether the denial of a continuance requires us to follow Balk, supra, where we found a denial of Sixth Amendment rights, or United States v. Sisk, 411 F.2d 1192 (6th Cir.), cert. denied, 396 U.S. 1018, 90 S.Ct. 584, 24 L.Ed.2d 509 (1969), where we found no error.

Reversed and remanded for a new trial.

JOHN W. PECK, Circuit Judge

(concurring) .

While the better practice clearly requires that a trial judge include in a jury voir dire interrogation inquiries designed to determine the prospective jurors’ willingness and capacity to extend to the defendant his constitutional presumption of innocence, there is no absolute requirement that he do so. When he does not do so on his own motion, the better practice even more clearly dictates that such an inquiry should be undertaken upon request of defense counsel, but where as here the trial judge asked and received assurance that the prospective jurors would accept the charge of the court on the law as it applied to the evidence, irrespective of their own views concerning such law, and where as here the instructions to the jury contained a full and accurate explanation of presumption of innocence and burden of proof, in my opinion the failure to make the requested inquiry did not constitute a sufficient abuse of discretion to require reversal. However, in my view the refusal of the trial court to grant a continuance under the circumstances related in the majority opinion constituted a further abuse of discretion, and in combination the two refusals sufficiently prejudiced the appellant’s rights as to require a vacation of the judgment. I accordingly concur in the result reached in the majority opinion.


author: JAMES M. CARTER, Circuit Judge:

text:
    Daniel Henry ARNEY and Charles H. Baker, Plaintiffs-Appellants, v. UNITED STATES of America et al., Defendants-Appellees.
    No. 71-1448.
    United States Court of Appeals, Ninth Circuit.
    May 11, 1973.

      Richard T. Sykes (argued), Encino, Cal., for plaintiffs-appellants.
    James Stotter, II, Asst. U. S. Atty. (argued), Robert E. Moore, Jr. (argued), Kirtland & Packard, David Clarke (argued), of Chase, Rotchford, Drukker & Bogust, Los Angeles, Cal., for defen dants-appellees.
    Before CHAMBERS and CARTER, Circuit Judges, and WILLIAM B. EN-RIGHT, District Judge.

       Honorable William B. Enright, United States District Judge, Southern District of California, sitting by designation.

   OPINION

JAMES M. CARTER, Circuit Judge:

This is an appeal from three summary judgments granted respectively to (1) the United States of America, (2) Ray Heady, doing business as Aircraft Associates (hereafter Heady); and (3) Sky-ways Aircraft Ferrying Service, Inc. (hereafter Skyways) and Continental Air Services, Inc. (hereafter Continental), on the grounds that there were no material issues of fact involved.

The sole question is the propriety of the granting of the motions for summary judgment and the summary judgments thereafter entered. We reverse.

Because this case has been troublesome to us and for the assistance of the trial court on remand, we discuss the case in more detail than we ordinarily would in reversing the grant of a motion for summary judgment.

The action was brought under the admiralty jurisdiction of the district court, 28 U.S.C. § 1333(1). Appellant Arney was the pilot, and appellant Baker was the navigator of a Beechcraft Baron which crashed in the ocean on February 10, 1966, while on a flight from Oakland, California to Honolulu, Hawaii. They claim personal injuries and property damage as a result of the crash.

FACTS

The aircraft was owned by Continental, who contracted with Skyways to ferry the plane to Vietnam. Skyways hired Arney and Baker, as independent contractors, to fly the aircraft from California to Vietnam. As originally constructed the plane had a gas tank that held 140 gallons of gas, but it was necessary to increase the fuel capacity for the long over-water flight. Skyways hired Heady to install a long-range fuel system which added 200 gallons to the aircraft’s fuel capacity. Specifications for the fuel system modification were provided by Skyways. However, appellant Arney alleges that the auxiliary fuel system was vented out the bottom of the aircraft at the instance of Walter Friedman, an inspector of the Federal Aviation Agency (hereafter FAA), over Ar-ney’s objections and contrary to the general practice of venting out the top of the plane, so as to provide ram air which assists in getting all of the fuel out of the tank.

After the installation of the additional fuel system, the aircraft and its fuel system were inspected and certified by Friedman. The additional fuel-carrying facilities and navigation equipment added excess weight to the plane, bringing it above the weight for which it was flight certified by the FAA. Approval of the modifications was necessary, and a special ferry permit was required for the flight under applicable FAA regulations. The ferry permit, signed by Friedman for the FAA, was obtained in Long Beach, California on February 8, 1966. One of the conditions of the authorization was that “Any alteration made to this aircraft during the effective period of this permit shall invalidate this permit.” Appellants knew the terms of the permit which conformed with the regulations, supra, note 1, and contained the restrictions deemed necessary for safe operation of the modified aircraft, including the restriction just quoted.

On February 8, 1966, appellants flew the first leg of the flight, from Long Beach to Oakland, without incident. The next day, February 9, appellants started on the second leg, from Oakland to Hawaii, but returned to Oakland because they allegedly found the fuel system to be defective.

At appellants’ request, Heady sent a man, Grier, from Long Beach to Oakland to repair the aircraft. Grier repaired a radio, and made changes involving the fuel and dump lines in the auxiliary fuel system.

Appellant Arney, in his deposition, stated that he knew the system had been altered. [R. 29-30] Similarly, appellant Baker indicated that he knew that alteration required FAA re-approval. [R. 30] Other testimony of record indicated that Baker assisted Grier in making the changes to the aircraft’s fuel system. [R. 40] Later, however, Ar-ney’s affidavit in opposition to the motions for summary judgment of the nongovernmental defendants indicated that he had subsequently studied fuel systems more intensively and learned that the supposed alterations Grier made to the fuel system were “insignificant” and did not constitute “alterations” sufficient to invalidate the flight permit.

Without securing further FAA inspection or approval, appellants on February 10, 1966, attempted to fly from Oakland to Hawaii. The crash occurred on this flight, when the auxiliary fuel system allegedly failed to deliver all of its fuel. Arney and Baker subsequently brought this action for negligence and breach of warranty in the installation and certification of the ferry fuel system.

Summary Judgment

In granting summary judgment for the defendants, the trial judge found that there were no genuine issues of material fact, and that Arney and Baker could not prevail as a matter of law, because they knowingly made the ill-fated flight without a valid flight permit. Although not expressly articulated by the judge in his findings of fact and conclusions of law, it appears that he must have found (1) that the alterations to the fuel system were made, and were significant enough to invalidate the permit; and (2) that under applicable law, flying without a valid permit constituted contributory negligence, barring recovery by Arney and Baker under any state of the facts supportible by the record.

None of the parties cited any authority, and we are aware of none, which establishes negligence per se under the Act and regulations set out, supra, note 1. Before we could affirm the judge’s ruling that plaintiffs were contributorily negligent as a matter of law, we must consider, apparently in a case of first impression, whether violation of these regulations would constitute negligence per se, if a defendant had violated them, and hence that such violation is contributory negligence when allegedly violated by plaintiffs herein.

“The accepted rule now is that a breach of statute by plaintiff is to stand on the same footing as a violation by defendant.
“[I]t seems clear that safety statutes . . . usually are designed for the broad purpose of preventing accidents or dangerous situations, in which the plaintiff is quite as likely to be hurt as the defendant ; and it is not difficult to discover a purpose to protect him by setting up a standard of his own conduct, the unexcused violation of which is negligence in itself.” Prosser, Torts, ch. 5, § 35, pp. 204-05 (3d ed. 1964); see Illinois Central R. Co. v. Messina, 240 U.S. 395, 36 S.Ct. 368, 60 L.Ed. 709 (1916).

Under California law, which applies here, negligence per se creates a rebuttable presumption only, and is not conclusive upon the trier of fact. Alarid v. Vanier, 50 Cal.2d 617, 327 P.2d 897 (1958). In overcoming that presumption, the “test is whether the person who violated the statute has sustained the burden of showing that he did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law.” Id., 50 Cal.2d at 624, 327 P.2d at 900.

“The violation of a statute . is negligence per se only if the person injured or damaged is within the class intended to be protected by the statute .... Violation of a statute intended to protect the interest of the state, or of the community at large, rather than that of any particular individual or class, is not negligence per se.” 35 Cal.Jur.2d, Negligence, § 18, at 504-06 (1957).

The resulting harm must be of the nature that the statute was designed to prevent, and the violation must be the proximate cause of the injury. Id., §§ 19-20, at 507-08; Prosser, supra, at 194-98.

These general principles apply to our case. The Civil Aeronautics Act, the predecessor to the Federal Aviation Act of 1958, was enacted, and regulations promulgated thereunder, to promote civil aviation while assuring maximum safety in the air. Rosenhan v. United States (10 Cir. 1942), 131 F.2d 932, 934, cert. denied, 318 U.S. 790, 63 S.Ct. 993, 87 L.Ed. 1156. The 1958 Act had the same purposes. 1958 U.S.Code Cong. & Adm.News, p. 3741. The purpose of the certification of aircraft under the 1958 Act and regulations was to reduce accidents, and the government may be liable for negligence in improper issuance of a type airworthiness certificate. Rapp v. Eastern Air Lines, Inc. (E.D.Pa.1967), 264 F.Supp. 673, 676, 680, aff’d sub nom., Scott v. Eastern Air Lines, Inc. (3 Cir. 1968), 399 F.2d 14, cert. denied, 393 U.S. 979, 89 S.Ct. 446, 21 L.Ed.2d 439. The certificate is valid only so long as the plane is kept in repair, and it has been held that it is the pilot's duty to see that the plane is so maintained. Gibbs v. United States (E. D.Tenn.1965), 251 F.Supp. 391, 396.

The safety of pilots and others aboard aircraft, as well as persons on the ground, depends upon the airworthiness certification program under the Act. We hold that the appellants, Arney and Baker, were within the class intended to be protected by the regulations and that the alleged harm suffered was of the kind which the regulations were intended, in general, to prevent. The accident which occurred was exactly the sort of risk that might reasonably be anticipated to flow from violation of the Act and the regulations promulgated thereunder. Therefore, if there was an alteration in the Beechcraft Baron aircraft sufficient to invalidate the flight permit, a subsequent flight under that invalid permit could constitute contributory negligence per se, provided, of course, that proximate cause existed.

Summary judgment is inappropriate in this case because of at least the following fact questions: (1) was the ferry fuel system defective as originally constructed; (2) was Friedman, acting for the FAA, negligent in granting approval of the system; (3) did Friedman cause changes to be made which rendered the fuel system defective ; (4) what are the details and technical significance of the changes Grier allegedly made to the system; (5) were Grier’s changes material or insignificant as to the cause of the accident; (6) did those changes constitute alterations sufficient to invalidate the permit; and (7) what was the proximate cause of the accident ?

Arney says in his affidavit opposing summary judgment that the changes made by Grier “were insignificant and did not amount to any kind of an ‘alteration’ of the system.” Appellees, on the other hand, rest upon what they claim to be undisputed evidence that alterations were made. They rely upon the following statement, for example, in Arney’s declaration under penalty of perjury:

“The alteration made by the mechanic [Grier] was to take the dump line and attach it to the feed line so that there would be an additional feed source. ... In my opinion and in the opinions of the [experts] I have talked to the change made by the mechanic was of no significance in the operation of this fuel system. The fuel system failed as it was in it’s un-modified [sic] condition.”

(Of course, we neither approve nor consider the inadmissible hearsay contained in this statement.)

Insofar as the mere fact of the change in fuel lines might be taken as an admission by Arney that there was an “alteration” which invalidated the permit by its terms, the point is without merit. Whether the alteration invalidated the permit, and whether that would bar appellants’ recovery herein, are questions of law to be determined after the extent and mechanical significance of the alterations have been factually found. Appellees have pointed to no authority of the FAA to withhold or invalidate permits for insubstantial or immaterial alterations unrelated to airworthiness or not affecting the safety of aircraft operations. Appellants’ citation below of Brown, Airman Certificate, 1 C.A.A. 666 (1940) is irrelevant. Thus Arney and others may have thought that the permit was invalid under the FAA’s definition of invalidity, but that definition may have been unreasonable as a matter of law.

Nowhere in the record do we have, nor so far as we can tell did the trial judge have, any technical explication of the impact of the mechanic’s action upon the fuel system, and hence the airworthiness of the aircraft, except Arney’s statement as an experienced ferry pilot and licensed airframe and power plant mechanic. We would find it incredible to cut off appellees’ liability, if they were negligent so as to cause this crash, merely because of an insignificant change not affecting the overall airworthiness of the plane.

The trial judge’s findings of fact are of little assistance here, because couched in very indefinite terms such as “ . . . certain alterations in the installation of the fuel lines leading to the ferry tank.” [Finding of Fact No. 6] If the change were shown to be immaterial it would not give rise to the claimed presumption of contributory negligence. Alarid v. Vanier, supra. We hold that the permit was not invalidated unless any alteration in the aircraft was substantial and material to the airworthiness thereof, considered in the light of the safety purpose of the Act. A merely trivial change could not be said to “alter the aircraft” within the language of the ferry permit.

If the original fuel system was negligently installed and certified, it is certainly possible that it would have failed regardless of what Grier may have done to it. Thus any alteration may have been causally unconnected with the crash. See Prosser, supra, at p. 195. We cannot on this record hold that there is no “reasonable indication that a material fact is in dispute.” Aetna Ins. Co. v. Cooper Wells & Co. (6 Cir. 1956), 234 F.2d 342, 344. Doubts about such factual issues must be. resolved against the movant for summary judgment. Cameron v. Vancouver Plywood Corp. (9 Cir. 1959), 266 F.2d 535, 540.

Moreover, it is alleged that the government inspector, Friedman, insisted upon venting the ferry fuel system out the bottom of the aircraft, rather than out the top so as to provide ram air to the fuel tank. It appears that this was done over Arney’s objections, at the time the system was originally certified by Friedman, although the government disputes this.

“The question of defendant’s liability cannot be lawfully withdrawn from the jury and determined by the court unless the facts are not only undisputed but are also such that all reasonable men, in the exercise of fair and impartial judgment, must draw the inference and conclusion therefrom of non-negligence. . . . Issues of negligence are ordinarily not susceptible of summary adjudication.” Roucher v. Traders & General Ins. Co. (5 Cir. 1956), 235 F.2d 423, 424 (emphasis added).

Although no jury demand was made herein, the Roucher standard is appropriate. It is axiomatic under Fed.R.Civ.P., Rule 56, that the presence of a triable issue of material fact is a bar to summary judgment. We believe that summary judgment is inappropriate in this case, even though appellants’ factual showing leaves something to be desired in both quality and quantity.

There would be no triable fact issue if appellees’ version of the facts were not contradicted in the showing made by appellants. Morrison v. Walker (9 Cir. 1968), 404 F.2d 1046 (per curiam). Here we have the unusual situation in which appellees largely rely on appellants’ depositions and affidavits, which are themselves unclear on the facts. For purposes of this appeal, we resolve the doubts in favor of appellants. Cameron, supra. We also hold that appellants’ factual showing was sufficient to raise, if weakly, a triable issue of material fact on the question of alteration.

Our conclusion is reinforced by the California rule that negligence per se creates only a rebuttable presumption of negligence. Alarid v. Vanier, supra. Thus, even were violation of the certification regulations assumed, appellants would be entitled to present evidence that they acted as would a person of reasonable prudence under the circumstances, who desired to comply with the law. Id. The facts of record indicate that appellee Heady, and Mr. Taylor of Skyways, may have told Arney that the certificate was legal, or at least that Heady would see that it was properly taken care of. Arney’s affidavit states that he made it a condition of proceeding past Hawaii, that he receive telegraphic confirmation of the legality of the permit. Nothing of record indicates that Arney’s act in so proceeding was conclusively imprudent, and thus, at least in this respect, appellees failed to carry their burden of proof in support of the motion for summary judgment.

Appellees urge that even if appellants were not contributorily negligent per se, they were guilty of contributory negligence in continuing to fly the plane after having had fuel system problems. Thus, if Arney knew the alterations were insignificant, it is urged that he also knew that the erratic fuel supply had not been repaired. However, Arney’s statement, quoted supra, note 2, claims that Arney relied on Grier to be an expert in fixing the fuel system problems; at that time, Arney alleges, he did not know as much about fuel systems as he now does. This aspect of the case, then, merely raises another fact question supporting our reversal of summary judgment.

Appellant Arney, in his second affidavit, attempted on his own assertion to qualify himself as an expert in ferry fuel systems. As an expert he stated that Grier’s alterations (which Arney observed when they were made) were immaterial, and that the original ferry fuel system was negligently constructed. We are not prepared to say that such statements, in an affidavit opposing summary judgment, are the sort of evidence which a court can always credit. See Fed.R.Civ.P., Rule 56(e). However, neither are we prepared to hold, as a matter of law, that an experienced ferry pilot and mechanic cannot render an expert opinion, or a qualified lay opinion as the case may be, on subject matter so closely related to his usual occupation as a ferry pilot. Hence, we resolve the question against appellees, and we leave that determination to the trial judge, on remand, should the question again arise.

In addition to the defense of a genuine dispute of material fact, to successfully resist summary judgment, there must be at least one viable theory of law under the asserted version of the facts that would, if true, entitle the opponent of the motion to judgment as a matter of law. McGuire v. Columbia Broadcasting System, Inc. (9 Cir. 1968), 399 F.2d 902, 905; Bushie v. Stenocord Corp. (9 Cir. 1972), 460 F.2d 116, 119. Appellants’ complaint states a cause of action against the government, for negligent certification of the original ferry fuel system. See Rapp v. Eastern Air Lines, Inc., supra,, 264 F.Supp. at 680-681.

As to the appellees other than the government, the complaint states a cause of action for negligence under appellants’ version of the facts, and thus, again, we need not comment upon the other theories alleged. Finally, we of course do not express any opinion upon the merits or the final outcome of this matter, leaving the issues of negligence, breach of warranty, and contributory negligence, among others, to the court below.

The judgment is reversed, and the cause is remanded to the district court for further proceedings not inconsistent with this opinion.

      . The Administrator of the Federal Aviation Agency is empowered to prescribe minimum standards of safety concerning civil aircraft, 49 U.S.C. § 1421, and to make regulations concerning the same, 49 U.S.C. § 1354. Doe v. Civil Aeronautics Board (10 Cir. 1966), 356 F.2d 699, 701.
      Pursuant to this authority, the Federal Aviation Regulations, Part 91, subpart A, § 91.27 (14 C.F.R. § 91.27 (1966), sets forth the requirement for an appropriate aircraft certificate or permit:
      “(a) No person may operate a civil aircraft unless it has within it—
      (1) An appropriate and current airworthiness certificate (including a special flight permit . . [Emphasis added]
      Section 21.181(a) (14 C.F.R. 21.181(a) (1966)) states the duration of airworthiness certificates:
      “Unless sooner surrendered, suspended, revoked or a termination date is otherwise established by the Administrator, an airworthiness certificate is effective as long as the maintenance, preventive maintenance, and alterations are performed in accordance with Parts 43 and 91 of this chapter and the aircraft is registered in the United States.”
      In 1968, Section 21.181(a) was amended to provide different effective periods for standard airworthiness certificates, special flight permits, experimental certificates, and the like. It now reads: “ (2) A special flight permit is effective for the period of time specified in the permit.”
      Authority for a special flight permit, as was required for this flight, is set out in Section 21.197, “Special flight permits,” (14 C.F.R. 21.197(b) (1966)), which states:
      “(b) A special flight permit may also be issued to authorize the operation of an aircraft at a weight in excess of its maximum certificated takeoff weight for flight beyond the normal range over water, or over land areas where adequate landing facilities or appropriate fuel is not available.”
      The excess weight which may be authorized under Section 21.197 (b) “is limited to the additional fuel, fuel-carrying facilities, and navigation equipment necessary for the flight.” Section 21.199, which deals with the issuance of a Special flight permit, provides that the Administrator shall require that the applicant for such a permit list the ways, if any, in which the aircraft does not comply with the applicable airworthiness requirements, and the restrictions considered necessary for the safe operation of the aircraft. (14 C.F.R. 21.199(a)(5) and (6) (1966)).
      Although inspections are not an absolute prerequisite to obtaining a Special flight permit, we have no doubt that once undertaken, an inspection may not be negligently made. 14 C.F.R. § 21.199(b) (1966) reads: “The Administrator may make, or require the applicant to make appropriate inspections or tests necessary for safety [on application for a special flight permit].” [Emphasis added]

      . Arney said in his affidavit, in part:
      “I, in no way, instructed Mr. William Grier in any change of the fuel system. Mr. Grier presented himself to me after the fuel system had failed. He represented that he came from Ray Heady, dba Aircraft Associates. I relied upon him as some sort of expert. At that time, I did not know as much about fuel systems as I do now. Mr. Grier made some very insignificant changes in the fuel system.”

      . Chapter 20 in 49 U.S.C. comprises Sections 1321 through 1542 and is there entitled “Federal Aviation Program.”
      The short title of the Act (Pub.L. 85-726, Aug. 23, 1958, 72 Stat. 737) is “Federal Aviation Act of 1958.” The Act includes Sections 1321-1542 referred to above, and also amends and repeals various other statutes. See note following 49 U.S.C. § 1321.

      . There are no provisions in the Federal Rules of Civil Procedure for the state practice of filing “declarations under penalty of perjury” in lieu of affidavits.
      See Fed.R.Civ.P., Rule 56(e); Calif.Code Civ.Proc. § 2015.5.
      Appellants filed affidavits in resisting the motions for summary judgment made by the nongovernmental appellees. But as to the motion of the United States, wliich was first in time, only a declaration was filed.
      Because the issue was not raised below nor in the briefs here, and the United States treated the declaration as an affidavit, we only note the problem.

      . The government produced the affidavit of its expert, Stephen H. Rolle, which stated that it was based on a review of the record herein, and specifically Arney’s statements. Rolle concluded that the alterations were material and not trivial, and that the fuel system should have been further tested. However, neither Rolle nor Arney offered any detailed technical basis for their conclusions. At best, only a dispute of fact is raised by Rolle’s affidavit, when compared with Arney’s testimony mentioned in text. See note 2, supra.

      . Arney’s affidavit relates, in part:
      “Additionally, I had conversations with Mr. Ray Heady, of Aircraft Associates and Mr. Taylor, of Skyways Ferrying Service, and they indicated to me that they would make the arrangements to make any necessary changes in the ferry permit because of what Mr. Grier, Mr. Heady’s mechanic, had done to the fuel system. I relied upon these statements and attempted to fly that airplane across the ocean. I made it a condition of proceeding beyond Honolulu that I would have some kind of a telegraphic reply indicating that the ferry permit was perfectly legal.”


author: McENTEE, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. John Joseph CHODOR, Defendant, Appellant.
    No. 72-1366.
    United States Court of Appeals, First Circuit.
    Heard May 8, 1973.
    Decided June 13, 1973.

      Thomas C. Troy, Dorchester, Mass., by appointment of the Court, for appellant.
    Edward J. Lee, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee.
    Before COFFIN, Chief Judge, Me-ENTEE and CAMPBELL, Circuit Judges.
   McENTEE, Circuit Judge.

Appellant, John Joseph Chodor, was charged in a three count indictment with possession and delivery of certain obligations made after a similitude of $10 Federal Reserve Notes in violation of 18 U.S.C. §§ 472, 473, and 474 (1970). After a jury trial, he was found guilty on all three counts. Since we find no merit in the contentions he raises on appeal, his conviction is affirmed.

From the evidence in the record, the jury could reasonably find the following facts. At approximately 12:30 on the afternoon of December 20, 1971, appellant, accompanied by one Anne Leonard, deposited two suitcases in his cousin’s apartment in Dorchester, Massachusetts. On leaving, he told his cousin that he would either return later to pick up the suitcases or would send someone to get them. The suitcases remained in the apartment undisturbed until shortly after 4 p. m. when Anne Leonard arrived in a cab and picked them up. From Dorchester, Leonard proceeded to the airport where she checked the bags with Allegheny Airlines, secured a prepaid ticket for an Allegheny flight to Baltimore, and departed on that flight.

Upon arrival in Baltimore, Leonard directed a cab driver to pick up the suitcases and place them in his cab. Shortly thereafter, she was arrested and the bags were searched. They were found to contain $133,000 in uncut counterfeit obligations which, aside from the absence of two serial numbers and one seal on their face, resembled $10 Federal Reserve Notes in all significant respects. When questioned, Leonard stated that she resided at 140 “Neva Street,” Hyde Park Massachusetts, and that her phone number was 361-4471, a phone listed at 140 Navarre Street in appellant’s name. A search of her purse also revealed that she was scheduled to return to Boston on a flight leaving Baltimore at 9:30 p. m. that evening.

At approximately 10 p. m. that same evening appellant was observed at Logan Airport in the vicinity of the arrival gate of the Allegheny flight on which Leonard was booked. After waiting a short period of time, he made a phone call and then returned to the arrival area. Approximately fifteen minutes later he was taken into custody by federal officers and apprised of his rights. Thereafter, although stating that he resided at 140 Navarre Street, Hyde Park, Massachusetts, he denied knowing Anne Leonard. He also claimed to be waiting for his aunt to return from Baltimore, but when the agents suggested that they await for her arrival, he said that he had just received a phone call informing him that she was not coming. When asked why he had returned to the waiting area, he made no response. Finally, when asked if he had had two suitcases in his possession at any time during that day, he said “No.”

On this background, it is apparent that appellant’s initial contention that the government’s proof provided an insufficient basis for the jury to infer that he had knowledge of the contents of the suitcases and that he acted with the intent to defraud is not well taken. His possession of the suitcases in the early afternoon, his arrival at the airport when Leonard was due to return, his denial at the time of arrest that he knew Leonard after they both had given apparently the same address as their residence, and his denial of ever possessing the suitcases in question, when considered in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), clearly justifies the jury’s conclusion that appellant was acting with the requisite knowledge and intent.

Appellant’s further contention that his conviction under 18 U.S.C. § 474 may not stand because the government failed to establish that he was not in possession of these obligations “under authority from the Secretary of the Treasury or other proper official” suffers from a similar infirmity. In addition to the fact that the government was not required to offer evidence on this issue in establishing the elements of a § 474 offense since “it is incumbent on one who relies on ... an exception [in a statute] to set it up and establish it,” McKelvey v. United States, 260 U.S. 353, 357, 43 S.Ct. 132, 134, 67 L.Ed. 301 (1922), see, e. g., United States v. Ramzy, 446 F.2d 1184, 1186 (5th Cir.), cert. denied, 404 U.S. 992, 92 S.Ct. 537, 30 L. Ed.2d 544 (1971); United States v. Rowlette, 397 F.2d 475, 479-480 (7th Cir. 1968); Chin Gum v. United States, 149 F.2d 575, 577 (1st Cir. 1945), the evidence in the instant record is more than sufficient to support a jury finding that appellant was not in possession of these notes with such authorization. The covert manner in which these notes were transported, appellant’s denial of any connection with the suitcases in which the notes were found, the fact that the notes were counterfeit, and, in particular, the testimony of appellant’s own witness Raymond Scarino, that he had manufactured these notes in his basement, amply justify the conclusion that appellant did not possess these notes with the Secretary’s approval. See Koran v. United States, 408 F.2d 1321, 1324 (5th Cir. 1969), cert. denied, 402 U.S. 948, 91 S.Ct. 1603, 29 L.Ed.2d 118 (1971). A directed acquittal was thus not in order.

Finally, appellant’s assertion that the trial court erred in failing to rule as a matter of law that the notes in question were not counterfeit because they were lacking “significant particular [s],” United States v. Moran, 470 F.2d 742 (1st Cir. 1972), to wit, two serial numbers and the Treasury Seal on their face, is also unavailing. The proper test for determining what constitutes a counterfeit obligation is, as stated in United States v. Lustig, 159 F.2d 798, 802 (3d Cir. 1947), rev’d on other grounds, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949),

“whether the fraudulent obligation bears such a likeness or resemblance to any of the genuine obligations or securities issued under the authority of the United States as is calculated to deceive an honest, sensible and unsuspecting person of ordinary observation and care dealing with a person supposed to be upright and honest.”

Accord, United States v. Johnson, 434 F. 2d 827, 829 (9th Cir. 1970); United States v. Smith, 318 F.2d 94, 95 (4th Cir. 1963). In light of the three minor deficiencies of the notes in question, the trial court was clearly correct in submitting to the jury the question of whether these notes were of sufficient quality to be considered counterfeit. Lastly, given our endorsement of this standard and the fact that the court charged the substance of the Lustig test, even assuming that appellant requested an instruction that if the notes lacked “any significant quality” they could not be found to be counterfeit, we cannot agree that the omission of this statement from the charge constituted prejudicial error.

Affirmed.

      . We take notice that while there is a “Navarre Street” located in the Hyde Park section of Boston, there is no “Neva Street” listed in the postal directory.

      . The paragraph of 18 U.S.G. § 474 under which appellant was indicted provides:
      “Whoever has in his possession or custody, except under authority from the Secretary of the Treasury or other proper officer, any obligation or other security made or executed, in whole or in part, after the similitude of any obligation or other security issued under the authority of the United States, with intent to sell or otherwise use the same; . . . ”

      . We note in passing that the test of what constitutes a counterfeit security or obligation for the purposes of the paragraph of 18 U.S.C. § 474 under which appellant was indicted is less stringent because this provision makes possession of “any obligation or other security made or executed, in whole or in part, after the similitude of any obligation or other security issued under the authority of the United States” illegal.


author: BARRETT, Circuit Judge.

text:
    Russell K. SWANSON, an Individual, and Roblin Industries, Inc., a corporation, Plaintiffs-Appellants, v. UNARCO INDUSTRIES, INC., a corporation, Defendant-Appellee.
    No. 72-1507.
    United States Court of Appeals, Tenth Circuit.
    May 30, 1973.
    Rehearing Denied June 20, 1973.
    Rehearing Denied Aug. 8, 1973.

      Robert D. Hovey, Kansas City, Mo. (Donald E. Johnson, Kansas City, Mo., Robert E. Woodhams of Woodhams, Blanchard & Flynn, Kalamazoo, Mich., and William R. Laney and Jerry J. Dunlap, of Dunlap, Laney, Hessie & Dough-erty, Oklahoma City, Okl., of counsel, on the brief), for plaintiffs-appellants.
    Norman Lettvin, Chicago, 111. (George H. Gerstman, Chicago, 111., Francis S. Irvine, of Kerr, David, Irvine, Burbage & Foster, Inc., Oklahoma City, Okl., of counsel, on the brief), for defendant-appellee.
    Before HILL and BARRETT, Circuit Judges, and SMITH , District Judge.

      Eastern District of Michigan, sitting by designation.

   BARRETT, Circuit Judge.

Russell K. Swanson and Roblin Industries, Inc. (Roblin), appeal from an adverse non-jury trial. The Court, 356 F. Supp. 332, held that Swanson’s U.S. Letters Patent No. 3,052,319 (’319) was not infringed either directly or contributorily by two grocery carts manufactured and distributed by appellee, Unarco Industries, Inc. (Unarco).

The action was initially brought by Swanson, as owner of the patents, and United Steel and Wire Company (United), as licensee of the patents, against Folding Carrier Corp. Thereafter Rob-lin succeeded United and Unarco succeeded Folding Carrier after Folding Carrier became a division of Unarco. Although the action was for infringement of U.S. Letters Patents No. 3,052,319, “Cantilever Shopping Cart and Counter Assembly”, and No. 3,517,773, “Check-out System and Counter for Use with Cantilever Shopping Cart”, the trial court’s dismissal of the No. 3,517,773 claim has not been appealed.

A review of the file wrapper will facilitate consideration of this case.

The prosecution of ’319 started with Swanson’s first patent application on May 4, 1959. It stressed that “the most important object of the present invention [was] to provide a shopping cart that has a basket disposed in overhanging relationship to a primary mobile frame, to the end that the cart cooperates with a counter that is in turn provided with a lateral extension” so that the cart could pass directly over the checkout counter enabling merchandise to be removed directly from the cart onto the counter.

Claims 4, 5 and 6 described the cart as follows:

4. In a shopping cart, a polygonal basket; a polygonal frame; and a standard extending upwardly from the frame adjacent one corner of the latter, said frame being attached to one side of the basket adjacent one corner of the latter.
5. In a shopping cart, a basket; a mobile frame; and a standard extending upwardly from the frame and provided with a laterally-extending arm overlying the frame and supporting the basket there beneath.
6. In a shopping cart a polygonal basket; a polygonal frame; a standard extending upwardly from the frame adjacent one corner of the latter, said frame being attached to one side of the basket adjacent one corner of the latter; and an arm extending laterally from the standard from the frame in supporting relationship to the basket therebeneath.

On October 14, 1959, the patent office refused to grant a patent. Claims 1-6 were rejected as failing to distinguish over references Maslow, Goldman, and Genung. Claims 7-11 were rejected as being indefinite and also “as unpatentable over Genung in view of either Alpine or Lesser.”

On April 1, 1960, Swanson amended his original application by causing his claims to read as “a single standard extending upwardly from the frame.” Swanson stressed this clarification, noting that the construction of his invention required only a single standard to support the basket, and that the construction of each of the five reference patents required two standards.

On December 27, 1960, the patent office refused to grant a patent for a second time. Claims 1-6 were again rejected for failing to distinguish over Mas-low, Goldman, and Genung, because “a single standard at one corner or side of the portable frame does not exclude the presence of additional standards at other corners or sides.” Claims 1-3 and Claim 5 were rejected for failing to distinguish over Stottrup, and Claims 4 and 6 were rejected as unpatentable over Stottrup in view of Webber. Claims 7-11 were further rejected as unpatentable over Genung in view of Dubach.

On June 8, 1961, Swanson amended his application for a second time by can-celling his first eleven claims and submitting Claims 12-20. Claims 12-17 were rewritten from original Claim 4 and Claims 6-11, and Claims 18-20 were newly submitted so as to provide structure distinguishable from that set forth in Claims 12-17 and to distinguish from the prior art. Claims 12 and 13, as rewritten from original Claims 4 and 6, read as follows:

12. A shopping cart comprising a polygonal basket; a polygonal frame; and a standard extending upwardly from the frame adjacent one corner of the latter, said standard being attached to one side of the basket adjacent one corner of the latter, the remaining sides of said basket being free of and spaced from said frame and said standard. (Emphasis ours)
13. A shopping cart comprising a polygonal basket; a polygonal frame; a standard extending upwardly from the frame adjacent one corner of the latter, said standard being attached to one side of the basket adjacent one corner of the latter, the remaining sides of said basket being free of and spaced from said frame and said standard; and an arm extending laterally from the standard above the frame in supporting relationship to the basket therebeneath, said basket and said arm being substantially cantilevered from said standard. (Emphasis ours) Claims 12 and 13 became Claims 1 and 2 of ’319. Claim 18, which became Claim 7 of ’319 reads in part:
A shopping cart for use with a counter having an elongated, laterally projecting extension thereon, — an elongated standard secured to and extending upwardly from one of the sides of said frame; and a basket secured to and extending laterally from said standard in overlying spaced relationship to said frame and forming with the latter and said standard a recess having an open side and opposed open ends — .

On December 11, 1961 the patent office mailed its notice of allowance to Swanson. United States Letters Patent 3,052,319 (’319) was issued to him on September 4,1962.

Swanson tried personally for several years to market his cart. In early 1968 he entered into an exclusive license agreement with United whereby United would manufacture and distribute a cantilevered shopping cart. Shortly thereafter, Folding Carrier approached Swanson about his cart. Swanson related that United was the exclusive licensee.

On April 8, 1968, the then top three executives of Folding Carrier made a special, one-day trip to Kansas City, Missouri, to a grocery store in order to view the cantilevered carts being manufactured by United under its exclusive license agreement with Swanson. None of the men had ever seen a cantilevered shopping cart prior to that time. The executives examined the cart for several hours. They took measurements of and made sketches of the cart. Upon returning from their trip to Kansas City, the Folding Carrier executives gave top priority to the construction of a cantilevered cart. By so doing, Folding Carrier was able to have a cart available for demonstrational purposes at a trade show in May, 1968, less than two months after its top management had seen such a cart for the first time in Kansas City. Folding Carrier sold its first cantilevered carts in July of 1968, and it has continuously sold similar carts since.

Swanson and United filed their complaint on October 27, 1970 and a non-jury trial was held on February 1-4, 1972. During the course of the trial Swanson and Roblin called witnesses, including Carl Vaicek, President of United; John Rogers, Vice-President of Rogers Markets, Inc., Harold Vetter, past president of Folding Carrier, and George Foreman, Professor of Mechanical Engineering at the University of Kansas.

Carl Vaicek testified that although the cantilevered cart cost 40-50% more than the conventional shopping cart, that it has a number of advantages which offset the cost including; (1) the checker has complete control of the checkout; (2) the checker sees all of the food; (3) the food can be checked out quicker; (4) one store test showed that $300 of groceries could be checked out in 15 minutes from a cantilevered cart, whereas it took 50 minutes to check the same food from a conventional cart; (5) the cart serves a dual function as a carryout cart; (6) cart theft had been reduced; and (7) the carts required less maintenance. Vaicek also testified that during 1969-1971 United had sold over 80,000 carts totalling more than three and one-half million dollars in sales.

John Rogers testified that Rogers Markets, Inc. had cantilevered carts in four of its ten stores; that, in his opinion, the additional cost of the cantilevered cart was justified because of the time it saved in the checking out process; that a checkout system utilizing such carts takes up less floor space; that customers do not have to unload their carts; and that Rogers Markets, Inc. will buy more .carts, because it is convinced that it is the system to use.

Harold Vetter testified that on April 8, 1968 that he, Gene Von Stein and Norman Young went to Kansas City to look at the cantilevered shopping carts after Von Stein had remarked to him that people in the sales field had been pushing him for something new in the cart field and that “the only thing he could think of was this cart up there in Kansas City.”

George W. Foreman, a professor of mechanical engineering at the University of Kansas, testified as an expert for Swanson and Roblin. Foreman testified that the essence of ’319 was the overhanging basket in cantilevered fashion so that the basket could overlie a counter; that the essence of the patent was embodied in Claim 1; and that each of the elements of Claims 1-5 and Claim 7, and the relationships between the elements, was embodied within Folding Carrier’s carts. On cross-examination Foreman testified that the side plate found on Folding Carrier’s carts is securely attached to and is an extension of the tubular frame; that the tubular frame is attached to the side of the basket through the intermediary of the steel plate; that the claims in a broad concept describe the cantilever concept to leave an open recess or pocket; and that there are many details of construction of the attachment of means of fabrication and detail of design, but that the thrust of the claims is to provide a structure leaving the recess open.

Counsel for Unarco admitted in his opening statement that after United came out with its cart Unarco officials saw it and then decided to manufacture a competitive cart. Unarco’s witnesses included Norman Young, Vice President and Director of Manufacturing and Engineering for Folding Carrier Division; Gene Von Stein, Vice President, Director of Marketing and Sales for Folding Carrier Division; and Charles Pigott, a practicing patent attorney.

Young testified that the side plates merely serve to prevent the basket from going forward from rear impact in nesting and to restrain the basket so it will not flip completely over to the rear. He also testified that the third leg on Folding Carrier’s cart took the basic load of the basket and that the total stress factors are completely different between the United cart and the Folding Carrier cart.

Von Stein testified that before Folding Carrier began developing its cart that it consulted with counsel and was advised that its proposed cart did not constitute an infringement. He also stated that the last communication Folding Carrier received from United concerning infringement was on January 10, 1969. At that time United acknowledged receipt of correspondence from Folding Carrier’s attorney wherein he expressed his opinion that Folding Carrier’s carts did not infringe. United stated that in view of said position, it was referring the case for legal disposition.

Charles Pigott, a practicing patent attorney, appeared as a patent expert on behalf of Unarco. Pigott testified to the file wrapper of ’319. He opined that the second amendment (File Wrapper pp. 21-29) was the crucial amendment which resulted in the allowance of ’319 and that the basket in ’319 was supported by two means, i. e., (1) the arm extending laterally from the standard underneath the basket; and (2) the standard attaching to the side of the basket, either one of which could accomplish the same purpose. He testified that Claim 5 as originally filed was most significant because it claimed a means whereby the standard would support the basket by means of an underlying arm without regard to the standard extending upwardly and attaching to the side of the basket; that if Claim 5 had remained there would have been a clear case of infringement; that the original claims were amended the first time to make it crystal clear that the applicant was relying only upon one standard; that the broad concept advanced by Swanson was a cart with a basket that would go over the checkout counter with a frame that would go under said counter; and that after the applicant had driven home this broad concept to the patent examiner, the examiner found three more references and accordingly rejected all of the original claims as amended. Pigott also testified that within the applicant’s second amendment, he cancelled his original eleven claims and added nine new ones which were all allowed; that these nine claims became the claims of ’319; that the remarks of the applicant in his second application were not broad concept arguments but were detailed structural arguments distinguishing the prior art references; that he had no idea as to whether the claims, if limited to certain structures, would be valid, but that if the claims were construed broadly so as to be directed to a C-shaped idea, (which he would not do), they would not be valid; and that although Folding Carrier’s carts were covered by original Claim 5, they were outside of the claims of ’319.

On cross-examination, Pigott said that claims are not automatically limited to the precise structure disclosed; that the Frick reference found by 'Unarco, but overlooked by the patent examiner, was more relevant than the prior art, although it did have four “members that came up” and that all four corners of the Frick tray were supported; that in looking at the file wrapper one must look at it fairly, and that it must be viewed in its entirety; that the first amendments were for clarification; that when a claim has been cancelled it is not abandoned, and the new claim, so far as it is identical to the old claim is still being asserted; that the applicant had no real problem in avoiding the first five prior art references found by the patent examiner; that the biggest problem was for the applicant to distinguish the references cited later, i. e., Stottrup, Webber, and Dubach; that none of the last three references were exactly the same as ’319; and that none of them constituted a wire shopping basket.

In holding that ’319 had not been infringed, the trial court, held inter alia that: (1) Swanson obtained patent ’319 by amending his application to provide a “standard being attached to one side of the basket adjacent one corner of the latter, the remaining sides of said basket being free of and spaced from . said standard”; (2) ’319 covers a shopping cart in which the upright standard is attached to one side of the basket; <3) the one side connection of the upright standard to the basket was the sole feature used to distinguish the prior art; and (4) the Folding Carrier carts read on the rejected claims but not on the claims of '319.

Swanson and Roblin contend on appeal that the trial court erred in not applying the correct legal standards in its construction, interpretation, and application of the ’319 claims, and that it thereafter erred in finding and concluding that ’319 was not infringed. We agree with the appellants.

I.

We must affirm the findings of the trial court unless they are clearly erroneous. Maloney-Crawford Tank Corporation v. Sauder Tank Company, 465 F. 2d 1356 (10th Cir. 1972); Boutell v. Volk, 449 F.2d 673 (10th Cir. 1971).

In upholding the validity of ’319, the trial court found that it had met the separate tests of patentability, i. e., utility, novelty, and non-obviousness. Eimco Corporation v. Peterson Filters and Engineering Company, 406 F.2d 431 (10th Cir. 1968). However, ’319 was not only a valid patent, it was also a pioneer or primary patent, and as such, it must be given a broad and liberal construction which should not be limited to the precise device and instrumentality shown. Black, Sivalls & Bryson, Inc. v. National Tank Company, 445 F.2d 922 (10th Cir. 1971); McCullough Tool Company v. Well Surveys, Inc., 343 F.2d 381 (10th Cir. 1965).

The trial court held that Swanson obtained ’319 by amending his application to provide a “standard being attached to one side of the basket adjacent to one corner of the latter, the remaining sides of said basket being free of and spaced from . . . said standard.” The trial court erred in this determination.

The language “standard being attached to — latter,” was neither new nor amendatory. This language was presented in the first application in Claim 4 and it was used throughout the prosecution. While it is true that Swanson did add the language, “the remaining sides of said basket being free of and spaced from . . . said standard”, this language was added for purposes of clarification only.

The trial court also held that ’319 covers a cart in which the upright standard is attached to the side of the basket and that this side attachment was the sole feature used to distinguish the prior art. We hold that this finding, too, is clearly erroneous.

Although several of ’319 claims relate to a shopping cart in which the upright standard is attached to one side of the basket, ’319 is not limited to a cart with a basket attached at its side by an upright standard, because Claim 7 does not discuss any such attachment. Each claim within a patent grants the paten-tee an exclusive right. The fact that a particular claim (or claims) within a patent is invalid, without more, cannot invalidate the entire patent. Maloney-Crawford Tank Corporation v. Sauder Tank Company, supra. Whereas the side attachment was used to distinguish Swanson’s cart from some of the prior art, this was not the sole feature used to distinguish the prior art. The prior art was distinguished by reason of ’319’s utilization of a single standard. The prior art was additionally distinguished because it did not provide equivalent structure.

The Court also erred in holding that Folding Carrier’s carts read on the rejected claims but not on the claims of ’319. Original Claim 5 provided for a shopping cart with a “standard extending upwardly from the frame and provided with a laterally-extending arm' overlying the frame and supporting the basket therebeneath.” Claim 7 of ’319 also provides for “an elongated standard secured to and extending upwardly from one of the sides of said frame” with a “basket secured to and extending laterally from said standard in overlying spaced relationship.” Unarco’s own patent expert testified that all claims must be read fairly, and in their entirety; that a cancelled claim is not abandoned if it is still asserted in the new claim; and that original Claim 5 was the most significant, because had it remained, there would be a clear ease of infringement. Applying these standards to original Claim 5 and Claim 7 of '319, we hold that Folding Carrier’s carts infringe upon Claim 7.

II.

Unarco argued throughout the trial and to this court that the validity of ’319 was predicated on the fact that the side of its basket was attached to an upright standard. This argument is without merit. The record and file wrapper are quite clear in proof that the essence of ’319 is that it gave rise to a cantilevered shopping cart of unquestionable utility, and one which was both novel and not obvious. Although the file wrapper does indicate that the standard’s attachment to the side of the basket was noted in distinguishing the cart from some of the prior art, this aspect of the prosecution does not vitiate the efficacy of the patent, i e., cantilevered shopping cart, nor does it allow Unarco to copy United’s cart with impunity. A mere change in form does not avoid infringement. Maloney-Crawford Tank Corporation v. Sauder Tank Company, supra.

The law of infringement was enunciated in King-Seeley Thermos Co. v. Refrigerated Dispensers, Inc., 354 F.2d 533 (10th Cir. 1965), by Judge Pickett for this court, wherein he opined:

Infringement is not avoided by making a machine which differs in form but appropriates the principle and mode of operation of the patented machine by the use of the same or equivalent means. Jamco, Inc. v. Carlson, [10 Cir., 274 F.2d 338], supra; Jones v. Bodaness, 10 Cir., 189 F.2d 838; Stearns-Roger Mfg. Co. v. Ruth, 10 Cir., 62 F.2d 442; Johns-Manville Corp. v. National Tank Seal Co., 10 Cir., 49 F.2d 142. Infringement exists if the accused device performs substantially the same function in substantially the same way and accomplishes substantially the same result as the patented device, even though they differ in name, form and shape. Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 70 S.Ct. 854, 94 L.Ed. 1097, reh. denied 340 U. S. 845, 71 S.Ct. 12, 95 L.Ed. 620. If the accused machine falls clearly and definitely within the claim of a patent, infringement is made out. McCullough Tool Co. v. Well Surveys, Inc., supra. The protection of the provisions of a patent cannot be avoided by adding materials unless a wholly different result is obtained. “Colorable differences without substance do not avoid infringement.” Bewal, Inc. v. Minnesota Mining and Mfg. Co., [10 Cir.], supra 292 F.2d 159 at 167. Cf. Reiner v. I. Leon Co., 2 Cir., 285 F.2d 501, cert. denied 366 U.S. 929, 81 S.Ct. 1649, 6 L.Ed.2d 388, reh. denied 366 U.S. 978, 81 S.Ct. 1918, 6 L.Ed.2d 1268; 354 F.2d at 540.

Applying these standards, we hold that Folding Carrier’s carts were doing substantially the same thing in substantially the same way, and that they infringed upon ’319.

We reverse the trial court’s holding that ’319 was not infringed. We remand for further proceedings determinative of Swanson and Roblin’s prayer for damages and injunctive relief.

      . All of the prior art references noted by the examiner in refusing to allow the issuance of a patent had two standards.

      . We have emphasized some of the language which appeared for the first time in Swanson’s second amendment.


text:
    UNITED STATES of America, Plaintiff, v. COTTON PLANT SCHOOL DISTRICT NO. 1, et al., Defendants. Abraham Willie WOODARD, Appellant and Cross-Appellee, v. ENGLAND SCHOOL DISTRICT NO. 2, Appellee and Cross-Appellant.
    Nos. 72-1583, 72-1615.
    United States Court of Appeals, Eighth Circuit,
    Submitted April 10, 1973.
    Decided June 6, 1973.

      John M. Bilheimer, Little Rock, Ark., for Woodard.
    G. Ross Smith, Little Rock, Ark., for England School Dist.
    Before LAY and STEPHENSON, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       The Honorable Talbot Smith, Senior United States District Judge, Eastern District of Michigan, sitting by designation..

   LAY, Circuit Judge.

The district court entered judgment for the petitioner, Abraham Willie Woodard, in the sum of $1,055.10 representing the damages incurred by Woodard as a result of his- discriminatory discharge as a school administrator by the England School District No. 2. Woodard appealed on the ground that the court erred in denying him reinstatement or, alternatively, future damages; the school district cross-appealed on the basis that petitioner had failed to prove by clear and convincing evidence that he was discriminated against when his contract was terminated.

We find the evidence sustains the district court’s findings as to the discriminatory discharge; however, we hold that petitioner is entitled to additional equitable relief rather than just the award of one year’s damages.

From 1962 to 1970, Woodard had served as principal for the all black Gar-trell School. The district court found that during that time “[h]e not only performed the administrative responsibilities of the school, but did some teaching and each year evaluated the teachers under his supervision and made recommendations to the school superintendent and board as to their reemployment for the following year.” In 1969 and 1970, negotiations with, and a subsequent suit by, the Department of Health, Education and Welfare led to the disestablishment of the previously dual school system in the England School District. Although Woodard was given a contract for continued employment for the school year 1970-1971, it was decided under the new plan of integration that he would be placed in charge of a newly developed vocational school program at the former all black Gartrell School. Under his new position he had two black and two white teachers under his supervision; previously he had supervised twenty-seven black teachers and two part-time white teachers. On May 27, 1971, Woodard was advised that his contract would not be renewed. The school district defended its action on the basis that Woodard had failed to sufficiently account for some special funds used at the Gartrell School in prior years.

The district court appropriately followed the standard set forth by this circuit in Moore v. Board of Education of Chidester School District No. 59, Ark., 448 F.2d 709, 711 (8 Cir. 1971), where we said:

“A school district must show by ‘clear and convincing’ proof that the dismissal of black teachers was not unlawfully discriminatory if the district has a long history of segregation, if there is a decrease in the number of black teacher's, if the proportion of the black faculty to white faculty is significantly less than the proportion of black to white students, and if only black teachers are dismissed.”

The district judge balanced the school board’s claim of misapplied funds against the “acknowledged” facts that Woodard had been an active leader in the civil rights movement and had been instrumental in seeking integration of the school district on behalf of the black community. The court then concluded “that except for the required integration of the England School System and the timely activity of Mr. Woodard, the somewhat insignificant and untimely question as to the accounting problem would have never developed.” Moreover, the district court found that Woodard had not been given a proper hearing as required under Arkansas law. Ark.Stat. Ann. § 80-1246 (1971).

We find the evidence clearly supports the district court’s findings and, therefore, find against the school district as cross-appellant.

The appeal by the petitioner relates to the relief granted. The district court awarded damages for one year based on the difference of Woodard’s salary of $8,123.10 with the England School District and his salary of $7,900 with the Wabbaseka School District where he was able to obtain employment for the 1971-1972 school year. This amounted to $223.10. The court likewise found that plaintiff incurred travel expenses in the sum of $832.00 for the year. Thus the total judgment was entered for $1,055.10 plus attorney fees. The district court stated without discussion:

“Since he is employed with another school district, the Court does not conclude that it would be in the best interest to require the England School District to reinstate the petitioner in its system.”

On appeal it is urged that plaintiff is entitled to reinstatement or, alternatively, future damages for school years subsequent to the 1971-1972 year. We deem it significant that the district court found:

“It is established that at the time of the required integration of the England School System there were three principals, two white principals for the formerly all-white school and the formerly all-white elementary school and one black principal for the formerly all-black Gartrell School. It is further established that the petitioner, Woodard, had equal certificate record of a master’s degree with the other two principals and a much longer tenure as principal employed with the school district. With the integration of the schools one principal-ship was to be eliminated. Under the rule of this and other circuits in numerous decisions Petitioner Woodard could very well claim precedent over the two white principals where no objective discriminatory standards in the employment, assignment and dismissal of teachers had been established by the school district.”

The evidence amply supports this finding.

Where a teacher discharge results from integration of a previously existing dual school district,, there are oftentimes practical considerations arising where positions are merged and eliminated. In this instance, although Woodard was given a new position during the 1970-1971 school year, the school district argues that his position as vocational director has been eliminated and that there are no comparable positions available. The rule uniformly followed in this circuit, as established in Smith v. Board of Education of Morrilton School District No. 32, 365 F.2d 770 (8 Cir. 1966), is that a teacher who is wrongfully discharged is entitled to be restored, as equitably as possible, to the status quo, that is, to his or her position and equivalent salary status enjoyed prior to the discriminatory discharge. See Jackson v. Wheatley School District No. 28 of St. Francis County, Ark., 464 F.2d 411 (8 Cir. 1972); Cooley v. Board of Education of the Forrest City School Dist., 453 F.2d 282 (8 Cir. 1972); Moore v. Board of Education of the Chidester School Dist. No. 59, Ark., 448 F.2d 709 (8 Cir. 1971); Franklin v. County School Board of Giles County, 360 F.2d 325 (4 Cir. 1966); see generally Fisher v. Snyder, 476 F.2d 375 (8 Cir. 1973); Gieringer v. Center School No. 58, 477 F.2d 1164 (8 Cir. 1973). Thus, when vacancies occur a school employee who has been wrongfully terminated becomes entitled to the first opportunity to be reemployed, and the damages shall run until the effective date reemployment is offered. Where administrative or teaching positions are displaced because of school mergers or the revamping of curriculum or programs, we think it still encumbent on a school board to offer the first equivalent vacancy (administrative or otherwise) for which the discharged employee is qualified.

Judgment affirmed in part; the case is remanded for reconsideration of damages and other equitable relief in accord with this opinion.

      . In Smith, supra 365 F.2d at 784, the limits of relief and the procedure to be followed in implementing that relief are described in more detail:
      “[S]ince the dismissed teachers have been denied the comparative evaluation which was due them and nondiscriminatory consideration for vacancies filled since their dismissals, they, except for plaintiff Smith, are now entitled, if they so desire, to some preference in the filling of vacancies in the secondary school faculties which exist at the time of this decision or which arise in the future. Cf. Franklin v. County School Bd., [360 F.2d 325] supra. This is to be accomplished along the following lines: (1) The Board shall forthwith ascertain, with respect to each member of the former Sullivan faculty, other than Smith, whether that member remains interested in employment with the Morrilton district and, if so, the subjects which he is qualified to teach as measured by standards currently and legally applied by the Board. (2) A teacher who manifests such interest shall then be offered the first position for which he is so qualified in which a vacancy now exists or hereafter occurs. (3) This preference, however, shall extend only to the first such vacancy so offered to that teacher; irrespective of his acceptance or refusal of the first offered, he shall not be entitled to preference with respect to any subsequent vacancy.
      “The Court also will be confronted with the question of damages. Each of the former Sullivan teachers except Smith shall be entitled and shall be afforded the opportunity to establish, if lie can, that he was damaged by his dismissal and the amount of such damage. The period for which damage may be shown is the period between the com-jiletion of the teacher’s service at Sullivan and the filing date of this opinion, except that with respect to any teacher who, pursuant hereto, manifests a desire to obtain reemployment in the Morrilton schools, the period will also include the time between the date of this opinion and the effective date of reemployment offered him. Of course, the normal rules of mitigation shall apply to these damage determinations.”