text:
    UNITED STATES of America, v. Wilbert Will SMITH, Appellant.
    No. 72-1873.
    United States Court of Appeals, Third Circuit.
    Argued Dee. 14, 1972.
    Decided Feb. 7, 1973.
    Certiorari Denied May 7, 1973.
    See 93 S.Ct. 21G2.
    Michael P. Malakoff, Berger & Kape-tan, Pittsburgh, Pa., for appellant.
    Richard L. Thornburgh, U. S. Atty., David M. Curry, Asst. U. S. Atty., Pittsburgh, Pa., for appellee.
    Before SEITZ, Chief Judge, and AL-DISERT and MAX ROSENN, Circuit Judges.
   OPINION OF THE COURT

PER CURIAM:

Wilbert Will Smith was tried and convicted without a jury in the United States District Court for the Western District of Pennsylvania on a two count indictment for violation of the Selective Service Act. Smith was found to have violated 50 App.U.S.C. § 462 by (1) failing to report for an armed forces neuro-psyehiatric examination and (2) failing subsequently to report for induction. He was given a 30 day sentence on count one, and sentence was suspended on count two.

On appeal Smith challenges the sufficiency of the indictment, the propriety of various Selective Service local board procedures and the determination by the armed forces that Smith was fit for service.

Appellant claims that he was convicted on the first count for a different crime than that for which he was in-dieted, and that this discrepancy between indictment and proof was an amendment, fatal per se. Gaither v. United States, 134 U.S.App.D.C. 154, 413 F.2d 1061, 1071-1072 (1969); United States v. DeCavalcante, 440 F.2d 1264, 1270-1271 (3d Cir. 1971).

The first count of the indictment concerned Smith’s failure to appear for a neuro-psychiatric examination on March 16, 1971. Smith had been classified 1Y for psychiatric reasons until December 23, 1970, when his local board reclassified him on the basis of a December 8, 1970, armed services physical which found him fit. On February 1, 1971, Smith was ordered by his local board to report for an induction physical on February 18, 1971. Smith did report, but the examining physicians felt there was a need for another neuro-psychiatric examination. The armed services personnel set March 16, 1971, for the examination. They notified the local board of the date, and the local board executive secretary in turn notified Smith. Smith did not attend that examination.

The first count of the indictment read:

That on or about the 16th day of March, 1971 at Pittsburgh, in the County of Allegheny in the Western District of Pennsylvania, the defendant, WILBERT WILL SMITH, being, in pursuance of the Military Selective Service Act of 1967, a registrant with Local Board No. 16 at Pittsburgh, Pennsylvania, unlawfully, wilfully and knowingly did fail and neglect to perform a duty required of him by the said Act and the rules, regulations and directions issued pursuant thereto, in that the defendant, while being processed at the Armed Forces Examining and Induction Station in Pittsburgh, Pennsylvania for induction into the Armed Forces of the United States, did fail, neglect, and refuse to undergo a neuro-psychiatric examination under the direction and orders of representatives of the Armed Forces of the United States. In violation of Title 50, Appendix, United States Code, Section 462(a).

Appellant’s claim is that the indictment charged him with failing to follow an order from “the Armed Forces of the United States,” but that he was convicted for violation of an order from his local board. He claims that he was not under Armed Forces jurisdiction at his physical examination and thus not under a legal duty to follow Armed Forces personnel’s orders. Billings v. Truesdell, 321 U.S. 542, 64 S.Ct. 737, 88 L.Ed. 917 (1944). It was therefore necessary for the Government to show that he violated a local board order, appellant claims, to establish his guilt. Swift v. Director of Selective Service, 145 U.S.App.D.C. 224, 448 F.2d 1147 (1971).

The Supreme Court has stated that “ [c] onvietions are no longer reversed because of minor and technical deficiencies which did not prejudice the accused.” Smith v. United States, 360 U.S. 1, 9, 79 S.Ct. 991, 996, 3 L.Ed.2d 1041 (1959). Smith was amply and definitely informed of the charges against him so that he was enabled to present his defense and not be taken by surprise by the evidence offered at trial. The indictment sufficiently protects him against another prosecution for the same offense.

Appellant admits that he was not prejr udiced by the failure of the indictment to specify that he had been ordered by his local board to the examination. He therefore has no grounds for reversal of conviction if the proof at trial is deemed to be an indictment variance and not an indictment amendment. United States v. Dreer, 457 F.2d 31, 33-34 (3d Cir. 1972).

We discussed the difficulty of distinguishing indictment variances from indictment amendments in United States v. DeCavalcante, 440 F.2d 1264, 1271-1272 (3d Cir. 1971), noting that:

The policy expressed by the Court in Russell “is effectuated by preventing the prosecution from modifying the theory and evidence upon which the indictment is based.” United States v. Silverman, 430 F.2d 106, 110 (2d Cir. 1970).

And further, that:

Our inquiry, however, is limited to “whether on its face [the indictment] presents evidence which assures us that such essential elements were presented to the [grand] jury and deliberated upon by them in returning the indictment.” United States v. Silver-man, supra at 111.

In the present case, the prosecution did show at trial that Armed Forces personnel determined at the February 18 induction physical that Smith should return for further neuro-psychiatric examination on March 16. The only question is whether the failure to specifically allege in the indictment that Smith had also been ordered to that March 16 examination by his local board made entry of the local board notification of Smith into evidence a constructive amendment of the indictment.

The absence in the indictment of a specific reference to the local board order does not render it fatally defective. The indictment alleges that Smith failed “to perform a duty required of him” by the Selective Service Act. When violation of such a duty is alleged, it is not necessary that the indictment explicitly state that a local board order was made. United States v. Johnston, 227 F.2d 745, 747 (3d Cir. 1955), aff’d, 351 U.S. 215, 76 S.Ct. 739, 100 L.Ed. 1097 (1956); cf. United States v. Wernecke, 138 F.2d 561, 563-564 (7th Cir. 1943), cert. denied, 321 U.S. 771, 64 S.Ct. 529, 88 L.Ed. 1066 (1944).

Smith did violate a duty under the Act. Under 50 App.U.S.C. § 462, registrants are given “the duty of carrying out any of the provisions of this title.” One of the provisions of the title, 50 App.U.S.C. § 454, provides that registrants shall not be inducted until their physical and mental fitness has been determined. And, under Armed Services Regulations, AR 601-270, ft 3-31 (b), SSLR 2249, a registrant whose acceptability is undetermined may be requested to submit for further mental evaluation, as instructed by the local board after request to do so from armed forces representatives. Smith failed to perform this duty. In stating that Smith failed to perform such a duty by not reporting to the examination, the indictment alleged the essential element of the crime. The indictment need not detail the exact statutory and regulatory provisions necessary to create the duty, as long as the included details are sufficient to give fair notice of what is alleged.

Although the indictment speaks of Smith’s failure “to undergo a neuro-psy-chiatric examination under the direction and orders of representatives of the Armed Forces of the United States,” this phrase does not necessarily indicate that the duty Smith failed to obey was one created by Armed Forces orders, as appellant argues. In the context of the complete indictment, this phrase merely indicates that the examination Smith was ordered to attend would be conducted by the Armed Forces representatives. Even if the phrase is construed to imply that the order to report came from Armed Forces representatives, this language merely makes more exact the details of the offense. It was at the request of Armed Forces representatives that Smith’s local board ordered him to the March 16 examination. The language was therefore surplusage, not necessary to the indictment.

The evidence in the present case was therefore within the limits charged in the indictment. This was not a case where the indictment specified one type of offense (interference with interstate importation of sand) and the evidence was of a separate and different offense (interference with interstate importation of steel), as in Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). Rather, it is a case such as United States v. Silverman, 430 F.2d 106 (2d Cir. 1970), where a variance, not an amendment, was found when the indictment for embezzlement of union funds failed to allege that the “labor organization” was involved in interstate commerce, as is required by the statute under which the defendant was convicted. The court read the term “labor organization” in the indictment to allege and require proof of the essential element of interstate commerce. In the present case, the statutory term “perform a duty required of him by the said Act” should be read similarly.

We have examined appellant’s other contentions and find them without merit. The judgment of the district court will be affirmed.


source: Caselaw Access Project

author: EUGENE A. WRIGHT, Circuit Judge:

license: Public Domain

text:
    YAMASHITA-SHINNIHON KISEN, K.K. TOKYO, Plaintiff-Appellee, v. W. J. JONES & SON, INC., Defendant-Appellant.
    No. 71-2347.
    United States Court of Appeals, Ninth Circuit.
    Feb. 16, 1973.

      Jerard S. Weigler (argued), Robert E. Babcock, of Lindsay, Nahstoll, Hart, Duncan, DaFoe & Krause, Portland, Ore., for defendant-appellant.
    Paul N. Wonacott (argued), of Wood, Wood, Tatum, Mosser & Brooke, Portland, Ore., for plaintiff-appellee.
    Before WRIGHT and CHOY, Circuit Judges, and LINDBERG, District Judge.

       Of the Western District of Washington.

   EUGENE A. WRIGHT, Circuit Judge:

Atterbury, a longshoreman employed by W. J. Jones & Son, Inc., was injured in the course of stevedoring operations abroad a vessel owned by Yamashita-Shinnihon Kisen, K.K. His civil action charged Yamashita with negligence and with unseaworthiness of the vessel. Ya-mashita sued Jones in a separate indemnity suit, alleging Jones’ negligence and breach of its Ryan warranty of workmanlike performance (WWLP).

Jones counterclaimed against Yama-shita, by way of set off or recoupment, for that part of any indemnity judgment in favor of Yamashita, proximately resulting from Yamashita’s breach of its obligations to Jones. Jones alleged that Yamashita breached (1) its Marine Terminals obligation; (2) an implied contractual obligation; and (3) an express contractual obligation.

Yamashita settled with Atterbury for $25,000, and the trial upon which this appeal is based ensued. We must describe in some detail the circumstances surrounding Atterbury’s injury.

He was injured in the course of helping to lower a boom aboard ship. Attached to the boom was a topping lift wire which ran through a hangar winch. Attached to the end of the topping lift wire was a smaller, pigtail wire, designed to be attached to the warping end of a cargo winch which, in turn, supplied the power to lower and raise the boom.

Both winches were placed on a small platform about 12 feet above the main aft deck. The hangar winch was flush against a derrick post from which the boom was suspended and the cargo winch was at least several feet away. A winch platform guardrail was approximately 28 inches beyond the cargo winch.

The pigtail wire could be utilized in different ways in the lowering of the boom, depending on whether it had a hook on its end. The hook could be inserted in the warping end of the cargo winch and the slack taken from the pigtail line by engaging the cargo winch. A longshoreman standing between .the two winches would feed the pigtail line into the cargo winch until the slack was taken up.

Without a hook on the end of the pigtail line, a common longshoring practice was to wrap the middle of the line around the cargo winch, requiring a longshoreman to stand in the 28-ineh space to feed the pigtail wire onto the cargo winch during the lowering operation.

Atterbury was using the latter technique but without an assistant tending the pigtail line behind him to take any kinks out of it. He was injured when one hand was caught in the cargo winch as he fed the pigtail line onto the warping end.

The trial judge instructed the jury that either of two findings would require a verdict for Yamashita, unless the jury found conduct on the part of Yamashita which prevented, interfered with, or seriously handicapped Jones from doing a workmanlike job. Those two findings were either (1) that the pigtail line that Atterbury was using was equipped with a hook, and that the failure to use the hook constituted an unsafe stevedore practice which caused Yamashita to be liable for Atterbury’s injuries; or (2) that the failure to provide a fellow longshoreman to tend the line for Atterbury constituted an unsafe stevedore practice causing Yamashita to be liable for Atterbury’s injuries.

Jones requested an instruction on its counterclaim. The trial judge denied it on the ground that the essence of the counterclaim had been presented to the jury in the form, of the affirmative defense. Jones asked for a jury instruction, also refused, that an apportionment of the damages was possible. The jury returned a verdict in favor of Yamashi-ta for the full amount of the Atterbury settlement.

This case represents the latest twist in the Sieracki-Halcyon-Ryan-Italia-Mcir-rine Terminals dispute between stevedores and shipowners as to who should bear the economic burden of an injury to a stevedoring longshoreman. Briefly, the background:

Under the Longshoremen’s and Harbor Workers’ Compensation Act, the employer is held strictly liable to the injured longshoreman and, in exchange, benefits by a damages ceiling. However, either the employee or the as-signee-employer may hold liable negligent third parties. In Sieracki, a longshoreman employee of a stevedore injured while loading a ship sued the shipowner, claiming unseaworthiness. The Court held that the shipowner’s warranty of seaworthiness extends to such a stevedoring longshoreman. The shipowner, however, did not have the benefit of limited liability, as did the stevedore-employer under the statutory scheme.

Then in Halcyon the Court held that the shipowner could not seek contribution from the stevedore for liability that the shipowner might incur as a result of the ship’s unseaworthiness. As a result the full brunt of the economic consequences of the longshoreman’s injury remained with the shipowner.

But in Ryan, Halcyon was held to be no bar to the shipowner recovering full indemnity from the stevedore, should the latter breach its implied contractual warranty to perform its work in workmanlike fashion. The Court distinguished Halcyon by noting that Ryan did not involve a claim for contribution from a joint tortfeasor, as did Halcyon.

Subsequent cases expanded the scope of the stevedore’s implied contractual warranty to supply workmanlike service, and as a result the economic impact of the longshoreman’s injury shifted to the stevedore-employer. In fact, if the stevedore renders a substandard performance, the shipowner is entitled to indemnity “absent conduct on its part sufficient to preclude recovery.” Weyerhaeuser S.S. Co. v. Nacirema Operating Co., 355 U.S. 563, 567, 78 S.Ct. 438, 441, 2 L.Ed.2d 491 (1958) (dictum). Few courts have found shipowner conduct sufficient to preclude recovery.

It has generally been established that the determination of whether the stevedore-employer should be required to indemnify the shipowner involves a weighing process evaluating the conduct of both parties to determine: (1) whether the Ryan WWLP was breached; (2) whether that breach proximately caused the injury; and (3) whether the shipowner’s conduct prevented the workmanlike performance. Garner v. Cities Service Tankers Corp., 456 F.2d 476 (5th Cir. 1972). The shipowner has generally recovered either full indemnity or none at all, Halcyon being read as barring apportionment of the damages.

Were this case before us in the context of the sufficiency of the evidence to support the jury’s verdict granting Ya-mashita full indemnity, the issue would not be difficult. But Jones does not appeal the jury’s verdict granting Yama-shita full indemnity. Properly so, for it is clear that under the present state of the law we would have to affirm the jury’s determination.

Jones has claimed that Yamashita was negligent and breached its implied warranty obligations in that there was excessive grease on the topping lift wire; the topping lift wire had loose strands and splinters; the winch platform was too small to allow Atterbury to work in safety and the winch was not guarded, or was inadequately guarded. Additionally, Jones claims that Yamashita breached its express contractual promise to furnish and maintain “suitable booms, winches, blocks, and falls.”

The cases clearly state that a shipowner is entitled to indemnity from a stevedore in breach of its Ryan warranty, absent conduct on the shipowner’s part sufficient to preclude recovery. Even a breach of the stevedoring contract by the shipowner has been held insufficient to preclude recovery, where the stevedore knew of the breach and continued using defective equipment supplied by the shipowner. Matson Terminals, Inc. v. Caldwell, 354 F.2d 681 (9th Cir. 1965) (defective winches).

Jones’ claim simply stated, is that Ya-mashita furnished defective equipment for Jones to use. While, if true, that might establish a breach by Yamashita of its obligation to Jones, whether under contract or otherwise, here the evidence is sufficient to support a jury determination that Jones waived that breach when it continued to use the defective equipment knowing of the defect. Therefore, were this before us as an appeal from a jury verdict granting full indemnity, we would affirm.

Jones, however, is appealing from the trial court’s refusal to let its counterclaim go to the jury. While some have suggested that perhaps the rule should be otherwise, it is clear that prior to 1969 no court of appeals had allowed a stevedore to submit a counterclaim to the jury in situations such as this. Then in 1969 the Supreme Court decided Federal Marine Terminals v. Burnside Shipping Co., supra.

In Federal Marine Terminals, an employee of a stevedore was killed and his widow recovered an annuity potentially worth $70,000 from the stevedore under the Longshoremen’s and Harbor Workers’ Compensation Act. The widow sued the shipowner for wrongful death under an Illinois statute which limited the amount recoverable to $30,000. The shipowner then sued the stevedore for indemnification, alleging a breach of the Ryan WWLP. Stevedore counterclaimed against the shipowner for $70,000, the entire amount of the stevedore’s liability under the Act. The district court granted shipowner’s motion to dismiss the counterclaim, and an appeal ensued, before any determination was made on the merits of the shipowner’s Ryan claim.

The Supreme Court set aside the action of the district court, holding that the counterclaim was proper. The Court held that federal maritime law does impose on the shipowner a duty to the stevedoring contractor to exercise due care under the circumstances, and does recognize a direct action in tort against the shipowner to recover the amount of compensation payments occasioned by the latter’s negligence.

The Court also refused to preclude the possibility of a direct action by the stevedoring contractor based on express or implied contractual warranties. The Court further noted that at the stage of the case as presented they must assume that the stevedore was faultless vis-a-vis the shipowner, since the claim that stevedore breached its Ryan WWLP had not yet been adjudicated and was not before the Court. The Court added the further caveat that it decided nothing with respect to the interaction between the shipowner’s breach of warranty claim and the stevedoring contractor’s tort claim. A fortiori, the Court decided nothing with respect to the interaction of the shipowner’s Ryan claim and the stevedore’s express or implied contractual warranty claim.

That interaction is before us today. Jones asserts that the logical outcome of these interacting claims must be that each party is to bear such portion of the loss as is attributable to its respective breach of duty.

We disagree. We do not believe that in granting stevedore a right of action on a counterclaim the Court intended to depart from the long line of eases which have held that the shipowner, absent conduct on its part sufficient to preclude recovery, is entitled to full indemnity from the stevedore when the stevedore breaches its Ryan warranty.

The Supreme Court has recognized that the objective of the doctrine of unseaworthiness and the corollary doctrine of indemnification is “to minimize the hazards encountered by seamen, to compensate seamen for the accidents that inevitably occur, and to minimize the likelihood of such accidents.” The Court has further acknowledged that the function of these special rules is allocation of the losses caused by shipboard injuries to the enterprise

“best situated to adopt preventive measures and thereby to reduce the likelihood of injury. Where, as here, injury-producing and defective equipment is under the supervision and control of the stevedore, the shipowner is powerless to minimize the risk; the stevedore is not.”

We feel that these objectives are furthered by our holding today placing the burden ultimately on the company whose default caused the injury. The jury found that a proximate cause of the accident was an unsafe stevedoring practice employed by Jones. Jones alleges that defective equipment was also a cause. But the allegedly defective nature of the equipment would have been ascertainable upon even the most cursory of inspections. Jones, using the equipment daily, was in the best position to discover any defect and to have it remedied. Under these circumstances, we see no reason, even assuming that Halcyon is no bar, to formulate judicial rules of apportionment. We hold that Jones’ counterclaim to Yamashita’s indemnity suit did not entitle Jones to an apportionment of damages.

We find nothing in Marine Terminals to indicate otherwise. The Court there expressly noted that the stevedore was not seeking contribution “[rjather the counterclaim seeks recovery of the full amount of [stevedore’s] liability under the Act to [the employee’s] representative.” Under the guise of a counterclaim, Jones now seeks an apportionment of the damages. We find no support for such an apportionment under the facts of this case.

Jones contends that having created “The Devil’s Own Mess,” federal courts can no longer “abstain from further adventures in this wonderland.” In Halcyon, the Supreme Court concluded that the problem was best suited for Congressional solution;

“We have concluded that it would be unwise to attempt to fashion new judicial rules of contribution and that the solution of this problem should await congressional action.
Many groups of persons with varying interests are vitally concerned with the proper functioning and administration of [Acts dealing with maritime personal injuries]. We think that legislative consideration and action can best bring about a fair accommodation of the diverse but related interests of these groups. The legislative process is peculiarly adapted to determine which of the many possible solutions to this problem would be most beneficial in the long run.” Halcyon at 285-286 of 342 U.S., at 280 of 72 S.Ct.

These considerations seem equally applicable today, especially in light of Congress’ recent attempt to “bring about a fair accommodation of the diverse but related interests of these groups.” We hold that the trial judge did not err in refusing to instruct the jury that an apportionment of damages was proper.

The trial court’s disposition of Jones’ counterclaim remains to be dealt with. The trial court concluded that the • essence of Jones’ counterclaim was presented to the jury as an affirmative defense. We agree. Jones had the burden of proof on its defense, just as it would have had on its counterclaim, had it been submitted to the jury. The jury’s finding that Yamashita was not guilty of “conduct sufficient to preclude recovery” necessarily implies a finding that Jones would not have been entitled to recover on its counterclaim. Under these unique circumstances, Jones was not prejudiced by the trial court’s refusal to submit its counterclaim to the jury.

Yamashita raises a further issue, the sufficiency of the evidence to enable Jones’ counterclaim to go to the jury. The trial judge did not address himself to this question in disposing of the counterclaim, and our treatment of the matter precludes the necessity of considering the issue on appeal.

The decision of the trial court is affirmed.

      . The negligence count was dropped prior to submission of the case to the jury.

      . Ryan v. Pan-Atlantic Corp., 350 U.S. 124, 76 S.Ct. 232, 99 L.Ed. 641 (1956).

      . Federal Marine Terminals v. Burnside Shipping Co., 394 U.S. 404, 89 S.Ct. 1144, 22 L.Ed.2d 371 (1969).

      . Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946); Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318 (1952); Ryan v. Pan-Atlantic, supra; Italia Societa v. Oregon Stevedoring Co., 376 U.S. 315, 84 S.Ct. 748, 11 L.Ed.2d 732 (1964); Federal Marine Terminals v. Burnside Shipping Co., supra.

      . 44 Stat. 1424 et seg., as amended, 33 U.S.C. § 901 et seg.

      . The concept of seaworthiness, which originally pertained only to the condition of the ship and its equipment, has been expanded almost without limit. See Italia Societa v. Oregon Stevedoring Co., supra; Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413 (1959); Simpson Timber Co. v. Parks, 369 F.2d 324 (9th Cir. 1966), remanded mem., 389 U.S. 909, 88 S.Ct. 210, 19 L.Ed.2d 227 (1967), aff’d in part, 390 F.2d 353 (9th Cir. 1968); D/S Ove Skou v. Herbert, 365 F.2d 341 (5th Cir. 1966).

      . The Longshoremen’s and Harbor Workers’ Compensation Act Amendments of 1972 (Act of October 27, Pub.L. No. 92-576, 86 Stat. 1251) abolish any liability of the vessel under the warranty of unseaworthiness. These amendments, however, were not in effect at the time of the injury to Atterbury.

      . See, e. g., Italia Societa v. Oregon Steve-doring Co., supra (Breach of the Ryan warranty found even when the stevedore was not negligent.)

      . Even negligent shipowners have been granted indemnity. See, e. g., Waterman S.S. Corp. v. Dugan & McNamara, Inc., 364 U.S. 421, 81 S.Ct. 200, 5 L.Ed.2d 169 (1960); Crumady v. The Joachim Hendrik Pisser, supra; Frasca v. S/S Safina E. Ismail, 413 F.2d 259 (4th Cir. 1969); Pettus v. Grace Line Inc., 305 F.2d 151 (2d Cir. 1962); Drago v. A/S Inger, 305 F.2d 139 (2d Cir.), cert. denied 371 U.S. 925, 83 S.Ct. 292, 9 L.Ed.2d 232 (1962).

      . But see In Re Seaboard Shipping Corp., 449 F.2d 132 (2d Cir. 1971), cert. denied 406 U.S. 949, 92 S.Ct. 2039, 32 L.Ed.2d 337 (1972); Watz v. Zapata Off-Shore Co., 431 F.2d 100 (5th Cir. 1970); Horton & Horton, Inc. v. T/S J. E. Dyer, 428 F.2d 1131 (5th Cir. 1970), cert. denied sub nom. Horton & Horton, Inc. v. Vaughan Marine, Inc., 400 U.S. 993, 91 S.Ct. 46, 27 L.Ed.2d 441 (1971) (limiting Haley on to cases where the joint tortfeasor against whom contribution is sought is immune from tort liability by statute) ; contra, In re Standard Oil Co. of California, 325 F.Supp. 388 (N.D.Cal.1971). See generally Allbritton, “Division of Damages in Admiralty — A Rising Tide of Confusion,” 2 Journal of Maritime Law and Commerce 323 (1971).

      . D/S Ove Skou v. Herbert, n. 18, p. 351 of 365 F.2d; Clark, J., dissenting in Pet-tus v. Grace Line Inc., 155 of 305 F.2d (2d Cir. 1962).

      . See Proudfoot, “The Tar Baby”: Maritime Personal-Injury Indemnity Actions, 20 Stan.L.Rev. 423, 422-445; McLaughlin v. Trelleborgs Angfartygs A/B, 408 F.2d 1334 (2d Cir.), cert. denied sub nom. Golten Marine Co. v. Trelleborgs Angfartygs A/B, 395 U.S. 946, 89 S.Ct. 2020, 23 L.Ed.2d 464 (1969).

      . Italia Soc. v. Ore. Stevedoring Co., 324 of 376 U.S., 754 of 84 S.Ct.

      . Id. at 324, 84 S.Ct. at 754; Stranahan v. A/S Atlantica & Tinfos Papirfabrik, 471 F.2d 369 (9th Cir. 1972).

      . Italia Soc. v. Ore. Stevedoring Co., 324 of 376 U.S., 84 S.Ct. 748; Reed v. The Yaka, 373 U.S. 410, 414, 83 S.Ct. 1349, 10 L.Ed.2d 448 (1963).

      . Cf. Atlantic Coast Line Railroad Co. v. Erie Lackawanna Railroad Co., 406 U.S. 340, 92 S.Ct. 1550, 32 L.Ed.2d 110 (1972). (Halcyon reaffirmed.)

      . Federal Marine Terminals v. Burnside Shipping Co., 418 of 394 U.S., 1152 of 89 S.Ct.

      . Currie, Federalism and the Admiralty, “The Devil’s Own Mess,” The Supreme Court Rev. 158, 212-213 and 220-221 (1960).

      . Judge Friendly in McLaughlin v. Trelle-borgs Angfartygs A/B, 1338 of 408 F.2d.

      . See n. 7 supra.


author: EAST, District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Raymond Orson WRIGHT, Defendant-Appellant.
    No. 72-1214.
    United States Court of Appeals, Ninth Circuit.
    Feb. 14, 1973.
    Rehearing Denied March 30, 1973.

      Raymond Orson Wright, in pro. per.
    David Fox, Asst. U. S. Atty. (argued), Leslie J. Osborne, Jr., Eric A. Nobles, Asst. U. S. Attys., William D. Keller, U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.
    Before WRIGHT and WALLACE, Circuit Judges, and EAST, District Judge.

       Honorable William G. East, Senior United States District Judge for the District of Oregon, sitting by designation.

   EAST, District Judge:

On May 27, 1970, the appellant, Raymond Orson Wright (Wright), was indicted for failure to report to the local Los Angeles board per order for civilian employment, in violation of 50 U.S.C.App. Sec. 462.

Prior to trial, Wright filed a motion to proceed in propria persona and his then second retained counsel asked to be relieved as counsel. The trial Court granted the motion, in part, but ordered counsel to continue as advisor and to assist Wright.

At trial the government’s only evidence was Wright’s Selective Service File (SSF) with the board. Wright participated in the trial, testified on his own behalf and made argument to the Court and jury, with assistance from counsel.

Wright moved for an acquittal, urging that various procedural errors by the local and appeal boards constituted a denial of due process and further prejudiced him in his administrative appeal. The Court denied the motion, but permitted Wright to present to the jury his position as an issue of fact: whether his failure to appear per order for civilian employment was knowingly and wilfully as charged, or whether he was so confused by duplicate and countermanding notices and orders as to be excused.

The jury found Wright guilty as charged. He was sentenced to five years’ probation and a fine of $2,000 and on November 19, 1971 he filed this appeal and appears in propria persona. He is and has been at liberty.

Wright raises some ten contentions of error, all of which are without merit, and only three warrant comment. We affirm.

1. Was the Local Board’s action, the including of minutes of the defendant’s personal appearance in his SSF without notifying the defendant of the existence of those minutes, a denial of due process?

Wright had requested change of his I-A classification to that of 1-0 (conscientious objector). On December 6, 1966 the Board met with Wright personally in connection with his request and the Clerk filed a document or memo of the purpose and the result of that meeting. The memo is no less nor more than a clear recital of reasons the Board granted Wright’s requested 1-0 classification. The memo was required had the Board refused the 1-0 classification. United States v. Andersen, 447 F.2d 1063 (9th Cir. 1971). The memo contained no adverse recitals and though not required, was in nowise prejudicial to Wright’s appeal.

2. Did the appeal board’s action in classifying the defendant 1-0 without stating reasons for that classification bar effective judicial review of such a classification ?

Wright appealed from that portion of his requested 1-0 classification which provided for compulsory civilian employment.

The requirement that Selective Service registrants perform work of national importance in lieu of service is constitutional. O’Connor v. United States, 415 F.2d 1110 (9th Cir. 1969), cert. denied, 397 U.S. 968, 90 S.Ct. 1002, 25 L.Ed.2d 263 (1970); United States v. Perrin, 431 F.2d 875 (9th Cir. 1970).

He raised no issue, he presented no information that indicated he was entitled to any other classification save I-O. All he did was to ask the appeal board to entertain an action beyond its authority and to engage in an illegal act (releasing him from a civilian service obligation). Under these circumstances the appeal board acted properly in affirming the classification awarded by the local board without comment. In circumstances like these, this Court has held that no express reasons need be stated. United States v. Kember, 437 F.2d 534 (9th Cir. 1970).

3. Was the defendant denied due process of law when the State Director failed to transfer the defendant’s work assignment hearing to an out-of-state board?

While the Selective Service Regulations do provide for transfers to a more convenient board prior to an undertaking of the classification and during the classification procedure, there is no such provision with reference to hearings to determine the nature of civilian work to be performed by the registrant. See 32 C.F.R. Section 1660.20.

We add, generally, that there was a four months’ delay on the part of the board in forwarding Wright’s SSF to the appeal board. There were numerous errors, omissions and insufficiencies in the file for an appeal. There was no advice as to the right of legal counsel. None of these factors prejudiced Wright as the appeal board affirmed his requested 1-0 classification in accordance with the existing regulations and law. United States v. Nelson, 467 F.2d 1364 (9th Cir. 1972).

A reader gleans from the record that Wright was at no time unadvised as to his rights and was motivated throughout with a determination not to serve the alternative civilian duty, whether or no. He is intelligent and well-educated. He was well aware of the contents of his SSF and of applicable regulations. He was represented by four able counsel who served him well, but not to his satisfaction. Wright did show an after-indictment willingness to serve, but no civilian duty was then available. The jury found the essential wilful intent element of the charge and we would agree with them.

Affirmed.

      . Cf. United States v. Droge, 464 F.2d 439 (9th Cir. 1972), in which a highly prejudicial summary of statements and actions at an appearance before a local board was prepared by a secretary and placed in the registrant’s file. The registrant received no copy and had no opportunity to respond to the prejudicial material.


author: PER CURIAM:

text:
    Leon Bennie ELLIOTT, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellee.
    No. 72-3062
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 12, 1973
    Rehearing Denied March 13,1973.
    Certiorari Denied May 14, 1973.
    See 93 S.Ct. 2284.
    Fred M. Lange, Houston, Tex. (Court appointed), for petitioner-appellant.
    Crawford Martin, Atty. Gen., Guy C. Fisher, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
    Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

This appeal is from the denial of ha-beas corpus relief. Appellant is presently serving a 40-year Texas state sentence for assault with intent to rape, following a jury verdict of guilty. He contends that his confession, introduced at the trial, was involuntary; that a one-man lineup in the absence of counsel was violative of due process; and that the use of perjured testimony by the prosecution and its failure to correct it deprived him of a fair trial. The Federal District Court found no merit to these contentions. We affirm.

A proper determination of the voluntariness of appellant’s confession was made by the State Trial Court which comported with the requirements of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). In the evidentiary hearing at which appellant testified, the Federal District Judge also had before him the complete transcript of the hearing on the issue of voluntariness as well as the transcript of the State trial proceedings. He held that the confession was voluntary. This finding was corroborated by the Federal District Judge’s personal appraisal of appellant’s lack of credibility because of several conflicts in his testimony. We agree with the District Judge’s finding.

The offense for which appellant was convicted occurred on February 28, 1967. Independent identification of appellant, by the complaining witness and by another woman whom appellant had accosted and threatened at gunpoint, was made a few hours after the separate incidents had occurred. The proper standard applicable at that time (prior to United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)), for determining whether the method employed to identify a suspect violated due process was a consideration of the totality of the circumstances surrounding the confrontation. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). See also the recent Supreme Court decision, Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Applying the totality of circumstances test, we agree that there was no deprivation of due process.

In the absence of a showing that the prosecution knowingly and intentionally used material, perjured testimony to obtain a conviction, appellant is entitled to no post-conviction relief even where testimony is perjured. Jackson v. United States, 5 Cir., 1967, 384 F.2d 375-376. A fortiori, there can be no such relief where there is no perjury. The District Court found none; nor do we.

Affirmed.


text:
    UNITED STATES of America, Plaintiff and Appellee, v. Oralia DELACERDA, Defendant and Appellant.
    No. 72-3113.
    United States Court of Appeals. Ninth Circuit.
    Feb. 13, 1973.
    Kenneth L. Collins, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant.
    William D. Keller, U. S. Atty., Terry W. Bird, Eric A. Nobles, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

      Before CHAMBERS, KOELSCH and KILKENNY, Circuit Judges.
   PER CURIAM:

The judgment of conviction in this case for attempting to board an aircraft of Pacific Southwest Airlines with a concealed weapon is affirmed.

Defendant contends the Pacific Southwest Airlines (PSA) was not engaged in “air transportation.” See 49 U.S.C. § 1301(10).

Inasmuch as PSA, although not certificated by the Civil Aeronautics Board, was properly engaged in the transportation of United States mails on some routes, we hold that 49 U.S.C. § 1472(1) was violated by Delacerda.


author: AINSWORTH, Circuit Judge:

text:
    Sidney ROSEN, Plaintiff-Appellee, v. James F. KAHLENBERG, d/b/a Kahlenberg-Globe Equipment Company, Defendant-Appellant.
    No. 71-3529.
    United States Court of Appeals, Fifth Circuit.
    Feb. 20, 1973.

      Stefan M. Stein, Tampa, Fla., for defendant-appellant.
    John C. Malloy, Miami, Fla., for plaintiff-appellee.
    Before COLEMAN, AINSWORTH and DYER, Circuit Judges.
   AINSWORTH, Circuit Judge:

This is an appeal from a judgment in favor of Sidney Rosen against James F. Kahlenberg awarding damages for infringement of a patent covering a “Precision Pump.” We reverse.

Prior to obtaining the patent in suit, Rosen invented a “Filling Machine” for high-speed filling of vials, ampoules, and small containers, for which United States Patent No. 2,807,213 was issued on September 24, 1957. To achieve more precise control in filling the containers, Rosen made certain improvements and sought another patent. In this connection a series of claims by Ro-sen was rejected by the Patent Office for lack of new invention. Finally, his eleventh claim was approved by the Patent Office, and United States Patent No. 2,907,614 issued on October 6, 1957. Kahlenberg, a competitor in the field of volumetric filling machines, manufactured pumps similar to the ones patented by Rosen.

On December 7, 1966, Rosen filed this suit against Kahlenberg, alleging infringement of Patent No. 2,907,614. The District Judge, after an extensive hearing, issued findings of fact and conclusions of law on December 18, 1970, D.C., 337 F.Supp. 1075, upholding the validity of the Rosen patent and finding infringement by the Kahlenberg pump. Further hearings on damages led to final judgment for $16,997 against Kah-lenberg.

Our decision is based on two principal considerations. First, we hold that the accused Kahlenberg pump does not fall literally within the terms of the claim of the Rosen patent. Second, Rosen cannot prevail under the doctrine of equivalents, because an examination of the prior art as well as the file wrapper in the Rosen patent file convinces us that the doctrine is inapplicable.

I.

Article I, section 8, clause 8 of the Constitution authorizes Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to . Inventors the exclusive Right to their . . . Discoveries.” Under this authority Congress requires the applicant for a patent like the one in the present case to include a claim pointing out the subject matter of the invention, specifications explaining the process of making and using it, and drawings illustrating the invention. 35 U.S.C. §§ 111-113 (1971). The claim circumscribes the rights of the patent much like a description in a deed limits the boundaries of property. McClain v. Ortmayer, 141 U.S. 419, 425, 12 S.Ct. 76, 78, 35 L.Ed. 800 (1891); Koykka, Infringement of Patents, 42 F.R.D. 43, 44 (1968). The specifications and drawings may be consulted to help interpret the claim. Permutit Co. v. Graver Corp., 284 U.S. 52, 60, 52 S.Ct. 53, 55, 76 L.Ed. 163 (1931); Bates v. Coe, 98 U.S. 31, 38, 25 L.Ed. 67, 71 (1878); Autogiro Co. v. United States, 181 Ct.Cl. 55, 63-64, 384 F.2d 391, 397-398 (1967).

The claim reads as follows:

A pump assembly in which a piston is adapted to reciprocate within a cylinder for pumping fluids comprising, a cylinder, means at one end of the cylinder through which the fluid is received and discharged, the other end of the cylinder having an opening for slidably receiving a piston rod which extends partly within and without the cylinder, said piston rod comprising an inner rod member and an outer sleeve member, the inner rod member having fixed to its end within the cylinder the innermost end of a piston, the opposite end of the piston comprising a bushing having a central aperture slidably receivable over the inner piston rod member, each piston end being slightly less in diameter than the inner diameter of the cylinder, a shoulder fixed inwardly from the fixed innermost end of the piston and about the end of the inner piston rod adjacent the fixed end of the piston and of larger diameter than the piston rod for receiving a plurality of elastic compression rings in which at least the center rings are of V cross-sectional form with flat side surfaces, the rings being of such width as to fill the space between the shoulder and the inner surface of the wall of the piston, the bushing end of the piston having a recess in its surface adjacent the shoulder for receiving a portion of the shoulder adjacent thereto to allow the bushing to be moved inwardly over the shoulder for a predetermined distance against the compression rings without interference from the shoulder, the sleeve member of the piston rod telescoping the inner rod member from the slidable bushing end of the piston to a point without the piston adjacent the outer end of the inner rod member having its end within the cylinder abutting the surface of the bushing end of the piston about the aperture and opposite the compression rings, the outer end of the inner piston rod member beyond the opening in the cylinder being provided with an external thread and the outer end of the sleeve piston rod member beyond the opening in the cylinder being provided with an internal thread for threadably receiving the threaded end of the inner rod member for fixing the two piston rod members relative to each other and means for locking the two piston rod members in adjusted position, whereby by adjusting the sleeve member relatively to the inner member the sleeve member moves the bushing end of the piston relative to the fixed end of the piston for regulating the pressure on the compression rings and means on the outer end of the inner piston rod member for connecting the same to a crank mechanism.

The pertinent drawings (as explained in the specifications) are shown as follows:

To identify the parts essential for our discussion, we note that the claim describes an assembly with a piston composed of plastic V-shaped rings with holes in the center like doughnuts (numbered 36, 38, 40, and 54 in figures 3 and 6) enclosing a circular metal shoulder (numbered 56). The rings are sandwiched between two metal plates (numbered 32 and 34). Because the shoulder does not extend from the upper plate all the way down to the lower plate, there is a recess beneath the shoulder (visible in figure 3). A rod (numbered 44 in figures 2, 3, 4, and 5) extends from the shoulder down to any crankshaft which may be used to generate the reciprocating up and down motion of the piston within the cylinder. This rod is surrounded by an outer sleeve which extends from the lower plate down to a threaded nut (numbered 48 in figures 2 and 5). By turning the nut, the sleeve is pushed up or pulled down to adjust the compression on the rings. The purpose of this compression, according to the specifications and testimony in the record, is to enlarge the diameter of the rings by an external adjustment and thereby seal any leaks without dismantling the assembly.

Kahlenberg contends that there are two differences between his pump and the Rosen pump shown in the drawing. First, whereas Rosen’s lower metal plate in the piston is concave so as to slide up over the shoulder when the nut is tightened, Kahlenberg’s lower metal plate is flat so it only moves up to the bottom of the shoulder rather than over it. The following drawings graphically illustrate the first contention:

ROSEN KAHLENBERG
Second, Rosen’s sleeve is fastened to the threaded nut. Kahlenberg’s sleeve is not fastened to the threaded nut, so the sleeve may be pushed up by turning the nut but cannot be pulled down by turning the nut, as shown on the following drawings:

The District Judge referred to the language of Rosen’s claim and decided that the claim described Kahlenberg’s pump despite these differences between Ro-sen’s drawing and Kahlenberg’s pump.

With respect to the first difference, the claim speaks about “the bushing end of the piston having a recess in its surface adjacent the shoulder for receiving a portion of the shoulder adjacent thereto to allow the bushing to be moved inwardly over the shoulder for a predetermined distance against the compression rings without interference from the shoulder.” Rosen contended in the District Court that the term bushing means not just the lower metal plate but also the portion of the compression rings surrounding the rest of the recess below the shoulder, as demonstrated by the darkened areas in the following drawings of both pumps. Through this definition Rosen’s claim does cover Kahlen-berg’s pump. It has a recess in the bushing end of the piston, and the bushing moves inwardly over the shoulder.

This definition, however, is inconsistent with the use of the word bushing elsewhere in the claim. In the above passage the bushing is said to move against the compression rings, so the bushing must be something other than the compression rings. Also, the passage does not merely state that the bushing end has a recess; rather, it states that the bushing end has a recess in its surface, namely, in the surface of the metal plate. Kahlenberg’s pump has no recess in any surface.

In an earlier part of the Rosen claim, the lower end of the piston is said to comprise a bushing; it does not say that the lower end is part of a bushing. Then the claim states that both the upper and lower piston ends are slightly less in diameter than the inner diameter of the cylinder, whereas the compression rings are said to fill the space between the shoulder and the inner surface of the wall of the piston; thus the bushing has a diameter different from the diameter of the compression rings.

To make certain that the word bushing does not include the compression rings, we examined the terminology in the prior rejected claims in the Rosen application to the Patent Office. The antecedent claim nine thereof reads essentially like the approved claim, but with several semantical changes. The word bushing is not used, but the word ring is used in its place. Because claim nine carefully uses the word rings in the plural form to denote the compression rings and uses the word ring in the singular form for the lower metal plate, the word ring does not include any of the compression rings. There is nothing to suggest that the substitution of the word bushing for the word ring in the approved claim was intended to enlarge the definition. Apparently the substitution was made to more clearly distinguish the metal ring from the plastic compression rings.

We find, therefore, that the term bushing connotes the lower plate in the piston, not any portion of the compression rings. Kahlenberg’s bushing does not have a recess in its surface for receiving a portion of the shoulder, nor does the bushing move over the shoulder, so the pump does not literally infringe the claim.

With respect to the second difference between the drawings and the Kahlen-berg pump, the Rosen claim reads: “the outer end of the inner piston rod member beyond the opening in the cylinder being provided with an external thread and the outer end of the sleeve piston rod member beyond the opening in the cylinder being provided with an internal thread for threadably receiving the threaded end of the inner rod member for fixing the two piston rod members relative to each other.” This does not describe the Kahlenberg pump. The lower end of Kahlenberg’s sleeve does not have an internal thread, because Kahlenberg’s sleeve is not fastened to the nut. As a result, Kahlenberg cannot fix the other sleeve relative to the inner rod. This second difference between the Rosen claim and the Kahlenberg pump provides an alternative ground for finding that the pump does not literally infringe the Rosen claim.

II.

Despite the absence of literal infringement by the defendant, the plaintiff can still prevail under the doctrine of equivalents if the plaintiff’s and defendant’s devices perform substantially the same function in substantially the same way to obtain the same result. Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 42, 50 S.Ct. 9, 13, 74 L.Ed. 147 (1929). The reach of the doctrine beyond the articulated boundaries in the claim is determined against the context of the patent, the prior art, and the particular circumstances of the case. Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 609, 70 S.Ct. 854, 856, 94 L.Ed. 1097 (1950).

One principle precluding equivalency is known as file wrapper estoppel. The file wrapper is the file in the Patent Office including all prior claims rejected by the Patent Examiner, as well as the Examiner’s reasons for rejecting the claims and the applicant's remarks in submitting new claims. If the Examiner rejects a claim for failing to disclose a new discovery and the patentee amends the claim, the patentee is estopped from recapturing the coverage surrendered by the amendment. Exhibit Supply Co. v. Ace Patents Corp., 315 U.S. 126, 136, 62 S.Ct. 513, 518, 86 L.Ed. 736 (1942).

Another method of limiting the reach of equivalency is to assess the magnitude of the patentable discovery. The requirements for a patent are novelty, utility, and non-obviousness to a person having ordinary skill in the pertinent art. 35 U.S.C. §§ 101-103 (1971); Anderson’s-Black Rock, Inc. v. Pavement Salvage Co., 396 U.S. 57, 59, 90 S.Ct. 305, 307, 24 L.Ed.2d 258 (1969); United States v. Adams, 383 U.S. 39, 86 S.Ct. 708, 15 L.Ed.2d 572 (1966); Graham v. John Deere Co., 383 U.S. 1, 14, 86 S.Ct. 684, 692, 15 L.Ed.2d 545 (1966); Ramirez v. Perez, 5 Cir., 1972, 457 F.2d 267, 269. The range of equivalents depends upon the degree of invention. Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U.S. 405, 415-416, 28 S.Ct. 748, 749, 52 L.Ed. 1122 (1908). Where the patentee makes a pioneer discovery, he is entitled to broader protection than one who makes a slight improvement on the prior art. Hildreth v. Mastoras, 257 U.S. 27, 33-36, 42 S.Ct. 20, 23, 66 L.Ed. 112 (1921); McCutchen v. Singer Co., 5 Cir., 1967, 386 F.2d 82, 88; 4 A. Deller, Deller’s Walker on Patents § 232, p. 82 (1965).

Not only is the Rosen claim not a pioneer discovery, it discloses little, if anything, which might be defined as an invention. In rejecting Rosen’s first six claims, the Patent Examiner recognized that Rosen was not improving the cylinder or valve apparatus, so he suggested that applicant’s claims should, therefore, be directed to the details of the piston and packing assembly. Although the beginning of the claim still mentions the pump assembly, we are only concerned with the piston head and rod.

The concept of compressible rings was anticipated by Lord, United States Patent No. 2,600,061 (1952), according to the Patent Examiner’s rejection of claims seven and eight. See the drawing below:

Lord’s rings are not V shaped, but the Examiner went on to cite Buf-fington, United States Patent No. 2,420,929 (1947). See the drawings below:

He concluded: “In view of the teaching by Buffington, it would not involve invention to substitute the Y-shaped packing of Buffington et al for the packings of Lord.” In response Rosen made some critical distinctions between his device and the prior art cited by the Examiner, as'follows: (1) In submitting claim nine, Rosen distinguished the prior art by showing that the center of the Buf-fington ring nestles smoothly against the adjacent ring, whereas Rosen’s rings leave an enclosed interior space. (2) Rosen’s outer compression rings 54 and 36 have flat outer surfaces parallel with the metal plates for more perfect alignment. The distinctions are illustrated by the following drawings:

(3) In submitting the approved claim, Rosen distinguished the action in his plastic rings during compression from the other prior art, particular Snyder, United States Patent No. 2,757,994 (1956). In Snyder the compression forces the entire exterior portion of the rings against the cylinder wall, whereas in the Rosen device compression only forces the upper edge of the rings against the cylinder wall, with the result that Rosen’s rings cause less friction, This third distinction is illustrated below:

After these arguments, the patent on Rosen’s claim eleven was granted. But the Examiner did not consider the compression rings in Herbert Herkimer’s text, Engineers’ Illustrated Thesaurus 317 (1952):

All three of Rosen’s articulated distinctions from the prior art are clearly obviated by Herkimer’s illustration. Just as the Patent Examiner found no invention by Rosen in substituting Buffing-ton for Lord, we find that in view of the teaching by Herkimer it would not involve an invention to substitute the packing of Herkimer.

The general idea of building in a method to compress the rings by adjustment from outside the cylinder dates at least as far back as a patent issued in 1923, McMahon, United States Patent No. 1,474,201, wherein the following device was said to have as one of its “several important objects ... to adjust the pump piston packing without dismantling any part of the pump.”

This leaves only the detailed method of adjustment open to patent. Rosen used an inner rod and outer sleeve extending down from the piston head, with the sleeve being adjustable. This method is anticipated by Laurent, United States Patent No. 1,222,424 (1917), shown in the margin. Rosen contends that his pump differs by virtue of the inner rod being fixed, so as not to alter volume displacement above the piston head by the adjustment. Yet the change seems obvious from Laurent, since Rosen merely fastened the threaded inner rod to a crankshaft and substituted a threaded nut for the threaded handle.

However, Rosen’s pump attaches the outer sleeve to the nut, unlike Laurent’s and Kahlenberg’s devices. This difference is important for as Rosen himself testified about the superiority of his pump:

A. Oh, yes. We felt it had some advantages. That is the reason we did it.
Q. What are the advantages ?
A. The advantages that you are not depending upon gravity to have the sleeve member lower when you—
Q. Retract.
A. —retract—when you loosen up the nut.
Q. So what is wrong with having gravity permit that sleeve from dropping ?
A. Well, if you are pumping material like syrup, for example, or any other viscous material, [sic] may find its way between the sleeve member and the threaded rod and prevent it from dropping by gravity.
Q. Can’t you grasp it right here?
A. Not too well. If it were stuck — if this material found its way between the threaded portion of the rod, it would seize. You wouldn’t be able to grasp it. You only have a smooth, sliding member. You wouldn’t be able to move it if it froze.

Thus the difference between the Rosen claim and the Kahlenberg pump is more than mere form. The two pumps do not function in substantially the same way, so they are not equivalents. Moreover, the difference in the Kahlenberg pump places it in the category of the prior art, giving Kahlenberg absolute protection against the doctrine of equivalents. A patentee cannot enlarge his claim to reach into an area which is not patentable, that is, into an area anticipated by the prior art.

Finally, we reach the space, between the shoulder and the lower piston plate, called the “recess.” This area is closed off as the end plates are compressed together. The location of this recess beneath the shoulder appears to be traceable back to the early part of the century, as clearly disclosed by this . French patent in the margin of M. Manfred Balteschwiler, No. 398,899, issued in 1909. Rosen’s advance appears to be the cupping of the lower plate, so that about half the recess lies in the metal bushing, unlike the Kahlenberg device and the French patent where all the recess is in the compression rings. As the claim points out, Rosen’s bushing can then move “against the compression rings without interference from the shoulder.” Presumably, this means that the compression rings are kept in better alignment in the Rosen device, as illustrated below, since the rings will be surrounding and smoothly sliding up the shoulder during compression, rather than bulging out between the shoulder and bushing to cause a bind in thé adjustment. Again, we see that Rosen’s and Kahlenberg’s pumps are not equivalents, because they have another functional difference. Furthermore, Kahlen-berg’s method is obvious, from the French patent and thus falls outside the possible range of equivalents.

In summary, we find substantial differences between the Rosen claim and the Kahlenberg device, contrary to ap-pellee Rosen’s assertion here on appeal that the “ [appellants’ commentary on the infringement issue relates essentially to immaterial trivialities in design and truncated speculations in semantics.” When the words are defined so as to be consistent with their use in the entire claim and file wrapper, they show convincingly that the Rosen claim does not describe the Kahlenberg device. The differences become important, because a comparison between the claim and the prior art discloses that Rosen made no advance other than in the two areas of the claim where the differences are located, and whatever advance there is in these precise areas is so narrow as to deserve little protection beyond the boundaries of the claim. Here Kahlen-berg did not copy the characteristics making up the Rosen invention but rather designed a device in the realm of the prior art.

Reversed.

      . The District Judge also held that Rosen was entitled to a permanent injunction against any future infringement by Kah-lenberg.

      . The specifications provide:
      The present invention relates to an improved reciprocating pump for pumping predetermined amounts of fluids and particularly to the piston and the piston packing rings. The pump is the type used on filling machine as shown in Patent No. 2,807,213 dated September 24, 1957.
      One object of the invention is to provide a piston having a plurality of adjustable elastic piston packing rings.
      Another object of the invention is to provide a means associated with a piston supporting rod with means outwardly from the piston for applying pressure to the piston packing rings for changing the diameter of the packing rings.
      A further object of the invention is to provide a simple means for making the adjustment of the pressure on the packing rings from a point outside the pump cylinder.
      A still further object of the invention is to provide a pump packing ring that will have a minimum of drag on the cylinder wall.
      While several objects of invention have been pointed out, other objects, uses and advantages will become more apparent as the nature of the invention is more fully disclosed, consisting in its novel construction, combination and arrangement of its several parts as shown in the accompanying drawing and particularly referred to in the description to follow.
      In the drawings:
      Figure I is a view in elevation of the pump as it would be carried on a support therefor.
      Figure II is an enlarged vertical view of the pump, partly in section and partly in elevation showing the interior of the pump cylinder and the relative position of the pump piston in respect thereto.
      Figure III is a greatly enlarged portion of the pump cylinder and piston, partly in section and partly in elevation showing the arrangement of the piston packing when first assembled and without any pressure being applied to the live members.
      Figure IV is a sectional view taken on line 4 — 4 of Figure II.
      Figure V is a fragmentary sectional view of several of the elements of the means for adjusting the diameter of the piston packing rings.
      Figure VI is a further enlarged sectional view, similar to that shown in Fig. Ill, illustrating the manner in which the packing rings engage the cylinder wall after pressure has been applied to the rings.
      In referring to the drawings like reference numerals are used to point out like and similar parts throughout tiie several views.
      The pump as shown in Fig. I is adapted to operate on the type of filling machine shown in Patent No. 2,807,213 dated September 24, 1957. The pump is provided with a cylinder 10 having one end closed by the member 12. The member 12 is provided with an opening 14 for admitting a fluid to the upper end of the cylinder 10. The member 12 is hingedly connected to a member 16 which is pivotally supported upon a stationary arbor 20 carried on the supporting housing 22, and in which the mechanism is carried for operating the pump. Connected with the opening 14 is an intake pipe 24, and an outlet pipe 26. The direction of the flow of the fluid being controlled by the valves 28 and 30.
      Adapted to operate within the cylinder 10 is a piston P, and connected with the piston P is one end of a piston rod R. The piston itself is composed of several parts. The upper end consisting of a plate 32, and the lower end consisting of the plate 34. These piston plates 32 and 34 are movable relative to each other to compress a plurality of elastic piston rings 36, 38, and 40. This movement of the two plates 32 and 34 is accomplished by pressing one end of a tube 42 against the bottom of the plate 34, and connected to the plate 32, is one end of a rod 44, which is adapted to extend outwardly through the tube 42, as shown best in Fig. 2. The plate 34 is provided with a hole which fits closely, but slida-bly over the rod 44, as drawn at 34'. Adjacent the outer end of the tube 42 there is provided a threaded arm 46, which extends beyond the end of the tube 42, and on this threaded arm there is a threaded nut 48. This nut 48 is fixed to the outer end of the tube by a drive fit, or other suitable means. By rotating the nut 48 the rod 44 and the plate 32 is adjustable relative to the tube 42 and the plate 34 respectively. The nut 46 is slotted on one side, as shown at 48". Extending perpendicular of the slot 48" is a screw 49 for locking the nut to the rod 44. The lower end of the threaded arm 46 is fixed to a hinged member 50, which will be hereinafter referred to. The tube 42 and the rod 44 both make up the piston rod R. The piston rod R is guided in its reciprocating movement by a collar 52 threadably attached to the lower end of the cylinder. The collar 52 also prevents the piston P from being completely withdrawn from the cylinder. However, when it becomes necessary to remove the piston, the collar may be removed by unscrewing it from the cylinder.
      As mentioned hereinbefore the elastic piston rings 36, 38 and 40 are adapted to lie between the two piston end plates 32 and 34. There is also an additional ring 54 which acts only to expand the upper edges of the V-shaped ring 40. This ring 54 has a surface 54' adapted to engage the upper plate 32 and a lower V-shaped surface 54" of approximately 45 degrees which is adapted to engage the V-shaped top surface of the ring 40, which has been described as having its upper side wall in the form of a V and at an angle of 60 degrees with the horizontal top surface of the ring. While the rings 36 and 54 are shown with a flat surface to engage the plates 32 and 34, they may be of any convenient form to engage the inner surfaces of the plates.
      The packing rings being in the form of a hoop, there is provided a member 56, for filling the space of the piston inwardly from the inner edges of the rings. This member is normally fixed or made a part of the top plate 32. It will be ■ noted that the length of this member 56 is slightly shorter than the distance created by the thickness of the packing rings, as shown best in Figs. Ill and VI. This is to allow for the plates 32 and 34 to be moved toward each other to compress the rings.
      The pump is operated by having its closed end fixed as to location preferably on a box, or cabinet 22, by the arbor 20. The member 16 is provided with an opening 16', which slips over the arbor 20 and is held from being displaced therefrom by a screw 60 having a beveled point 60', which slidably fits into a groove cut about the arbor (not shown). This groove screw allows the member 16 to pivot on the arbor 20. The member 16 is connected to the member 12 by a pin 17, which hinges the pump cylinder in a plane parallel with tiie elongated axis of the arbor.
      Referring again to the operation of the piston, the member 50 is hingedly connected to tiie member 62 by a pin 63. The member 62 is similar in construction to tiie member 61 at the closed end of the cylinder and operates in substantially the same manner. The member 62 is carried on an adjustable pinion 04, which in turn is mounted eccentrically on a rotatable shaft 66, by way of an arm 68. The member 62 is held on the pinion 64 by a screw 65 having a beveled point 65'. Associated with this arm 68 are means for adjusting the pinion 64 relative to the axis of the shaft 06. The adjusting means is operated by the knurled screw head 70. By adjusting the position of the pinion 64 relative to the axis of the shaft 66, the stroke of the piston may be adjusted to different lengths and the pump may he adjusted to pump any predetermined amount of fluid for eacli stroke of the piston.
      The intake pipe 24 is provided with a convenient inlet hose, or pipe 70 which is connected with a fluid supply and the outlet pipe 26 is connected with a convenient outlet hose, or pipe 72 through which the fluid is usually conveyed to smaller vessels, or to other vessels for filling, mixing, etc.
      Referring again to the flexible piston rings, it will be noted that the upper edges 36', 38' and 40' of each of the rings 36, 38 and 40 are pressed outwardly in contact with the inner surface of the cylinder wall while the edges 36", 38" and 40" are pressed against the stationary center member 56. With this arrangement the upper outer edges 36', 38' and 40' of the rings are very sensitive in their movement to increase, or decrease their diameters by the movement of the plates 32 and 34. While these rings, in Fig. VI, show their remaining surfaces out of contact with the cylinder wall, it is because the illustrations are on a very large scale. However, in actual practice the remaining surfaces 36'", 38'" and 40'" of the rings do have a wiping contact with the cylinder fall. While many types of elastic material may be used for the rings, the best material found to date is “Teflon,” a trade name of E. I. du Pont, for one of their well known synthetic plastic materials.
      The piston including the plates 32 and 34 and the piston packing rings 36, 38, 40 and 54 are assembled, as shown in Fig. Ill, with the packing ring not under pressure. The rod 44 is extended through the tubular member 42, and the nut 48 is run along the thread member 46 until the plates are moved toward each other until the plates are in contact with the rings. Further movement of the plates toward eacli other will begin to compress the rings forcing the piston packing rings to a point where their outer upper edges 36', 38' and 40' are moved outwardly in contact with the cylinder wall. The screw 49 is set to squeeze the two portions of the nut together to form a self-locking nut.
      In operation when the piston is moved away from the closed end, fluid is drawn from the inlet pipes 28 and 70, through the opening 14 in the member 12, and into the cylinder 10. When the piston is moved in the opposite direction the fluid is forced out through the same opening 14, but through the exhaust pipes 26 and 72.
      This type of piston packing ring is very efficient in its operation and is easily adjusted to fit the cylinder wall from outside the cylinder.
      While the invention has been shown and described in a specific form, it is not intended as a limitation, as the scope of the invention is best defined in the appended claims:
      References Cited in the file of this patent
      UNITED STATES PATENTS
      1,474,201 McMahon .......Nov. 13,1923
      1,744,565 McMahon .......Jan. 21,1930
      1,806,078 Miller ..........May 19,1931
      2,420,929 Buffington et al. .. May 20,1947
      2,600,061 Lord ..........June 10,1952
      2,757,994 Snyder .........Aug. 7,1956
      2,807,213 Rosen .........Sept. 24,1957

      . Thus Rosen’s attorney stated: “I think that the [darkened area] does truly and fairly and accurately show, in each of these, what is by definition a ‘bushing’.”

      . As an alternative position, Rosen seems to say that even if the term bushing means only the lower metal plate the claim still covers Kahlenberg’s pump. “The recess is in the bushing end of the piston as called for by the claim notwithstanding appellants’ insistence that it must be in the bushing itself.” Brief for Plaintiff-Appellee at 8-9. But this position overlooks the next element in the claim, namely, that the bushing move “over the shoulder.” Certainly, Kahlenberg’s lower plate does not move over the shoulder. Thus Rosen can only show literal infringement by convincing the Court that the term bushing includes both the lower plate and part of the compression rings surrounding the recess.

      . Consistent with the claim, the specifications state that the “movement of the plates toward each other will begin to compress the rings.”

      . A comparison of the language of Rosen’s claims nine and eleven reveals what tran-pired. We set forth below claim nine as altered by claim eleven. We have stricken language no longer contained in claim eleven, and added in brackets new language in the later claim, viz:
      A pump assembly in which a piston is adapted to reciprocate within a cylinder for pumping fluids comprising a cylinder, means at one end of the cylinder through which the fluid is received and discharged, the other end of the cylinder having an opening for slidably receiving a piston rod which extends partly within and without the cylinder, said piston rod comprising an inner [rod member] and [an] outer [sleeve] member, the inner [rod] member having fixed to its tBBen end [within the cylinder the innermost] eae end of the [a] piston, the opposite end of the piston comprising a ri-Bg [bushing] having a central aperture slidably receivable over the inner piston rod member, each piston end being slightly less in diameter than the inner diameter of the cylinder, a fixed shoulder [fixed] extending inwardly from the first HiesfieBed pioten end [fixed innermost end of the piston] and about the enter end of the inner piston rod [adjacent the fixed end of the piston] and of larger diameter than the piston rod for receiving a plurality of Y shaped elastic compression rings [in which at least the center rings are of Y cross-sectional form with flat side surfaces, the rings being] of eaeb sise [such width] as to fill the space between the shoulder and the inner surface of the wall of the piston, the ring [bushing] end of the piston having a recess in its surface adjacent the te shoulder for receiving a portion of the shoulder adjacent thereto to allow the ring [bushing] to be moved [inwardly over the shoulder for a predetermined distance] against the compression rings without interference from the shoulder, the onto? [sleeve] member of the piston rod telescoping the inner [rod] member having ©Be [from the slidable bushing] end [of the piston to a point without the piston adjacent the outer end of the inner rod member having its end within the cylinder] abutting the outer surface of the ring [bushing] end of the piston about the aperture [and opposite the compression rings] therein, the outer end of the inner piston rod member [beyond the opening in the cylinder] being provided with an external thread and the outer end of the enter [sleeve] piston [rod] member [beyond the opening in the cylinder] being provided with [an] internal threads for threadably receiving the threaded end of the inner [rod] member for fixing the two piston rod members relative to each other [and means for locking the two piston rod members in adjusted position], whereby [by adjusting the sleeve member relatively to the inner member] the eaten [sleeve] ptstea red member moves the ri*g member. [bushing end] of the piston relative to the first mentioned [fixed end of the] piston e»d for eempresring the Y ohnpcd [regulating the pressure on the] compression rings and means on the outer end of the inner piston rod member for connecting the same to a crank mechanism.

      . A foreign patent is relevant as prior art according to 35 U.S.O. § 102(a) (1971) : “A person shall be entitled to a patent unless . . . the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent . . . .”


author: OAKES, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. William Sherman TERRELL, et al., Appellants.
    Nos. 463, 473 and 533, Dockets 72-1710, 72-2217 and 72-2329.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 15, 1972.
    Decided Feb. 22, 1973.

      Nancy Rosner, New York City (Edmund A. Rosner, New York City, of counsel), for appellants Terrell and McDonald.
    Mitchel B. Craner, New York City (Guazzo, Silagi & Craner, New York City, on the brief), for appellant Hil-liard.
    Alan Scribner, New York City (Ivan S. Fisher, New York City, on the brief), for appellant Green.
    Barbara Rowan, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y., John W. Nields, Jr., Asst. U. S. Atty., of counsel), for appel-lee.
    Before KAUFMAN, ANDERSON and OAKES, Circuit Judges.

      . While, of course, it is difficult- to prove such a difference absent the original notes, it is not impossible. Other evidence such as a stenographer’s recollections can be adduced. E. g., United States v. Lonardo, 350 F.2d 523 (6th Cir. 1965). The courts have, in effect, given law enforcement agents a little leeway to destroy immaterial matter. But cf. Lee v. United States, 125 U.S.App.D.C. 126, 368 F.2d 834, 837-838 (1966) (even good faith destruction of records coupled with deliberate delay between offense and arrest violated Jencks Act).

   OAKES, Circuit Judge:

All four appellants appeal from convictions of violating the federal narcotics laws, 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A), and conspiracy, based on the distribution and possession with intent to distribute of % of a kilogram of heroin, and resulting in substantial sentences. Appellant Terrell’s only point on appeal relates to limitation of his attorney’s summation. Appellants Green, Hilliard and McDonald all question the sufficiency of the evidence to convict them of aiding and abetting, as well as the adequacy of Judge Metzner’s charge on the same issue. A recital of the facts is necessary to place appellants’ contentions in context.

Two undercover New York City detectives, Bernhardt and Gadson, assigned to the “Joint Task Force,” checked into Room 212 of the west side midtown Howard Johnson’s Motor Lodge on October 8, 1971, for the purpose of keeping an appointment prearranged by an informant with appellant Terrell. After 11:00 p. m. Terrell and appellant Green came up to the room where Terrell and Detective Bernhardt discussed a narcotics sale from the former to the latter, the discussion involving quantity (% of a kilogram), price ($4,700), and quality (“an eight cut,” i. e., the narcotics could be diluted eight times). Green listened but did not himself speak. During the discussion the door to the adjoining room, where surveillance officers were stationed, opened and a detective was seen standing there, gun in hand. De-tive Gadson yelled, “Run,............. run,” and Bernhardt, Green, Terrell and he ran out of the room and down the stairway. Subsequently they met at the corner of 8th Avenue and 51st Street and agreed to meet again at the International Bar on 49th Street. Terrell and Green then entered a brown Cadillac driven by another.

Shortly after midnight the same night, the two detectives went to the International Bar to keep' their appointment but neither Terrell nor Green appeared. Following a call to the informant, the detectives taxied to 148th Street and Broadway where at 1:00 a. m. they met Green waiting in front of the Oasis Bar. Green and the detectives entered the previously mentioned Cadillac where they discussed the hotel incident; the detectives passed it off as involving a house detective who had seen Terrell and Green enter the hotel and knew them not to be guests.

Green then took the detectives to 150th Street, where Terrell was with appellant Hilliard. Detective Bernhardt got out of the Cadillac while Green drove Detective Gadson around. Terre! and Bernhardt reaffirmed the terms of the heroin sale in Hilliard’s presence and also discussed the hotel incident. Within a few moments, Gadson and Green returned in the Cadillac. Gadson got out of the automobile and Terrell entered the front seat. Terrell and Green drove away, while Hilliard,. Gadson and Bernhardt went to a nearby bar and had some drinks. In the bar, Bernhardt asked where Terrell or Hilliard could be reached in the future. Hilliard wrote a telephone number and the name “Stanley” on a slip of paper and gave it to Bernhardt. The three then crossed the street and entered another bar.

Shortly thereafter, Terrell and Green returned in the Cadillac. An Oldsmobile Toronado driven by appellant McDonald —introduced as “Ollie” — pulled up behind the Cadillac. At Terrell’s behest Bernhardt climbed in the front seat of the Oldsmobile. Terrell then entered the rear seat, and when Detective Gadson started to enter Hilliard pulled him back and told him to wait. At some point in time Gadson handed the purchase money — $5,000—to Bernhardt.

McDonald, Bernhardt and Terrell then drove off in the Toronado and at a stop light Terrell gave the detective the heroin in the inevitable brown paper bag, and took the money. At a gas stop they discussed other heroin and cocaine sales and meeting three days later in Atlanta, Bernhardt’s supposed home town, to discuss more business. When Terrell told him to ask for “Terrell” at an Atlanta motor lodge, appellant McDonald interrupted and said, “No, ask for McDonald.” McDonald then drove the automobile back to 150th Street. Bernhardt got out of the Oldsmobile and left the area with Gadson. Terrell got out of the Oldsmobile and entered the Cadillac with Green and Hilliard, drove away. Both cars

Subsequently Bernhardt had some telephone conversations with Hilliard at the phone number the latter had given Gadson and complained about a shortage in the delivered bag of heroin. Later Gadson called Hilliard who said to call later “and he would be ready to take care of business.” In the later call Hil-liard told Gadson “he had not been in touch with his man, but he would be able to handle the package himself.”

The above recital of the facts shows that Hilliard’s and Green’s arguments as to sufficiency are without merit. Green accompanied Terrell to the Howard Johnson Motor Lodge and then, at the very latest, became aware that a narcotics sale was being arranged. He made contact with Gadson and Bernhardt at 148th Street and drove them to 150th Street to meet Terrell. He also drove Terrell away from and back to 150th Street, presumably to pick up the narcotics. He and Hilliard acted more or less as body guards, seeing to it that Terrell was never alone with both the detectives. Hilliard participated in the transactional mechanics that seem so often the concomitant of a narcotics sale: he waited while the man who was to make delivery went to get the drugs; he assisted in the changes of location which one can infer had the purpose of avoiding possible surveillance; he helped protect the man with the paper bag (Terrell) by keeping Gadson out of the Toronado so that Terrell could not be readily relieved of the “goods” without the necessary cash payment. In addition, Hilliard made himself the contact for future sales by giving Bernhardt his phone number and, it could be inferred, offered by telephone either to sell or to make up the deficiency in the original sale and to make further sales himself. There was thus ample evidence from which the jury could conclude Green and Hilliard were active participants in Terrell’s narcotics operation.

The question of the sufficiency of the evidence against appellant McDonald is, however, on a different footing. She was present at the time of the transfer and by ready inference (since Bernhardt was in the front seat with his back to the window) knew that it was taking place. “[Kjnowledge that a crime is being committed, even when coupled with presence at the scene,” United States v. Garguilo, 310 F.2d 249, 253 (2d Cir. 1962), without more, however, is generally insufficient to prove aiding and abetting. See also United States v. Fantuzzi, 463 F.2d 683, 690 (2d Cir. 1972); United States v. Cianchetti, 315 F.2d 584, 588 (2d Cir. 1963) (co-conspirator must make an “affirmative attempt” to further the purposes of the conspiracy); United States v. Euphemia, 261 F.2d 441, 442 (2d Cir. 1958). Cf. United States v. DiRe, 159 F.2d 818, 820 (2d Cir. 1947), aff’d, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948) (presence of third person with parties to a conspiracy not sufficient grounds to support a warrantless arrest). But in addition to being present at the scene, McDonald operated the Toronado, thereby enabling the sale to be effectuated in the relative concealment of a moving automobile in the early morning hours. Providing this safe haven was sufficient to establish her active participation in the narcotics operation when coupled with guilty knowledge and presence at the scene. Cf. Nye & Nissen Corp. v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 93 L.Ed. 919 (1949), quoting in part United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938) (L. Hand, J.) (“In order to aid and abet another to commit a crime it is necessary that a defendant ‘in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed’”). See also Simon v. United States, 78 F.2d 454, 455-456 (6th Cir. 1935), cited with approval in United States v. Garguilo, supra, 310 F.2d at 253. The driving of the automobile was in this instance a transactional element of the crime.

It is true that United States v. Steward, 451 F.2d 1203, 1206-1207 (2d Cir. 1971), held that evidence that an armed chauffeur of a car which carried a drug seller and his wares to a motel where the sale took place was not sufficient to convict the chauffeur of aiding and abetting the sale because there was no showing of the chauffeur’s actual or constructive possession of the drugs. But the court there was careful to distinguish, 451 F.2d at 1207, cases where the defendant had either exclusive, Arellanes v. United States, 302 F.2d 603, 607 (9th Cir.), cert. denied, 371 U.S. 930, 83 S.Ct. 294, 9 L.Ed.2d 238 (1962), or joint, Eason v. United States, 281 F.2d 818, 820-821 (9th Cir. 1960), control over a vehicle in which secreted drugs were found, as well as eases where delivery of the narcotics was made in an automobile over which the defendant had some control or in which he was seen with the principal seller. Mack v. United States, 326 F.2d 481 (8th Cir.), cert. denied, 377 U.S. 947, 84 S.Ct. 1355, 12 L.Ed.2d 309 (1964). Here unlike the chauffeur in Steward but like the appellant in Mack, McDonald “was in attendance at the closing of the venture’s negotiations in [her] automobile” and McDonald’s “providing and operating the means of transportation” in which the sale took place “constituted an essential contribution to the commission of the crime.” 326 F.2d at 486. Moreover, while unlike Mack there was no evidence McDonald shared in the proceeds of the venture, her reference to the Atlanta cocaine transaction under discussion by Terrell and Bernhardt is further evidence of her participation in Terrell’s narcotics operation. No such additional indicia of participation in the narcotics sale was adduced against the chauffeur in Steward. While the evidence against McDonald was not overwhelming, it was not inadequate as a matter of law.

All three appellants — Green, Hilliard and McDonald — argue that because the evidence on aiding and abetting was close the trial court should have given a Garguilo charge — that is, one telling the jury specifically that mere presence and guilty knowledge were not enough unless they were convinced that the individual defendant was a participant and not a mere spectator. The charge actually given here read in pertinent part as follows:

In order for a defendant to aid or abet another to commit a crime it is necessary that he wilfully associate himself in some way with the criminal venture, that he wilfully participate in it as something that he wishes to bring about, that he wilfully seek by some action of his to make it succeed.

This, the usual aiding and abetting charge, we believe was wholly adequate for appellants Green and Hilliard, against whom the evidence was overwhelming and whose counsel did not object to it in any event. As to appellant McDonald, however, for the very reasons stated in Garguilo, 310 F.2d at 254, we think she was entitled to the charge requested by her counsel framed in Gar-guilo terms. Her conviction must therefore be reversed and remanded for a new trial.

Appellant Terrell’s objections to the limitations on his argument in summation are two, equally without merit. The first challenges the trial judge’s limitation on argument attacking the credibility of a Government witness, Jackson, whose testimony relating to identification of Terrell’s codefendant Johnson based on a tape recording of the conversation which set up the initial Bernhardt-Terrell meeting had been stricken when the court declared the tape inaudible. But argument based on matter stricken from the record is not proper. United States v. Guajardo-Me-lendez, 401 F.2d 35, 39-40 (7th Cir. 1968); United States v. Spangelet, 258 F.2d 338, 342 (2d Cir. 1958). Since the tape recording itself, as well as Jackson’s identification testimony, was stricken by the trial court the jury was in no position to evaluate arguments about Jackson’s credibility based on them.

The second limitation on argument occurred when Terrell’s counsel suggested that Detective Bernhardt’s original notes had been destroyed “because the notes might have embarrassed him or put the lie to him or have been inconsistent with his in-court testimony.” This court has several times held in varying contexts that the Jencks Act, 18 U.S.C. § 3500, imposes no duty on the part of law enforcement officers to retain rough notes when their contents are incorporated into official records and they destroy the notes in good faith. E. g., United States v. Covello, 410 F.2d 536, 545 (2d Cir. 1968), cert. denied, 396 U.S. 879, 90 S.Ct. 150, 24 L.Ed.2d 136 (1969) (good faith destruction does not require new trial); United States v. Jones, 360 F.2d 92, 95 (2d Cir. 1966), cert. denied, 385 U.S. 1012, 87 S.Ct. 721, 17 L.Ed.2d 549 (1967) (good faith destruction does not require striking agent’s testimony). Here there was no suggestion or showing as in United States v. Lonardo, 350 F.2d 523 (6th Cir. 1965), that the notes were deliberately destroyed on the eve of trial and were substantially different in content from the formal report. The court below did not strike Terrell’s argument when initially made but rather instructed the jury in accordance with the Second Circuit eases. When the argument was made the second time that the destruction was deliberate “[b]ecause he didn’t want the notes available to us,” it was properly struck in view of the fact that there was no evidence it was done for that purpose. Argument based upon the destruction of notes without any showing of the circumstances of the destruction may be made, but must be limited to suggestions as to what they might have shown or how the defense (or jury) has been impeded. In the absence of evidence, however, a defendant may not argue that the destruction was in bad faith or deliberate.

Judgment affirmed as to appellants Terrell, Green, Hilliard; reversed and remanded for a new trial as to appellant McDonald.

      . Terrell, 10 years’ imprisonment followed by a 3-year special parole term; McDonald, 3 years’ imprisonment followed by a 3-year special parole term; Green and Hilliard, 5 years’ imprisonment followed by a 3-year special parole term.

      . While the failure to give a Garguilo charge as to appellants Green and Hilliard does not rise to the level of plain error, see Fed.R.Crim.P. 52(b), the adoption of the Garguilo charge in future cases would have the benefit of avoiding this contention on appeal.