author: LAY, Circuit Judge.

text:
    Captain Robert S. COLSON, Jr., Appellant, v. Major General BRADLEY and Melvin Laird, Appellees.
    No. 72-1537.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 15, 1973.
    Decided April 25, 1973.

      Francis L. Ruppert, Clayton, Mo., for appellant.
    Wendell K. Smith, Asst. U. S. Atty., Kansas City, Mo., for appellees.
    Before LAY and BRIGHT, Circuit Judges, and NICHOL, District Judge.

       Sitting by designation.

   LAY, Circuit Judge.

On March 20, 1972, while serving as a captain in the United States Army, the petitioner, Robert S. Colson, Jr., filed in the District Court for the Western District of Missouri a petition to enjoin his pending discharge from the service on April 6, 1972, and for mandamus relief. The relief sought by petitioner was a review of his Article 138 complaint, 10 U. S.C. § 938, for correction of a low efficiency report and also an award of readjustment pay upon his discharge, 10 U. S.C. § 687(a). He further sought for medical reasons to enjoin respondents from discharging him. The district court found that Colson was being discharged by the Department of the Army Active Duty Board (hereinafter DAAD Board) for reasons other than any medical infirmity or the low efficiency rating given by his superior officer, Lieutenant Colonel Zenz. Thus, extraordinary relief by mandamus was refused.

On this appeal; petitioner attacks the denial of the writ of mandamus based on the Army’s failure to process his Article 138 complaint and its refusal to award readjustment pay. We reverse and order the issuance of the writ of mandamus.

Petitioner entered active duty in the Army on June 13, 1967. After five years of service Captain Colson would have been eligible for readjustment pay upon his discharge, in this case allegedly $10,670.00. At the time of his original discharge date, April 6, 1972, he had served almost four years and ten months in the service, some sixty-eight days less than five years. We need not reach this issue relating to petitioner’s readjustment pay since the issuance of a writ of mandamus requiring the processing of petitioner’s Article 138 complaint will necessitate Captain Colson’s reinstatement in the armed forces until such time that full consideration of .his entire Army record can be again surveyed for purposes of proper discharge.

After distinguished service in Vietnam, Captain Colson was rotated to Fort Leonard Wood, Missouri, in February of 1971 where he served as a Training Officer at the Army Engineers Training Corps. Unknown to the Army, Colson began to suffer from narcolepsy in the late months of his military service. He alleges because of his illness his abilities to perform his military duties began to deteriorate. His superior officer, Lieutenant Colonel Zenz, not knowing of petitioner’s illness, assessed his performance as complacent and ineffective and gave him an extremely low efficiency rating. Narcolepsy is admittedly a disease of difficult diagnosis. It is a neurological illness characterized by sleep paralysis, loss of muscle tone and hallucinations. It can, however, be medically controlled. Army regulations recognize the disease of narcolepsy and require that no personnel can be discharged prior to the time that the disease is medicinally controlled. Army Reg. 40-501. It is admitted that it was not until approximately May 11, 1972, that Colson’s illness was under medical control.

Captain Colson was given his low efficiency rating on September 9, 1971. He sought redress in November of 1971 under Article 138 and Army Regulation 27-14 which require the officer exercising general court-martial jurisdiction over petitioner’s commanding officer to investigate and review the facts underlying the complaint. Colson claimed that his efficiency record was inaccurate and also that it should be reviewed in light of the subsequent diagnosis of narcolepsy. Colson’s superior officer, Major General Bradley, refused to investigate and review the report because he concurred in its recommendation of dismissal and felt he did not have jurisdiction over the matter. This was clearly erroneous. General Bradley, as the officer who exercised general court-martial jurisdiction over Colonel Zenz, the officer against whom the complaint was made, at the time of the incidents giving rise to the complaint and at the time of the filing of the complaint, clearly had jurisdiction. Under the regulations General Bradley had the duty to investigate into the complaint in light of Captain Colson’s claim regarding the inaccuracy of the report and the effect of his unknown illness. Mandamus, of course, is the appropriate remedy against members of the armed forces who fail to follow the service’s own regulations. See Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958); Konn v. Laird, 460 F.2d 1318, 1319-1320 (7 Cir. 1972).

We turn then to the district court’s refusal to issue the writ on the ground that Captain Colson had already been recommended for discharge on grounds independent of the low efficiency record. The district court based its conclusion on two affidavits received into evidence over strenuous objection. The affidavits were from a personnel officer and a recorder of the DAAD Board who related that Colson’s discharge was recommended as early as September, 1971, and that it was processed without knowledge of the low efficiency report made by his immediate superior. Assuming these affidavits constituted competent evidence at trial, which they clearly did not, it is difficult to reconcile that Colson was being processed for discharge at a time when it is admitted his narcolepsy was not under medical control. This clearly was invalid under the Army’s regulations. See Army Reg. 40-501. Furthermore, the affidavits leave some doubt whether his efficiency rating was not in fact considered in some formal or informal way by the Board, if not by the Board’s investigators.

It may be true that a vast organization such as the United States Army may not on occasion know what in fact both its right and left hands are doing; however, the law deems it legally bound to have sufficient knowledge of all of its own records so as not to prejudice the individual rights of its service personnel. Thus, any consideration of Colson’s discharge while he was still suffering from narcolepsy which was not medically controlled must be vacated from his records. Moreover, we cannot assume that the ultimate discharge was done in disregard of Captain Colson’s entire service record including his low efficiency rating.

We find that mandamus relief to afford proper redress to Captain Colson under Article 138 should have been given. The issue was not shown to be moot.

Unfortunately, the preliminary injunction was dissolved and the Army was allowed to discharge Colson. Although only a member of the armed forces is entitled to redress under Article 138, petitioner’s rights cannot be denied on lack of standing since it was the Army’s error which led to his present nonmilitary status. Colson’s discharge should be vacated as of the date of its issuance, and he should be restored to the status he enjoyed at the time he filed his complaint; the commanding officer having jurisdiction of his complaint is ordered to review and investigate his claims, and the DAAD Board is required to stay his discharge until such time that petitioner’s entire service record is before it.

Judgment reversed and remanded with directions for the district court to issue the writ of mandamus against respondents in accordance with this opinion.

      . Article 138, 10 U.S.C. § 938, provides:
      “Any member of the armed forces who believes himself wronged by his commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to any superior commissioned officer, who shall forward the complaint to the officer exercising general court-martial jurisdiction over the officer against whom it is made. The officer exercising general court-martial jurisdiction shall examine into the complaint and talce proper measures for redressing the wrong complained of-, and he shall, as soon as possible, send to the Secretary concerned a true statement of that complaint, with the proceedings had thereon.” (Our emphasis.)

      . For medical reasons, Colson was probably not eligible for discharge until approximately May 11, 1972. He was in fact discharged on June 30, 1972, following the dissolution of the trial court’s preliminary injunction.

      . Petitioner served as a combat helicopter pilot from January to December of 1970. From this service he was awarded the Army Commendation Medal, the Air Medal nine times and the Bronze Star.

      . For the text of Article 138, 10 U.S.C. § 938, see note 1 supra. Army Regulation 27-14 reads in part:
      “9. Action by general court-martial convening mithority. Upon receipt of the complaint, the officer exercising general court-martial jurisdiction over the respondent may:
      “a. If such action has not been taken by an intermediate commander, grant the redress requested, including restoration of rights, or if he lacks jurisdiction to grant such redress, forward the complaint to the jurisdiction which has authority to grant such redress, or “b. Delay consideration of the complaint in accordance with paragraph 3b, or
      “c. Conduct an information inquiry into the complaint or direct an officer of his command senior to the respondent to do so on his behalf, or “d. Order an investigation in accordance with AR 15-0 with respect to the alleged wrong. Upon completion of his inquiry into the complaint and action thereon (approval or denial of the requested redress), the officer exercising general court-martial jurisdiction will forward the file in accordance with the procedures outlined in paragraph 10. . ."

      . Jurisdiction is defined in Army Regulation 27-14:
      “6. Jurisdiction. Jurisdiction to examine into complaints lies with the commander or his successor commander who exercised general court-martial jurisdiction over the respondent at the time of the incident giving rise to the complaint. In the event of the respondent’s transfer to another general court-martial jurisdiction, the action on the complaint may also be transferred if investigation or redress will be facilitated thereby. Intermediate commanders receiving complaints will transmit the complaint and accompanying papers without delay to the appropriate general court-martial convening authority. They may add pertinent material to the file or grant the redress requested and so note in the transmittal to the appropriate general court-martial convening authority.”

      . The affidavits were not admissible as competent evidence. Botli were hearsay. Neither affiant was available for xiurposes of cross-examination.

      . In fact, a letter from the Department of Army Active Duty Board received by petitioner on December 23, 1971, declared:
      “[A]ll factors were considered, including your efficiency ratings, comments on your efficiency rei>orts, schooling, commendations, and types and varieties of assignments.”


source: Caselaw Access Project

author: LEVIN H. CAMPBELL, Circuit Judge.

license: Public Domain

text:
    Donald E. POWERS, Plaintiff, Appellant, v. BETHLEHEM STEEL CORPORATION, Defendant, Appellee, v. McKIE LIGHTER CO., INC., Defendant, Appellee. Donald E. POWERS, Plaintiff, Appellant, v. McKIE LIGHTER CO., INC., Defendant, Appellee.
    Nos. 72-1197, 72-1198.
    United States Court of Appeals, First Circuit.
    Heard March 7, 1973.
    Decided April 9, 1973.
    Rehearings Denied May 10, Aug. 23, 1973.

      Michael B. Latti, Boston, Mass., with whom Robert S. Wolfe, and Kaplan, Lat-ti & Flannery, Boston, Mass., were on brief, for plaintiff-appellant.
    Leo F. Glynn, Boston, Mass., for defendant-appellee, McKie Lighter Co., Inc.
    Charles E. Colson, Boston, Mass., with whom Cargill, Masterman & Cahill, Boston, Mass., was on brief, for defendantappellee, Bethlehem Steel Corp.
    Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.
   LEVIN H. CAMPBELL, Circuit Judge.

Appellant Powers, a pile driver employed by McKie Lighter Co., suffered a serious eye injury as he stood on a MeKie-owned raft next to Pier 3 of the Bethlehem shipyard in Boston. McKie was under contract with Bethlehem Steel Corporation, the owner of the pier, to repair the pilings underneath. Powers, who received compensation for the injury under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U. S.C. § 901 et seq., commenced separate actions in the district court against McKie, claiming damages under the Jones Act, 46 U.S.C. § 688, and damages and maintenance and cure under general maritime law; and against Bethlehem, under diversity jurisdiction, claiming damages for negligence. The jury returned substantial verdicts against both defendants, jointly and severally. Powers appeals from the district court’s entry of judgments notwithstanding the verdicts in favor of both defendants, D. C., 343 F.Supp. 17.

Standing under the pier on a raft or “float” owned by McKie, Powers and other workmen would first clean the piles by chipping and sandblasting, and then place a form around them into which concrete would be poured. The raft was about twenty-five feet long and five feet wide. Without deck or railing, it was made of 12 by 12 timbers, bonded together. There were rings for lines at its four corners. The men would descend by ladder to the raft, which when not in use lay tied to the pier, lower to the raft sandblasting equipment, water pumps, and forms to be placed around the pilings, and move the raft under the pier to the piles by poling or pulling on lines attached to the pier. They would tie the raft to a larger raft on opposite sides of a row of piles, and span the rafts with planks, so that they could move between and work around the piles. Lines containing water, air, steam and electricity for cleaning, sandblasting and lighting were led from the pier by the men on the raft to where they were working.

The pier was thirty to forty feet wide. The raft’s only movement was from the pier front to the piles underneath or from one row of piles to another. Even when so moving it was normally attached by at least one line to the pier. It had earlier been towed by a workboat to Pier 3 from Pier 2 and had also been towed through Boston harbor to other jobs.

The lighting for the work area, supplied by Bethlehem, consisted of drop lines with a male plug at one end, plugged into a fuse box, and a socket at the other with a bulb in it. The line would be slung over the side of the pier, and taken under the pier by a workman. Some but not all of the bulbs had reflectors. None had protective covering around them. The bulbs had popped frequently while the men worked, sometimes when Bethlehem supervising employees were present. As late - as the week of the accident, a bulb had popped in their presence. Powers had twice complained to the Bethlehem job supervisor, recommending that the bulbs be surrounded with a steel or wire cage, with a piece of plexiglass enclosure. There is no evidence of what response Powers received, if any.

The accident happened before daylight, as Powers, standing on the raft, then attached to the pier, was preparing to move it about twenty feet to piles under the pier. The light cable, supplied by a Bethlehem employee to a McKie employee, lay hanging over the side of the pier, the bulb about ten to thirteen feet above Powers' eye level. The bulb was unprotected. When Powers looked up toward the light, the bulb popped, sending pieces of glass into his eye.

This case is one more taking us literally to the water’s edge, having to do with the circumstances under which a harbor-worker may become entitled to a seaman’s remedies. See Victory Carriers, Inc. v. Law, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971). Recovery under the Jones Act or under the general maritime law for unseaworthiness requires affiliation with a “vessel” — either as a crew member or as one injured aboard doing seaman’s work. Swanson v. Marra Brothers, Inc., 328 U.S. 1, 4, 7, 66 S.Ct. 869, 90 L.Ed. 1045 (1946); Seas Shipping Co., Inc. v. Sieracki, 328 U.S. 85, 99, 66 S.Ct. 872, 90 L. Ed. 1099 (1946). We believe the raft upon which Powers was injured was not a vessel.

What is a vessel, like who is a crew member, is “except in rare cases”, a jury question. Offshore Company v. Robison, 266 F.2d 769, 780 (5th Cir. 1959). Nevertheless, the broad parameters of definition must be established if the terms are to have content. If what emerges from facts and inferences taken most favorably to the plaintiff cannot be a vessel, the jury may not make it one. See Thibodeaux v. J. Ray McDermott & Co., 276 F.2d 42, 46 (5th Cir. 1960); Hill v. Diamond, 311 F.2d 789, 792-793 (4th Cir. 1962); Texas Company v. Savoie, 240 F.2d 674, 675 (5th Cir. 1957); rehearing denied, 242 F.2d 667 (5th Cir. 1957); cert. denied, 355 U.S. 840, 78 S.Ct. 49, 2 L.Ed.2d 51 (1957).

We agree with the 5th Circuit in Cook v. Belden Concrete Products, Inc., 472 F.2d 999 (5th Cir. 1973), that a floating construction platform secured to land is not a vessel for purposes either of the Jones Act or general maritime law. The non-vessel in Cook was a flat-deck barge, 180 by 54 feet, upon which employees fabricated concrete barges. Equipped with pipes and pumps for flooding or evacuating interior compartments, but without its own propulsion, it was occasionally moved to different positions alongside the dock to pick up materials, would be towed into deeper water to launch completed barges, and had been towed considerable distances. While barges were being fabricated, it was fastened by ropes to the dock. The court said, at 1001:

in the instant case the floating construction platform was capable of limited movement and was, in the normal course of its service, towed from point-to-point in the navigable waters. . . . The permanence of fixation, however, is not the criterion which governs the maritime status of floating dry docks and similar structures. As the Supreme Court pointed out in The Robert W. Parsons [191 U.S. 17, 30, 24 S.Ct. 8, 48 L.Ed. 73 (1903)] the “determinative factors upon the question of jurisdiction [are] the purpose for which the craft was constructed and the business in which it is engaged”. . . .

Cook, supra, relied on cases emanating from Cope v. Vallette Dry-Dock Company, 119 U.S. 625, 627, 7 S.Ct. 336, 30 L.Ed. 501 (1887), that a floating dry-dock is not a vessel. See Atkins v. Greenville Shipbuilding Corp., 411 F.2d 279, 283 (5th Cir. 1969), cert. denied, 396 U.S. 846, 90 S.Ct. 105, 24 L.Ed.2d 96 (1969). In our own case of DeMartino v. Bethlehem Steel Co., 164 F.2d 177, 179 (1st Cir. 1947), holding that a floating dock was not a vessel, we cited Berton v. Tietjen & Lang Dry Dock Co., 219 F. 763 (D.N.J.1915), in which, at 771, the court said,

. A stage designed to be used in connection with painting or repairing the side of a vessel would not become [a vessel] merely because it was capable of floating on the water, though it were used by workmen in thus painting and repairing, while the same was on the water, rising and falling with the tide, or because it could be moved alongside or around such vessel, and while being moved was capable of holding persons and property. . .

The purpose and business of the present craft was not the transportation of passengers, cargo, or equipment from place to place across navigable waters. It was tied to the pier or its pilings virtually all of the time. Nearly as long as the pier was wide, it was used to provide a stable platform for men repairing defective piles. While so used, it was lashed with the other raft to piles, planks being placed from raft to raft, and was indistinguishable from a permanent floating dock. See DeMartino v. Bethlehem, supra. Its brief movement consisted of being hauled, poled or pad-died from the pier to the piles underneath, or from pile to pile; even when moving it was usually attached to the pier by one or more lines. Its occasional “voyages” — -when towed by workboat from one pier to another — were no different from the dragging of a section of floating dock from one location to another. See Evansville & Bowling Green Packet Co. v. Chero Cola Bottling Co., supra, 271 U.S. at 20-21, 46 S.Ct. 379; Cook,.supra, 472 F.2d 1001, n. 5.

Rafts, of course, may be designed or used “to encounter perils of navigation” (See Evansville v. Chero Cola Co., supra, 271 U.S. at 22, 46 S.Ct. 379); if so they may be vessels. See The Mary, 123 F. 609 (S.D.Ala.1903); United States v. Marthinson, 58 F. 765 (E.D.S.C.1893); Seabrook v. Raft of Railroad Cross-Ties, 40 F. 596 (D.S.C. 1889). But we cannot reasonably describe the present raft as other than a floating stage. Even with men and equipment on it, its movement, amounting mostly to a positioning under the pier incidental to its intended use, was not navigation.

The raft, moreover, was unlike special purpose floating structures whose function requires exposure to the hazards of the sea usually at some distance from the shore, such as barges, dredges, drilling platforms and floating derricks. See Offshore Company v. Robison, supra, 266 F.2d at 772 (mobile drilling platform with retractable legs, having a raked bow, navigation lights, bitts, anchors, bilge pumps, cranes and life rafts, located at the time of the accident three miles offshore); Summerlin v. Massman Const. Co. et al., 199 F.2d 715, 716 (4th Cir. 1952) (derrick anchored in a river); Gahagan Const. Corporation v. Armao, 165 F.2d 301, 305 (1st Cir. 1948) (dredge on which crew slept and ate). Also compare Stafford v. Perini Corporation, 475 F.2d 507 (1st Cir. 1973) (construction barge anchored two miles offshore, assumed to be vessel). These navigable craft, like conventional vessels, retain their status even when berthed for long periods or even when resting upon or attached to the bottom. See Gianfala v. Texas Company, 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 775 (1955), reversing, Texas Company v. Gianfala, 222 F.2d 382 (5th Cir. 1955).

It may well be that when a craft not designed or generally used as a vessel is in actual navigation — such as when, unattached to land, it is under tow for an appreciable distance over navigable water — it will temporarily acquire a vessel’s status. See United States v. Moran Towing & Transportation Co., 374 F.2d 656 (4th Cir. 1967), Cook, supra. However, even were the jury on conflicting evidence to have concluded that Powers’ injury occurred while the raft was in process of being hauled under the pier, we do not consider such movement to be navigation. Attached by a line to the pier, the raft remained a work platform while being so maneuvered into position, a distance of about twenty feet. We sustain judgment for McKie.

We next consider whether appellant may be allowed to recover against Bethlehem. We do not agree with him that Bethlehem’s negligence is to be determined under general maritime law. See Kermarec v. Compagnie General, 358 U.S. 625, 628, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959); Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 259, 42 S.Ct. 475, 66 L.Ed. 927 (1922). Maritime law applies only where the wrong occurring on or over navigable waters “bear[s] a significant relationship to traditional maritime activity.” Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 268, 93 S.Ct. 493, 504, 34 L.Ed.2d 454 (1972). It would be incongruous to hold that the required relationship existed here, in the face of our conclusion that the raft was not a vessel, but, being a floating work platform, was, in effect, an extension of the pier, itself an extension of the land. See Victory Carriers, Inc. v. Law, supra, 404 U.S. at 206-207, 92 S.Ct. 418. Powers, a landbased piledriver, employed to repair piles from the platform, was injured by a bulb hanging over the pier. We see nothing either in his occupation or in the circumstance of the accident to invoke the law of admiralty, “designed and molded to handle problems of vessels relegated to ply the waterways of the world.” Executive Jet Aviation, Inc. v. City of Cleveland, supra, 409 U.S. at 269, 93 S.Ct. at 505.

We thus turn to whether under Massachusetts law the jury could have found that Bethlehem violated a duty owed Powers. A Massachusetts landowner owes to the employees of an independent contractor only the same duty he owes his own employees, “and that duty [is] to disclose hidden defects of which the defendant was aware or of which in the exercise of reasonable care it should have known. Except in cases of hidden defects, the employer owes no duty to alter the conditions where the work is to be done or to make them safe for the employee.” Burr v. Massachusetts Electric Company, 356 Mass. 144, 147, 248 N.E.2d 492, 495 (1969). This rule, now mitigated in virtually all cases (as in Powers’) by comprehensive workmen’s compensation laws, was established in an earlier era when the cost of industrial accidents was but rarely imposed on an employer. Whatever its shortcomings, we are bound by it. The defect in the light bulb was not hidden; Powers had noticed bulbs popping and had in fact complained about the danger to Bethlehem employees. That appellant had not seen the light bulb which exploded is unimportant, given his familiarity with the bulbs’ propensity to pop and their lack of shielding.

Appellant’s argument that Bethlehem violated a duty to supply safe equipment must fail also, since recovery would depend, on Powers’ not knowing that the equipment was defective. Cf. Mulchey v. Methodist Religious Society, 125 Mass. 487, 489 (1878); White v. Newborg, 208 Mass. 279, 281, 94 N.E. 269, 270 (1911). See Restatement of Torts 2d § 496A, comment c(3), § 496C. We thus affirm the judgment for Bethlehem against Powers.

We find merit in none of the appellant’s remaining contentions, dealing mostly with the exclusion of evidence at trial. The verdict in his favor cured any possible prejudice before the jury. We ourselves have considered and, for purposes of this decision have accepted in its aspect most favorable to appellant, the excluded proof relative to the status of the raft. Other exclusions, such as of certain evidence relative to his alleged crew status, were harmless in view of our conclusion that the raft was not a vessel. Given our disposition of the case, the district court’s unwillingness to allow appellant to amend the complaint could not have been prejudicial.

Affirmed.

      . Sometimes, men on the pier would hold a line to guide the raft under the jner. There was a suggestion in the testimony that at a point when the raft was moving under the pier the man on the pier would drop the line to a man on the raft, but it is clear from the testimony that the raft was unattached to the pier, if at all, for only a matter of minutes.

      . There is some suggestion in testimony that the raft may actually have commenced its movement under the pier.

      . We have considered the evidence in the light most favorable to appellant, in-eluding evidence made as an offer of proof after exclusion by the court, and give him the benefit of every favorable inference. Rainey v. Gay’s Express, Inc., 275 F.2d 450, 451 (1st Cir. 1960).

      . Somewhat related is the Supreme Court’s classification of a so-called wharf boat as a non-vessel. Evansville & Bowling Green Packet Co. v. Chero Cola Co., 271 U.S. 19, 46 S.Ct. 379, 70 L.Ed. 805 (1926). Secured to the shore, with quarters for men abroad and shore based power and plumbing connections, the huge craft was towed each winter to a more sheltered harbor, and had sometimes been towed considerable distances. The statutory “vessel” definition under consideration in that case — “every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water”— was virtually the same as that in 46 U.S. § 801, arguably applicable to Jones Act cases. See 7A Moore’s Federal Practice ¶ .215 [4], The quoted language has never been construed as meaning simply every floating object capable of bearing weight without sinking. See, e. g., Hill v. Diamond, supra, 311 F.2d at 792-793.

      . Besides the short distance from pier to pilings, and the fact the raft remained attached to the pier, we note that piers and docks have traditionally been “deemed extensions of land”. Victory Carriers v. Law, supra, 404 U.S. at 206-207, 92 S.Ct. 418. To term movement thereunder of this sort “navigation” would seem as strained as to call the raft a “vessel” or Powers its “crew”.

      . The district court erred in ruling alternatively that § 905 of the Longshoremen’s and Harbor Workers’ Act, 33 U.S.C. § 901 et sea., barred Powers’ action against McKie because Powers had collected compensation and had testified in support of his compensation claim. It was settled, at least before amendment in October, 1972, that § 905 did not bar a longshoreman or harbor worker’s action against his employer, who owned the vessel where the injury occurred, despite the worker’s having collected compensation. Reed v. The Yaka, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448 (1963); Jackson v. Lykes Steamship Co., 386 U.S. 731, 87 S.Ct. 1419, 18 L.Ed.2d 488 (1967); Biggs v. Norfolk Dredging Co., 360 F.2d 360 (4th Cir. 1966). But see Pub.Law 92-576, 86 Stat. 1251, § 18(a) (1972), amending § 905.

      . See also Barrett v. Foster Grant Co., 450 F.2d 1146 (1st Cir. 1971); DeMartin v. New York, New Haven & H. R.R. Co., 336 Mass. 261, 143 N.E.2d 542 (1957); Hannon v. Hayes-Bickford Lunch System, Inc., 336 Mass. 268, 145 N.E.2d 191 (1957); Gallo v. Leahy, 297 Mass. 265, 8 N.E.2d 782 (1937); Faverau v. Gabele, 262 Mass. 118, 159 N.E. 738 (1928).

      . Powers’ earlier unheeded requests for shielding indicated that he knew of the likelihood of danger ns well as of the possibility of the bulbs’ popping. Restatement of Agency 2d, § 521, comment b; § 522.


text:
    UNITED STATES of America, Appellee, v. Leland Laird HOLBY, Appellant.
    No. 643, Docket 72-2120.
    United States Court of Appeals, Second Circuit.
    Argued March 2, 1973.
    Decided April 18, 1973.

      Marvin M. Karpatkin, New York City (Barry Satlow, New York Civil Liberties Union, New York City, of counsel), for appellant.
    George E. Wilson, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty. S. D. N. Y., Peter L. Truebner, Asst. U. S. Atty., of counsel), for appellee.
    Robert H. Turtle and Edmund D. Campbell, Washington, D. C., McNeill Smith, Greensboro, N. C., and James M. Nabrit, III, New York City, for American Bar Association, amicus curiae.
    Before KAUFMAN and MANSFIELD, Circuit Judges, and BRYAN, District Judge.

       Of the United States District Court for the Southern District of New York sitting by designation.

   FREDERICK van PELT BRYAN, District Judge:

Leland Laird Holby appeals from a judgment of conviction for knowing, wilful and unlawful refusal to submit to induction in the armed forces of the United States, in violation of 50 U.S.C. App. § 462(a). The judgment was entered in the Southern District of New York, after trial to the Court without a jury.

The District Court found that Holby had knowingly failed to exhaust his administrative remedies under the Military Selective Service Act. It held that he was, therefore, barred from asserting his defenses on the merits that the order of induction was invalid because there was no basis in fact for denial of 1-0 classification as a conscientious objector and because no reasons have been given for such denial. The District Court thus did not consider or pass on these defenses. It further held that defendant had no right to legal counsel before his local board and that his induction order was not issued in violation of the order of call regulations. Holby was found guilty as charged. 345 F.Supp. 639 (S.D.N.Y.1972).

The facts are not in dispute.

Holby registered with the Selective Service on October 11, 1963. He attended Middlebury College and was classified 2-S (full time undergraduate student deferment). In June, 1967, upon his graduation from college, he filed Selective Service Form 150, the special form for conscientious objectors, with extensive supporting material. He presented a strong case for 1-0 classification as a conscientious objector. On July 19, 1967, the local board rejected his conscientious objector application and classified him 1-A. The board gave no reasons for its decision.

Thereafter, at Holby’s request, he was granted a personal appearance and he and his parish clergyman appeared, separately, before the local board. Following these interviews, the local board, on September 13, 1967, again refused to classify him as a conscientious objector and continued his 1-A classification. Again, no reasons were given. In the meantime, Holby had appeared for physical examination and was found physically fit for induction.

Holby appealed from the decision of his local board and on November 9,1967, by a vote of 2 to 1, the New York State Appeal Board upheld the 1-A classification. It gave no reasons. Thereafter, on appeal to the Presidential Appeal Board, that Board also upheld his 1-A classification without stating any reasons.

On April 15, 1968, pursuant to an order to report for induction, Holby appeared at the induction center but refused to submit to induction on the ground of his religious objection to participation in war in any form. The case was then sent to the United States Attorney for the Southern District of New York for prosecution. The United States Attorney declined to prosecute Holby, advising Selective Service System afficials (1) that on the record, there appeared to be no basis in fact for the denial of his 1-0 claim and (2) that no reasons had been given for the denial of 1-0 classification. A request from the Selective Service System urging reconsideration was denied by the United States Attorney for the same reasons given for the initial refusal to prosecute.

The New York State Selective Service headquarters then advised Holby’s local board that prosecution had been declined and directed the board to call Holby for a “discretionary” or “courtesy” interview. When Holby received that call, he requested permission .to attend with his counsel and a stenographer or tape recorder so that he could obtain an accurate transcript of the proceedings. The local board refused his request under Selective Service Regulation 32 C.F.R. § 1624.1(b) providing that “no registrant may be represented before the local board by anyone acting as attorney or legal counsel.”

Holby then wrote to the board declining to appear because there was nothing he could add to the record and because of its refusal to permit him to appear with counsel and to record the proeeedings when he was under threat of criminal prosecution for his prior refusal to submit to induction. On November 13, 1968 the board refused to reopen his 1-A classification, without stating any reasons.

On November 27, 1968 the State Director directed the local board to reopen and reconsider. In March, 1969 the local board again requested Holby to appear for a “discretionary” interview. Holby again declined, on the same grounds. On May 6, 1969 he was advised that he was still classified 1-A. No reasons were given. He was sent the standard form, SSS Form 217, advising him of his right to a personal appearance and to an appeal. Holby did not exercise those rights. He was directed to report for induction on July 9, 1969. He appeared at the induction center but again refused induction on the religious grounds previously asserted. His prosecution and conviction for refusal to submit to induction followed.

Holby attacks the judgment of conviction on several grounds. First, he contends that the court below was in error in holding that the exhaustion of administrative remedies doctrine barred him from asserting his defenses on the merits. Second, he urges that the induction order was invalid because (1) there was no basis in fact for the denial of his application for 1-0 classification as. a conscientious objector, and (2) because neither the local board nor the appeals boards gave any reason or explanation for their classification decisions.

I

The question of when the doctrine of exhaustion of administrative remedies should be applied in criminal cases under the Selective Service Act to bar defenses on the merits is not without difficulty. However, the basic principles have been well established in McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969), where the exhaustion doctrine was held not applicable under the circumstances of that case. As the Court stated in MeKart,

[I]t is well to remember that use of the exhaustion doctrine in criminal cases can be exceedingly harsh. The defendant is often stripped of his only defense; he must go to jail without having any judicial review of an assertedly invalid order. This deprivation of judicial review occurs not when the affected person is affirmatively asking for assistance from the courts but when the Government is attempting to impose criminal sanctions on him. Such a result should not be tolerated unless the interests underlying the exhaustion rule clearly outweigh the severe burden imposed upon the registrant if he is denied judicial review. . . .We must ask, then, whether there is in this case a governmental interest compelling enough to outweigh the severe burden placed on petitioner. Even if there is no such compelling interest when petitioner’s case is viewed in isolation, we must also ask whether allowing all similarly situated registrants to bypass administrative appeal procedures would seriously impair the Selective Service System’s ability to perform its functions. 395 U.S. at 197, 89 S.Ct. at 1664 (footnote omitted).

“[Djiscrete analysis of the particular default” ascribed to Holby in the case at bar convinces us that the application of exhaustion doctrine here would be exceedingly harsh and that there is no governmental interest compelling enough to justify its application. Moreover, under the circumstances of this case, there is no danger that allowing similarly situated registrants to bypass administrative procedures would seriously impair the ability of the Selective Service System to perform its functions.

During the extensive proceedings culminating in Holby’s first refusal to submit to induction on religious grounds, he meticulously complied with the Selective Service rules and regulations and diligently pursued every administrative remedy available to him. He submitted a full and convincing application for 1-0 classification as a conscientious objector, with extensive supporting material including seven letters attesting to his sincerity. He took the required physical examination. When the local board denied his application he applied for and made a personal appearance with his parish clergyman, who testified before the board as to his sincerity.

When his application was again denied, Holby successively appealed to the State Appeal Board and, finally, to the Presidential Appeal Board, both of which upheld the local board’s determination. At no point did any of the administrative bodies give any reasons for denial of his application for 1-0 classification and no such reasons appeared from the record. Thus, at this point, he had fully exhausted all his administrative remedies and had been denied any relief.

When the Selective Service forwarded Holby’s case for prosecution, the United States Attorney, with ample justification, twice declined to prosecute.

Thereafter, the local board invited Holby to appear for so-called “courtesy” or “discretionary” interviews. Holby did not ignore those invitations. He requested the board’s permission to appear with counsel and a stenographer or tape recorder, in view of the already demonstrated threat of criminal prosecution. When the board refused his request, Holby declined to appear on the ground that the record before the board was complete and there was nothing he could add to that record, and on the further ground of the board’s refusal to permit him to appear with counsel and to record the proceedings.

When the local board again adhered to the 1-A classification, Holby did not appeal from that determination. As he explained at the trial, he felt he had presented everything he could in support of his 1-0 application and that after the sixth successive denial, any further appeal would be futile.

The Government takes the position that Holby’s failure to appear for a “courtesy” or “discretionary” interview or to appeal from the board’s sixth denial of his claim for 1-0 classification— that is to say, to re-exhaust the remedies he had already fully pursued — bars him, under the exhaustion doctrine, from asserting his defenses on the merits. We disagree.

When Holby was invited to appear for the courtesy interviews, he had already gone through the entire gamut of administrative remedies with inexplicable lack of success. He had provided the board with thorough documentation of his 1-0 claim and had personally appeared before the board. It is difficult to see what could have been added to that record.

All that remained for Holby to do when the board adhered to the 1-A classification was to file a simple statement saying “I appeal”. That would have added nothing on the merits to the already complete administrative record.

Under the circumstances here, Holby’s failure to appear at the discretionary interviews and to appeal does not constitute a waiver of his right to contest his classification or furnish a basis for denying him the right to do so. We cannot perceive “a governmental interest compelling enough to outweigh the severe burden” which would be placed on the defendant by the application of the exhaustion doctrine here.

Moreover, the result we reach, if applied to similarly situated registrants, could not seriously impair the functioning of the Selective Service System. The number of registrants similarly situated will be miniscule.

Holby was fully entitled to a 1-0 classification on the record he had already made before the board. Given the failure of the system to have performed its function properly the first four times it had the chance to do so, the claim that denying it a fifth opportunity constitutes a serious impairment falls of its own weight. “Surely an insubstantial procedural default by a registrant should not shield an invalid order from judicial correction, simply because the interest in time-saving self-correction by the agency is involved.” McGee v. United States, 402 U.S. 479, 484-485, 91 S.Ct. 1565, 1569, 29 L.Ed.2d 47 (1971).

Whether the exhaustion doctrine should be applied in a particular case depends on the facts. The facts here fall generally within the ambit of such cases as United States v. Rabe, 466 F.2d 783 (7th Cir. 1972); United States v. Hayden, 445 F.2d 1365, on petition for rehearing, id. at 1378 (9th Cir. 1971); and United States v. Glover, 286 F.2d 84 (8th Cir. 1961), in each of which the court refused to apply the exhaustion doctrine as a bar.

The facts in this ease are quite different from those in McGee v. United States, 402 U.S. 479, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971), on which the Government principally relies. McGee neither sought a personal appearance nor took an administrative appeal after his local board denied his application, for classification as a conscientious objector. He had burned his draft card, announced unequivocally that he would adhere to a policy of non-cooperation with the Selective Service System and consistently did so. There was a deliberate flouting of the administrative process. The Supreme Court, applying the principles announced in McKart, held that McGee’s rejection of all administrative remedies prevented the Selective Service System from having a “full opportunity”, 402 U.S. at 489, 91 S.Ct. 1565, to compile a factual record and to have administrative review of the classification. Accordingly, the court applied the exhaustion doctrine to bar McGee from asserting the defense that there was no basis in fact for denial of his request for 1-0 classification.

Holby, in contrast, had provided Selective Service with a full and detailed record, and had availed himself of administrative review at the highest level.

This case is also unlike United States v. Alford, 471 F.2d 718 (9th Cir. 1972) and United States v. Maciel, 469 F.2d 718 (9th Cir. 1972), cited by the Government, since, among other factual distinctions, those cases did not involve registrants who had previously fully exhausted their administrative remedies. United States v. Nelson, 6 SSLR 3034, No. 72-2383 (9th Cir. Dec. 21, 1972), also relied upon by the Government, is apparently the only case holding a registrant barred by the exhaustion doctrine for failure to conduct a second appeal on an identical claim. In that case there had been a change in the applicable law between the registrant’s initial exhaustion and subsequent failure to re-exhaust, and there was no intervening refusal to submit to induction. To the extent that Nelson is inconsistent with the views we express here (but see United States v. Goss, No. CR 71-1473, 6 SSLR 3152 (N.D.Cal. March 2, 1973), we decline to follow it.

Applying the principles announced in McKart and McGee to the circumstances of this case, we hold there is nothing which would justify the forfeiture of judicial review of Holby’s defenses on the merits because he failed to reexhaust administrative remedies which he had already fully pursued without success.

We turn, then, to Holby’s defenses.

II

The first defense is that the order of induction was invalid because there was no basis in fact for the local board’s rejection of Holby’s claim for 1-O classification.

Congress did not choose to subject administrative action under the Selective Service Act to the customary scope of review authorized by other administrative agency statutes. Judicial review of classifications made by a local board is narrowly circumscribed and confined to a determination of whether there is any basis in fact for the classification which the local board gave the registrant. If there is no basis in fact for the classification, the classification and resulting induction order are invalid. 50 U.S.C. App. § 460(b)(3); United States v. Seeger, 380 U.S. 163, 185, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965); Estep v. United States, 327 U.S. 114, 122-123, 66 S.Ct. 423, 90 L.Ed. 567 (1946).

Whether or not there is such a basis in fact is a question to be decided by the reviewing court on the administrative record before the board. Cox v. United States, 332 U.S. 442, 68 S.Ct. 115, 92 L.Ed. 59 (1947); United States ex rel. Zelman v. Carpenter, 457 F.2d 621, 622 (2d Cir. 1972); Helwick v. Laird, 438 F.2d 959, 965-966 (5th Cir. 1971). In conscientious objector cases the basis in fact test involves not only the consideration of the objective facts concerning the registrant’s claimed beliefs but also the subjective question of his sincerity in such beliefs. See Witmer v. United States, 348 U.S. 375, 381-382, 75 S.Ct. 392, 99 L.Ed. 428 (1955).

Holby’s application (SSS Form 150) spelled out fully and at length his position as a religious pacifist in accordance with well recognized Christian principles and established all the criteria necessary for 1-O classification. The application recited that Holby had had extensive religious training, was a devout and practicing member of the Episcopal Church, and that his rejection of war in any form was based on the Nicene Creed and the doctrine of brotherly love as taught by Christ. He made a full and convincing statement of the rationale of his beliefs. With his application he submitted pamphlets elaborating on his principles and beliefs. He also submitted seven letters from clergymen, relatives and friends conversant with his religious convictions, which attested to his sincerity. Holby’s claim had none of the typical flaws, such as opposition to only some wars, see Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971), untimeliness of his application, see Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971), or lack of sincerity, see Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428 (1955). His claim is simple, direct and free from doubt.

Nothing in the record of his personal appearance before the local board after its initial rejection of his claim casts the slightest doubt on any of the facts stated in his application or the sincerity of his beliefs. In fact, his parish clergyman, who appeared before the board at the same time, attested to Holby’s sincerity. Holby’s own summary of the appearance before the local board, which the Government does not question, confirms this.

The board gave no reasons for any of its successive rejections of his claim and none appear from the record.

The only perhaps unusual feature of Holby’s application is his forthright admission, included in his Form 150, that he had been a member of the Reserve Officers Training Corps during his freshman and sophomore years at Middlebury College two years before he made his application for conscientious objector classification. Holby pointed out, however, that at that time he had not yet “chosen to declare myself officially a pacifist”; that the R.O.T.C. program was compulsory for the first two years of college only and was required for graduation; that he had sought to be released from the program but that releases were not permitted by the college administration; that he did not continue with R.O.T.C. after the end of his sophomore year; and that he was among the leaders of a group of students who were successful in persuading the trustees of the college to make R.O. T.C. voluntary instead of compulsory. If the board considered this information as an indication of lack of sincerity on Holby’s part (and there is some indication that it may have), we see no basis in fact for such a conclusion.

We hold that, on the record before the board, there was no basis in fact for the local board’s denial of Holby’s 1-0 application, that therefore the order of induction was invalid and that his conviction must fall for that reason.

III

There is another reason why the conviction cannot be allowed to stand.

At the least, Holby’s made out a prima facie case before the board for 1-0 classification, as the Government concedes. On none of the four occasions on which the local board refused Holby’s request for 1-0 classification did the board give any reasons whatsoever for so doing.

Prior to the confession of error by the Solicitor General, in Joseph v. United Status, 405 U.S. 1006, 92 S.Ct. 1274, 31 L.Ed.2d 473 (1972), on the basis of which the judgment of conviction was vacated and the cause remanded, there was some doubt in this circuit as to whether, before the 1971 amendment to the Selective Service Act, it was necessary for the local board to give a statement of reasons for denial of an application for reclassification. See United States ex rel. Checkman v. Laird, 469 F.2d 773 (2d Cir. 1972); United States ex rel. Zelman v. Carpenter, 457 F.2d 621, 622 n. 1 (2d Cir. March 27, 1972, decided on the same day as Joseph, supra); United States v. Lenhard, 437 F.2d 936 (2d Cir. 1970); Paszel v. Laird, 426 F.2d 1169 (2d Cir. 1970). But cf., e. g., United States v. Haughton, 413 F.2d 736 (9th Cir. 1969); United States v. Broyles, 423 F.2d 1299 (4th Cir. 1970); Scott v. Commanding Officer, 431 F.2d 1132 (3d Cir. 1970); United States v. Stetter, 445 F.2d 472 (5th Cir. 1971).

That doubt has now been resolved.

In confessing error in Joseph, the Solicitor General, after citing with approval a series of eases which held that a statement of reasons was required, stated

The underlying rationale of these decisions, although variously formulated, is that some statements of reasons for a board’s classification is necessary to “meaningful” review (cf. Gonzales v. United States, 348 U.S. 407, 415, 75 S.Ct. 409, 99 L.Ed. 467) of the administrative determination — both by the State Appeals Boards and by the courts. . . .

He conceded that failure to give a statement of reasons invalidated the classification.

A statement to the same effect was also made by the Solicitor General in Lenhard v. United States, 405 U.S. 1013, 92 S.Ct. 1296, 31 L.Ed.2d 477 (1972), vacating and remanding 455 F.2d 1406 (2d Cir. 1971) on the basis of the confession of error. In Lenhard, the conviction was reversed by the Court of Appeals for this circuit on remand. 461 F.2d 1268 (2d Cir. 1972).

Since Joseph and Lenhard, it is plain that, in selective service cases, the failure of the local board to state reasons for denial of conscientious objector classification where a prima facie case has been made out deprives a registrant of any meaningful review of the administrative determination. See United States v. Rabe, 466 F.2d 783 (7th Cir. 1972); United States v. Orr, 474 F.2d 1365, 1369 & n. 3 (2d Cir. 1973). Such arbitrary action by the local board in this case invalidates the 1-A classification on which the order of induction was based and the conviction must fall for that reason also.

The judgment of conviction is reversed and the cause is remanded with directions to dismiss the indictment.

      . Pursuant to 18 U.S.C. § 3651, Judge Cannella sentenced Holby to imprisonment for two years but suspended all but four months of the sentence. He also imposed an eighteen month term of probation upon Holby to follow his confinement.

      . Holby also contends that the Selective Service Regulation, 32 C.F.R. § 1624.1 (b), denying him counsel before the local board violates his constitutional rights under the Fifth and Sixth Amendments and was not authorized by Congress. In view of our disposition of the other issues, we do not pass on those questions here.

      . McGee v. United States, 402 U.S. 479, 485, 91 S.Ct. 1565, 1569, 29 L.Ed.2d 47 (1971).

      . We see no basis in the record for the finding by the Court below that this was a “studied and obstructionist effort on his [Holby’s] part to prevent the Selective Service System from performing its fact-finding function.” 345 F.Supp. at 642.

      . See part II, infra.

       After our opinion was filed, we learned that on petition for rehearing this United States v. Nelson opinion was withdrawn and a new opinion substituted reversing instead of confirming Nelson’s conviction. United States v. Nelson, 476 F.2d 254 (9th Cir. 1973).

      . Public Law 92-129, 85 Stat. 353, September 28, 1971, provides that in the event of a decision adverse to the claim of a registrant, the local or appeal board making such decision “shall, upon request, furnish to such registrant a brief written statement of the reasons for its decision.” 50 U.S.C.App. § 471a (b)(4).

      . See also Fein v. Selective Service System, 405 U.S. 365, 377-381, 92 S.Ct. 1062, 31 L.Ed.2d 298 (1972).


author: GEWIN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. John England MORRIS, Jr., a/k/a Larry Jackson, Defendant-Appellant.
    No. 72-2224.
    United States Court of Appeals, Fifth Circuit.
    April 17, 1973.
    Rehearing and Rehearing En Banc Denied May 21, 1973,

      Robert Glass, New Orleans, La., Court-appointed for defendant-appellant.
    Gerald J. Gallinghouse, U. S. Atty., Robert S. Leake, Asst. U. S. Atty., New Orleans, La., Mervyn Hamburg, U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellee.
    Before GEWIN, GOLDBERG and DYER, Circuit Judges.
   GEWIN, Circuit Judge:

John England Morris was convicted of possessing a fully automatic rifle that had not been registered to him in the National Firearms Registration and Transfer Record, a violation of 26 U.S. C. §§ 5861(d) and 5871. Morris challenges his conviction on two grounds. He first argues that the evidence against him should have been suppressed because its seizure was incident to an unlawful arrest. His second argument is that as applied to him the registration provisions of the National Firearms Act violate his constitutional privilege against compulsory self-incrimination. We find both of Morris’ claims to be without merit and affirm the judgment of the district court.

Early in the morning of November 26, 1970, a bizarre sequence of events unfolded at the Desire Housing Project, a public housing unit owned and operated by the New Orleans Housing Authority. At that time an abscure organization calling itself the National Committee to Combat Fascism (NCCF) was located in the Desire Project at 3315 Desire Parkway, Apartment A. This apartment served not only as the headquarters of NCCF but also as the residence of some, if not all, of its members. The record does not reveal how NCCF’s members came to be in possession of the apartment, but it does disclose that the apartment’s owner, the New Orleans Housing Authority, considered their presence on the premises unlawful.

In any event on November 26 at 1:20 a. m. a group of New Orleans police officers wearing disguises arrived in the vicinity of Apartment A. Their purpose was to execute warrants for the arrest of Betty Powell and Godthea Cooper, known to be living in Apartment A, and to remove anyone else found on the premises. While three of the officers positioned themselves so that they could not be observed by the apartment’s inhabitants, three others attired in clerical dress approached the apartment and knocked on the door. Before receiving any response, they heard the sounds of weapons being loaded and a heavy object being moved in front of the door. Someone then peered out at them through a small peephole, and a voice asked, “Who is it?”

One of the officers identified himself as “Father Coy” and asked to speak with Godthea Cooper. The door was opened, and the officers were confronted by Cooper and another person later identified as Leon Lewis. Betty Powell was observed standing in the background. A conversation ensued during which the officers pretended to be clergymen eager to assist the apartment’s occupants in arranging bond for friends of theirs who had been arrested on the preceding day. They attempted to induce Cooper and her friends to leave the apartment and accompany them to the police station.

After some twelve minutes of fruitless persuasion, another officer disguised as a postman appeared and said that he had a letter for one of the apartment’s occupants. Leon Lewis came forward to examine the letter. At this time two more officers dressed in civilian clothes emerged from their hiding places and advanced toward the apartment. When Lewis noticed these new arrivals, he apparently recognized them as police officers, for he shouted, “Pigs! Watch out” and began trying to slam the door shut. A commotion erupted as one of the officers announced “Police”, another grabbed Cooper, and the rest forced their way into the apartment.. As they entered, they were met by outbursts of gunfire which they returned in kind. The gunfight lasted for about a minute until Betty Powell cried out that she had been hit. The occupants of the apartment were ordered to come out with their hands up and upon doing so were placed under arrest. Appellant Morris was found kneeling on the living room floor with an automatic rifle in his hands. Shots had emanated from the position where Morris was found. He was arrested, and the rifle was seized.

An evaluation of the legality of Morris’ arrest and the seizure of his weapon cannot be made without first examining the circumstances which led the police to devise and execute such an elaborate ruse for the arrest of the apartment’s inhabitants. On November 18, 1970 Officer Williams of the Police Department had obtained warrants for the arrest of Betty Powell and Godthea Cooper. In a sworn affidavit Williams stated that:

“. . . Betty Powell did . commit the crime of criminal trespass by the unauthorized and intentional taking possession of the structure known as 3315 Desire Parkway, Apartment A, without the consent of the Housing Authority of New Orleans, the owners of said property, by making application for and paying the deposit of $35.00 for the installation of a phone at 3315 Desire Parkway, Apartment A. The phone was installed by South Central Bell on October 29, 1970. These facts were verified by affiant by checking the records of South Central Bell and the affidavit of the illegal unauthorized entry and taking possession of made by the Chairman of the Board of the Housing Authority of New Orleans.’’ (emphasis added)

In a second affidavit Williams similarly alleged that Godthea Cooper had committed the crime of criminal trespass by occupying Apartment A without the consent of the New Orleans Housing Authority. He knew this because:

“On November 16, 1970 a registered letter was mailed via the U.S. Post Office to the occupant of 3315 Desire Parkway, Apartment A. On November 17, 1970 the letter was received and a receipt was signed by Godthea Cooper, alias Keefie. On November 18, 1970 said receipt was sent to the New Orleans Police Department by the U.S. Post Office. The fact of the illegal possession was verified by an affidavit executed by the Chairman of the Board of the Housing Authority of New Orleans.”

On the basis of these two affidavits warrants for the arrest of Powell and Cooper were issued. At the hearing on appellant’s motion to suppress, Williams testified that he never did provide the issuing magistrate with a copy of the Housing Authority’s complaint and that despite his statement in the Powell affidavit to the contrary', he had never actually seen the affidavit or verified its existence. He stated that at the time the warrants were obtained he had known of the affidavit’s existence because he had probably read about it in interoffice correspondence.

Williams, however, did not participate in the execution of these two warrants on the morning of November 26. The officers who did execute the warrants did so upon the instructions of Superintendent Giarusso of the Police Department. He instructed them to go to Apartment A in order to arrest Powell and Cooper and remove anyone else found on the premises. Although the arresting officers were not given the arrest warrants, they were told that warrants had been secured. They were never shown the complaint in which the Housing Authority charged the apartment’s occupants with criminal trespass, but they were informed of its existence by the Superintendent of Police and were told that the Police Department had verified the occupancy of the apartment by Powell and Cooper in the manner described in Williams’ affidavits. In addition the officers were shown photographs of the two women they were to arrest.

But the information supplied them by Superintendent Giarusso at this preliminary briefing was not the only information concerning Apartment A and its occupants possessed by the officers who forcibly entered it on November 26. On several occasions prior to November 26 some of these same officers had participated in abortive efforts to execute the warrants and clear the apartment of trespassers. They were accompanied by officials from the Housing Authority, the owner of the apartment, who complained that the people living in the apartment were trespassers and who urged the police to remove them. On these visits the police were not disguised, and they attempted to persuade the apartment’s inhabitants to leave peaceably. These prior visits resulted in nothing more than hostile confrontations with the apartment’s occupants who were armed and who obdurately refused to leave. It was because of the hostile reception they were accorded that the police concocted the very unusual scheme, the successful execution of which on November 26, culminated in the arrest of Morris and the seizure of his automatic rifle.

The critical question in this appeal is whether the police officers’ entry into Apartment A was lawful, for, if so, the subsequent seizure of the automatic rifle held in plain view by Morris was undisputedly proper. As the Supreme Court noted in Harris v. United States: “It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.” In determining the lawfulness of the officers’ entrance into Apartment A, the validity of the arrest warrants obtained by Williams must first be considered; if valid, they justify the officers’ entrance into the apartment in order to execute them.

Questions as to a warrant’s validity ordinarily turn upon whether the affidavit underlying it sets forth facts sufficient to establish probable cause. The statements made in the affidavit are presumed to be true. But at the suppression hearing in this case Officer Williams candidly admitted that a statement made by him in the Powell affidavit was erroneous. Tn that affidavit he swore that he had personally checked the Housing Authority complaint which charged Powell and Cooper with criminal trespass. In fact he had never seen any such affidavit; although unsure, he thought that he had learned of its existence through interoffice memoranda. Thus in his testimony at the suppression hearing Officer Williams inadvertently raised the question of what effect erroneous statements in an affidavit have on the validity of a warrant issued on the basis of that affidavit.

We recently considered this question in United States v. Upshaw. In that case a search warrant was issued upon an affidavit which, it was revealed, contained erroneous statements. When purged of its erroneous statements, the affidavit was wholly lacking in facts sufficient to show probable cause. After careful consideration this Court concluded :

“Once it came to the attention of the court, from the testimony at the motion to suppress hearing, that evidence had been seized on the basis of statements of facts erroneously made by the affiant which struck at the heart of the affidavit’s showing of probable cause, the court was required to grant the motion.”

A contrary rule would leave the warrant requirement embodied in the fourth amendment open to circumvention by overzealous officials willing to make erroneous affidavits in the hope that the resultant search or arrest will yield conclusive proof of criminal conduct. The warrant procedure operates on the assumption that statements in the affidavit presented to the issuing magistrate are at least an accurate representation of what the affiant knows though possibly inadequate to show probable cause. It would quickly deteriorate into a meaningless formality were we to approve searches or arrests based upon misrepresentation or incorrect factual statements. Thus when an affidavit contains inaccurate statements which materially affect its showing of probable cause, any warrant based upon it is rendered invalid.

In this case as in Upshaw, the affidavit underlying the warrant for Powell’s arrest contains an erroneous statement. Williams averred that he had personally checked the Housing Authority complaint charging Powell with trespass when in fact he had not. In the absence of this statement, the issuing magistrate had no assurance that such a complaint actually existed. If this critical fact is removed from the Powell affidavit, it contains nothing more than a recitation of entirely innocent acts coupled with the bare assertion that a crime was being committed. Purged of its erroneous statement, it is insufficient to support the issuance of an arrest warrant.

Furthermore, Williams’ misstatement in the Powell affidavit casts doubt on the accuracy of his affirmation in the Cooper affidavit that a Housing Authority complaint had been filed against Cooper. In the absence of this affirmation the second affidavit is also deficient. In short the unfounded assertion contained in the Powell affidavit materially affected not only its showing of probable cause but that of the Cooper affidavit as well. The arrest warrants issued on the basis provided by these affidavits are therefore invalid and cannot be used to justify the officers’ entry into Apartment A.

However, it does not necessarily follow from the fact that the arrest warrants were defective that the officers’ entrance into the apartment was unlawful. To our knowledge all of the courts that have considered the question have decided that a warrant is not a prerequisite to a lawful arrest. A warrantless arrest is nevertheless valid if the arresting officer has probable cause to believe that the person arrested has committed or is in the act of committing a crime. Therefore in this case the officers’ entrance was lawful in spite of the invalid warrants if at the time they entered they had probable cause to believe that Powell, Cooper, or any of its other occupants had committed or were committing a crime.

Although probable cause has been defined in a variety of ways, in essence it means nothing more than a reasonable basis for belief of guilt. Enough evidence to support a conviction is not required. Probable cause to arrest exists if, at the moment an arrest is made, the facts and circumstances within the arresting officers’ knowledge and of which they have reasonably trustworthy information are sufficient to warrant a prudent man in believing that the suspect has committed or is committing an offense. In applying this standard for determining the existence vel non of probable cause, it is wise to heed the sound admonition found in Brinegar v. United States:

“These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community’s protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.”

Brinegar instructs us to interpret the probable cause standard in a common sense and realistic fashion, and its teaching has been affirmed time and time again, most recently in Adams v. Williams and United States v. Harris .

Reviewing the record compiled in this case with these principles in mind, we are convinced that at the time the arresting officers entered Apartment A they did have probable cause to arrest Powell, Cooper, and its other occupants for criminal trespass. On previous visits to the apartment some of the officers had personally observed Housing Authority officials complain that its occupants were trespassers and request that they be removed. At the briefing they attended on the day preceding the arrests the officers were informed by the Police Superintendent that the Housing Authority had filed an official complaint and that the Police Department had ascertained that Powell and Cooper were definitely living on the premises. When the owner of a dwelling charges its occupants with trespass, it is not unreasonable for prudent police officers at least to suspect that there is some truth in the charges.

The actions of the apartment’s occupants strongly tended to confirm the suspicions legitimately aroused by the owner’s complaint. From earlier visits the officers had learned that the apartment’s inhabitants were unwilling to vacate and were likely to resist forcibly any efforts to persuade them to leave. Upon arriving at the apartment and knocking on the door on the morning of the 26th, they heard the sound of weapons being loaded and a heavy object being moved in front of the door. When the door was opened, the occupants, two of whom were Powell and Cooper, appeared to be very suspicious and during the ensuing conversation demonstrated a marked reluctance to leave for whatever reason. When the disguised officers were finally recognized to be policemen, the occupants immediately shouted “Pigs” and attempted to bar the door. Conduct such as this was not what could reasonably be expected from persons legitimately on the premises. To the contrary the armed hostility of the apartment’s occupants, their unwillingness to offer any explanation for their presence, and their resistance to the inquiries of the police all indicated that there was substance to the Housing Authority’s charges. At this point the arresting officers, as prudent men, had probable cause to believe that the persons living in Apartment A were trespassing. Failure to take decisive action would have only postponed the inevitable confrontation. Though somewhat unusual, their entrance into the apartment for the purpose of arresting its occupants was lawful. Upon entering the officers were presented with more than ample cause to arrest Morris and seize the illegal weapon which was in his actual possession. We hold that the district court properly denied his motion to suppress this evidence.

Morris’ other contention is that the registration provisions of the National Firearms Act, as applied to him, violate his fifth amendment privilege against compulsory self-incrimination. A citation to the Supreme Court’s decision in United States v. Freed, in which it was determined that the Act did not conflict with the fifth amendment, would ordinarily be sufficient to dispose of this issue. Since Freed, contentions similar to that made by Morris have been considered by this Court on numerous occasions and without exception have been rejected.

Morris seeks to avoid the force of these decisions by casting his claim in a somewhat novel form. He does not make the usual argument that had he registered his firearm in compliance with the Act, he would have been required to reveal information that might in the future be acquired and used by state officials to prosecute him for possession of an illegal weapon, in this instance a machine gun. Instead appellant points to the regulations adopted under the Act which require a prospective transferee of a firearm to secure from local law enforcement officials a certificate verifying that the photograph and fingerprints furnished in the registration application are indeed his and that the weapon is intended- for lawful purposes. In order to comply with this requirement the prospective registrant of a machine gun obviously must admit to local officials that he is attempting to possess one. Since Louisiana prohibits the private possession of a machine gun and reads the law of attempt broadly, Morris argues that in Louisiana the prospective, albeit ineffective, registrant of a machine gun is nevertheless forced to reveal information which might be used by the state to prosecute him for attempted possession.

Although we entertain serious doubts as to whether Louisiana officials would actually prosecute an unsuccessful registrant of a machine gun for attempted possession of one, we need not consider this question because there is a simpler answer to appellant’s argument. § 5848 of the Firearms Act provides in pertinent part:

“No information or evidence obtained from an application . . . shall . be used, directly or indirectly, as evidence against that person in a criminal proceeding with respect to a violation of law occurring prior to or concurrently with the filing of the application . . . ”

This provision was written into the Act in order to eliminate any conflict with the fifth amendment and is to be construed accordingly. It means that federal and state officials are barred from using in a prosecution for prior or concurrent offenses any information provided them in an effort to comply with the Act’s registration provisions, regardless of whether the information is obtained from the application form itself or instead is revealed by the applicant in the process of filing an application. Because of this statutory barrier to use, compliance would have left Morris in the same position as if he had never admitted his intention to possess a machine gun. It makes his fear of a state prosecution for attempted possession more imaginary than real. We conclude that Morris’ indictment and conviction under the National Firearms Act did not violate his constitutional privilege against self-incrimination.

For the foregoing reasons the judgment of the district court is affirmed.

Affirmed.

      . Morris’ automatic rifle was not the only weapon 'found in the apartment by the officers. After arresting the apartment’s occupants, the officers also seized another rifle, several shotguns and some ammunition.

      . 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968).

      . At this point it is important to emphasize that this ease does not raise the issue of whether a defendant is entitled to a hearing to test the underlying factual validity of the affidavit on the basis of which a warrant has been issued. This issue has yet to be resolved by the Supreme Court though it has occasioned considerable commentary. See, e. g., Kipperman, Inaccurate Search Warrant Affidavits as a Ground for Suppressing Evidence, 84 Harv.L.Rev. 825 (1971). In this case a probable cause hearing was conducted during the course of which testimony inadvertently revealed that the Powell affidavit contained an erroneous statement.

      . 448 F.2d 1218 (5th Cir. 1971). Accord United States v. Jones, 475 F.2d 723 (5th Cir., 1973).

      . United States v. Upshaw, 448 F.2d 1218, 1222 (5th Cir. 1971).

      . We feel compelled to emphasize that there is nothing in the record which indicates that the erroneous statement in Williams’ affidavit was intentionally or wilfully made. Nothing in this opinion is intended to suggest the contrary.

      . United States v. Wysocki, 457 F.2d 1155 (5th Cir.), cert. denied 409 U.S. 859, 93 S.Ct. 145, 34 L.Ed.2d 105 (1972); United States v. Wilson, 451 F.2d 209 (5th Cir. 1971); Ray v. United States, 412 F.2d 1052 (9th Cir. 1969); United States v. Botsch, 364 F.2d 542 (2d Cir. 1966), and United States v. Hall, 348 F.2d 837 (2d Cir.), cert. denied 382 U.S. 947, 86 S.Ct. 408, 15 L.Ed.2d 355 (1965). Cf. United States v. Rabinowitz, 339 U.S. 56, 60, 70 S.Ct. 430, 94 L.Ed. 653 (1950) and Ker v. California, 374 U.S. 23, 41-42, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963).

      . Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612, 618 (1972).

      . 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949).

      . 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612, 618 (1972).

      . 403 U.S. 573, 582-583, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). See United States v. Banks, 465 F.2d 1235 (5th Cir., 1972); United States v. Wysocki, 457 F.2d 1155 (5th Cir. 1972), and United States v. Squella-Avendano, 447 F.2d 575 (5th Cir. 1971).

      . 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971).

      . See, e. g., United States v. Coleman, 441 F.2d 1132 (5th Cir. 1971). Accord United States v. Bowdach, 458 F.2d 951 (5th Cir. 1972), United States v. Mix, 446 F.2d 615 (5th Cir. 1971), United States v. Williams, 446 F.2d 486 (5th Cir. 1971), United States v. Beck, 443 F.2d 1360 (5th Cir. 1971), United States v. Piper, 443 F.2d 371 (5th Cir. 1971), United States v. Miller, 441 F.2d 1147 (5th Cir. 1971), and United States v. Johnson, 441 F.2d 1134 (5th Cir. 1971).

      . 26 C.F.R. §§ 179.98-179.99.

      . LSA-R.S. 40:1752. Morris contends that under Louisiana law “machine gun” is defined so as to include the automatic rifle found in his possession.

      . LSA-R.S. 14:27.

      . In its brief at pg. 7 the government makes the uneontested assertion that there have been no prosecutions for attempted possession of a machine gun.

        . 26 U.S.C. § 5848 (Supp.1972).

      . See S.Rep. No. 1501, 90th Cong., 2d Sess., 26, 42, 48, 52; HR Cong.Rep. No. 1956, 90th Cong., 2d Sess., 35.

      . See, e. g., United States v. Freed, 401 U.S. 601, 604, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971) and United States v. Coleman, 441 F.2d 1132, 1133 (5th Cir. 1971).