author: SPRECHER, Circuit Judge.

text:
    TECHNOGRAPH PRINTED CIRCUITS, LTD., and Technograph Printed Electronics, Incorporated, Plaintiffs-Appellants, and Cross-Appellees, v. METHODE ELECTRONICS, INC., Defendant-Appellee, v. GTE AUTOMATIC ELECTRIC INCORPORATED, Defendant-Appellee and Cross-Appellant, v. WEBCOR ELECTRONICS, INCORPORATED, Defendant-Appellee, v. HOWARD HOLDING COMPANY, Defendant-Appellee.
    Nos. 72-1741—72-1745.
    United States Court of Appeals, Seventh Circuit.
    Aug. 27, 1973.
    Rehearing Denied Sept. 14, 1973.

      Sidney Bender, New York City, John W. Chestnut, Chicago, 111., for plaintiffs-appellants.
    Robert C. Keck, Lawrence W. Brug-man, Chicago, 111., Watson D. Harbaugh* Evanston, 111., Theodore W. Anderson, Chicago, 111., for defendants-appellees.
    Before KILEY and SPRECHER, Circuit Judges, and ESCHBACH, District Judge.

       District Judge Jesse E. Eschbach of the Northern District of Indiana is sitting by designation.

   SPRECHER, Circuit Judge.

The history of these cases confirms the wisdom of Blonder-Tongue Laborato--ries, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971) and why the doctrine it announced is particularly applicable here.

Between 1958 and 1963, Technograph Printed Circuits, Ltd., and Technograph Printed Electronics, Inc. instituted some 74 civil actions for patent infringement against approximately 80 manufacturers of electronic equipment in 18 different United States District Courts, and another action against the United States in the Court of Claims. Prior to the litigation, the president of Printed Electronics, an American company, wrote to Printed Circuits, a British company:

“The Technograph patents are inherently weak and at heart only form the legal basis for making a claim against industry. Their real worth in America depends entirely how strongly they can be backed by both money, legal talent and influence.
* X- * X- -X- *
“. . . We must litigate if we expect to extract worthwhile sums from industry.”

The infringement actions were based upon three United States patents relating to methods for the manufacture of printed electric or magnetic circuits — No. 2,441,960 (’960) issued on May 25, 1948, No. 2,706,697 (’697) issued on April 15, 1955, and Reissue No. 24,165 (’165) issued on June 12,1956.

The first trial took place in the District of Maryland in an action against The Bendix Corporation (Bendix) where, after 29 trial days, the filing of 1001 exhibits, several additional days spent by the court in visiting the Bendix and plaintiffs licensed plants, 600 pages of post-trial briefs and two days of oral argument, Judge Watkins on May 27, 1963 held in a 67-page opinion that the claims at issue in all three patents were invalid. The Court of Appeals for the Fourth Circuit affirmed and certiorari was denied by the Supreme Court. Technograph Printed Circuits, Ltd. v. Bendix Aviation Corp., 218 F.Supp. 1 (D.Md. 1963), aff’d per curiam, 327 F.2d 497 (4th Cir. 1964), cert, denied, 379 U. S. 826, 85 S.Ct. 53, 13 L.Ed.2d 36 (1964).

The plaintiffs represented in other courts that the Maryland case was the “test case.” After the test case, the British company transferred its rights in the patents to the American Company-

The plaintiffs had filed six infringement actions in the Northern District of Illinois in 1962 and 1963. Two were settled and Judge Igoe granted summary judgment in favor of the remaining four defendants after Judge Watkins’ decision on the theory that “one bite of the cherry ought to be enough.” We reversed and remanded for further proceedings on the authority of Aghnides v. Holden, 226 F.2d 949, 950 (7th Cir. 1955), where we cited Triplett v. Lowell, 297 U.S. 638, 642, 56 S.Ct. 645, 80 L.Ed. 949 (1936) for the proposition that “[n] either reason nor authority supports the contention that an adjudication adverse to any or all the claims of a patent precludes another suit upon the same claims against a different defendant.” Technograph Printed Circuits, Ltd. v. Methode Electronics, Inc., 356 F.2d 442, 448 n.3 (7th Cir. 1966), cert, denied, 384 U.S. 950, 1002, 86 S.Ct. 1570, 16 L.Ed.2d 547 (1966). Upon remand the four cases were consolidated for purposes of discovery and trial, were declared to be class actions so far as the defendants were concerned (Technograph Printed Circuits, Ltd. v. Methode Electronics, Inc., 285 F.Supp. 714 (N.D. Ill. 1968)), and the plaintiffs’ claims relating to Nos. ’960 and ’165 were dismissed with prejudice on April 24, 1968, with no appeal being taken therefrom.

In the meantime, all of the files, records, exhibits and transcripts from the Bendix case in Maryland had been sent to the United States District Court for the Central District of California, where 13 actions by the Technograph plaintiffs had been consolidated. The defendants in California moved for summary judgment on the ground of estoppel by the Maryland judgment. While the motions were pending, the court granted the defendants’ motion to compel the plaintiffs to produce any evidence “above and beyond the evidence they presented” in the Maryland case. The court on August 8, 1968 found that “the Response of plaintiffs . . . together with the unin-dexed box of documents . . . [filed with the Clerk] was a wilful, intentional, and conscious flouting and disobedience of the Orders of this Court [which] warrant the severest condemnation,” whereupon the 13 actions were dismissed with costs in favor of the defendants. Technograph Printed Circuits, Ltd. v. Packard Bell Electronics Corp., 290 F.Supp. 308, 320 (C.D.Cal. 1968). There is no published record of an appeal from that judgment.

Meanwhile there also was activity in plaintiffs’ case in the United States Court of Claims. After the court denied two motions by the government for partial summary judgment, trial was held before Commissioner Davis who found claims 4, 10, 13 and 14 of No. ’697 to be invalid on March 2, 1970. Technograph Printed Circuits, Ltd. v. United States, 178 Ct.Cl. 543, 372 F.2d 969 (1970). We are advised by counsel for the parties here that this decision is under advisement before the Court of Claims together with a government motion urging estoppel based on the Bendix case.

On May 3, 1971, the Supreme Court of the United States decided Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788, where the Court concluded that “Triplett should be overruled to the extent it forecloses a plea of estoppel by one facing a charge of infringement of a patent that has once been declared invalid.” 402 U.S. at 350, 91 S.Ct. at 1453. The Court added that a plea of estoppel must not be automatically accepted but that a determination should be made “whether a patentee has had a full and fair chance to litigate the validity of his patent in an earlier case . . . .” 402 U.S. at 333, 91 S. Ct. at 1445. Thereupon, the defendants in four suits (which had been filed in the district court in Maryland, the Martin-Marietta case, in addition to the concluded Bendix case) moved for dismissal on the ground that Bendix constituted collateral estoppel. Judge Watkins, after carefully applying the Blonder-Tongue standards for determining whether the plaintiffs had a full and fair trial in Bendix and after evaluating plaintiffs’ contentions as to why they did not, including virtually all the contentions urged before us in the present case, sustained the pleas of estoppel and dismissed the cases on March 20, 1972. Technograph Printed Circuits, Ltd. v. Martin-Marietta Corp., 340 F.Supp. 423 (D.Md. 1972).

On May 31, 1972, Judge Will, who had by that time fully tried the four Chicago consolidated cases agreed with Judge Watkins that the Bendix case presented the plaintiffs with a full and fair opportunity to establish the validity of their patents and that it was “just and equitable to allow the plea of estoppel,” thus dismissing the consolidated cases before him. Technograph Printed Circuits, Ltd. v. Methode Electronics, Inc., 174 U. 5. P.Q. 297 (N.D.Ill. 1972).

Thereafter on February 20, 1973, the Court of Appeals for the Fourth Circuit affirmed Judge Watkins in Technograph Printed Circuits, Ltd. v. Martin-Marietta Corp., 474 F.2d 798 (4th Cir. 1973). Judge Widener in a detailed and exhaustive consideration of the application of Blonder-Tongue to Bendix in view of plaintiffs’ multiple contentions against its application, concluded (474 F.2d at 811):

“Here, the same plaintiffs considered Bendix a test case by which they sought to establish the validity of Eis-ler’s patents ’165, ’960, and ’697. They now seek to relitigate the issue of validity as to '697. They failed to convince the district court in Bendix of its validity, and they failed on appeal to convince us that the district court was wrong in the instant cases. Plaintiffs have failed to convince the same district judge who decided Bendix that they did not have a full and fair opportunity to litigate in Bendix. Again, we agree with the district court. We are of opinion that the plaintiffs had a full and fair opportunity to litigate the validity of ’697 in Bendix and that it is just and equitable to allow defendants’ pleas of estop-pel. We believe the instant cases show precisely why the Supreme Court, in Blonder-Tongue, overruled Triplett and commenced the sustaining of pleas of estoppel by judgment in certain patent cases.”

We agree with Judge Widener and the Fourth Circuit, which considered virtually the same contentions made here by the plaintiffs for the non-application of Blonder-Tongue. We also agree with Judge Will who had the opportunity to hear all of plaintiffs’ evidence and to evaluate it in the light of the Blonder-Tongue standards for determining whether Bendix was in fact a full and fair trial.

Subsequent to oral argument, plaintiffs urged by letter that we consider our recent decision in Bourns, Inc. v. Allen-Bradley Co., 480 F.2d 123 (1973), where in an opinion by Mr. Justice Clark, sitting in the Seventh Circuit by designation, we held that Blonder-Tongue does not apply to claims not litigated in the prior case. Plaintiffs have argued that Bendix adjudicated the invalidity of method claims 4, 5, 10, 14, 15 and 16 of ’697 and that in the present cases claims 11, 12 and 13 are also involved. However, prior to the trial before Judge Will, the parties agreed to finding of fact No. 23 which reads:

“Claims 11, 12 and 13 are basically the same as claim 10 except for the specific means of printing; they are contingent upon claim 10 and will either stand or fall with claim 10.”

Even without the stipulation, a reading of claims 10, 11, 12 and 13 demonstrates the complete dependence of 11,12 and 13 upon claim 10.

Furthermore, the same contention was made in the Fourth Circuit proceeding where the District Court found plaintiffs had there conceded that, although the Martin-Marietta case involved claims 4 and 10-14 and Bendix involved 4, 5, 10, 14, 15 and 16, the issues in both cases were “identical”. 340 F.Supp. at 425. That fact was not contested on appeal. 474 F.2d at 802.

Under all of these circumstances the invalidity of claims 11, 12 and 13 were established by Bendix.

Defendant GTE Automatic Electric Inc. has cross-appealed from the trial court’s refusal to award it costs and attorney fees. In this circuit, attorney fees are only awarded under 35 U.S.C. § 285 in exceptional cases “to prevent gross injustice and where fraud and wrong-doing are clearly proved.” Sarkes Tarizan Inc. v. Philco Corp., 351 F.2d 557, 560 (7th Cir. 1965).

Although the defendants rely upon a 1951 statement by Eisler, the inventor of ’960, ’165 and ’697, that “we have fooled the Patent Office” and the 1956 statement by the president of one of the plaintiffs that the patents were “inherently weak,” we note in Judge Will’s opinion that the defendants “were apparently content to go on litigating indefinitely over the validity of a patent no matter how frequently it had been found invalid.” 174 U.S.P.Q. at 299. In addition, until the Blonder-Tongue decision, the plaintiffs were justified in relying at least to some extent upon Triplett v. Lowell. Thus we find that Judge Will did not abuse his discretion in declining to find this to be the “exceptional” case. We do, however, assess all costs of these appeals against the plaintiffs.

The judgment is affirmed in all respects.

Affirmed.

      . Technograph Printed Circuits, Ltd. v. Methode Electronics, Inc., 285 F.Supp. 714, 716 (N.D.Ill. 1968) (detailing the history of the Technograph litigation).

      . The manufacturing processes are fully described in Technograph Printed Circuits, Ltd. v. Bendix Aviation Corp., 218 F.Supp. 1 (D. Md. 1963).

      . Technograph Printed Circuits, Ltd. v. Packard Bell Electronics Corp., 290 F.Supp. 308, 312 (C.D. Cal. 1968). See also, Technograph Printed Circuits, Ltd. v. Martin-Marietta Corp., 474 F.2d 798, 804 (4th Cir. 1973).

      . The court’s order appears as Appendix II, Technograph Printed Circuits, Ltd. v. Packard Bell Electronics Corp., 290 F.Supp. 326 (C.D. Cal. 1967).

      . Technograph Printed Circuits, Ltd. v. United States, 177 Ct.Cl. 919, 370 F.2d 571 (1966) and 372 F.2d 969 (Ct.Cl. 1967). In the latter case, the Court of Claims relied upon Triplett v. Lowell, 297 U.S. 638, 56 S.Ct. 645, 80 L.Ed. 949 (1936) and the possibility of new or additional evidence, 372 F.2d at 978-80.

      . The record brought up to us from Judge Will included 17 volumes of pleadings, 42 volumes of transcript, a great number of depositions, 4 cartons plus 8 folders of exhibits, and a box of “confidential documents.”

      . “10. A method of manufacturing a component of electric and magnetic circuit systems involving an insulation backed conductive pathway pattern, which comprises providing insulation backed foil, then printing a negative representation of the pattern upon said foil, depositing a layer of metal dissimilar to the metal of said foil upon all exposed parts of said foil, then removing said representation from the foil, and finally removing all parts of the foil exposed by said removal of the representation by chemical action attacking the metal of said foil but not said deposited dissimilar metal whereby said pathway pattern is formed.
      “11. The method of claim 10 wherein the negative representation of the pattern is produced by letterpress printing.
      “12. The method of claim 10 wherein the negative representation of the pattern is produced by offset printing.
      “13. The method of claim 10 wherein the negative representation of the pattern is produced by photo-mechanical means.”


source: Caselaw Access Project

author: O’SULLIVAN, Senior Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Charles THOMAS, Defendant-Appellant.
    No. 73-1150.
    United States Court of Appeals, Sixth Circuit.
    Argued June 6, 1973.
    Decided Sept. 25, 1973.
    Certiorari Denied Oct. 15,1973.
    See 94 S.Ct. 253.

      Frederick Taft, Cleveland, Ohio, for defendant-appellant; James D. London (Court appointed), Cleveland, Ohio, on brief.
    Joseph H. Hart, U. S. Dept, of Justice, Cleveland, Ohio, for plaintiff-appel-lee; Frederick M. Coleman, U. S. Atty., David Margolis, Joseph H. Hart. Sp. Attys., U. S. Dept, of Justice, Cleveland, Ohio, on brief.
    Before PECK and McCREE, Circuit Judges, and O’SULLIVAN, Senior Circuit Judge.
   O’SULLIVAN, Senior Circuit Judge.

We consider the appeal of Charles Thomas from conviction upon jury trial, on all counts of a four-count indictment charging violation of the federal gun control laws. In Counts I, II and III he was charged with making false or fictitious statements to a licensed firearms dealer in connection with his purchase of a handgun, all in violation of 18 U.S.C. § 922(a)(6). These several counts charged, respectively, that at the time of the purchase on March 31, 1971, Thomas had represented that he was not then under indictment for a felony, that he had never been convicted of a felony, and that he had never been discharged from the United States Armed Forces under dishonorable conditions.

The charged misrepresentations were contained in answers to questions set out in a Firearms Transaction Record (IRS Form 4473). It was stipulated that all of these answers were false in that Thomas was under indictment at the time of purchase, that he had previously been convicted of a felony and had been dishonorably discharged from the army. Thomas’ defense was that while he signed the mentioned form, he was not the author of the answers made to the questions set out in the form. He said the answers had been inserted into the form by the pawnbroker-seller without asking him the relevant questions, and he had merely affixed his signature in the proper space at the direction of the dealer. The gun dealer, one Carl P. Carbon, testified that Thomas had in fact responded negatively to each of the relevant questions and that he, the gun dealer, had correctly inserted such answers into the form prior to its execution by Thomas.

Count IV of the indictment charged violation of 18 U.S.C. § 1202(a) Appendix, in that prior to the time of purchase of the gun, appellant had, on April 19, 1948, and on April 22, 1948, been convicted by Courts Martial of two felonies; had on May 5, 1948, been dishonorably discharged from the army; and on March 31, 1971 (the date of purchase of the gun) did receive and possess the gun contrary to the statute which provides, in part:

“§ 1202
(a) Any person who—
# -X* -X- * -X- *
(2) has been discharged from the Armed Forces under dishonorable conditions,
* -X- -X- -X- -X- -x-
and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.”

Appellant received one year concurrent sentences on all four counts, which sentences were to run concurrently with the sentence imposed in another prosecution.

We affirm.

Appellant does not challenge the sufficiency of the evidence upon which he was convicted. The errors assigned to support his appeal have to do with the Court’s charge, and he also attacks the constitutionality of the involved statutes. He charges:

I.

That relevant to the credibility of the gun dealer, the trial judge should have advised the jury that it was against the law for such a dealer to sell a gun to someone known to the dealer to be under indictment for, or convicted of, a felony. 18 U.S.C. § 922(d) (i).

There was some evidence that in January, 1971, Thomas told the dealer that he had been arrested. The indictment which followed such arrest, however, was not returned until February. Although Thomas did testify at one point that he had told the dealer that he was under indictment, a fair reading of his testimony makes clear that the conversation in which the general subject was discussed occurred before the indictment.

Appellant’s argument is that such knowledge provided a strong incentive for such dealer to perjure himself in his testimony regarding execution of the IRS form. The involved instruction was first proposed by the prosecution, but was later withdrawn. The defense then asked that it be given, but it was not included in the Court’s charge. At its conclusion, and upon invitation to do so, defense offered no criticism of the charge except to say “No, only the ones that I have made prior to this time. I have no additional comments.” No specific reference was made to the instruction which was omitted, and we consider that Rule 30 F.R.Crim.P. forbids now assigning as error omission of the instruction.

Defense counsel, in his closing argument, and without objection, asserted the claimed motivation for false testimony by the dealer. Apart from application of Rule 30, the omission of the instruction did not, in our view, visit prejudice upon appellant. Adequate instructions on credibility were given to the jury, and we do not consider that it was reversible error to fail to give' an instruction giving special emphasis to a defense theory already argued to the jury. Blauner v. United States, 293 F. 2d 723, 738 (8th Cir.), cert, denied, 368 U.S. 931, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961). In all events, if some error resides in the matter, it is harmless error beyond a reasonable doubt.

II.

Error is charged in the Court’s definition of “knowingly” as such term is used in 18 U.S.C. § 922(a)(6)— “Knowingly to make a false oral or written statement.”

The District Judge’s charge included:

“An act is done knowingly if done voluntarily and intentionally and not because of innocent mistake or accident. In order to find that the Defendant knowingly made a false statement on Form No. 447, the jury is not required to find that the Defendant actually read the form or had it read to him, if the jury finds from the evidence beyond a reasonable doubt that the Defendant acted with reckless disregard of whether the statements made were true or with a conscious purpose to avoid learning the truth.
“The jury is instructed that all the circumstances surrounding the transaction are to be considered in determining whether the Defendant was adequately alerted to read Form No. 4473 by the form itself or by other factors.”

Although defense counsel did object to this instruction, such objection did not articulate the reason for the objection, thus to satisfy the requirement of Rule 30 F.It.Crim.P. Additionally, and independently of such shortcoming, we consider the challenged instruction was proper.

In United States v. Abrams, 427 F.2d 86 (2d Cir. 1970), the Second Circuit was dealing with a charged violation of 18 U.S.C. § 1001 which provides:

“Whoever . . . knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing . . . knowing the same to contain any false, statement . . . shall be fined not more than $10,000 . . . .”

The case then under consideration had to do with conviction of a lawyer for making false statements to the Immigration and Naturalization Service. Although not considering the propriety of an instruction on the element of “knowingly,” the Court said:

“Although appellant may not have been specifically aware of what his client’s plans for departure were, the jury could have found from the evidence that appellant acted with reckless disregard of whether the statements made were true and with a conscious purpose to avoid learning the truth. See United States v. Simon, 425 F.2d 796 (2d Cir. 1969), cert, denied, 397 U.S. 1006, 90 S.Ct. 1235, 25 L.Ed.2d 420 (1970); Bentel v. United States, 13 F.2d 327, 329 (2d Cir.) cert, denied sub nom. Amos v. United States, 273 U.S. 713, 47 S.Ct. 109, 71 L.Ed. 854 (1926).” 427 F.2d at 91.

In United States v. Sarantos, 455 F.2d 877 (2nd Cir. 1972), the Second Circuit was again dealing with conviction of an attorney for conspiring to make false statements to the Immigration and Naturalization Service. Involved was 18 U. S.C. § 1001, set out above. Considering the propriety of an instruction given to the jury, Judge Feinberg, with concurrences by Judges Friendly and Davis, said:

“After defining knowingly and wil-fully as meaning that ‘one knows what he or she is doing, as distinguished from an inadvertent or careless act,’ the court further charged the jury that:
. . . if you find that Mr. Saran-tos acted with reckless disregard of whether the statements made were true or with a conscious effort to avoid learning the truth, this requirement is satisfied, even though you may find that he was not specifically aware of the facts which would establish the falsity of the statements.” 455 F.2d at 880.

Further considering the quoted instruction, the Court said:

“We stand by our decision in Abrams. Its purpose in cases such as this was to prevent an individual like Sarantos from circumventing criminal sanctions merely by deliberately closing his eyes to the obvious risk that he is engaging in unlawful conduct. Our ruling in Abrams was intended to foreclose this possible loophole, not to create a new crime as defendant suggests. Compare Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 96 L. Ed. 288 (1952). Construing ‘knowingly’ in a criminal statute to include wilful blindness to the existence of a fact is no radical concept in the law.” 455 F.2d at 881.

Additional criticism of the instruction under consideration is the trial judge’s use of the disjunctive “or” instead of “and” in the phrase referring to whether defendant,

“acted with reckless disregard of whether the statements made were true or with a conscious purpose to avoid learning the truth.”

We find this criticism without substantial merit. See United States v. Saran-tos, supra, 455 F.2d at 882.

III.

Appellant asks reversal of his conviction of the offense charged in Count III upon the following ground:
“The conviction of defendant on Count No. 3 of the indictment is void because 18 U.S.C. § 922(a)(6) does not prohibit the conduct of which defendant was accused, to wit, the making of a false statement that the defendant had never been dishonorably discharged from the armed forces.”

Count III charged violation of 18 U.S.C. § 922(a)(6) because of appellant’s negative answer to the question as to whether he had been dishonorably discharged from the Armed Forces. His answer was false. Section 922(a)(6) makes it a crime for anyone attempting acquisition of a firearm,

“to make any false or fictitious oral or written statement . . . with respect to any fact material to the lawfulness of the sale . . . .”

This statute does not directly say that a previous dishonorable discharge is a fact “material to the lawfulness of the sale.” However, 18 U.S.C. § 1202(a) Appendix, makes it unlawful for one so dishonorably discharged “to receive, possess or transport” a firearm. The District Judge, correctly in our view, told the jury that a dishonorable discharge was a fact “material to the lawfulness of the sale.” No objection was made to such instruction. Although no attack was made on Count III by motion or otherwise in the District Court, appellant’s address to us includes this:

“Since the allegations of Count III do not make out a crime, appellant’s conviction thereunder is void . . .”
We find no merit in this assertion.
IV.
A further charge of error is:
“Mr. Thomas has been denied the due process of law guaranteed by the Fifth Amendment to the United States Constitution.”

Appellant’s wide-ranging argument to support the foregoing first asserts:

“The statutes under which the defendant was convicted create legislative classifications for which there is no rational basis.”

We will not attempt pursuit of the very extensive dissertation by the defense on this point. The opinion of Chief Judge Phillips, writing for this Court in United States v. Day, 476 F.2d 562 (6th Cir. 1973), makes clear and adequate answers to the above quoted attack on the gun control laws.

V.

Appellant’s final 'argument is that the absence of a mens rea requirement in 18 U.S.C. § 1202(a) Appendix, violates his right to due process of law.

This argument was faced by the Ninth Circuit in United States v. Crow, 439 F.2d 1193 (9th Cir. 1971), vacated on other grounds, 404 U.S. 1009, 92 S. Ct. 687, 30 L.Ed.2d 657 (1972), where Section 1202(a) was upheld.

The Ninth Circuit, in dealing with the issue of whether the challenged statute, 18 U.S.C. § 1202(a) Appendix, required knowledge or intent, said:

“The trial court held that it does not, except as the word ‘possession’ imports a knowing possession. We agree. Crow argues that the government must show that he knew that it was unlawful to possess the gun. The statute does not say so; it does not use the word ‘knowingly’ or ‘intentionally’ or ‘wilfully’ or any other eompa-
rabie word. On its face, it makes possession alone an offense. We know of no reason for reading guilty knowledge into the statute.
* * * * -X- -X-
“Thus the government need not allege or prove knowledge that the gun was not registered. The reasoning of those cases is applicable to § 1202(a). Like the National Firearms Act, it is a regulation of the traffic in firearms; like that Act, it makes possession the offense and does not require scienter.” 439 F.2d at 1195.

We hold that Section 1202(a) Appendix is valid.

Appellant’s conviction is affirmed.

      . This statute provides :
      “§ 922. Unlawful acts

      (а) It shall be unlawful—
      sjs * # * *
      (б) for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter.”

      . Thomas was convicted of possessing stolen postal money orders and sentenced to five years imprisonment. Sentencing for all of these convictions took place on November 13, 1972. This Court has recently affirmed Thomas’ conviction in the money order case —United States v. Thomas, 480 F.2d 926 (6th Cir. 1973).


author: GIBBONS, Circuit Judge.

text:
    UNITED STATES of America v. Lamount Maurice BELGRAVE, Appellant.
    No. 72-2169.
    United States Court of Appeals, Third Circuit.
    Argued June 11, 1973.
    Decided Aug. 21, 1973.

      Edward H. Weis, Defender Assn, of Philadelphia, Philadelphia, Pa., for appellant.
    Robert E. J. Curran, U. S. Atty., James C. Sommar, Asst. U. S. Atty., Philadelphia, Pa., for appellee.
    Before GIBBONS, ROSENN and WEIS, Circuit Judges.
   OPINION OF THE COURT

GIBBONS, Circuit Judge.

This is an appeal from a judgment of sentence imposed after a verdict of guilty on an indictment charging that appellant Belgrave violated the Selective Service Act of 1967, 50 App. U.S.C. § 462, by knowingly failing to comply with a notice to report for an Armed Services physical examination on April 10, 1970. Appellant’s first trial on the indictment resulted in a jury disagreement. At his retrial the Government’s case consisted of introducing in evidence his selective service file and of establishing that he did not appear on April 10, 1970, at the place designated for the physical examination. Belgrave moved at the end of the Government’s case for a judgment of acquittal. See Fed.R.Crim.P. 29. That motion was denied and the defense presented testimony. The.motion for a judgment of acquittal was renewed at the end of the entire case, and after the jury verdict, and was in both instances denied, D.C., 351 F.Supp. 686. This court still adheres to the view that in considering an appeal from the denial of a motion for judgment of acquittal, if the defendant has presented testimony, we judge the sufficiency of the evidence by the entire case. United States v. Feldman, 425 F.2d 688, 692 (3d Cir. 1970). Thus we must consider both the Government’s evidence and that presented by Belgrave.

The selective service file contains a notation that on March 19, 1970, the local board mailed a notice, addressed to Belgrave at 413 Concord Avenue, Ches-ter, Pennsylvania, directing him to report for a physical examination on April 10, 1970. This is the address furnished by Belgrave when he registered with the local board, and the file contains no other. There was no other proof of mailing and no proof of return. Bel-grave does not dispute that the selective service record, kept in the ordinary course of business, suffices to establish that the notice was regularly deposited with the U.S. Postal Service and was not returned to the sender.

When his motion for a judgment of acquittal was denied, Belgrave presented the testimony of his mother and his former wife. He testified on his own behalf as well. The defense testimony establishes, and the Government does not dispute, that in the spring of 1970 Belgrave was not living at 418 Concord Avenue. This was his mother’s home, but he had married and was living with his wife at another address. His mother testified that Belgrave would visit her house no more than once a month. There was no testimony indicating that any such visit took place between March 19 and April 10. Belgrave testified that he never received the notice in question, although he had at other times received other mail from the Selective Service System at 413 Concord Avenue. His mother testified that she usually put mail addressed to her son on top of a china closet. Her testimony does not establish that the notice in question was actually received, was placed on the china closet, or was picked up by Bel-grave. It establishes that younger children living at 413 Concord Avenue sometimes tampered with mail delivered there.

This was the entire case. The indictment does not charge, the Government does not contend, and the district court did not rule that after mailing of the notice Belgrave became subject to a continuing duty to report for a physical examination. Cf. Toussie v. United States, 397 U.S. 112, 90 S.Ct. 858, 25 L. Ed.2d 156 (1970); United States v. Fi-gurell, 462 F.2d 1080, 1082-83 n.5 (3d Cir. 1972). The Government concedes that it had the burden of establishing beyond a reasonable doubt that Belgrave received actual notice, prior to April 10, 1970, of the order to report on that date. See, e.g., Fisher v. United States, 413 F.2d 1034 (9th Cir. 1969); Graves v. United States, 252 F.2d 878 (9th Cir. 1958). It concedes, too, that there is no irrebuttable presumption of notice to the registrant from mailing of the notice. United States v. Bowen, 414 F.2d 1268 (3d Cir. 1969); United States v. Simmons, 476 F.2d 33 (9th Cir. 1973); United States v. Smith, 308 F.Supp. 1262, 1263 (S.D.N.Y.1969). The question, then, is whether proof of regular mailing and nonreturn to an address at which the defendant at the critical time was not residing suffices to sustain the Government’s burden.

No doubt the jury could properly infer that the notice did in fact arrive at 413 Concord Avenue within a day or so after March 19, 1970. See, e.g., Hagner v. United States, 285 U.S. 427, 430, 52 S.Ct. 417, 76 L.Ed. 861 (1932); United States v. Lee, 458 F.2d 32 (9th Cir. 1972) (per curiam). Perhaps, construing the testimony of Belgrave’s mother in a manner most favorable to the Government, the jury could add to the inference of due receipt at 413 Concord Avenue the evidence of her practice of placing Belgrave’s mail on the china closet, and infer that the letter reached the top of the china closet. At this point, however, there is a gap, for if the notice never got from the top of the china closet to Belgrave before April 10, 1970, then Belgrave could not wilfully have ignored an order to report for a physical examination on that date. And, of course, the burden of proving such wilfulness remained on the Government throughout the ease.

Belgrave’s own testimony furnishes some evidence from which the jury could find that on some occasions after he moved from 413 Concord Avenue he returned there and picked up mail from the top of the china closet. His testimony might even be stretched to the point of suggesting that it was his practice, when he visited 413 Concord Avenue, to pick up his mail from the top of the china closet. If there was any evidence that between March 20 and April 9, 1970 he visited that address the jury possibly might have been able to infer that he followed that regular practice. Possibly then the jury could add together the inference of due receipt, the inference that Belgrave’s mother followed her regular practice, and the inference Belgrave followed his regular practice, and conclude on the basis of these triple inferences that Belgrave received the notice. We need not here decide whether such a group of inferences would suffice to carry the Government’s burden of proof of notice beyond a reasonable doubt, because in this case the factual predicate for the third of the necessary inferences simply is not present. There is no evidence from which the jury could find as a fact that in the critical time period Belgrave visited 413 Concord Avenue. There is no evidence that in the critical time period the notice could have come to his attention in any other way. On the evidence in the record the Government has moved the notice only to the top of the china closet in a dwelling at which the defendant did not reside.

In United States v. Bowen, supra, we held that it was error to charge the jury, in the language of 32 C.F.R. § 1641.3, that the mailing of a notice to the address last reported by the registrant to the local board created not only a rebuttable presumption of receipt of the notice at that address but also an irrebuttable presumption of notice to the registrant. Recently the Ninth Circuit, following Bowen, pointed out that it violates due process of law to bootstrap mailing into receipt and receipt into notice. United States v. Simmons, supra. Both the Bowen and the Simmons cases involved a jury charge which permitted such bootstrapping, and which in effect relieved the Government of the duty of proving wilfulness beyond a reasonable doubt. In this case the court’s charge complied with Bowen to the extent that the jury was told the Government had to establish that Belgrave actually received the notice. But the vice of the charge condemned in Bowen and Simmons was that it permitted the jury to convict the defendant where there may have been no probative evidence to support a factual inference that is an essential element of the Government’s case. If a defendant cannot be convicted on such an erroneous charge, a fortiori he cannot be convicted where the record contains no evidence, probative or otherwise, on the same essential element. The fact that a correct Bowen charge was given cannot supply the missing evidence.

When, after the verdict, Belgrave once again renewed his motion for a judgment of acquittal, the district court developed an ingenious but insufficient theory to fill the gap between the top of the china closet and the defendant. That gap was filled, the court reasoned, by Belgrave’s denial that he received the notice at all. Since the jury convicted, it must have disbelieved this denial. Such disbelief suffices to establish that he did in fact receive the notice prior to April 10, 1970.

We think not. As the court’s charge makes clear, it was never disputed, once Belgrave’s mother and wife testified, that he was not living at 413 Concord Avenue in the spring of 1970. Setting aside the question whether in its own case, in order to prove a prima facie case, the Government had to establish that between March 19 and April 10 he was still living at the address shown in the selective service file, once the evidence, from whatever source, established that the notice was mailed to an address at which Belgrave did not reside, the burden of proving beyond a reasonable doubt that he received it returned to (if it had ever left) the Government. As the district court suggests, the jury was free to disbelieve Belgrave’s uncontra-dieted and unimpeached testimony. Buu Belgrave had no burden of proof, while the Government did. The effect of the district court’s ingenuity was to shift to Belgrave the burden of proving that he did not receive the notice, of convincing the jury to that effect, and to relieve the Government of the burden of proving that he did receive it.

The motion for a judgment of acquittal should have been granted. The judgment of the district court will be reversed.

      . Compare this with United States v. Rizzo, 416 F.2d 734, 736 n.3 (7th Cir. 1969) ; Cephus v. United States, 117 U.S.App.D.C. 15, 324 F.2d 893 (1963). See Maffei v. United States, 406 U.S. 938, 92 S.Ct. 1789, 32 L.Ed.2d 138 (1972) (Douglas, J., dissenting from denial of certiorari) ; Comment, The Motion for Acquittal: A Neglected Safeguard, 70 Yale L. J. 1151 (1961).

      . Belgrave was not charged with failing to keep the local board informed of his current address.


author: PER CURIAM:

text:
    UNITED STATES of America, Appellee, v. Alan Martin POMS, Appellant.
    No. 72-1965.
    United States Court of Appeals, Fourth Circuit.
    Submitted July 27, 1973.
    Decided Sept. 26, 1973.
    Blair D. Howard, Alexandria, Va., on brief for appellant.
    Brian P. Gettings, U. S. Atty., and K. Gregory Haynes, Asst. U. S. Atty., on brief for appellee.
    Before BOREMAN, Senior Circuit Judge, and WINTER and CRAVEN, Circuit Judges.
   PER CURIAM:

Alan Martin Poms was arrested on March 29, 1972, and was later indicted on two counts. Count I charged possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1); Count II charged possession of a firearm by a convicted felon, 18 U.S.C., Appendix, § 1202(a)(1). Poms filed a Motion to Suppress evidence seized from him at the time of his arrest and a Motion for a Bill of Particulars demanding disclosure of the identity of an informant. Both motions were denied after a hearing. The case was tried without a jury. On Count I Poms was found guilty of the lesser included offense of simple possession of cocaine, 21 U.S.C. § 844(a), and was sentenced to imprisonment for a term of one year. He was found not guilty of Count II. He appeals, assigning as error the denial of his Motions to Suppress and for a Bill of Particulars.

Federal authorities had received information from a confidential informant regarding Poms and one Gabriel D. Bob-row on several occasions in the two weeks preceding the date of Poms’ arrest. The informant stated that Bobrow was heavily engaged in narcotics trafficking. The source reported also that Poms was associatéd with Bobrow in the latter’s criminal activities and was presently and had been for several months living in Bobrow’s apartment. The informant further revealed that Poms habitually carried a brown leather shoulder bag which always contained an automatic pistol.

On the basis of the information supplied by the informant a search warrant was secured for Bobrow’s apartment on March 29, 1972. Approximately eight to twelve federal agents went to the building to participate in the search and, upon arriving, they encountered and arrested Bobrow and his son in an elevator. The two Bobrows and the agents proceeded to the basement in the elevator. As the arrestees were being searched and given their Miranda warnings in the basement hallway, an adjacent elevator door opened and Poms emerged carrying a brown leather shoulder bag. An agent of the Alcohol, Tobacco and Firearms Division of the Treasury Department testified that he saw Poms as the elevator door opened, observed the shoulder bag, and noted that Poms had one hand on the zipper of the bag which was one-third open. The agent asked appellant if his name was Alan Martin Poms and upon receiving an affirmative reply took possession of the shoulder bag. When the bag was completely opened a loaded .38 caliber automatic pistol and a clear plastic bag of white crystal cocaine were observed therein. Poms was then arrested.

First, Poms claims that the cocaine should not have been admitted into evidence against him. He argues that the express purpose of the agents was to execute the search warrant for the apartment of Bobrow and that the agents’ encounter with him was mere happenstance. Citing Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the defense contends that the informant’s unverified tip was insufficient to provide probable cause for an arrest of Poms or a valid search of his shoulder bag.

This court need not decide whether the information provided by the informant would have been sufficient by itself to have supported an arrest or search of Poms. We are persuaded that on the facts in the record, the search of Poms’ shoulder bag may be justified by the guidelines for protective searches established by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Since no arrest was effected until after the contraband was found in the shoulder bag, the validity of the arrest is dependent on the validity of the initial search and not vice versa.

To justify a protective search there must be compliance with the standards established in Terry.

“Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. at 1883.

Applying the teaching of Terry to the facts and circumstances here present we conclude that the protective search was justified and the federal agent’s search of the shoulder bag for weapons was reasonable. Here, the officers had received information from a reliable informant that Poms always carried a weapon in his shoulder bag. The source had provided an accurate description of the bag’s appearance and color. Poms was known to be an associate of Bobrow and they were sharing an apartment according to the information furnished the agents. Additionally, the officers asked Poms to identify himself before they took any further action. It is quite reasonable to assume, and there is no contrary evidence in the record, that the agent who searched the bag was of the opinion that such a prophylactic measure was necessary to avert the possibility that Poms would draw a weapon in an attempt to free Bobrow from police custody.

A similar situation was present in United States v. Del Toro, 464 F.2d 520 (2 Cir. 1972). There the police had an arrest warrant for one Rivera, a known narcotics dealer. Eight agents kept Rivera and Del Toro, who was unknown to the police, under surveillance as they left a bar. The agents closed in with drawn revolvers and ordered the two men out of Del Toro’s car. A search of Del Toro for weapons was held to be justified even though, as here, he was not uncooperative and the police were present in force. As stated in Del Toro, it would be “unreasonable to expect them [government agents] to expose themselves to a violent escape attempt, however futile, when the limited intrusion of a pat-down would promptly defuse what officers experienced in narcotics enforcement perceived as a potentially explosive situation.” 464 F.2d at 521 (footnote omitted).

We cannot distinguish the cases on the basis that Del Toro had been Rivera’s companion throughout the period of surveillance whereas Poms’ presence at the arrest of Bobrow may have been fortuitous. The police had ample cause to take protective measures because they had been warned by a reliable source that Poms was Bobrow’s associate in crime, was then residing with Bobrow, and that he always carried a weapon in his shoulder bag. Poms was potentially as dangerous to the arresting officers when he stepped off the elevator as he would have been had he been with Bob-row when the latter was initially arrested. Since we agree that “[a] 11 companions of the arrestee within the immediate vicinity, capable of accomplishing a harmful assault on the officer, are constitutionally subjected to the cursory ‘pat-down’ reasonably necessary to give assurance that they are unarmed,” United States v. Berryhill, 445 F.2d 1189, 1193 (9 Cir. 1971), we see no reason why officers may not similarly engage in a limited search for weapons of a known companion of an arrestee, especially one reported to be armed at all times, who walks in on the original arrest by sheer happenstance.

Having concluded that this limited protective search was justified under the circumstances, we can proceed to determine whether the cocaine, observed in connection with the search for the weapon, could properly be seized and used as evidence against Poms. It is evident that the “plain view” doctrine is applicable in this situation. If a valid search is in progress and the seizure of an item in plain view does not convert the search into a general or exploratory one, i. e., the discovery of the evidence was inadvertent, then the “plain view” doctrine applies. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Here the protective search was valid and, although the record is not as clear as it might be, it does appear that the discovery of the cocaine was inadvertent. The government agent who conducted the search testified as follows.:

“I then grabbed the bag and asked Mr. Poms for the bag, which he assisted. I removed it from his shoulder and I then placed the bag on the floor, opened the bag the rest of the way, and I observed a Walther PPK/S .38 caliber automatic in the purse.
“I further observed a clear plastic bag which contained a white crystal. This packet was tied.”

There is no evidence that the agent engaged in a general or exploratory search. A reasonable interpretation of the testimony would suggest that the officer opened the bag and saw the pistol and clear plastic bag simultaneously.

While engaged in a valid protective search, an agent inadvertently observed the cocaine. The “plain view” doctrine applies, and that contraband evidence could properly be seized and used as evidence against Poms at trial. We therefore affirm the District Court’s denial of the Motion to Suppress.

The second ground for appeal is the claim that the lower court erred in permitting the Government to withhold the identity of the informant. We hold that the district court did not err in refusing to require disclosure.

This court has previously recognized that the Government is permitted to withhold the identity of informants when “the informant was used only for the limited purpose of obtaining a search warrant.” United States v. Fisher, 440 F.2d 654, 656 (4 Cir. 1971); United States v. Pitt, 382 F.2d 322 (4 Cir. 1967) ; United States v. Whiting, 311 F.2d 191 (4 Cir. 1962), cert, denied, 372 U.S. 935, 83 S.Ct. 882, 9 L.Ed.2d 766 (1963). Here, since the information provided by the informer was utilized only for the lesser purpose of a protective search, failure to require disclosure was clearly proper.

Poms’ reliance on Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L. Ed.2d 639 (1957), is misplaced. That ease is distinguishable from this one, and the facts relevant there illustrate the importance an informant must play in a case before his identity must be disclosed. In Roviaro, disclosure was required, but the undercover informer had taken a material part in bringing about the defendant’s possession of narcotics, he had been present with the defendant at the occurrence of the crime, and he might have been a material witness as to whether the accused knowingly transported the drugs as charged. No claim is asserted here that the informant played a substantial role in Poms’ criminal conduct. The motion for a Bill of Particulars was properly denied.

Accordingly, dispensing with oral argument, we affirm the judgment below.

Affirmed.

      . The arrest of Bobrow and his son was based on the agents’ observation that Bob-row was carrying a large plastic garbage bag filled with marijuana. His conviction of possession of marijuana with intent to distribute, 21 U.S.C. § 841(a)(1), and possession of cocaine, 21 U.S.C. § 844(a), was recently affirmed by this court. United States v. Bobrow, 474 F.2d 1343 (4 Cir. 1973).

      . Bee United States v. Epperson, 454 F.2d 769 (4 Cir. 1972) ; United States v. Powers, 439 F.2d 373 (4 Cir. 1971).

      . The general reliability of the informant had been established. He had furnished reliable information at least four times in the past to three different government law enforcement agencies.

      . In Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L.Ed.2d 612 (1972), a reliable source informed police that Williams had narcotics and a loaded pistol in his car. A police officer approached the automobile and asked the suspect to open his door. When the car window was lowered the officer reached into the car and found a loaded handgun in Williams’ waistband, precisely where the informant said it would be. The handgun had not been visible to the officer standing outside the automobile. The Supreme Court, citing Terry for the proposition that police can make a reasonable investigatory stop and limited protective search, held that the information furnished by the informant had enough indicia of reliability to justify the officers’ forcible stop and protective seizure of the weapon.


author: PER CURIAM.

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BEDFORD DISCOUNTERS, INC., Respondent.
    No. 73-1148.
    United States Court of Appeals, First Circuit.
    Argued Sept. 7, 1973.
    Decided Sept. 20, 1973.
    Warren Cox Ogden, Jr., Atty., with whom Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Asst. Gen. Counsel and Robert Sewell, Atty., Washington, D. C., were on brief, for petitioner.
    George A. Burnstein, Philadelphia, Pa., with whom Kleinbard, Bell & Brecker, Philadelphia, Pa., was on brief, for respondent.
    Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and KILKENNY, Senior Circuit Judge.

       Of the Ninth Circuit sitting by designation.

   PER CURIAM.

The findings of the Board that the Bedford Discounters, Inc. violated the National Labor Relations Act, 29 U.S.C. Sec. 151 et. seq. §§ 8(a)(1) by engaging in threats of reprisal, coercive interrogation, promises and grants of benefits and 8(a)(3) and (1) in discharging employees because of their union activity are amply supported by the record as a whole. Further, because the Board’s findings are clearly supported, we cannot regard the company’s resistance thereto as anything but frivolous: “Some penalty should attach to taking up our time with such a meritless contention.” N.L.R.B. v. Smith & Wesson, 424 F.2d 1072, 1073 (1st Cir. 1970). Application for enforcement of the order of the National Labor Relations Board is granted and pursuant to FRAP 38 the Board will recover, in addition to its regular costs, the sum of $250 for expenses.


author: McWILLIAMS, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. E. Ross KING, Defendant-Appellant.
    No. 73-1119.
    United States, Court of Appeals, Tenth Circuit.
    Argued and Submitted Aug. 13, 1973.
    Decided Oct. 1, 1973.
    Rehearing Denied Oct. 26, 1973.
    Paul D. Cooper, Asst. U. S. Atty. (James L. Treece, U. S. Atty., on the brief), for plaintiff-appellee.
    Jack B. Speight, Cheyenne, Wyo. (Hanes, Carmichael, Johnson, Gage & Speight, Cheyenne, Wyo., on the brief), for defendant-appellant.
    Before LEWIS, Chief Judge, and BARNES  and McWILLIAMS, Circuit Judges.

       Senior Circuit Judge of the Ninth Circuit, sitting by designation.

   McWILLIAMS, Circuit Judge.

E. Ross King, hereinafter referred to as the defendant, was adjudged guilty by a jury on both counts of a two-count indictment based on 18 U.S.C. §§ 2 and 656. The first count charged him with the misapplication of bank funds as a bank director. The second count, based on a separate transaction, charged him with aiding and abetting another who was a bank director in the misapplication of bank funds. The defendant now appeals and the nature of the issues suggests that we examine more closely the charges in the indictment.

In count 1, the defendant and his brother, Paul W. King, were jointly charged with unlawfully misapplying funds of the Kiowa State Bank in violation of 18 U.S.C. §§ 2 and 656. More specifically, in count 1 it was alleged that as of March 2, 1970, the defendant and Paul King were directors of the Kiowa State Bank, a federally insured bank, and that on that date they unlawfully misapplied monies of the bank by causing a money order to be disbursed in the amount of $50,000 made payable to Applecross Farms and Maddison Farms, which sum was ultimately converted to their personal use.

In count 2, it was alleged that on or about June 14, 1971, Paul King was a director of the Kiowa State Bank and that on or about that date Paul King unlawfully misapplied monies belonging to the bank by causing to be disbursed to one A. Paul Williams the sum of $25,000, $19,516 of which was ultimately converted to the personal use of Paul King and the defendant. The only charge, as such, in count 2 involving the defendant is that he aided and abetted his brother, Paul King, a bank director, in the disbursement of bank funds to the aforesaid A. Paul Williams.

As indicated, the defendant and his brother, Paul King, were jointly indicted. However, before trial Paul King pleaded guilty to count 1 of the indictment, and other charges then pending against him were dismissed. The defendant proceeded to trial on both counts in the indictment, and he was convicted by a jury on both counts. The grounds for reversal are grouped as follows: (1) The evidence is legally insufficient to sustain a conviction on count 2; (2) plain error was committed by the trial court in permitting the defendant’s former attorney to testify against him as a Government witness; and (3) the defendant was denied his Sixth Amendment right to the assistance of counsel because of trial counsel’s gross incompetence. As concerns the last mentioned matter, needless to say, present counsel for the defendant was not trial counsel.

Although the sufficiency of the evidence argument runs in the main to count 2, we shall first briefly review the Government’s evidence as it relates to count 1, in order that the entire matter may be viewed in context. As of March 2, 1970, Paul King was a director of the Kiowa State Bank, located in Kiowa, Colorado, and served as its president. The defendant as of that same date was a director of the bank, but not an officer. Without going into unnecessary detail, on March 2, 1970, the defendant, and his brother, caused a loan in the amount of $50,000 to be made by the bank to Applecross Farms, Inc., on the latter’s promissory note. The president of Applecross Farms, Inc., endorsed the check in question in favor of a company controlled by the defendant and the defendant thereafter then drew two checks on his company’s account, one check being in favor of his brother, Paul King, in the sum of approximately $25,000, and a second check in the same amount being made payable to himself. Paul King and the defendant then deposited the proceeds of these two checks in their respective personal accounts in the Kiowa State Bank.

As concerns the charge contained in the second count of the indictment, it would appear that as of the date of the transaction upon which the second count is predicated, namely, June 14, 1971, the defendant had resigned as a bank director and was no longer serving in such capacity. However, his brother, Paul King, was still serving as a bank director and president. The fact that the defendant was no longer serving as a director of the bank is apparently the reason that insofar as the second count is concerned the defendant was only charged with aiding and abetting the director, namely, his brother, Paul King, in the misapplication of bank funds.

In any event, as concerns count 2, the Government’s evidence showed that the defendant and his brother formed an entity known as the Kiowa Real Estate Investment Trust and hired A. Paul Williams as a salesman. The three of them, i. e., Williams, the defendant, and his brother, arranged for a loan to Williams from the bank in the sum of $25,000, with Williams giving the bank his promissory note in exchange therefor. In this regard, Williams testified that though he signed the note, he understood that he would not be called on to pay the same, and that payment would ultimately be made by the defendant or his brother. Of the sum loaned, $5,000 was used to pay off a preexisting overdue note of Williams to the bank, and Williams endorsed the balance of the loan, approximately $20,000, over to the defendant. This sum was then traced to the defendant’s personal account in a Denver bank.

Williams’ testimony was to the effect that at the time of this transaction, the Kiowa Real Estate Investment Trust was experiencing financial troubles, and that the proceeds of this loan were given the defendant to recoup him for advances previously made by him to the' trust. While the evidence on this point was not fully developed, the record is such as to permit the inference that the real purpose of this particular loan was to improve the overall financial standing of the Kiowa Real Estate Investment Trust, which, as indicated, was jointly owned by the defendant and his brother.

Although, as will be brought out later,there is some challenge to the sufficiency of the evidence to sustain a conviction under the first count of the indictment, defendant’s insufficiency of the evidence argument centers mainly on the second count. In this regard, counsel points out that as of June 14, 1971, the date of the transaction upon which the second count is predicated, the defendant was no longer director of the bank and that accordingly the only way he could violate 18 U.S.C. §§ 2 and 656 would be by aiding and abetting another, namely, his brother, who was a director, in the wilful misapplication of bank funds. Counsel then goes on to argue that before the defendant can be found guilty as an aider and abettor, the Government must show that there was a principal who was a bank director and who, acting as such, misapplied bank monies. In this connection, then, it is asserted that there is insufficient evidence to show that defendant’s brother, Paul King, violated the provisions of 18 U.S.C. § 656 and that such being the case the defendant cannot be guilty of aiding and abetting his brother in any violation. We disagree with this analysis of the record.

The phrase “wilfully misapplies” as used in 18 U.S.C. § 656 has been the subject of considerable judicial discussion. It has been held that the words “wilfully misapplies” have no settled technical meaning, such as “embezzle,” for example, and that “misapply” was intended to include acts not covered by the words “embezzle” or “abstract” as such are used in the statute. Batchelor v. United States, 156 U.S. 426, 15 S.Ct. 446, 39 L.Ed. 478 (1895). However, “misapplication” has been distinguished from “maladministration.” United States v. Meyer, 266 F.2d 747 (5th Cir. 1959), cert, denied, 361 U.S. 875, 80 S. Ct. 138, 4 L.Ed.2d 113 (1959). At the same time, it has been held that in a prosecution against a bank president foh wilful misapplication of bank funds and against a codefendant for aiding and abetting, evidence that the defendant bank president, though professing to secure approval of a loan by the bank, had in fact made the loan to his codefendant without valid consent of the board for the purpose of assisting the codefendant and an already failing trust company, and indirectly to aid a company in which defendant and his codefendant were interested, which loan subjected the bank to an “indefensible risk,” was sufficient to sustain a conviction against the defendant bank president as a principal and against his codefendant as aider and abettor. Mulloney v. United States, 79 F.2d 566 (1st Cir. 1935), cert, denied, 296 U.S. 658, 56 S.Ct. 383, 80 L.Ed. 468 (1935). Similarly, it has been held that a “misapplication” by a bank director occurs when money is knowingly lent to a fictitious borrower or the director causes a loan to be made for his own interest, concealing his interest from the bank. United States v. Fortunato, 402 F.2d 79 (2d Cir. 1968), cert, denied, 394 U.S. 933, 89 S.Ct. 1205, 22 L.Ed.2d 463 (1969).

As concerns the facts and circumstances surrounding the loan to Williams in return for his promissory note, both defendant and his brother, Paul King, were present when the loan was consummated. Immediately prior to the actual loan, there had been discussion between defendant, his brother, and Williams concerning the financial plight of the Kiowa Real Estate Investment Trust, in which all three were interested. Williams testified that as of the date of the loan he had another overdue loan with the bank. It was in this setting that the bank loaned Williams' $25,000 on his unsecured promissory note. And though Williams signed the note, it was understood that the defendant or his brother would actually repay the loan. As indicated, part of the proceeds went to pay off Williams’ overdue note, and the balance Williams endorsed over to the defendant in his brother’s presence, to reimburse the former for advances previously made the Kiowa Real Estate Investment Trust. Further, there was evidence that no record was ever made of this loan on the bank’s Loan Registry. As above mentioned, though the monies given defendant by Williams were deposited in the defendant’s personal bank account, there was evidence to indicate that the real reason for the loan was to improve the financial standing of the Kiowa Real Estate Investment Trust, which was jointly owned by the defendant and his brother.. Without further recitation of the Government’s evidence, we conclude that under the authorities above cited there is ample evidence to show that under the circumstances Paul King “wilfully misapplied” bank monies by causing the aforesaid loan to be made to Williams, and that the defendant aided and abetted him in the transaction.

Our resolution of this phase of the controversy squares with our recent pronouncement in United States v. Cooper, 464 F.2d 648 (10th Cir. 1972). In that case, we held that an aider and abettor may violate 18 U.S.C. § 656 by assisting a bank official in committing the misapplication and that evidence that the misapplication was for the benefit of the bank officer or the aider and abettor would sustain a conviction against both the bank director and the aider and abettor. As above noted, proceeds from the loan to Williams were placed in the defendant’s personal account, and indirectly inured to the benefit of the Kiowa Real Estate Investment Trust, in which both the defendant and his brother had an interest. In sum, then, the evidence is sufficient to sustain defendant’s conviction under count 2.

It is next urged as grounds for reversal that plain error was committed by the trial court in permitting the defendant’s former attorney to testify as a Government witness. No objection was made upon trial when the attorney was called by the Government and we do not regard the matter as one involving plain error. Rather, the record indicates to us that the failure of trial counsel to interpose any objection based on an alleged attorney-client privilege when the defendant’s erstwhile attorney was called as a Government witness was intentional and a part of trial strategy, wherein trial counsel hoped to elicit favorable testimony upon cross-examination which would more than offset any damaging testimony given by the witness on direct examination. Having thus waived any privilege, the defendant cannot at this late date seek to invoke it. Young v. Taylor, 466 F.2d 1329 (10th Cir. 1972).

Elaborating a bit more on this particular phase of the controversy, it is doubtful that the bulk of the testimony from defendant’s erstwhile attorney was in fact privileged. In the main, the witness testified as to the two corporations which he incorporated at the behest of the defendant and his brother. And then, on cross-examination, he was permitted, over objection, to explain why the defendant and his brother chose to deal in the contemplated purchase of land and cattle in Kiowa County through corporate entities, rather than openly in their individual capacities. The explanation thus offered was indeed most plausible, but the jury apparently remained unconvinced. Under all these circumstances, we too remain unconvinced that plain error was committed.

As an offshoot of the foregoing argument, present counsel claims that because of trial counsel’s gross incompetence the defendant was denied his Sixth Amendment right to the effective assistance of counsel. Such is not our view of the record. The fact that the defendant was convicted of course does not prove that he was denied his right to counsel. The record does not suggest to us any bad faith, sham, mere pretense, or want of opportunity for conference and preparation, and in such circumstance we find no denial to the defendant of his constitutional right to counsel. See United States v. Davis, 436 F.2d 679 (10th Cir. 1971).

As alluded to above, the defendant makes minor complaint concerning the sufficiency of the evidence as to count 1. In this regard, counsel concedes that when the defendant took the stand and testified in his own behalf, he supplied any deficiency in the Government’s case as to whether the defendant was in fact a bank director on March 2, 1970, the date of the transaction upon which the first count was predicated. However, he asks us to overrule our prior decision to the effect that where a defendant offers evidence after his motion for acquittal is denied, the question of the sufficiency of the evidence to sustain an ensuing conviction is thereafter to be determined by an examination of the entire record. This we decline to do. See United States v. Bedwell, 456 F.2d 448 (10th Cir. 1972). In our view, the Government did establish in its case in chief at least prima facie, that the defendant was a director of the Kiowa State Bank on March 2, 1970, a fact which defendant then admitted upon cross-examination. The evidence to sustain defendant’s conviction on count 1 is amply sufficient.

Judgment affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. John William CLEMENTS, Defendant-Appellant.
    No. 73-1705
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct. 5, 1973.

      Selig I. Goldin, Gainesville, Fla. (Court-appointed), for defendant-appellant.
    William H. Stafford, Jr., U. S. Atty., Robert L. Crongeyer, Jr. Asst. U. S. Atty., Pensacola, Fla., for plaintiff-ap-pellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

       Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N. Y., 431 F.2d 409, Part I (5th Cir. 1970).

   PER CURIAM:

John William Clements was tried and convicted of conspiracy to violate 21 U. S.C. § 952(a) and with aiding and abetting a violation of that same statute. On this appeal Clements argues that the trial judge abused his discretion in: (1) admitting a partially inaudible tape recording into evidence and (2) failing to grant his motion for a continuance. Additionally, he urges that the evidence as to aiding and abetting was insufficient to support his conviction. We affirm.

Clements was involved in a continuing conspiracy to import heroin from Thailand into the United States. The evidence established that pursuant to this conspiracy three trips to Thailand were made, the first one by Thomas Simmons and the last two by John Davidson. Each time a connection was made with a seller in Thailand, and the heroin was smuggled into the United States under the false bottom of a suitcase. The first two trips were successful and the heroin was distributed by the couriers to the other conspirators in Florida. However, the third trip undid the criminal venture. When Davidson passed through customs in New York upon his return from Thailand, a customs officer, after detecting the odor of glue, inspected his suitcase and found its false bottom and concealed contents. Subsequently, Davidson, who became cooperative after his apprehension in New York, returned to Florida in the company of Michael Levine, a customs agent. Upon arriving at his mobile home, in Alachua County, Florida, he phoned Alan Trupkin, another member of the conspiracy. Clements came with Trupkin to Davidson’s trailer, where agent Levine secretly taped the conversation of the parties. As a result, Trupkin and Clements were indicted for the continuing conspiracy to import heroin involving all three trips. They were also indicted for aiding and abetting the importation of heroin but only with relation to the abortive third trip. On the first day of trial, before commencement of the proceedings, Trupkin pled guilty to the aiding and abetting count.

The admission into evidence of the partially inaudible tape made by agent Levine was a matter well within the discretion of the trial judge, who listened to the tape before the jury was allowed to hear it and determined that the missing portions did not impair the probity of that which could be heard. We find no abuse of this discretion. Addison v. United States, 317 F.2d 808 (5th Cir. 1963), cert, denied, 376 U.S. 905, 84 S.Ct. 658, 11 L.Ed.2d 605 (1964).

Similarly, no abuse of the trial judge’s discretion occurred when he denied Clements’ motion for a continuance after Trupkin’s guilty plea. It is black letter law that this action will not be disturbed by an appellate court, except upon a showing that “the action of the trial court was in fact prejudicial to the defendant.” Wright and Miller, Federal Practice and Procedure § 832 at 334. In his brief before this court, Clements argues that the guilty plea took his counsel by surprise and forced him to change his trial tactics on short notice thereby rendering counsel ineffective. It is argued that more time was needed to interview Trupkin and weave his testimony into the fabric of Clements’ trial strategy.

Under the circumstances of this case, this argument does not demonstrate prejudice. Trupkin’s testimony on Clements’ involvement in the conspiracy was cumulative to testimony by Davidson and Simmons. The testimony was important to the government’s aiding and abetting case. However, Trupkin did not testify until the second day of trial, and the trial judge specifically ordered that he be made available for interview by Clements’ counsel after the first day. Clements has failed to demonstrate that this procedure was not sufficient to allow counsel to uncover any surprise testimony or otherwise prepare his defense to whatever Trupkin might say. Moreover, Clements and his counsel knew that the prosecutor had a continuing offer of certain concessions if one defendant would plead guilty and testify against the other. Therefore, Trupkin’s action should not have been completely unexpected. The trial court was also entitled to consider that Clements and his counsel had been allowed seven months to prepare for trial.

In order to determine whether there was sufficient evidence to convict Clements of aiding and abetting, we must ascertain whether a view of the proof most favorable to the government would disclose substantial evidence to support the verdict. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Under such a procedure the jury’s verdict must stand. In Nye and Nisson v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 769, 93 L.Ed. 919 (1949) the Supreme Court stated the appropriate test as follows:

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 something that he wishes to bring about, that he seek by his action to make it succeed.” L. Hand, J., in United States v. Peoni, [2nd Cir.,] 100 F.2d 401, 402.

We are convinced that the jury could properly find that Clements’ conduct met this test. Clements argues that Grimes v. United States, 379 F.2d 791 (5th Cir., cert, denied, 389 U.S. 846, 88 S.Ct. 104, 19 L.Ed.2d 113 (1967), precludes conviction in the instant case. The difference between that case and the instant case is that here there was evidence of Clements’ participation in planning the alleged conduct, and of prearrangement for his participation in the fruits of the crime. Such evidence of prearrangement was wholly lacking in Grimes. This evidence coupled with after the fact statements attributed to Clements was sufficient for the jury to find the requisite association between Clements and the third trip. See United States v. McCray, 482 F.2d 286 (5th Cir. 1973).

Affirmed.

      . It shall be unlawful to import into the customs territory of the United States from any place outside thereof (but within the United States), or to import into the United States from any place outside thereof, any eontrolled substance in schedule I or II of subehapter I of this chapter, or any narcotic drug in schedule III, IV, or V of subchapter I of this chapter ....


author: HERBERT F. MURRAY, District Judge:

text:
    UNITED STATES of America, Appellee, v. Roland George SCHEMBARI, Appellant.
    No. 72-1975.
    United States Court of Appeals, Fourth Circuit.
    Argued Feb. 6, 1973.
    Decided Sept. 27, 1973.

      Marvin D. Miller, Norfolk, (court-appointed) for appellant. Va.,
    Paul A. Scott, Asst. U. S. Atty., (Brian P. Gettings, TJ. S. Atty., E. D. Virginia, on brief) for appellee.
    Before BUTZNER and FIELD, Circuit Judges, and MURRAY, District Judge.
   HERBERT F. MURRAY, District Judge:

Appellant, Roland G. Schembari, was arrested on May 22, 1972 by federal officers at the Pentagon building in Arlington, Virginia, on land under the exclusive jurisdiction of the United States, and charged in a complaint with disorderly conduct, crossing a police line, and impeding and disturbing public employees in the performance of their duties. Schembari’s arrest occurred during a protest demonstration by approximately one thousand persons at the Mall entrance to the Pentagon. The following day Appellant was brought before a United States Magistrate for arraignment on this charge and at that proceeding, with counsel present, Appellant elected to be tried in a United States District Court. Thereupon Appellant was released on a $50.00 cash bond.

On Friday, June 2, 1972, Mr. Schem-bari pleaded not guilty in United States District Court for the Eastern District of Virginia, Alexandria Division, to a criminal information charging him with disorderly conduct; impeding and disturbing public employees in the performance of their duties in violation of Title 41, C.F.R., Section 101-19.304. Over defense counsel’s objection that more than a weekend was needed to adequately prepare a defense and submit pre-trial motions, a trial date was set by the Court for the following Monday, June 5, 1972. However, later in the afternoon of June 2, Appellant filed with the District Court motions for discovery; for a more definite statement, for a continuance, and a motion for an order directing the issuance of subpoenas duces tecum. That same day the Court heard Appellant’s motions for a continuance and for subpoenas duces tecum and determined that both motions should be denied.

On June 5, 1972, at the commencement of the trial proceedings, Appellant’s motions for a more definite statement and for discovery and a renewed motion for a continuance were argued to the Court. Appellant’s motion for a more definite statement was granted in part, his remaining motions were denied. In the trial which immediately followed, Appellant was found guilty and sentenced by the Court.

As his first ground for appeal, Appellant argues that the refusal of the trial court to grant his pre-trial motions for a continuance, for discovery and inspection, for a more definite statement, and for an order directing the issuance of subpoenas duces tecum constitutes reversible error. Appellant asserts that his Fifth and Sixth Amendment rights were violated as a result of the trial court’s denial of these motions.

Although Appellant was charged with a crime denominated a “petty” offense, it is clear that he was entitled, at his election, to a trial conducted in the United States District Court according to the Federal Rules of Criminal Procedure. 18 U.S.C. Rules 1, 54. See Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L.Ed.2d 530 (1972). Appellant’s pre-trial motions must therefore be considered on the same footing as though a more serious underlying offense were involved. In weighing this aspect of the present appeal, the Court will examine each of the trial court’s rulings on Appellant’s motions without regard to the character or seriousness of the crime charged.

Motion for a Continuance

Appellant contends that he sought a continuance from the trial court so that he might effectively seek out witnesses and evidence for his defense. More specifically, Appellant claims that he was relying heavily on the possibility that there might be TV news film, still pictures or other visual recording of the Pentagon demonstration which would exculpate him. However, Appellant contends that he could not obtain such evidence during the intervening weekend between his arraignment and trial, and therefore the trial court’s denial of his motion for a continuance wrongfully denied him effective assistance of counsel.

The grant or denial of a motion for a continuance is a matter which lies within the sound discretion of the trial judge. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921, 931 (1964); Avery v. State of Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 322, 84 L.Ed. 377, 379 (1940); United States v. Pigford, 461 F.2d 648, 649 (4th Cir. 1972) ; United States v. Perchada, 407 F.2d 821, 822 (4th Cir. 1969). The trial judge’s ruling on such a motion will be set aside only if it appears he has abused his discretion. United States v. Pigford, supra. This necessarily depends upon the facts and circumstances of the particular case. See Ungar v. Sarafite, supra at 590 of 376 U.S., 84 S. Ct. 841.

In the instant ease, the record does not demonstrate that the trial judge abused his discretion in denying Appellant’s motion for a continuance. Nowhere does the record indicate that Appellant made any factual showing to the trial court that films or photographs of the demonstration existed. Even if the trial court were persuaded that such films existed, it had no reason to assume that Appellant would appear in any of the films, or any assurance that his appearance in any film would be relevant and material to the question of his innocence under the pending criminal information. The trial court could not feel confident on the facts before it that the grant of a continuance would be of any value in securing photographic evidence, for Appellant failed to demonstrate that the material he sought could, or would, be made available to him during the period of a continuance. Although difficulties often attend trial preparation in criminal matters, resourceful counsel in the weekend between Appellant’s arraignment and trial could interview witnesses and prepare a defense or failing that, document a case for a continuance. In this instance it appears that Appellant, along with others arrested at the Pentagon demonstration on May 22, 1972, had representation by a group of attorneys both at the time of his arraignment before the Magistrate on May 23, 1972 and during the two weeks before his trial. Appellant’s trial counsel was not only a member of that group of attorneys, but also had personally witnessed the demonstration in question and thereby had an opportunity for direct knowledge of the facts usually not available to defense counsel. Therefore, we are satisfied that the trial court did not abuse its discretion in denying Appellant’s motion for a continuance. See United States v. Thrower, 394 F.2d 510 (4th Cir. 1968) (per curiam).

Motion for a More Definite Statement

Appellant contends that the trial court erred in denying his motion for a more definite statement [construed as a motion for bill of particulars under Rule 7(f) F.R.Crim.P.] to the extent that he was refused an exact description of those actions which allegedly constituted his offense. Like a motion for a continuance, the grant or denial of a motion for a bill of particulars “is a matter within the sound discretion of the trial court and, in the absence of an abuse of such discretion which results in prejudice to the rights of the accused, the action of the court will not be disturbed.” United States v. Dulin, 410 F.2d 363, 364 (4th Cir. 1969). Appellant was charged in a complaint and later in a criminal information with disorderly conduct and impeding and disturbing public employees in the performance of their duties, which adequately apprised him of the nature of the offense charged.

It is settled that the purpose of a bill of particulars is to enable a defendant to obtain sufficient information on the nature of the charge against him so that he may prepare for trial, minimize the danger of surprise at trial, and enable him to plead his acquittal or conviction in bar of another prosecution for the same offense. United States v. Du-lin, supra at 364; United States v. Chunn, 347 F.2d 717, 720 (4th Cir. 1965). The record indicates that Mr. Sehembari was informed of the exact nature of his alleged offense — breaking through [police] lines; disorderly — after the prosecution turned over its entire file to Sehembari. Because we believe that the underlying objectives of a Rule 7(f) motion were fully satisfied by the government’s voluntary disclosure of its file, we can find no abuse of the trial judge’s discretion. See United States v. Sullivan, 421 F.2d 676 (5th Cir. 1970).

Motion for Discovery and Inspection

By a motion filed pursuant to Rule 16 of the Federal Rules of Criminal Procedure Appellant sought discovery of “all films, photographs, tape recordings, videotapes or other audio-visual recorda-tions made by any agent of the federal government. . . . ” Upon the prosecution’s representation to the trial court that after diligent inquiry, no films, tape recordings, videotapes or other such recordations were found in the hands of the government, the trial court denied, to this extent, Schembari’s motion for discovery and inspection. Since the government cannot disclose what it does not have, and there was no evidence to gainsay the government’s representation, we find no error in this ruling of the trial judge.

The prosecution, however, admitted prior to trial that a government agency possessed “some still photographs” of the demonstration which had not been viewed by Defendant Schem-bari or by the prosecution. At the same time the prosecution stated that these photographs would not be used against Sehembari at trial. Moreover, the prosecuting attorney argued that the evidentiary character of these still pictures did not require their production.

In Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972), the Supreme Court established a framework for determining the prosecution’s obligation, upon a Brady type motion, to produce evidence in its possession. The Court listed three standards by which the prosecution’s conduct is to be measured: “(a) suppression by the prosecution after a request by the defense, (b) the evidence’s favorable character for the defense, and (c) the materiality of the evidence.” Id. at 794-795, 92 S. Ct. at 2568. In the present case, the record does not reveal that the government attempted to suppress the still photographs, nor does it reflect any specific request by Appellant for the production of the photographs, even after their existence was disclosed in open court. As to the latter two criteria, it can only be concluded that if the Appellant did not appear in the still photographs, the pictures would be neither material, nor favorable to the Appellant. On the other hand, if Appellant did appear in any or all of the photographs, it is difficult to imagine how his appearance in any of these still photographs could be favorable to his defense against a charge of disorderly conduct and breaking through police lines.

Motion for Subpoenas Duces Tecum

Appellant also filed a motion pursuant to Rule 17(b) of the Federal Rules of Criminal Procedure for an order directing the issuance of “John and Jane Doe” subpoenas duces tecum to the seven major newspaper and television organizations in the Washington, D. C. metropolitan area. According to Appellant’s motion, certain unknown individuals; employed by the named organizations would be directed to testify at Schem-bari’s trial in addition to bringing with them to the trial all pictorial recordings and records or notes taken by them and published for public viewing, concerning the demonstration at the Pentagon on May 22, 1972. Upon hearing, the trial court denied Schembari’s motion. Appellant now contends that the refusal of the trial court to grant this motion was an error under the Sixth Amendment to' the Constitution as well as Rule 17(b).

Undoubtedly, in a large crowd which is attended by a host of news reporters, it is not an easy matter to ascertain which news media are present and observing the events, or even which events are being observed or filmed by the press. However, these circumstances do not warrant an alteration of the basic concept that Rule 17 is not a discovery device. See Bowman Dairy Co. v. United States, 341 U.S. 214, 71 S. Ct. 675, 95 L.Ed. 879 (1951); United States v. Marcello, 423 F.2d 993 (5th Cir.), cert, denied, 398 U.S. 959, 90 S.Ct. 2172, 26 L.Ed.2d 543 (1970); Gilmore v. United States, 256 F.2d 565 (5th Cir. 1958); 1 C. Wright, Federal Practice & Procedure § 272 (1969). Here, the fact that the trial judge was presented with requests for “John and Jane Doe” subpoenas duces tecum cannot be squared with the language of Rule 17(b) which limits the discretion of the trial court to issue subpoenas “on . . . named witness[es].” 18 U.S.C. Rule 17(b) (emphasis supplied). Consequently,, we find no error in the trial court’s denial of Schembari’s motion for issuance of subpoenas duces tecum.

Sufficiency of Evidence

Appellant argues that there was insufficient evidence upon which the trial court could properly base its conclusion that Appellant was guilty beyond a reasonable doubt. However, we find that the unrebutted testimony of a prosecution witness who observed the Appellant forcefully break through a line of United States police officers provided a legally sufficient basis for the trial court’s verdict. Federal police officers are “public employees” within the meaning of 41 C.F.R. § 101-19.304. See 40 U.S.C. § 318. Upon the record, the trial court could have properly found that Appellant’s conduct was disorderly and impeded or disturbed federal police officers in the performance of their duties at the Pentagon on May 25, 1972. Thus, our review of the record satisfies us that there was ample evidence on which the trial judge could base his conclusion that Sehembari was guilty beyond a reasonable doubt of a violation of 41 C.F.R. § 101-19.304.

Affirmed.

      . Even if any of the still photographs showed Appellant in a location or a posture which was at variance from the testimony of trial witnesses, the still photographs would carry no impeachment value unless they bore a time imprint and the government witnesses were able to testify to Schembari’s location or posture at a precise time. The record reveals that neither of the two prosecution witnesses was able to testify at trial as 'to the location or posture of Mr. Sehembari, with relation to a precise time frame.

      . John and Jane Doe The Daily News 1013 13th Street, N.W. Washington, D.C.
      John and Jane Doe The Washington Post 1150 15th Street, N.W. Washington, D.C.
      John and Jane Doe The Evening Star 225 Virginia Avenue, S.E. Washington, D.C.
      John and Jane Doe WMAL 4461 Connecticut Avenue, N.W. Washington, D.C.
      John and Jane Doe WCRC 4001 Nebraska Avenue, N.W. Washington, D.C.
      John and Jane Doe WTOP 4001 Brandywine Street, N.W. Washington, D.C.
      John and Jane Doe WTTG 5151 Wisconsin Avenue, N.W. Washington, D.C.

      . Appellant does not argue that the requirement of Rule 17(b), that subpoenas be issued only upon named witnesses, is violative of the Sixth Amendment.

      . The facts of this case are clearly distinguishable from those which we considered in United States v. Crowthers, 456 F.2d 1074 (4th Cir. 1972). In Crowthers we found that a lunch hour meeting of approximately 185 persons in a large public concourse in the Pentagon Building did not support an inference that public employees were disturbed or impeded in the performance of their duties, even though some obstruction was caused by a crowd of onlookers. 456 F.2d at 1077-1078. But here, the record reveals that federal police officers were detailed to form a protective cordon between a group of demonstrators and the Pentagon Building. We cannot say that an attempt to forcibly breach such a police line would not support a conclusion that the federal officers who manned the line were impeded or disturbed in the performance of their duty.


author: WALLACE, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Gregg Marshal DAVIS, Defendant-Appellant.
    No. 72-1827.
    United States Court of Appeals, Ninth Circuit.
    Aug. 31, 1973.
    Rehearing Denied Oct. 15, 1973.
    Steven M. Kipperman (argued), of Kipperman, Shawn & Keker, San Francisco, Cal., for defendant-appellant.
    Joseph Reeves, Asst. U. S. Atty. (argued), James L. Browning, Jr., U. S. Atty., Frederic F. Tilton, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee.
    Before LUMBARD, HAMLEY and WALLACE, Circuit Judges.

       Honorable J. Edward Lumbard, Senior United States Circuit Judge of the Second Circuit, sitting by designation.

   WALLACE, Circuit Judge:

Davis appeals from his conviction for refusing to submit to induction in violation of 50 App.U.S.C. § 462(a). We affirm.

On November 19, 1968, his local board classified Davis 1-A. In December, he returned an executed Selective Service Form 127 (Current Information Questionnaire) indicating that he had a split right femur and that a doctor’s letter would follow. On December 9, 1968, the local board received Dr. Sidney Stovall’s letter which stated that Davis had suffered a fracture of the distal right femur in 1964, and that his leg had been in a cast for approximately two months. After removal of the cast, rehabilitation was begun. X rays later confirmed that the fracture had healed without incident. Dr. Stovall last saw Davis on May 8, 1965, about six months after the injury. He observed at that time that Davis continued to have atrophy or wasting of the muscles, but that he was regaining range of motion. Dr. Stovall was not aware of Davis’s current condition. However, there is no indication in the letter that his leg would not have fully recovered in the intervening three and one-half years.

At all times in question, atrophy could be a disqualifying defect “if progressive or of sufficient degree to interfere with military service.” Army Reg. 40-501, § VII, ¶ 2-llf. During 1968, 32 C.F.R. § 1628'.2(b) provided that, whenever a registrant who was classified 1-A claimed to have a disqualifying defect, the local board should order him to appear at an interview with the board’s medical ad-visor. Davis’s local board failed to do so. Instead it ordered him to submit to an AFEES (Armed Forces Entrance and Examination Station) physical examination. Ultimately, AFEES determined that Davis was qualified for induction. The local board ordered him to report for induction. He reported but refused to submit.

Davis requests reversal of his conviction, asserting two errors. First he argues that United States v. Miller, 455 F.2d 358 (9th Cir. 1972), requires the local board to review new information which might result in reclassification. However we noted in United States v. Cantero, 471 F.2d 1190, 1191 (9th Cir. 1972) (en banc), that the Miller rule applied when a prima facie case for reclassification had been presented. Davis claimed that he had had a broken leg. But his doctor reported that the fracture had healed and that Davis had commenced recovery almost four years prior to his claim. This combination falls short of the requirement that Davis present “facts which warrant a classification other than 1-A.” United States v. Enslow, 426 F.2d 544, 546 (9th Cir. 1970) ; see 32 C.F.R. § 1622.10. Thus he did not present a prima facie claim and there was no prejudice in the board’s failure to consider it. United States v. Johnson, 473 F.2d 677, 678 (9th Cir. 1972); United States v. McKinley, 447 F.2d 962, 964 (9th Cir. 1971) .

Alternatively Davis contends that the local board’s failure to refer him to its medical advisor for an interview invalidated his induction order. See 32 C.F.R. § 1628.2(b). Assuming Davis was entitled to that interview, United States v. D’Arcey, 471 F.2d 880 (9th Cir. 1972) (en banc), “we conclude that the omission was harmless.” United States v. Rollins, 475 F.2d 97, 99 (9th Cir. 1973). Davis was given not only the normal AFEES physical on January 17, 1969, but he was also examined by an orthopedic specialist on February 25, 1969. Unlike a preinduction physical, the specialist’s consultation gave Davis “the opportunity to have a single doctor focus his attention on the registrant’s individual condition and make a specific finding thereon.” United States v. Baray, 445 F.2d 949, 954 (9th Cir. 1971). See also United States v. D’Arcey, su pra, 471 F.2d at 883. “It follows that the appellant was not prejudiced by not having a medical interview prior to being ordered for physical examination.” United States v. Rollins, supra, 475 F.2d at 99.

Affirmed.

      . § 1628.2 was amended by Exec.Order No. 11553, 35 Fed.Reg. 13719 (Aug. 28, 1970).

      . But see United States v. Kelly, 473 F.2d 1225 (9th Cir. 1973). Kelly appears to reach a contrary result, but it failed to mention either McKinley or Johnson. This may be because Kelly presented a prima fa-cie claim. See United States v. Bingham, 484 F.2d 365, 366 n. 1 (9th Cir. 1973).