author: LEVIN H. CAMPBELL, Circuit Judge.

text:
    Benjamin J. BUTERA, Plaintiff, Appellant, v. SUN OIL COMPANY, INC., Defendant, Appellee.
    No. 73-1358.
    United States Court of Appeals, First Circuit.
    Heard March 4, 1974.
    Decided May 2, 1974.
    Jordan I. Kobritz, Bangor, Maine, with whom Paine, Lynch, Weatherbee & Kobritz, Bangor, Maine, was on brief, for plaintiff, appellant.
    Barbara W. Mather, Philadelphia, Pa., with whom Harold C. Pachios, Portland, Me., Charles J. Bloom, Pepper, Hamilton & Scheetz and Robert M. Dubbs, Philadelphia, Pa., were on brief for defendant, appellee.

      Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   LEVIN H. CAMPBELL, Circuit Judge.

Benjamin J. Butera, owner of a retail gasoline station in Bangor, Maine, sued his supplier, Sun Oil Company, Inc., for treble damages, alleging that the “meter reading competitive allowance” (MRCA), Sun’s present system of adjusting its wholesale gasoline prices, is tantamount to illegal resale price maintenance in violation of the Sherman Act, 15 U.S.C. § 1 et seq. The district court granted Sun’s motion for summary judgment and denied Butera’s cross motion. It ruled that Sun had done nothing beyond changing its wholesale prices to influence the retail price at which Butera sold gasoline to the public, and that “more than that must be shown to constitute a violation of Section 1 of the Sherman Act.” We affirm.

In 1961 Butera and Sun entered into a Dealer’s Agreement under which Sun agreed to sell, and Butera to buy, gasoline, motor .oil and the like at Sun’s prices. Prior to 1965 Sun’s price to dealers for gasoline had two components: a base wholesale “tankwagon” price and a “competitive allowance” (CA), expressed as a discount therefrom and offset at the time of delivery. The CA varied in different marketing areas across the nation, and enabled Sun to adjust its wholesale price in light of the local competitive situation. Sun set the CA so that the wholesale (tankwagon less CA) price enabled its dealers to make what Sun believed a sufficient profit while charging a retail price competitive with rival service stations. Sun’s salesmen and agents would find out the price of gasoline at competitive filling stations, and, perhaps ten times a year, Sun would raise or lower the CA in conformity with market conditions. At the same time it would announce a proportionate change in suggested retail price, but would not require its dealers to follow it; the dealer would remain free to set his own retail price. Butera has no quarrel with the system as so far described. In fact, he asserts that because he has tank capacity in excess of many dealers, he was able to benefit as follows:

“I would buy gasoline at the prevailing price less the CA that was available, I would know what my gasoline cost me, I would check and see what the market was doing by listening, by going — by observation. If the price appeared to be on the downward trend, I would wait until I was at a lower supply of gasoline before I purchased additional supplies. If I had a suspicion that the price was about to go up, I would fill up my tanks to capacity and wait for the price to take effect. If it never did, than I purchased another load at the low price. When the price did move upwards, I stood a chance to make a fairly reasonable substantial profit. That also enabled me to sell gasoline for a period of time at a lower than competition price, because most of them either did not have the means or the ability to seek out and purchase gasoline when the price was low.”

Butera’s present problem began when Sun, in 1965, adopted the MRCA, under which the dealer is charged the full tankwagon price when a particular delivery is made. Local CAs continue to be established, as above described. However, the CA is not offset against the quantity delivered but rather is credited, after delivery, only against the gallon-age the dealer actually sells until such time as a new CA is declared. When that happens the dealer is notified of the new CA, and meters on the pumps are immediately read, establishing the gallonage sold while the earlier CA was in effect and permitting a final credit to be computed for gasoline sold under that CA. The new CA is applied to gas subsequently pumped. Because the effective wholesale price is calculated without regard to the price on the date of delivery to Butera, the MRCA system makes it impossible for him to use his large capacity to engage in speculation. Butera analogizes this to a “consignment” whereby Sun retains control over the wholesale and hence, he contends, retail price even after title has passed.

On the other hand, Butera testified in his deposition that he has continued to set his own retail price and that he was not required to follow Sun's suggested retail price. There is no evidence that MRCA was used invidiously against Butera; on this record it appears to have been applied without discrimination to all Sunoco dealers in the marketing area. The question is thus whether MRCA is by itself an illegal resale price maintenance device. Butera asserts that

“[i]f the retailers do not know the cost of their product until the instant it is sold, and at that time all retailers are paying the same price for the product, then all retailers must of necessity post the same price.”

When Sun wants to force its dealers to sell at the “suggested retail price”, But-era charges, all Sun need do is adjust the MRCA until compliance is achieved.

The district court rejected this analysis on the ground that “[cjhanges in wholesale prices, of course, inevitably affect retail prices, but more than that must be shown to constitute a violation of Section 1 of the Sherman Act.” Although MRCA allows Sun “instantaneous” control over the wholesale price, the court found the type of control not different in kind or effect from Sun’s pre-1965 system in which wholesale prices could be varied by Sun more slowly.

Resale price maintenance is, in the absence of state fair trade legislation, a per se violation of the antitrust laws. Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U.S. 211, 71 5. Ct. 259, 95 L.Ed. 219 (1951); Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 31 S.Ct. 376, 55 L.Ed. 502 (1911). But before this doctrine can come into play there must be resale price maintenance. The Supreme Court eases have involved situations in which the attempt to set retail prices was clear. In Simpson v. Union Oil Co., 377 U.S. 13, 84 S.Ct. 1051, 12 L.Ed.2d 98 (1964), upon which Butera relies, Union Oil had signed an agreement with the retailer containing the latter’s promise to resell at the price set by Union Oil. In Kiefer-Stewart a refusal to sell at a fixed price was met by a concerted refusal to deal. In Albrecht v. Herald Co., 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed.2d 998 (1968) and United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960), the retailer was confronted with minimum or maximum prices and harassed by his supplier and others if he stepped out of line. Taken together, these cases suggest that a case of illegal resale price maintenance is made out when a price is announced and some course of action is undertaken or threatened contingent on the willingness or unwillingness of the retailer to adopt the price. The action need not necessarily fit under the rubric “coercion”, but it must involve making a meaningful event depend on compliance or non-compliance with the “suggested” or stated price. The dealers in Parke, Davis and Albrecht were told that the harassment directed against them would end as soon as they acceded to the manufacturer’s price desires. The cancellation of the lease in Simpson was a direct consequence of the refusal to charge the manufacturer’s desired price. The other cases adhere to the same pattern. Cf. Lehrman v. Gulf Oil Corp., 464 F.2d 26 (5th Cir.), cert. denied 409 U.S. 1077, 93 S.Ct. 687, 34 L.Ed.2d 665 (1972); Bowen v. New York News, Inc., 366 F.Supp. 651 (S.D.N.Y.1973).

The dealings between Butera and Sun do not fit within the foregoing pattern. Sun has done nothing, and has threatened nothing, contingent on Butera’s adherence to the suggested resale price. MRCA is applied regardless of Butera’s own pricing policies. There is no semblance between this case and one such as Pearl Brewing Co. v. Anheuser-Busch, Inc., 339 F.Supp. 945 (S.D.Tex.1972), in which competitive allowances were granted to beer wholesalers upon the implicit (and sometimes explicit) promise that the discounts would be “passed on” to retailers and in turn to consumers. Nor is there any to Lehrman, in which “adherence to a suggested price schedule was the quid pro quo for Lehrman’s receiving Gulf’s” competitive allowances. 464 F.2d at 39.

Sun, moreover, does not control Butera’s retail prices indirectly by attempting to set Butera’s margin. Cf. Swettlen v. Wagoner Gas & Oil, Inc., 369 F.Supp. 893 (W.D.Pa.1974). Butera remains free to reduce his margin and try to make more money by underselling his competitors, or he may increase his margin knowing that he will lose sales but hoping to maximize his profit because of the greater per sale income.

Butera argues that whatever his theoretical rights, the costs among filling station operators are virtually identical and that there is, in effect, no opportunity to pursue such economic maneuvers. But a producer’s tight control over its wholesale prices does not become resale price maintenance merely because retail outlets to which it sells, being highly competitive and selling at low margins, are sensitive to every change in wholesale prices. Nor can we say that Sun’s sophisticated technique for applying current wholesale prices to the gallonage sold is improper. A producer like Sun may legitimately tailor its wholesale prices to the rise and fall of the market. Butera, indeed, expresses no quarrel with the philosophy underlying CAs; he merely prefers the slack built into the earlier, less efficient system. The use of after-sale credits to adjust the net wholesale price is not per se illegal. Such a device would, of course, be illegal if tied in, as was the consignment in Simpson, with fixing the retail price charged by Butera to his own customers. But just as a producer may alter its wholesale price from tankload to tankload, it may likewise do so from day to day or gallon to gallon.

The decision as to what margin to use and when to change it, and consequently what retail price to charge remains But-era’s, and we agree that such economic impact as follows from Sun’s tight control of its own wholesale pricing is not a Sherman Act violation.

Affirmed.

      . Sun’s district manager deposed that Sun absorbed in the CA 70% of a drop in the local market price, leaving the dealer to absorb 30%.

      . Since the CA was based on what was happening to prices locally, and since it took Sun a while to collate data and respond to the changes, an astute local businessman could perhaps make a shrewd guess what might happen to the CA and act profitably before the change occurred. On the other hand, even Butera’s tank would be depleted in about a week, after which the impact of any new CA could not be avoided.

      . Most dealers, including Butera, are not required by Sun to pay for the delivery immediately ; when one shipment is made, they must pay for the previous shipment.

      . Although there is some hint in Butera’s compliant and deposition of a separate claim that Sun officials attempted to coerce But-era individually to maintain Sun’s proposed prices, that theory is not pursued on appeal.

      . Sun correctly points out in its brief that this same-price-for-all-dealers predicate is not supported by the record. Nevertheless, the record does not contradict it, and under the Robinson-Patman Act one might suppose that Sun would not charge different prices to different dealers in the same market. Butera’s assertion that retailers do not know the cost until “the instant” product is sold is somewhat overstated. The retailer would know the prevailing MRCA, and since these were changed on an average of ten times a year, and then only in response to market changes, he would seem more knowledgeable than represented.

      . Retail service station tank capacity is sufficient, in most cases, to retain supplies for only several days. Thus even prior to the MROA Sun, while it lacked “instantaneous” control over wholesale prices, could still make rapid changes in the purchase price of inventory. The low-reserve feature of service stations, combined with the volatile motion of gasoline prices, distinguishes them from other industries. In some industries the seller may set prices that do not vary during a business year; with stable prices a retailer cannot speculate or take advantage of large storage capacity.

      . The doctrine of United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919), allows individual sellers to refrain from dealing, even though the condition for dealing might otherwise be in violation of the Sherman Act. But this doctrine has been limited and a violation established “if the producer secures adherence to his suggested prices by means which go beyond his mere declination to sell to a customer who will not observe his announced policy.” United States v. Parke, Davis & Co., 362 U.S. 29, 43, 80 S.Ct. 503, 511, 4 L.Ed.2d 505 (1960).

      . We are not so sure as Sun, see Gray v. Shell Oil Co., 469 F.2d 742 (9th Cir. 1972), cert. denied 412 U.S. 943, 93 S.Ct. 2773, 37 L.Ed.2d 403 (1973), that a violation cannot be found unless Sun “coerced” Butera. Parke, Davis condemned anything beyond “mere announcement of . . . policy and the simple refusal to deal”. 362 U.S. at 44, 80 S.Ct. at 512. Although the decision in Simpson was predicated on the presence of coercive tactics, the Court did not indicate that its absence would have been determinative.


source: Caselaw Access Project

author: BUTZNER, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Frank Steven DORMAN, Appellant.
    Nos. 73-2034 to 73-2036.
    United States Court of Appeals, Fourth Circuit.
    Argued Jan. 11, 1974.
    Decided April 23, 1974.

      George K. Walker, Associate Professor of Law, Winston-Salem, N.C. [court-appointed] (George Bauer and Roger Haley, student advocates, on brief), for appellant.
    Roger T. Williams, Asst. U. S. Atty. (Brian P. Gettings, U. S. Atty., E.D. Va., on brief), for appellee.
    Before WINTER, BUTZNER, and FIELD, Circuit Judges.
   BUTZNER, Circuit Judge:

Frank Steven Dorman appeals from two convictions for the interstate transportation of forged checks in violation of 18 U.S.C. § 2314 (1970) and from his conviction for bail jumping, 18 U.S.C. § 3150 (1970). We affirm.

Dorman assigns error to the district court’s refusal to accept his pleas of nolo contendere to the charges of interstate transportation of forged checks. He contends that he had a right to avoid civil liability for the forgeries by pleading nolo contendere instead of guilty.

A plea of nolo contendere is an admission of guilt which can subject the defendant to the same punishment that he would have received on a plea of guilty. But unlike a plea of guilty, a plea of nolo contendere is not admissible against the defendant in a subsequent civil action. Hudson v. United States, 272 U.S. 451, 453, 47 S.Ct. 127, 71 L.Ed. 347 (1926); ABA, Standards Relating to Pleas of Guilty 15 (App. Draft 1968); L. Hall, Y. Kamisar, W. LaFave, J. Israel, Modern Criminal Procedure 990 (3d ed. 1969). A defendant, however, does not have an absolute right to plead nolo contendere simply because he wishes to contest his civil liability. United States v. Faucette, 223 F.Supp. 199 (S. D.N.Y.1963). Federal Rule of Criminal Procedure 11, which provides that the plea can be entered only with the consent of the district court, has been construed to vest the trial judge with broad discretion. Mason v. United States, 250 F.2d 704, 706 (10th Cir. 1957). Here the judge explained to Dorman that he usually did not consent to pleas of nolo contendere except in income tax evasion cases. The reason for the exception, he added, was to enable a defendant to admit his guilt without being estopped to challenge an overstatement of the amount of the tax in the indictment when the government subsequently undertakes collection. Here, in contrast, there is no likelihood that the indictments inflated the sums payable ascribed to the forged checks.

Clearly, the district judge’s ruling was not arbitrary or capricious. We find no abuse of discretion in his general rule ■ for pleas of nolo contendere nor in his refusal to apply its exception to Dorman. The judge drew a rational distinction between indictments for income tax evasions and transportation of forged checks, which negates any suggestion of invidious discrimination against Dorman. Moreover, Dorman waived his non-jurisdictional claim to plead nolo contendere by his subsequent plea of guilty. Cf. Vanater v. Boles, 377 F.2d 898, 901 (4th Cir. 1967); United States v. Doyle, 348 F.2d 715, 718 (2d Cir. 1965).

Dorman pleaded not guilty to bail jumping. His principal attack against this judgment is the insufficiency of the evidence to sustain the verdict. He charges that the prosecution did not prove a statutory element of the crime, namely, that his failure to appear was willful.

The government proved the following facts: Dorman was present when the case was set for trial, and he knew the trial date; he executed an appearance bond; his attorney and bondsman could not reach him at the address he had furnished; he did not appear on the trial date; the clerk’s office contained no record of a change of address or of his inability to appear; and he was apprehended in a place beyond the geographic limits of his bond more than a month after the trial date. This evidence was sufficient to permit the jury to find that Dorman’s absence was willful despite his uncorroborated testimony that a deputy clerk excused him so he could attend a funeral. Willfulness, like intent, can rarely be proved by direct evidence. Generally it depends on the inferences that can reasonably be drawn from all the evidence — including the defendant’s own testimony, which the jury is not obliged to credit. United States v. Moss, 141 U.S.App.D.C. 306, 438 F.2d 147, 149 (1970); cf. United States v. Cardillo, 473 F.2d 325 (4th Cir. 1973).

When Dorman testified, his attorney questioned him about a prior conviction of a felony in anticipation that the prosecution would disclose this information on cross-examination. Dorman now contends that the court should have ascertained the validity of his prior conviction before he testified. He relies solely on an affidavit filed in this court in which he avers that to the best of his information and belief he did not have counsel when he was previously convicted of certain felonies.

A conviction that is invalid because of denial of the right to counsel cannot be used to impeach the defendant. Loper v. Beto, 405 U.S. 473, 92 S. Ct. 1014, 31 L.Ed.2d 374 (1972). This rule, however, cannot be applied to Dorman’s case because he did not raise the point in the district court. Cf. United States v. Tanks, 464 F.2d 547 (9th Cir. 1972). Ordinarily appellate courts do not consider issues that were not timely presented to the trial court unless the error is plain or so fundamental that an injustice will result. Hormel v. Helvering, 312 U.S. 552, 556, 61 S.Ct. 719, 85 L.Ed. 1037 (1941). Here the circumstances do not dictate an exception to the general rule. Dorman volunteered the information about his prior conviction when he testified. Moreover, his affidavit does not address the question of whether he previously waived counsel. Accordingly, we conclude that this assignment of error does not merit reversal.

Dorman assails his sentences because the district court utilized a presentence report that did not affirmatively show that he was afforded counsel when he was previously convicted of felonies mentioned in the report. The district court sentenced Dorman on the same day for the two charges to which he had pled guilty and the bail jumping charge on which a jury found him guilty. Neither Dorman nor his counsel questioned the validity of the prior convictions listed in the presentence report, although the Court furnished them the report and afforded them ample opportunity to object to it.

A conviction obtained in violation of the defendant’s right to counsel cannot subsequently be used to enhance his punishment for another crime. United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). But Dorman has initially raised this assignment of error on appeal. Again, we find no occasion for applying an exception to the general rule prohibiting consideration of alleged errors that were not presented to the trial court. Dorman has not yet established that any of his prior convictions was invalid. If he is able to do this, he can seek relief by motion under 28 U.S.C. § 2255 (1970). Brown v. United States, 483 F.2d 116 (4th Cir. 1973).

The judgments are affirmed.


author: PER CURIAM.

text:
    Myron M. AMATO, Petitioner-Appellee, v. Archie H. DIVINE, Jr., Sheriff of Rock County, Wisconsin, Respondent-Appellant.
    No. 73-1373.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 25, 1973.
    Decided March 12, 1974.

      Robert W. Warren, Atty. Gen., Thomas J. Balistreri, Asst. Atty. Gen., Madison, Wis., for respondent-appellant.
    James A. Walrath, Milwaukee, Wis., for petitioner-appellee.
    Before SWYGERT, Chief Judge, ENOCH, Senior Circuit Judge and CAMPBELL, Senior District Judge.

       Senior District Judge William J. Campbell of the Northern District of Illinois is sitting by designation.

   PER CURIAM.

This is an appeal from a district court order granting the petition of Myron M. Amato for a writ of habeas corpus.

Petitioner was convicted by the County Court of Rock County, Wisconsin, on two counts of selling obscene material in violation of Wisconsin Statutes, § 944.-21(1)(a). Petitioner was sentenced to pay fines of $3000.00 and $2000.00, respectively, or in default thereof, to serve consecutive six-month and 120 day sentences in the county jail. The convictions were affirmed by the Supreme Court of Wisconsin, State of Wisconsin v. Amato, 49 Wis.2d 638, 183 N.W.2d 29 (1971) and certiorari was subsequently denied by the United States Supreme Court, 404 U.S. 1063, 92 S.Ct. 735, 30 L.Ed.2d 751 (1972).

In the district court, petitioner submitted as evidence four magazines which the United States Supreme Court had previously determined as a matter of law to be not obscene, and argued that the content of the materials sold by petitioner differed in no material way from the content of those publications. Petitioner argued that, accordingly, the publications involved in his conviction were not obscene.

The district court agreed, stating that:

“[T]he publications before me and those involved in Bloss, Burgin, or Wiener fall into sets so readily identifiable, so standardized, that the .comparison within the sets is similar to the comparison between two 1929 Model A Ford sedans or between two queens of hearts from two sets of playing cards produced in a single batch on a single day by a single manufacturer.”

The Court reasoned that Bloss, Burgin and Wiener were reversed on the basis of Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967), in which the Supreme Court issued a per curiam opinion reversing criminal convictions relating to the distribution of obscene material, on the basis of the obscenity tests set forth in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) and Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966). The court concluded that “the close similarity between the magazines approved by the Supreme Court of the United States and received in evidence in this case, and the magazines for which petitioners were convicted requiries me to find that the latter magazines are not obscene as a matter of law.”

Subsequent to the district court’s decision in this case, the Supreme Court decided Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); Paris Adult Theatre I v. Slaton, 413 U. S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973); United States v. 12 200-ft Reels of Super 8 MM Film et al., 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973); and United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973).

The Miller decision abandoned the Memoirs criteria for determining whether published material is obscene, and it is on the basis of Miller that we must now consider whether the petition for a writ of habeas corpus should have been granted.

Miller held that:

“The basic guidelines for a trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the work,' taken as a whole, appeals to the prurient interest . ; (b) whether the work depicits or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. We do not adopt as a constitutional standard the ‘utterly without redeeming social value’ test of Memoirs v. Massachusetts, 383 U.S. at 419, . . .”.

With respect to statutes and regulations prohibiting the sale of obscene material, the court held that:

“State statutes designed to regulate obscene materials must be carefully limited. ... As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed.” (emphasis added) 413 U.S. at 23, 24.

Further in this regard, Miller advises that:

“Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive ‘hard core’ sexual conduct specifically defined by the regulating state law, as written or construed.” (emphasis added) 413 U.S. at 27.

Just as the issue of whether the materials sold were obscene must be determined on the basis of Miller, so also the guidelines prescribed in Miller for determining whether the statute is unconstitutionally vague must be applied. And if the statute under which petitioner was prosecuted is unconstitutionally vague, the convictions cannot stand, irrespective of whether the materials were, in fact, obscene.

The statute in question proscribes the sale of materials which are “lewd, obscene or indecent.” It does not “specifically define” the sexual conduct prohibited, and quite obviously does not meet the standard annunciated in Miller for providing “fair notice to a dealer in such materials that his public and commercial activities may bring prosecution.” 413 U.S. at 27.

Nor does the State argue to the contrary. Rather, the State contends that petitioner is precluded from raising the statute’s unconstitutionality as an issue on appeal because he did not do so in the state courts or in his petition for habeas corpus relief.

As a general rule, a petitioner for habeas corpus relief must have presented constitutional claims to the state courts and fully exhausted state remedies as a prerequisite to raising such issues in federal court. However, the circumstances of the instant case present an exception to that rule, as well as to the limitations normally imposed upon this court with respect to scope of review.

First of all, we note that the constitutionality of § 944.21 had been upheld by the Wisconsin Supreme Court prior to petitioner’s conviction, State v. Chobot, 12 Wis.2d 110, 106 N.W.2d 286 (1961), and that the vagueness standard which we apply today is based upon the Miller decision, which was rendered subsequent to the district court’s decision granting the petition for habeas corpus relief.

More to the point, however, it would be an anomalous result were we to apply the Miller standard of obscenity with respect to the publications sold by Amato, while declining to apply the Miller standard for determining whether the statute he allegedly violated is unconstitutionally vague. The two standards are but parts of the same test — the materials must be found to be obscene and the obscenity statute must be specific enough to adequately apprise the defendant of the conduct proscribed.

We need not speculate as to whether the publications here involved could properly be considered obscene under a statute specific enough to withstand constitutional attack. We find § 944.21 to be unconstitutionally vague under the standards set forth in Miller, and on this basis alone, the judgment of the district court is affirmed.

Affirmed.

      . The publications compared and the decisions under which they were declared not obscene as a matter of law are: (1) Gigi (1968 Tudor House, Inc.) — Bloss v. Dyke-ma, 398 U.S. 278, 90 S.Ct. 1727, 26 L.Ed.2d 230 (1970); (2) Togetherness (1969 Tudor House, Inc.) and Flesh Fantasy—Burgin v. South Carolina, 404 U.S. 806, 92 S.Ct. 46, 30 L.Ed.2d 39 (1971); and (3) The Ballers, No. 1 —Wiener v. California, 404 U.S. 988, 92 S.Ct. 534, 30 L.Ed.2d 539 (1971).


author: WILLIAM E. DOYLE, Circuit Judge.

text:
    Sandra Lee HICKOK, a/k/a Sandra Leigh Hickok, Plaintiff-Appellant, v. G. D. SEARLE & COMPANY, a corporation, Defendant-Appellee.
    No. 73-1598.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted March 19, 1974.
    Decided May 1, 1974.

      Gerald L. Michaud, Michaud, Cranmer, Syrios & Post, Wichita, Kan. (J. Harold Williams, Michaud, Cranmer, Syrios & Post, Wichita, Kan., and George A. Hinshaw, Aurora, Colo., on the brief), for plaintiff-appellant.
    James L. Tilly, Tilly & Graves, Denver, Colo., for defendant-appellee.
    Before BREITENSTEIN, SETH and DOYLE, Circuit Judges.
   WILLIAM E. DOYLE, Circuit Judge.

Plaintiff Sandra Leigh Hickok brought suit in United States District Court for the District of Colorado against G. D. Searle and Company for injuries allegedly sustained as a result of taking birth control pills manufactured by defendant. Jurisdiction arises under 28 U.S.C. § 1332 (diversity of citizenship), plaintiff being a Colorado resident and defendant being a corporation which has its principal place of business in Illinois.

Plaintiff-appellant’s contention is that after using defendant-appellee’s product, Ovulen-21, for several months in 1967-68, she began to experience epileptic seizures. Her specific complaint is that the product caused blood clotting; that such clotting occurred in the brain; and that this resulted in scarring of brain tissue. She further claimed that the scars later formed a focal point for brain irritation which resulted in epilepsy. The legal theories advanced were negligence, breach of implied warranty and strict liability. The cause was tried to a jury of six (April 23-May 2, 1973) and a verdict was returned for the defendant. Plaintiff’s subsequent motion for new trial was denied (May 25, 1973).

In connection with the present appeal to this court two grounds are advanced:

(1) The trial court’s ruling that one Dr. Altshuler, called as a rebuttal witness for plaintiff, was not allowed to discuss in his testimony a newly-published medical article relevant to the theory of plaintiff’s case-in-chief.

(2) The trial court’s refusal to grant a new trial, based on the same evidentiary ruling.

These in reality appear to be the same issue.

As we have pointed out, much of plaintiff’s case-in-chief was directed to establishing that defendant’s product produced blood clotting, and that this produced the conditions which resulted in plaintiff’s epilepsy. Defendant’s evidence was largely directed to establishing a lack of scientific proof that birth control pills caused blood clotting in women. One of defendant’s witnesses who testified along this line was a Dr. Herbert Sise. After Dr. Sise testified and was cross-examined, the following exchange occurred on redirect by counsel for defendant:

Q. The other material you mentioned in which Mr. Williams directed your attention to that has not been published, if I understand you correctly, this tends to confirm the lack of any relationship?
A. Yes.
Q. Do you happen to know of any publication suggesting a cause and effect, any article suggesting a cause and effect relationship, which is not published ?
A. Yes.
Q. What?
A. Well, this is the Hayman’s Case Control Retrospective Study on Strokes.
Q. I mean is this a new paper ?
A. This is appearing I believe in the New England Journal of Medicine.
Q. Not yet published ?
A. Not yet published.
Q. You do not know of any studies then, done by a competent researcher showing cause and effect?
A. I don’t know any positive results, no.
Q. Does the bulk of thé medical literature support the position that you have as to lack of proof of cause and effect?
A. I would say so, yes. I think what has happened is that the retrospective studies, which are done in a pretty careful way, but are wide open to certain biases, have been carried out in a statistically sophisticated way and give them an air of elegance and credibility which in my opinion is not deserved.

Plaintiff conducted no re-cross of Dr. Sise. Shortly thereafter, plaintiff’s attorney discovered that the study referred to by Dr. Sise had been published, apparently prior to his testimony.

At the close of defendant’s case, plaintiff called Dr. John H. Altshuler of Denver as a rebuttal witness. Over objections of defendant, Dr. Altshuler was allowed to testify in rebuttal. However, plaintiff proposed to have Dr. Altshuler testify concerning the contents of the New England Journal of Medicine article which Altshuler had read over the weekend. The court refused to allow detailed reference to the article in question in this rebuttal testimony. It is this refusal to allow discussion of the specific article which plaintiff now relies on as justifying reversal. We disagree.

Based upon an examination of the record before this court, the evidentiary ruling of the trial judge in the context presented was not erroneous for it is well established that medical textbooks, treatises and professional articles are not freely admissible in evidence to prove the substantive or testimonial facts stated therein, since they are subject to the hearsay rule. See Annot. 84 A.L.R.2d 1338, §§ 2, 3. While some commentators have urged liberalization of this principle, see discussion in § 321, McCormick, Evidence (2d Ed.), the rule of inadmissibility obtains both in Colorado and in this Circuit at the time of trial. Denver City Tramway v. Gawley, 23 Colo.App. 332, 129 P. 258 (1912); United States v. One Device, etc., 160 F.2d 194 (10th Cir. 1947). It is true that expert witnesses are sometimes allowed to testify as to hearsay matters by discussing published materials, see United States v. Sowards, 339 F.2d 401, 402 (10th Cir. 1964), but this is allowed in our Circuit solely to establish the basis for the expert’s opinion, and not to establish the veracity of the hearsay matters themselves. Where testimony as to hearsay is received for such a limited purpose, its effect is to be carefully controlled by the trial judge, including the giving of limiting instructions to the jury. United States v. Sowards, supra.

In the instant ease the trial judge was quick to perceive that plaintiff’s principal interest in producing Dr. Altshuler’s testimony concerning the newly published article was to bring before the jury testimony as to the substantive content of the article, apparently supportive of plaintiff’s case — which plaintiff had not been aware of and hence had not produced in her case-in-chief.

The determination of what constitutes proper rebuttal evidence is a matter which is within the sound discretion of the trial judge. French v. Hall, 119 U.S. 152, 7 S.Ct. 170, 30 L.Ed. 375 (1886); Phenneger v. People, 85 Colo. 442, 276 P. 983 (1920); 29 Am.Jur.2d Evidence, § 269. The exercise of such discretion will not be disturbed on appeal. It is not as if Dr. Altshuler played some part in the preparation of the New England Journal article or the studies upon which it was based. Moreover, its publication only days prior to his testimony precluded the possibility that it substantially contributed to the formation of his own opinion concerning the relationship of birth control pills to blood clotting. Hence, the admission of his testimony outlining testimonially the facts of the article would have constituted a clear violation of the hearsay rule.

Accordingly, we conclude that the ruling excluding this article was eminently correct.

The judgment is affirmed.

      . The above testimony of Dr. Sise occurred on April 27, 1973 (Friday). The article in question appeared in the April 26 issue of the New England Journal of Medicine. Plaintiff’s attorney became aware of the existence of the article over the weekend of April 28-29.

      . Defendant’s objections to Dr. Altshuler’s • testimony originally rose from the fact that Dr. Altshuler had initially been endorsed as a witness in the case-in-chief. Because defendant had not had adequate time to prospectively determine the nature of Altshuler’s testimony, plaintiff chose to withdraw him as a plaintiff’s witness rather than delay the trial. Defendant therefore contended that through Dr. Altshuler plaintiff was attempting to put on in the guise of rebuttal, testimony that properly belonged in the case-in-chief and which plaintiff had elected not to utilize.

      . The argument of counsel seeking admission of Dr. Altshuler’s testimony showed that he sought to get testimonial value from it.
      “I think we have a right to show through this witness, which we intended to do, that this very important artiele showing a nine fold increased risk of thrombosis affecting the brain in women taking oral contraceptives was in fact published in the very journal that Dr. Sise says supports their position, so we did not know Dr. Sise was going to get into papers or statistics or that he would mention, although backhandedly and through the backdoor he did mention, the New England Journal article, and we were leading up to this in this witness and we had about five or ten minutes more of direct examination.” R., Yol. Ill, p. 18. (Emphasis added.)
      A further indication of plaintiff’s intention in this regard is demonstrated by an incident during cross-examination of Dr. Clough, one of defendant’s witnesses, on April 30, after plaintiff’s attorney had discovered the existence of the article in question:
      Q. Dr. Clough, you are aware, are you not, that thrombosis or clotting problems affecting the brain occur about nine times as often in women taking the pill as in those who do not take the pill?
      MR. TILLY: If the Court please, I am going to object. There has been no evidence of that at all.
      THE COURT: Well, I don’t recall such evidence. Can you refer to it in the record ?
      MR. WILLIAMS : There is nothing in the record yet, Your Honor.
      THE COURT: Well, then the objection is sustained to the question.


author: BREITENSTEIN, Circuit Judge.

text:
    Richard R. SATTERWHITE, Jr., for himself and in behalf of all other persons similarly situated, Plaintiffs-Appellants, v. UNITED PARCEL SERVICE, INC., an Ohio corporation, Defendant-Appellee.
    No. 73-1166.
    United States Court of Appeals, Tenth Circuit.
    Argued Aug. 14, 1973.
    Decided May 3, 1974.
    Philip Hornbein, Jr., Denver, Colo. (Roy O. Goldin, Denver, Colo., on the brief), for plaintiffs-appellants.
    Peter H. Holme, Jr., Denver, Colo. (Holme, Roberts & Owen, and Thomas A. Richardson, Denver, Colo., on the brief), for defendant-appellee.
    Before BARNES, BREITENSTEIN and BARRETT, Circuit Judges.

       Senior Judge, United States Court of Appeals, Ninth Circuit, sitting by designation.

   BREITENSTEIN, Circuit Judge.

The issue here is whether an employee’s right to sue under § 16(b) of the Fair Labor Standards Act, 29 U.S.C. § 216(b), for overtime compensation claimed under § 7(a)(1), 29 U.S.C. § 207(a)(1), is foreclosed by prior submission of his claim to final arbitration under the grievance procedure of a collective-bargaining agreement. The trial court granted judgment to the employer. We affirm.

The facts are not in dispute. Plaintiff-appellant Satterwhite sued for himself and others similarly situated. Fifty-eight other employees of defendantappellee have filed their written consents to become parties plaintiff in accordance with § 16(b). Plaintiffs are members of Delivery Drivers, Ware-housemen and Helpers, Local Union No. 435, which has a collective-bargaining agreement with the employer. The period involved is December 29, 1970, to September 15, 1971, the date of expiration of the pertinent labor contract. The cause of the controversy was the elimination by employer of two 15-min-ute- coffee breaks for which there had previously been no deduction in pay. Employer claimed the right to eliminate the coffee breaks because the labor contract did not cover that subject.

The labor contract has a three-step grievance procedure culminating in compulsory arbitration. A grievance is defined as “a dispute, misunderstanding, or controversy involving the interpretation, construction, intent, or meaning of this Agreement” with exceptions which are not pertinent. The arbitration award is binding and conclusive unless beyond the jurisdiction fixed by the contract. No claim is made here that the award exceeded the jurisdictional grant.

The labor contract provides for compensation at 1 and y2 times the straight hourly rate for time worked in excess of 40 hours per week or 8 hours per day, each exclusive of lunch periods. The employees filed a grievance claiming pay for the extra y2 hour a day of work, or 2 and y2 hours per week, resulting from the elimination of the two 15-minute coffee breaks. The matter was not settled in the first two grievance steps and the union demanded arbitration.

The company asserted that the controversy was not arbitrable because the labor contract did not cover coffee breaks. The union then sued in the United States District Court for the District of Colorado for specific performance of the arbitration clause. The court gave summary judgment to the union and ordered the company to arbitrate.

The controversy was then submitted to an arbitrator who, in a comprehensive written opinion, held that the company could not unilaterally eliminate the paid coffee breaks and that the employees were entitled to y2 hour pay for each day worked during the pertinent period. The union and the company then executed and presented to the arbitrator a written joint request for a supplemental decision on whether the award should be paid at straight time or at time and y2. The arbitrator, in a carefully considered written opinion, held that payment should be at straight time. It is reasonable to infer that the arbitrator compromised by giving the employees all the time which they sought while deciding the rate of pay in favor of the company. The award was paid and the employees have received what was due to them thereunder.

This suit was then brought under FLSA § 16(b) to recover time and y2 for work in excess of 40 hours per week. FLSA § 7(a)(1) provides for pay at 1 and y2 times the straight rate for work in excess of 40 hours per week. This differs from the arbitration award which gave the employees a straight rate extra % hour pay for each day worked. The company pleaded the arbitration award as a defense.

On the authority of Alexander v. Gardner-Denver Company, 10 Cir., 466 F.2d 1209, the district court held that the arbitration award was final and dis-positive. Judgment was entered dismissing the action. During the pend-ency of the instant appeal, the Supreme Court reversed Gardner-Denver. 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147.

In Gardner-Denver an employee’s claim of racial discrimination had been submitted to arbitration in accordance with a collective-bargaining agreement. Prior to the arbitration hearing the employee filed a charge of racial discrimination with the Colorado Civil Rights Commission which referred the complaint to the federal Equal Employment Opportunity Commission. The arbitrator ruled that the employee had been discharged for just cause and made no reference to the discrimination claim. Thereafter EEOC determined that there was not reasonable cause to believe that a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., had occurred. The employee then filed suit in federal court asserting a violation of the Act. See 42 U.S.C. § 2000e-2(a)(1).

In Gardner-Denver the Supreme Court was concerned with Title VII of the Civil Rights Act. We are concerned with the Fair Labor Standards Act. The employees here read Gardner-Denver as holding that the arbitration of a contract right is no defense to judicial determination of a statutory right and, hence, they may maintain and secure their statutory right by federal court suit. Gardner-Denver dealt with racial discrimination. The dispute here is over the rate of pay for overtime.

Gardner-Denver recognizes the federal policy favoring arbitration of labor disputes and reviews the pertinent decisions. See 94 S.Ct. at 1018 and particularly n. 6. The Court summarized its decision thus, Ibid.:

“For the reasons stated in Parts III, IV, and V of this opinion, we hold that the federal policy favoring arbitration does not establish that an arbitrator’s resolution of a contractual claim is dispositive of a statutory claim under Title VII.”

Our problem is whether such an award is dispositive of a statutory claim under FLSA.

Gardner-Denver says that the legislative history of Title VII manifests a congressional intent to allow an individual to pursue rights under both Title VII and other applicable state and federal statutes. Accordingly, Title VII supplements rather than supplants existing laws and institutions relating to employment discrimination. 94 S.Ct. at 1019-1020. The doctrine of election of remedies is held inapplicable in a situation involving statutory rights distinctly separable from contract rights even though the violation of both rights may have resulted from the same factual occurrence. Ibid, at 1020-1021. Resort to arbitration does not waive the Title VII cause of action because the statutory rights conferred cannot be prospectively waived and they form no part of the collective-bargaining process. Ibid, at 1021-1022. The Court comments that an arbitrator’s authority is confined to the resolution of questions of contractual rights, regardless of whether they resemble or duplicate Title VII rights. Ibid, at 1022. The Court rejects the argument that to permit an employee to have recourse to both arbitral and judicial forums is unfair to the employer, stating that by a Title VII action an employee is asserting a statutory right independent of the arbitration process and such right simply is not given by statute to the employer. Ibid, at 1022-1023. The Court also says that a policy of deferral by federal courts to arbitral decisions would not comport with the congressional objective that federal courts should exercise the final responsibility for enforcement of Title VII. Ibid, at 1023-1025.

The acceptance of the Court’s analysis and reasoning in Gardner-Denver does not solve our problem unless we equate the wages and hours provisions of FLSA with the anti-discrimination provisions of Title VII. Strong national policy is expressed both in Title VII, 94 S.Ct. at 1019, and in FLSA, see 29 U.S.C. § 202, and Brooklyn Savings Bank v. O’Neil, 324 U.S. 697, 706-707, 65 S.Ct. 895, 89 L.Ed. 1296. These policies, each in its turn, should be balanced against the federal policy favoring arbitration of labor disputes.

In a number of respects FLSA is importantly different from Title VII. Gardner-Denver refers to the significant role of private individuals in the enforcement of Title VII rights. 94 S.Ct. at 1018. In Employees etc. v. Department of Public Health and Welfare of Missouri, 411 U.S. 279, 286, 93 S.Ct. 1614, 1618, 36 L.Ed.2d 251, the Court said that, “* * * private enforcement of the [FLSA] was not a paramount objective * * The independent statutory remedies in Title VII evince an intent to accord parallel or overlapping relief apart from contractual processes. The absence of such procedures in FLSA suggests a greater reliance on contract remedies and a lesser emphasis on individual enforcement.

Additionally, the Portal-to-Portal Act of 1947, 29 U.S.C. § 251 et seq., resulted from congressional dissatisfaction with judicial interpretation of FLSA. See 29 U.S.C. § 251(a). It established the defense of good faith relianee on administrative regulations, 29 U.S.C. § 259(a), and declared the congressional policy “to protect the right of collective bargaining and * * * limit the jurisdiction of the courts.” 29 U. S.C. § 251(b). The unavailability of the good faith defense in the case at bar is not pertinent. The point is that in certain circumstances good faith is a defense to an FLSA action. The defense, however, is not available in Title VII actions. See Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 28 L.Ed.2d 158, and Jones v. Lee Way Motor Freight, Inc., 10 Cir., 431 F.2d 245, 250, cert. denied, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237. The Portal-to-Portal Act speaks to the protection of collective bargaining. Gardner-Denver says that, 94 S.Ct. at 1019, “Title VII does not speak expressly to the relationship between federal courts and the grievance-arbitration machinery of collective-bargaining agreements.” The different approach to the defense of good faith and the different emphasis on collective bargaining indicates that Congress intended that wage disputes and racial disputes should not receive the same treatment.

Wages and hours are at the heart of the collective-bargaining process. They are more akin to collective rights than to individual rights, and are more suitable to the arbitral process than Title VII rights. Gardner-Denver says, 94 S. Ct. at 1024, that “the specialized competence of arbitrators pertains primarily to the law of the shop, not the law of the land,” and that “judicial construction has proven especially necessary with respect to Title VII, whose broad language frequently can be given meaning only by reference to public law concepts.” We are concerned with rate of pay, an issue which does not require, or lend itself to, public law considerations. The added fear expressed in Gardner-Denver that harmony between a union and an individual cannot be presumed “where a claim of racial discrimination is made,” 94 S.Ct. at 1024 n. 19, has no pertinence here. One of the highest objectives of any union is to get all the money possible for all of its members, Significantly, 58 other employees have joined as plaintiffs.

In Gardner-Denver the Court reasserted the federal policy favoring arbitration of labor disputes. 94 S.Ct. at 1018-1019 and particularly n. 6. This policy was offset against that established by the Civil Rights Act of 1964. Citing Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263, the Court said that in the Civil Rights Act “Congress indicated that it considered the policy against discrimination • to be of the ‘highest priority.’ ” The conclusion that the anti-discrimination policy rated higher than that favoring arbitration of labor disputes was determinative. We find nothing in any pertinent legislative history or court decision to indicate that Congress, by the grant of a right to private suit under FLSA § 16(b), intended to establish a policy preference for the determination of a wage dispute in judicial rather than arbitral proceedings. Indeed, the only policy expression of which we are aware, that contained in the Portal-to-Portal Act, 29 U.S.C. § 251(b), is to the contrary.

Industrial peace is important not only to employees and employers but also to the public. The delineation of the respective rights of employees and employers in collective-bargaining contracts has helped to secure industrial peace. Many of those contracts contain provisions which define as contract rights the same rights as are granted by federal statutes. Indeed, the wage provisions of FLSA may not be waived by agreement. Brooklyn Savings Bank v. O’Neil, 324 U.S. 697, 707, 65 S.Ct. 895, 89 L.Ed. 1296. In many contracts the unions have foregone the right to strike and management has accepted compulsory arbitration. See Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 247-248, 90 S.Ct. 1583, 26 L.Ed.2d 199. The ever-present disputes over wages and hours are readily adaptable to arbitration. Resort to judicial process after arbitration prolongs the controversy and serves no good purpose when the arbitral and judicial proceedings arise out of, and must be decided on, the same factual background.

We hold that when a wage dispute is submitted to arbitration in accordance with a collective-bargaining agreement, the employees may not thereafter maintain an FLSA § 16(b) suit for recovery on the basis of the same factual occurrence as that presented to the arbitrator. We are convinced that the policy of Congress, recognized by the Courts, favors the arbitration of disputes over wages and hours in accordance with a collective-bargaining agreement. The high priority which Congress has given to protection against racial discrimination has no application to a dispute over rate of pay. The reassertion in a judicial forum of the same wage claim determined in an appropriate arbitration hinders rather than promotes industrial peace, and should not be permitted.

Affirmed. Each party shall bear his own costs.


author: WATERMAN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. CITY OF NEW HAVEN et al., Defendants-Appellees, and Town of East Haven et al., Defendants-Appellants.
    No. 292, Docket 73-1897.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 3, 1973.
    Decided May 2, 1974.

      Stephen F. Eilperin, Atty., Dept, of Justice, Washington, D. C. (Irving Jaffe, Acting Asst. Atty. Gen., Stewart H. Jones, U. S. Atty., Walter H. Fleischer, Atty., Dept, of Justice, Washington, D. C. on the brief), for plaintiff-appellee.
    Roger J. Frechette, New Haven, Conn., for defendants-appellees.
    Anthony V. DeMayo, New Haven, Conn. (Cohen, DeMayo & Acampora, New Haven, Conn., on the brief), for defendants-Appellants .
    Before WATERMAN and FEINBERG, Circuit Judges, and GURFEIN, District Judge.

       Of the U. S. District Court for the Southern District of New York, sitting by designation.

   WATERMAN, Circuit Judge:

This is an appeal from a judgment of the U. S. District Court of Connecticut, Chief Judge M. Joseph Blumenfeld presiding, in which summary judgment was granted in favor of the United States and the court made permanent a preliminary injunction that the court had previously granted. The court’s opinion is reported at 367 F.Supp. 1338 (D.C. Conn.1973). We affirm this judgment and injunction order entered below.

The preliminary injunction restrained enforcement of two Connecticut state court orders to the extent that they purported to regulate the flight of aircraft in interstate commerce through navigable airspace and purported to close a portion of the North/South runway at Tweed New Haven Airport. We affirmed the granting of the preliminary injunction in United States v. City of New Haven, 447 F.2d 972 (2d Cir. 1971) and, thereafter, Judge Blumenfeld granted the government’s motion for summary judgment and entered an order making the temporary injunction permanent. This appeal by the Town of East Haven and some of its residents followed.

The City of New Haven, in order to extend a runway at Tweed New Haven Airport, a public airport, worked out an agreement with the Federal Aviation Administration for a partial federal funding of the project. The runway was extended entirely within the New Haven city limits. However, New Haven acquired additional land in the Town of East Haven to establish a “clear zone” at the end of the runway. Thereafter, the Town of East Haven sued the City of New Haven in the state courts of Connecticut claiming that New Haven failed to obtain before acquiring the land from East Haven the proper approval required by Conn.Gen.Stat.Rev. Chapter 266 § 15-79. The Connecticut Superior Court found a violation of the statute and issued an injunction restraining New Haven “from performing any acts calculated to expand its airport into, on, or over any portion of East Haven for which expansion permission has not been obtained from said Town, whether such expansion takes the form of physical expansion or the mere maintenance of clear zones over property located in East Haven.” The Connecticut Supreme Court affirmed the lower court in Town of East Haven et al. v. City of New Haven et al., 159 Conn. 453, 271 A. 2d 110 (1970). As New Haven continued to operate the extended runway, the Superior Court issued a contempt order against New Haven. New Haven then closed the runway. Thereafter the action that is now before us was commenced by the United States seeking to reopen the closed runway and to enjoin •the enforcement of the state court orders.

In his exhaustive opinion below, Chief Judge Blumenfeld viewed the issue as one of possible interference by the state with federal regulation of “navigable airspace.” He did not rule on the legality of New Haven’s acquisition of the land in East Haven or on the constitutionality of the Connecticut statute. He wrote:

. the legality under state law of New Haven’s acquisition of the clear zone area is entirely separate from the question of the power of the state court to enjoin airport operations, whose regulation Congress has entirely preempted. 367 F.Supp. 1338 at 1341.

There is extensive federal regulation of air traffic. The Federal Aviation Act of 1958, 49 U.S.C. § 1301 et seq., and the Airport and Airway Development Act of 1970, 49 U.S.C. § 1701 et seq., are two of the more important examples of federal legislation in this area. The breadth of Congressional preemption in the regulation of navigable airspace as defined by 49 U.S.C. § 1301(24) has been discussed fully in several cases. See American Airlines v. Town of Hempstead, 272 F.Supp. 226 (E.D.N.Y.1967), affirmed, 398 F.2d 369 (2d Cir. 1968), cert. denied, 393 U.S. 1017, 89 S.Ct. 620, 21 L.Ed.2d 561 (1969); American Airlines v. City of Audobon Park, 297 F.Supp. 207 (W.D. Ky.1968), affirmed per curiam, 407 F.2d 1306 (6th Cir. 1969). See also Allegheny Airlines v. Village of Cedarhurst, 238 F.2d 812 (2d Cir. 1956).

It is quite evident, as Chief Judge Blumenfeld found, that the airspace above the East Haven land acquired by New Haven is within the meaning of “clear zone” as defined by 14 C.F.R. 151.9(b). The clear zones, as part of the navigable airspace, are subject to federal regulation, and the orders of the Connecticut courts infringed upon the federal power. Chief Judge Blumenfeld wrote:

Thus, the order of the New Haven Superior Court was directed to and conflicted squarely with the regulation of navigable airspace which Congress has reserved for exclusive federal control. To the extent that it prevents aircraft from using navigable airspace it is unenforceable under the supremacy clause and may properly be enjoined by a federal court, despite the broad sweep of the anti-injunction statute, 28 U.S.C. § 2283. 367 F.Supp. 1338 at 1341.

In our prior opinion affirming the granting of the district court’s preliminary injunction, we did not have to reach the merits of the issue decided thereafter and which are now before us. Nevertheless, we did then discuss the issues now before us in this litigation. Judge Mulligan wrote:

State legislation purporting to deny access to navigable air space would therefore constitute a forbidden exertion of the power which the federal government has asserted. 447 F.2d 972 at 973.

Thus, East Haven cannot enforce its rights under Connecticut law by obtaining a state court injunction which infringes on federal regulation of navigable airspace.

The Town of East Haven also argues on appeal that summary judgment should not have been granted because New Haven misrepresented material facts in its application to the Federal Aviation Administration and the FAA did not follow its own regulation in working out the arrangement for the expansion of the airport. Chief Judge Blumenfeld found this claim to be without merit for a number of reasons. The regulation, 14 C.F.R. § 151.26(b), cited by the Town of East Haven as not having been complied with did not become effective until after the grant application was submitted by New Haven and “. . . the alleged failure to follow federal regulations was not the basis of the state court injunction which is the subject of the present action.” 367 F. Supp. 1338 at 1342.

On a separate motion calendar, New Haven moved to dismiss the appeal by East Haven. New Haven claimed that East Haven failed to furnish it copies of documents and thus violated Rule 25 of the Rules of Appellate Procedure. New Haven also maintains that East Haven did not follow the requirements of Fed.R.Civ.P. 56(e) in that it did not file affidavits in opposition to the government’s motion for summary judgment, and further claims that the appeal is itself frivolous. East Haven on its part moved to strike New Haven’s motion to dismiss on the ground that New Haven was not a party to the appeal and lacked standing to make its motion to dismiss. We deny both motions.

Affirmed.

      . Now Chapter 242 § 13b-43.

      . 49 U.S.C. § 1301(24).
      “Navigable airspace” means airspace above 'the minimum altitudes of flight prescribed by regulations issued under this chapter, and shall indude airspace needed to insure safety in take-off and landing of aircraft.

      . This decision does not in any way preclude East Haven from seeking other remedies that do not conflict with the Supremacy Clause. “Federal preemption does not wash away all rights under state law; it merely requires that the remedy employed to enforce those rights not encroach upon the areas regulated by federal law.” 367 F. Supp. 1338 at 1341.

      . East Haven also argues that summary judgment should not have been granted because it had not been given the opportunity to exhaust its rights of discovery. However, the requested discovery would appear to involve the subject matter of New Haven’s application to the FAA and FAA procedures, These were not, as pointed out above, in issue in the present case when it was before the state courts.


author: LUMBARD, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Stefano MAGADDINO et al., Defendants-Appellees.
    No. 536, Docket 73-1933.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 9, 1974.
    Decided May 2, 1974.

      Alfred N. King, Special Atty., U. S. Dept. of Justice (John T. Elfvin, U. S. Atty., W.D.N.Y., Buffalo, N. Y., on the brief), for appellant.
    Herald Price Fahringer, Buffalo, N. Y. (Lawrence A. Schulz; Lipsitz, Green, Fahringer, Roll, Schuller & James, Buffalo, N. Y., on the brief), for appellee Benjamin Nicoletti, Sr.
    Joseph S. Conti, Niagara Falls, N. Y., for appellee Gino Frank Monaco; William B. Mahoney, Buffalo, N. Y., on the brief, for appellee Peter A. Magaddino.
    Before DANAHER, LUMBARD and TIMBERS, Circuit Judges.

       Senior Circuit Judge of tlie District of Columbia Circuit, sitting by designation.

   LUMBARD, Circuit Judge:

On December 4, 1968, Stefano Magaddino, Peter Magaddino, Benjamin Nicoletti, Sr., Benjamin Nicoletti, Jr., Gino Monaco, Sam Puglese, Louis Tavano, Augustine Rizzo, Patsy Passero, and Michael Farella, since deceased, were indicted in the Western District of New York for use of facilities in interstate commerce to promote gambling and conspiracy to do the same in violation of 18 U.S.C. §§ 1952 and 371. Thereafter motions were made by the defendants to suppress evidence which they alleged the government had illegally seized as well as for all other appropriate relief. Chief Judge Henderson took evidence regarding these motions at'hearings which commenced June 28, 1971 and concluded on July 30, 1971. On May 17, 1973 he ordered the government to supply the defendants with the reports, files, and memoranda compiled from the tapes and logs of illegal electronic surveillance conducted at three locations by the F.B.I. from 1961 to 1965. The court also ordered the disclosure of the identity of a confidential informant identified as the independent source named in affidavits used to secure twenty-two warrants in November 1968 authorizing searches of the homes of all the defendants, premises owned by several of their associates, and a number of automobiles. The court ordered these disclosures because

In the absence of some information concerning the confidential informant and the documents prepared from the illegal electronic surveillance, a conclusion by this court that the evidence presented in support of the original search warrants and subsequent indictment was obtained through sources untainted by the six years of illegal governmental activity, -\yould not only be unsupported by the evidence of the record, it would be pure speculation.

The government was given twenty days to comply with the order or suffer dismissal of the indictment. On June 12, 1973, after this time limit had expired, the United States Attorney filed an affidavit declining to disclose the materials enumerated in the court order. The district court then dismissed the indictment the same day, and the government took this appeal. We affirm as to all defendants except Passero and Rizzo, with regard to whom we reverse.

The undisputed evidence adduced at the suppression hearing established that beginning in April 1961, the F.B.I. placed bugs at several locations in the Buffalo area, including the Magaddino Memorial Chapel in Niagara Falls, the Capitol Coffee Shop, also located in Niagara Falls, and the Camelia Linen Supply Company in Buffalo. According to the government, the purpose of this electronic surveillance was to gather intelligence on a feud between the Magaddino and Bonanno familes over control of certain illegal activities in Canada and the Western United States. The surveillance, which the government conceded to be illegal, continued until sometime in 1965. In the course of monitoring the bugs the F.B.I. agents overheard conversations engaged in by the Magaddinos and Benjamin Nicoletti, Sr.

As the conversations were monitored, they were tape-recorded. Logs were kept and reviewed on a daily basis by “coordinating” agents, who then prepared “channelizing” memoranda. The channelizing memoranda classified the information obtained and included the names of those persons whose conversations had been overheard and the names of individuals mentioned in the course of these conversations. Copies of the memoranda were then placed in the individual case files of each of the individuals named.

On the basis of the channelizing memoranda as well as other information contained in an individual’s file, the agent assigned to that individual would from time to time prepare an investigative report, which would eventually be relied upon by the United States Attorney in deciding whether to prosecute that individual.

In addition to the channelizing memorandum and the investigative report, a “justification” report was prepared every three months for the purpose of justifying continued electronic surveillance. The report contained summaries of the intelligence gathered by the electronic surveillance since the previous justification report. Copies of the report were placed in the files of the individuals named.

Several other files were also maintained. A “dissemination of information” file contained copies of memoranda which had been sent to Washington, to other bureau offices and to state and local police. This information included intelligence derived from electronic surveillance. An organized crime control file was also maintained. It included copies of all the data placed in the files of those individuals suspected of having ties with organized crime. Information coming from local and state authorities was not kept in a separate file; this material went directly into the files of those individuals to whom it pertained. Finally, on the basis of information obtained from electronic surveillance, it was from time to time concluded that informants should be sought out. The recommendation for obtaining informants was also placed in the relevant individual ease files.

Agents concentrating on organized crime had ready access to all individual case and control files. The intelligence obtained from the illegal electronic surveillance was not segregated from information legally obtained. The material obtained from the illegal surveillance was constantly supplemented and updated by new information, both legally and illegally obtained. Periodically, conferences were held to discuss the progress of various investigations. All agents assigned to organized crime were required to read and initial investigative reports prepared by other agents similarly assigned. In these reports as well as all other materials circulated, both an electronic and informant source of information were identified by the same symbol, so that, aside from the agent dealing directly with the source, no other person could determine whether the information had been obtained by electronic surveillance or an informant. A similar procedure was followed when information obtained from one bureau office was sent to other bureau offices around the country. This information was also placed in individual case files.

In November 1964, Special Agent Joseph Griffin, who was to prepare the principal affidavit in support of the search warrants authorized in 1968, was assigned to the Buffalo bureau of the F.B.I. His special interest was organized crime’s gambling activities, but as an initial task he was assigned, due to his fluency in the Italian language and the Sicilian dialect, the task of translating those portions of the illegally taped conversations which were not in English. He was also required to listen to English portions of the tapes, however, so that he would understand the context in which the foreign language comments were being made.

Griffin admitted that, in the course of translating the tapes, he first heard the name of Benjamin Nicoletti, Sr., and learned of his ties with the Magaddinos. At the same time Griffin was also in charge of somewhere between 40 and 70 individual files relating to gambling. He did not deny that he may have heard the names of the defendants as well as others mentioned on the tapes which he translated. He also admitted the possibility that he had reviewed the files of the Magaddinos and Nicolettis. Griffin, who had never worked in Buffalo before, was able to develop an informant within one month of his arrival. He met with this informant once a month, but at no time did he question him about the source of his information and whether the source was legal or illegal.

After the electronic surveillance ended in 1965, Griffin concentrated for the riext three years on gambling activities in the Buffalo area. He was in continuous contact during this period with Henry Splendor and Raymond Kruger, F.B.I. special agents assigned to the Niagara Falls bureau, who also concentrated on organized crimes’s gambling activities. There was a free exchange of information between Griffin and these agents, many times without any indication as to the source of the information exchanged.

In 1965 grand jury subpoenas were issued to the Magaddinos on Griffin’s recommendation. He subsequently participated in two raids involving Benjamin Nicoletti, Jr„ in 1967 and 1968, the first at which he was the officer who specifically identified Nicoletti. Griffin also took a special interest in the Magaddino-Bonanno feud, and because of this received logs and records associated with the 1961-1965 electronic surveillance. Additionally, the 40 to 70 individuals assigned to him were in most instances directly engaged in gambling activities in the Buffalo area. Although this should have given him a fairly clear picture regarding the leading gambling personalities in the Buffalo-Niagara Falls area, he testified at the suppression hearing that not until June 1968 when he obtained information from his informant, did he have any knowledge of Puglese, Passaro, Monaco, Tavano, and Farella.

Griffin also testified that although he was in frequent contact with Special Agent Kruger in Niagara Falls and that they exchanged information regarding organized gambling activities, he at no time obtained information about these defendants from Kruger, even though as early as February 1968 Kruger was receiving detailed information on the structure of the Magaddino-Nieoletti operation, including admissions by Monaco and Puglese that they were bookmakers.

In November 1968, Griffin submitted an affidavit in support of the 22 search warrants directed at the defendants, in which he outlined the structure of the Magaddino gambling empire, which he claimed at the suppression hearing he had learned solely from his informant. In his affidavit, Griffin characterized Passero, Monaco, Tavano, Puglese, Rizzo, and Farella as bookmakers in the employ of Benjamin Nicoletti, Jr., who supervised bookmaking activities for his father, who in turn accounted to the Magaddinos.

During the period of Griffin’s investigation of gambling activities in the Buffalo area, the state and local police were also conducting their own investigations. In particular, in May and June 1967, John Belkota, a lieutenant on the Niagara Falls police force supervised the monitoring of two taps on phones used by Puglese and Monaco. Although Belkota testified that these taps had been court-authorized, no record of a warrant could be found. As a result of this and other evidence, the district court concluded that these taps had been illegal.

Belkota who had obtained substantial evidence relevant to several of the defendants from these taps, relayed his material on an almost daily basis to Special Agent Kruger. The information obtained from Belkota, was, according to Kruger, of great assistance to his own investigation. The state police also provided Kruger and Griffin with intelligence on organized crime’s gambling activities in the Buffalo area. The source of this information was rarely disclosed. The state police also passed materials to Belkota who often transmitted it on to Kruger. Kruger admitted that he then exchanged his information with Griffin. Affidavits of Kruger and Belkota were filed in support of Griffin’s application for search warrants in 1968.

I.

In Alderman v. United States, 394 U. S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969), the Supreme Court, reiterating the long-standing rule that evidence obtained by illegal means and the fruits of such evidence must be suppressed, Silverthorne Lumber Co. v. United States, 251 U.S. 385, 391-392, 40 S.Ct. 182, 64 L.Ed. 319 (1920), Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961), recognized the need for a full adversary hearing to determine whether evidence had, in fact, been illegally seized or substantially tainted by a prior illegal seizure. In doing so, the Court endorsed an allocation of the burdens of proof between the parties first announced in Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939).

Under this allocation of the burdens of proof, the “burden is, of course, on the accused in the first instance to prove to the trial court’s satisfaction that wire-tapping was unlawfully employed.” Id. Once this is established, the “trial judge must give opportunity, however closely confined, to the accused to prove that a substantial portion of the case against him was the fruit of the poisonous tree.” Id. Finally, if the defendant has come forward with this evidence, the government must “convince the trial court that its proof had an independent origin.” Id. The government has the ultimate burden of persuasion. Alderman v. United States, 394 U.S. at 174.

The defendants here may be classified in three groups, the first group consisting of the Magaddinos and Benjamin Nicoletti, Sr., the second group comprised of Nicoletti, Jr., Monaco, Puglese, and Tavano, and the third group made up of Rizzo and Passero. It is clear that the Magaddinos and Nicoletti, Sr., have satisfied the requirement of establishing that electronic surveillance was unlawfully employed against them. Indeed, the government concedes that their conversations were overheard through the use of illegal electronic surveillance from 1961 to 1965 by the F.B.I.

Less certain is whether the second group of defendants have satisfied this standard. No showing has been made that their conversations were intercepted by the federal government. Nevertheless the district court did conclude that their phones or conversations had been illegally tapped by the Niagara Falls police. Since the evidence at the hearings showed beyond a doubt that virtually all the information gathered from these taps was passed on to the F. B.I. and that the two law enforcement bodies were working in close cooperation, it must be concluded that Nicoletti, Jr., Monaco, Puglese, and Tavano have discharged their burden of showing that they were the victims of illegal wiretapping. See Benanti v. United States, 355 U.S. 96, 78 S.Ct. 155, 2 L.Ed.2d 126 (1957). In Benanti, the Supreme Court expressly held that evidence obtained by illegal wiretapping “whether by state or federal agents, is inadmissible in federal court.” Id. at 100.

The third group of defendants, Passero and Rizzo, poses a different problem since it has not been shown that the phones of Passero and Rizzo were tapped or their conversations intercepted. “Fourth Amendment rights are personal rights, which . . . may not be vicariously asserted.” Alderman v. United States, 394 U.S. at 173. These two defendants, having failed to satisfy the burden of proof which rested on them to show an illegal invasion of their particular fourth amendment rights, lack standing to question the legality of the warrants at issue here. United States v. Sacco, 436 F.2d 780, 784 (2d Cir.), cert. denied, 404 U.S. 834, 92 S.Ct. 116, 30 L.Ed.2d 64 (1971); United States v. Masterton, 383 F.2d 610, 614 (2d Cir. 1967), cert. denied, 390 U.S. 954, 88 S.Ct. 1048, 19 L.Ed.2d 1147 (1968); cf. Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973). Consequently, we reverse the district court’s order with regard to Passero and Rizzo.

The next question is whether there has been a substantial showing that the evidence recited in the affidavits filed in support of the warrants was tainted. Here there can be little doubt that the Magaddinos and Nicoletti, Sr., have demonstrated this. Indeed, Agent Griffin conceded at the suppression hearing that he first learned of Benjamin Nicoletti, Sr., from listening to and translating the tapes of the illegal electronic surveillance. These same tapes revealed to him the gambling link between Nicoletti, Sr., and the Magaddinos.

Nicoletti, Jr., Monaco, Puglese, and Tavano have also satisfied their burden to come forward with substantial evidence of taint. Special Agent Kruger admitted at the hearing that Belkota had relayed to him considerable information he had not previously had relating to conversations of these defendants which Belkota had overheard.

Moreover, the F.B.I. bureau in Buffalo and the one in Niagara Falls can hardly be regarded as independent entities. Not only did these offices and their agents, Griffin and Kruger, work in close cooperation, but there was a constant flow of information between the two offices. A clear showing by these defendants that one of the agents carrying on a joint investigation relied on illegally obtained evidence is more than adequate to satisfy the second stage requirement of Alderman,

Although these seven defendants satisfied their burden under Alderman, the government has failed to come forward with sufficient evidence to establish an independent source for the information contained in the affidavits supporting the search warrants. See United States v. Cole, 463 F.2d 163, 172 (2d Cir.), cert. denied, 409 U.S. 942, 93 S.Ct. 238, 34 L.Ed.2d 193 (1972). Against a background of pervasive obtaining of information by illegal means, the government has made only unsubstantial claims that the informant was the source of the information set forth in the affidavits and that he had been identified and developed independent of the illegal electronic surveillance. This was insufficient to satisfy the government’s burden of persuasion. United States v. Huss, 482 F.2d 38, 50 (2d Cir. 1973); United States v. Tane, 329 F.2d 848 (2d Cir. 1964).

Under the circumstances, the district court was well within its discretion in requiring the government to disclose the identity of the informant as well as reports, memoranda, and files related to the surveillance of 1961 —1965. Alderman v. United States, 394 U.S. at 184. The failure of the government to produce its informant is fatal to its claim that the evidence should not be suppressed.

II.

The government argues, however, that even if the district court’s decision was proper, the government should now be permitted to reopen the hearing and offer testimony that the name of the informant was not developed as a result of illegal surveillance and that the surveillance in no way was used to obtain his cooperation.

But Chief Judge Henderson did allow the government that choice and the government chose to do nothing. Here the court permitted the government twenty days to reconsider its strategy. That was sufficient time, especially since within that period the government made no application for additional time to decide upon its course. Moreover, while we agree that the government under certain circumstances should be permitted an opportunity after the suppression hearing to reconsider its position on disclosure and to present further evidence to persuade the court of the existence of an untainted independent source without actually disclosing that source’s identity, this is a matter largely within the discretion of the district judge. United States v. Tucker, 380 F.2d 206 (2d Cir. 1967).

The government’s claim that the district court has authorized the defendants to go “rummaging” through its files is equally without merit. The order carefully limits the documents to be disclosed to those relevant to the surveillance which was illegally conducted. The degree of disclosure was a matter within the discretion of the district judge, and we find no reason to believe that Chief Judge Henderson’s ruling was an abuse of discretion, Alderman v. United States, 394 U.S. at 185. Indeed, his suppression of the evidence seems quite reasonable in light of the substantial evidence of taint presented at the suppression hearing. See United States v. Schipani, 289 F.Supp. 43 (E.D.N.Y. 1968), aff’d, 414 F.2d 1262 (2d Cir. 1969) .

For these reasons, we must affirm the action of the district court in suppressing the evidence resulting from the 1968 search warrants as to all defendants, except Rizzo and Passero. The suppression of such evidence ordinarily would not result in the dismissal of the indictment as to these defendants. However, all the parties have treated the indictment of each defendant as resting' entirely on the legality of the search warrants issued and executed in November, 1968. The government has nowhere contended to the contrary. Consequently we affirm the order dismissing the indictment, see United States v. Tane, 329 F.2d 848, 853-854, except as to Rizzo and Passero. We reverse the order dismissing the indictment against Rizzo and Passero and remand for further proceedings.

      . The electronic surveillance at this location was continued for only a few weeks. 496 F.2d — 29V2

      . We need not decide whether the defendants’ showing of a failure by the F.B.I. to purge illegally obtained information from those files to which all agents, including Griffin, had access, and its failure to keep a record of who actually used these files, satisfies the defendants’ burden of coming forward.

      . Ordinarily the proper sanction for the government’s failure to come forward is suppression of the evidence and not dismissal of the indictment. Costello v. United States, 350 U.S. 359, 76 S.Ct. 706, 100 L.Ed. 397 (1956); United States v. Kahn, 366 F.2d 259, 264 (2d Cir.), cert. denied, 385 U.S. 948, 87 S.Ct. 321, 17 L.Ed.2d 226 (1966).


author: CHOY, Circuit Judge: RUSSELL E. SMITH, District Judge

text:
    UNITED STATES of America, Plaintiff and Appellee, v. Leslie Robert MALONE, Defendant and Appellant.
    No. 72-1847.
    United States Court of Appeals, Ninth Circuit.
    May 1, 1974.

      Gary A. Patton (argued), Santa Cruz, Cal., for defendant-appellant.
    Robert E. Carey, Jr., Asst. U. S. Atty. (argued), James L. Browning, U. S. Atty., San Francisco, Cal., for plaintiffappellee.
    Before HUFSTEDLER and CHOY, Circuit Judges, and SMITH, District Judge.

      The Honorable Russell E. Smith, United States District Judge for the District of Montana, sitting by designation.

   OPINION

CHOY, Circuit Judge:

Malone appeals his conviction for refusing to submit to induction. He attacks his conviction on multiple grounds, and although we agree that the Selective Service System’s processing of his case fell short, at times, of the high standards that citizens .ought to expect of their Government, none of the System’s failings affect the validity of Malone’s conviction. Accordingly, we affirm.

In September, 1970, just prior to the expiration of his student deferment, Malone filed for conscientious objector status. His local board, number 62 in San Jose, California, denied his petition and reclassified him 1-A in November, 1970. Malone did not appeal.

On January 8, 1971, the board mailed Malone an order to report for a physical examination. Shortly after, his father wrote the board that Malone was hiking in the mountains where he could not be reached and that he would not return until after the date set for the physical. The letter went on to say that Malone would return at the end of January at which time he was slated to enroll in junior college.

Instead of scheduling Malone for another pre-induction physical, when the physical date passed, the board’s clerk ordered Malone for induction under a proviso to 32 C.F.R. § 1631.7(a) (1971). Section 1631.7(a) normally requires the administration of a pre-induction physical; under the proviso, though, a registrant “may” be ordered for induction without benefit of that requirement when he has “refused or otherwise failed to comply” with the order to report for the physical. On the date set for induction, Malone appeared but refused induction.

Validity of the Induction Order

Malone challenges the validity of his induction order contending, first, that the words “refused or failed to comply” in the proviso to 32 C.F.R. § 1631.7(a) cover only willful nonappearances, which his concededly was not. The disjunctive “or” followed by the broad language “otherwise failed to comply,” however, clearly indicate that the proviso was to have a wider sweep. If the proviso were to have been confined to volitional failures to appear, it would plainly have been unnecessary to add that language. To be sure, the primary purpose of the proviso is, as Malone correctly points out, to prevent registrants from indefinitely delaying induction by repeated, knowing avoidance of the preinduction physical. But its wording leaves no doubt that its purpose was more encompassing: probably, it was also intended to eliminate the need for determining what were willful failures to comply in the many borderline cases that could be expected to arise. We conclude that nonvolitional failures to appear for a physical may properly be followed by an induction order under the regulation. Cf. United States v. Ossa, 470 F.2d 816 (9th Cir. 1972).

Malone’s second ground of attack on his induction order is that it was not within the board clerk’s power to issue. Arguing that the decision to dispense with the pre-induction physical is a discretionary one only the board can make, he points to the permissive language of the regulation which provides that a registrant “may” be ordered for induction upon his. failure to appear for the physical. The law in this circuit, though, is settled by United States v. Ossa, 470 F.2d at 819-820. Faced with the identical case of a clerk issuing the order to report, the court reasoned that the word “may” in the regulation is included only to insure that the local board will not order one for induction before his lottery number is reached. Punitive inductions are thereby avoided. Id. at 819. The court indicated that the board has no discretion not to induct one who fails to appear for the physical, at least where — as here — the physical notice, issued by the board, recited that failure to comply would result in a notice to report for induction. Id.; see United States v. Duarte, 469 F.2d 90 (9th Cir. 1972).

Although we are compelled to uphold the application of the proviso to Malone, we nonetheless feel it necessary to comment on the inconsiderate manner in which Malone was processed. The record shows Malone was not at fault for missing his assigned physical; indeed, he did not even know it was scheduled. It would have been fairer had the board postponed the physical, as it had the power to do, upon receiving notice prior to the physical that Malone could not appear. See 32 C.F.R. § 1628.12 (1971). Its failure to exercise its discretion is unfortunate for Malone, but we lack the power to overturn his conviction since the board’s actions complied with the technical requirements of 32 C.F.R. § 1631.7(a).

Student Deferment

Malone next claims that his father’s letter to the board, in part relating that Malone was scheduled to enroll in college, entitled him to a student deferment. However, a registrant has the burden of proving he is enrolled in school, and a mere letter of intent does not satisfy that burden. See United States v. Uyeda, 476 F.2d 958 (9th Cir. 1973); United States v. Lewis, 448 F.2d 1228, 1229 (9th Cir. 1971).

Conscientious Objector Classification

Malone urges that we review the board’s denial of his conscientious objector classification. But his failure to exhaust his administrative remedies precludes our consideration of the board’s decision. Lockhart v. United States, 420 F.2d 1143 (9th Cir. 1969) (en banc). While “exceptional cireumstances” may excuse compliance with the exhaustion requirement, id. at 1147, there are none here. Malone contends that a delay of nearly one month between the board’s decision and notice to him of their denial is such a circumstance, vaguely asserting that this discouraged an administrative appeal. This is not the sort of state of affairs, seriously hampering the registrant’s ability to appeal his board’s decision, which could be deemed exceptional. See United States v. Kincaid, 476 F.2d 657 (9th Cir. 1973) (fact that registrant confused not an exceptional circumstance) ; Lockhart v. United States, 420 F.2d at 1147-1148 (not one of those “rare and compelling reasons which can justify elimination of the requirement of exhaustion.”); United States v. Davis, 413 F.2d 148 (4th Cir. 1969) (failure to notify of availability of appeal agent an exceptional circumstance) ; Donato v. United States, 302 F.2d 468 (9th Cir. 1962), cert. denied 374 U.S. 828, 83 S.Ct. 1868, 10 L.Ed.2d 1052 (1963) (fact that registrant away on fire duty until after appeal time elapsed an exceptional circumstance).

Post-Conviction Reopening

Finally, Malone claims that certain post-conviction events compel this court to void his conviction. After the trial below the United States Attorney advised the state Selective Service Office by letter of Malone’s conviction. In May, 1972 — while Malone’s appeal was pending here — the state office returned Malone’s file to his local board accompanied by the U. S. Attorney’s letter and a cover letter from an official acting for the state director. The latter was a form letter with a number of statements appropriate to different situations. Checked was a statement which required the board to reopen Malone’s then 1-A classification under 32 C.F.R. § 1625.3 (1972). Under that regulation the local board was required to reopen a registrant’s classification when requested to do so by the state director; any outstanding induction order was cancelled when such a request was made. As the record then stood, it was possible that this letter required a reopening for the purpose of considering Malone’s previously denied C-0 request. In light of this possibility, we remanded to the trial court, in an unpublished order with Judge Smith dissenting, to consider the effect of this reopening upon his conviction.

The district court held an evidentiary hearing on the matter. It found that the intent of the state director’s letter was simply to call to the board’s attention Malone’s conviction and, at the same time, to require a reassessment of his 1-A classification in light of it. See 32 C.F.R. § 1622.44 (1972). It held his conviction was unaffected.

We cannot quarrel with the district court’s factual conclusion; the state director’s letter was clearly intended, as the local board doubtless viewed it, to require reopening in view of Malone’s conviction and not to require, or even to suggest, a reexamination of his pre-conviction C-0 request. Nonetheless, Malone argues, citing United States v. Lloyd, 431 F.2d 160, 170-171 (9th Cir. 1970), cert. denied, 403 U.S. 911, 91 S.Ct. 2210, 29 L.Ed.2d 688 (1971), that the intent of the letter is irrelevant. What is important, he contends, is that the letter had the effect under 32 C.F.R. § 1625.3 of entirely reopening his case, thereby creating the possibility that he would be reclassified a conscientious objector. Since the board’s denial of his C-0 claim was what triggered his disobedience, he concludes it would be unjust to affirm his conviction here.

We cannot extend Lloyd so far. In that case the court held that a state director could not refuse to consider altogether a registrant’s request for a reopening though the registrant had already been indicted for refusing induction ; it was incumbent upon the official to consider the request, rejecting or accepting it on the merits. Even assuming dubita/nte that an appellate court has the power to excuse a criminal act because of post-conviction developments, the extraordinary reason for the exercise of such a power could only be to avoid unjust convictions resulting because the registrant’s original claim for exemption from the draft could well be favorably redetermined after his conviction. Since, to Malone’s local board, the purpose of the mandated reopening was not to consider the original C-0 claim, a reexamination of that claim was extremely unlikely, as the board’s deliberations subsequent to receiving the state director’s letter demonstrated. Moreover, in countless other cases draft boards have been required to reopen registrants’ classifications to consider the impact of draft-related offenses; an extension of Lloyd might needlessly, just as in Malone’s case, upset those convictions. Thus, even assuming our power to extend Lloyd, it would surely not be appropriate to do so here.

Affirmed.

RUSSELL E. SMITH, District Judge

(concurring):

I concur in the result.

I do not agree that the local board treated defendant badly.

I think that the intent of the state director in issuing the reclassification order is not relevant. Once there has been a conviction for failure to obey a valid administrative order I think an administrative officer is without power for whatever reason to affect the conviction by altering or vacating the order. The statute, not the order, created the offense, and once a valid order was disobeyed then the state was violated and the offense was complete. See United States v. Hark, 320 U.S. 531, 536, 64 S. Ct. 359, 88 L.Ed. 290 (1944).

      . gee 50 U.S.C. § 462(a) (1970).

      . A directive from tlie Selective Service System’s national director, Local Board Memorandum No. 106, interprets the regulation in the same way. Although the California state director’s interpretation is contra, that interpretation is, as the Ossa court observed, invalid in light of the national directive. See United States v. Ossa, 470 F.2d at 820.

      . That Malone requested the System’s state director to review bis application does not mean he properly exhausted his remedies. The state director, as appellant admits, has no power to award the classification unlike administrative appeal boards.

      . Alternatively, Malone appears to argue that the delay was in itself enough to negative his conviction. Even assuming the delay was a violation of the applicable regulation relating to notice of classification, 32 C.F.R. § 1625.12 (1971), it did not prejudice Malone, see, e. g., United States v. Pace, 454 F.2d 351, 356 (9th Cir. 1972), since the time for appeal ran from the date notice was mailed. 32 C.F.R. § 1626.2(c)(1) (1971).

      . 32 C.F.R. § 1625.3 (1972) provided in pertinent part:
      The local board shall reopen and consider anew the classification of a registrant upon the written request of the State Director of Selective Service or the Director of Selective Service and upon receipt of such request shall immediately cancel any order to report for induction which may have been issued to the registrant.

      . Cf., e. g., United States v. Hunter, 482 F.2d 623, 627-629 (3d Cir. 1973); United States v. Hudson, 469 F.2d 661, 663 (9th Cir. 1972); United States v. Noonan, 434 F.2d 582 (3d Cir. 1970), cert. denied, 401 U.S. 981, 91 S.Ct. 1190, 28 L.Ed.2d 333 (1971).