author: PELL, Circuit Judge. STEVENS, Circuit Judge ENOCH, Senior Circuit Judge

text:
    J. M. WOOD, Jr., et al., Plaintiffs-Appellants, v. Charles Leslie DENNIS, Defendant-Appellee.
    No. 72-1182.
    United States Court of Appeals, Seventh Circuit
    Argued Sept. 13, 1972.
    Reargued en banc June 1, 1973.
    Decided Nov. 2, 1973.
    Certiorari Denied March 4, 1974.
    See 94 S.Ct. 1490.
    Enoch, Senior Circuit Judge, dissented and filed opinion in which Fair-child, Circuit Judge, joined.

      Warren C. Ingersoll, John J. Henely, Chicago, 111., for plaintiffs-appellants.
    Solomon I. Hirsh, Chicago, 111., William J. Donlon, Rosemont, 111., for defendant-appellee.
    Before SWYGERT, Chief Judge, ENOCH, Senior Circuit Judge, and EILEY, FAIRCHILD, CUMMINGS, PELL, STEVENS, and SPRECHER, Circuit Judges.
   PELL, Circuit Judge.

Plaintiffs Wood, Bowers, and Lowry appeal from the dismissal of their complaint by the district court. The district court held that.it lacked jurisdiction over the subject matter of the action under the Labor-Management Reporting and Disclosure Act of 1959, the Landrum-Griffin Act (29 U.S.C. § 401 et seq.), and that plaintiffs’ membership rights in the union had not been violated. Further, the court found the complaint premature “because of plaintiffs’ failure to invoke and exhaust required, reasonable, fair and adequate internal Union procedures and remedies.”

The complaint contained four counts. All four counts relate to the removal of Lowry from his position as President of the Transportation-Communication Division (hereinafter “T-C Division”) of the Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees (hereinafter “BRAC”) by defendant Dennis, the President of BRAC.

The allegations of the complaint indicate the following. Lowry, as President of the Transportation-Communication Employees Union, had negotiated a merger of that union with BRAC. Among the provisions of the merger agreement was one to the effect that the President of the T-C Division of BRAC would be elected independently by the Division’s members and the Division “would continue to handle the affairs of the members of that Division on a basis almost completely the same as at present.” Further, it was provided that the President of the T-C Division would be an International Vice President of BRAC and a member of the Executive Council and Finance Committee of BRAC. Low-ry began to have disagreements with Dennis, the President of BRAC, as to the operation of the merger agreement. The complaint then alleges that by various acts, both direct and indirect, Dennis deprived Lowry of his duties and finally of his post entirely.

Count I of the complaint is brought by Wood and Bowers as members in good standing of the T-C Division of BRAC. They contend that the removal of the duly-elected President of the T-C Division constituted a violation of their membership rights protected by Section 101 (a)(1) of the LMRDA, 29 U.S.C. § 411 (a)(1), in that their voting rights had been nullified. Jurisdiction was invoked under Section 102 of the LMRDA, 29 U.S.C. § 412.

In Count II, plaintiff Lowry contends that his removal from office was discipline for his exercise of his rights as a member of the union, in that he had been “expressing his views, arguments and opinions with regard to the rights of the members of the T-C Division of BRAC guaranteed to them under the terms of the aforesaid Merger Agreement; and because plaintiff advised defendant on or around May 23, 1971, that plaintiff intended to become a candidate for the position of International President of BRAC at the expiration of the defendant’s current term of office in 1975.” This activity on the part of the defendant was alleged to violate Sections 101(a)(2) and 609 of the Act, 29 U.S.C. §§ 411(a)(2), 529. Counts III and IV are pendent jurisdiction claims brought by Lowry for violation of the BRAC Constitution and malicious slander respectively. Inasmuch as we consider the issues presented by Count II to contain the most significance in the present appeal, as did the parties, we shall begin our analysis with that count.

The principal controversy between the parties is the question of how the language of Section 609 of the LMRDA should be construed. Plaintiff Lowry reads Section 609’s prohibition “to fine, suspend, expel, or otherwise discipline any of its members for exercising any right to which he is entitled under the provisions of this Act” (emphasis added) as encompassing removal from a union office. Defendant Dennis contends that this court’s construction of similar language in Section 101(a)(5), 29 U.S.C. § 411(a)(5), which excluded from its purview protection of the right to hold union office, Air Line Stewards and Stewardesses Association v. Transport Workers Union, 334 F.2d 805, 808 (7th Cir. 1964), cert. denied, 379 U.S. 972, 85 S.Ct. 648, 13 L.Ed.2d 563 (1965), should be applied to the words “or otherwise discipline” in Section 609.

The gravamen of Count II of plaintiffs’ complaint is the attempt to chill Lowry’s Title I right of free speech and right to stand for office by the improper discipline of removing him from his union office. In our opinion, the claim of Count II does state a cause of action under the LMRDA. In reaching this conclusion, we join the numerous courts who have adopted the statutory interpretation enunciated in Grand Lodge of Int’l Ass’n of Machinists v. King, 335 F.2d 340 (9th Cir. 1964), cert. denied, 379 U.S. 920, 85 S.Ct. 274, 13 L. Ed.2d 334. No point would be served by further extended exegesis on this subject as we regard Judge Browning’s opinion for the Ninth Circuit to be an excellent analysis of the relevant legislative history.

Air Line Stewards, upon which Dennis relies, is clearly distinguishable, involving an issue not here present as to whether § 101(a)(5) precludes summary removal of a member from union office. Nevertheless, since the words “or otherwise discipline” were read by this court in Air Line Stewards as having a restricted meaning in § 101(a)(5) not including removal from union office, we initially find it necessary to consider the defendant’s argument that the same words in another section, § 609 of the same statute, should perforce have the same meaning. This argument was presented to the court in King, and we agree with the Ninth Circuit that it is a plausible one. We also agree, however, with that court when it said, “[b]ut it is also common experience that identical words may be used in the same statute, or even in the same section of a statute, with quite different meanings. And when they are, it is the duty of the courts to give the words ‘the meaning which the Legislature intended [they] should have in each instance.’ Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433, 52 S.Ct. 607, 609, 76 L.Ed. 1204 (1932).” 335 F.2d at 344-345. (Other citations in accord in footnote omitted.) To the same effect, see the dissenting opinion in Alberto-Cul-ver Company v. Scherk, 484 F.2d 611 at 618 (7th Cir. 1973).

The words of Mr. Justice Frankfurter are apposite: “[E]xact formulation of the issue before us is necessary to avoid inadvertent pronouncement on statutory language in one context when the same language may require separate consideration in other settings.” Automatic Canteen Company v. Federal Trade Commission, 346 U.S. 61, 65, 73 S.Ct. 1017, 1020, 97 L.Ed. 1454 (1953).

The court in King, particularly noting the legislative gloss on § 101(a)(5), reached the same result with regard to that section as did this court in Air Line Stewards. The court then proceeded with an analysis of the different purposes and rationales of the two sections, which analysis we adopt without repeating it herein, and concluded that punishment of a member by removing him from office if the punishment was for the proper exercise of rights guaranteed under §§ 101(a)(1) and (2) was the subject of redress under the enforcement provision, Section 609. “Punishment for the exercise of these rights is prohibited by section 609 whether inflicted summarily or after a full panoply of procedural protections.” King, swpra,- 335 F.2d at 345. As'indicated in King,, this result is consistent with the legislative history. •

Defendant also relies on Sheridan v. United Brotherhood of Carpenters & Joiners of America, Local No. 626, 306 F.2d 152 (3d Cir. 1962), which case the King court considered. As that court noted, 335 F.2d at 347 n. 31, Judge Ka-lodner’s opinion in Sheridan was not joined in by the other two members of the panel. Judge Hastie concurred in the result upon a different ground and Judge McLaughlin dissented. Sheridan, therefore, represents the views of a single judge of the Third Circuit.

It is true the Third Circuit in Martire v. Laborers’ Local Union 1058, 410 F.2d 32 (3d Cir. 1969), cert. denied, 396 U.S. 903, 90 S.Ct. 216, 24 L.Ed.2d 179, stated that it adhered to the ruling of Sheridan; however, the opinion was written by Judge Kalodner and did find a limited nexus between the Act-guaranteed rights of membership and the holding of union office. The decision would accord the right to utilize the remedies of the Act to assert the right to hold office in the future but would find the right nonexistent where the member was removed from office. Finally, it is noted that insofar as the latter matter is concerned, the court’s holding was that the plaintiff did not have a remedy under § 101(a) (5) by reason of his removal from office. As has already been indicated herein, there is no disagreement on that issue among the courts.

But what is equally significant is that Sheridan relies, in no small part, on the fact that the “overriding purpose of the „ Labor-Management Reporting and Disclosure Act was to insure to members of unions the right to self-government and union democracy.” 306 F.2d at 158. Thus, Judge Kalodner emphasized that the business agent had been removed from office by vote of the membership of the union. In the present case, however, we have the elected representative of the T-C Division being stripped of his office by the President of BRAC, his nominal superior. At least on such facts we find no compulsion to read the words “or otherwise discipline” in § 609 to exclude removal from office. See Etelson and Smith, Union Discipline Under thé Landrum-Griffin Act, 82 Hav.L.Rev. 727, 737-38 (1969). The admirable goals of union democracy and free speech would not be furthered by reading into the broad concept implicit in “otherwise” a restriction that was legislatively mandated for valid and specific reasons for a separate subdivision of Title I. There is certainly no legislative history to indicate that officers forfeited their Title I rights to equal membership rights and free speech by the mere act of becoming union officials. The Congress when it started its task of revising this country’s labor laws was well aware of what Representative Landrum referred to as “a significant lack of democratic processes in certain unions, that one-man dictatorships have thrived — in some instances for 20 to 30 years — and that through intimidation and fear, the rank-and-file union member has been deprived of a voice in his own union affairs.” 105 Cong.Rec. 14342 (1959). Ultimately, it is not only free speech and union democracy, but the unions themselves, which will be aided by a decision allowing this limited right of action to remedy the injury of removal from union office when that removal is motivated by a desire to chill membership rights, such as the right of freedom of speech.

It is well at this point to look at the posture of the case as it is before us. We are not concerned with whether, upon an evidentiary hearing, Lowry will be able to prove his allegations regarding his removal from office as “otherwise discipline” because of his exercise of rights guaranteed by the Act, particularly those found in § 101(a)(2) pertaining to freedom of speech. The case before us concerns the dismissal of a complaint which adequately states a claim under the Act for which relief can be granted.

There is implicit in this record a procedural problem of possible donnybrook proportions, at least to those enjoying this type of exercise, which we do not conceive it profitable to pursue extensively. The motion to dismiss, possibly hedging the problem, was based both on lack of jurisdiction over the subject matter and .on failure to state a claim upon which relief can be granted. The district court did not bypass the hedge. Although stating only the lack of jurisdiction in its conclusions of law, the court in its order dismissed for both reasons. The question is since § 102 gives federal jurisdiction to the district court, did the court mean in dismissing that it did not have jurisdictional power to adjudicate a claim of a member whose injury was to his officer status or'that such claim did not state a claim upon which relief could be granted?

In this situation we will adopt the words of Judge Lindley in Miles v. Armstrong, 207 F.2d 284, 286 (7th Cir. 1953):

“In this situation it was wholly immaterial whether the court dismissed the claim because it was insufficient to state a federal cause of action or whether, believing such to be the ease, it dismissed the cause because it had no jurisdiction of the nonfederal action. Obviously, however, plaintiff’s rights on appeal would exist in either instance.”

In adopting this approach, we are not unmindful that guidelines for determination in the district court of the ruling on a Rule 12(b)(1) motion may substantially vary from those applicable to a Rule 12(b)(6) motion, Fed.R.Civ.P. 5 Wright & Miller, Federal Practice and Pzncedure § 1363, at 651 et seq. (1969). However, we are satisfied from our reading of the findings of fact and conclusions of law that basically the judge was of the opinion that the suspension of Lowry from office did not violate any membership right protected under § 101 (a)(2). To the extent that the court went into the merits of the suspension from office based upon affidavits, and irrespective of the extent to which affidavits may be considered in ruling on a motion to dismiss, the couz*t erred. The matters were controverted, and summary judgment procedure which would have been involved in reliance upon the affidavits was not warranted.

We note that the district court although basically deciding a question of law, which we hold it decided incorrectly, made a finding that “as a member Plaintiff Lowry is not precluded from speaking out in any manner on any issue concerning any union matter.” This is true, but suppression of freedom of speech is not limited to noninterference with vocalization. Rights of communication cannot be so restricted as to be meaningless. Thus, denial of a paz-k permit was not rendered proper because there were other but inconvenient places at which a person could speak. Collin v. Chicago Park District, 460 F.2d 746, 752 (7th Cir. 1972). Likewise, Lowry was possessed of an effective voice as an officer. It cannot be said that his freedom of speech as a member is unimpaired when that which made his speech effective is removed for improper disciplinary reasons.

The notion that the right of freedom of speech may be “chilled” is hardly open to dispute. Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). Dennis also contends that Lowry’s complaint was filled with “conclusory allegations,” which are not admitted on a motion to dismiss and was, therefore, insufficient. Although the complaint does not have the detail in it which might be possible in a case such as Schonfeld v. Penza, 477 F.2d 899 (2d Cir. 1973), where the history of intraunion strife was particularly extensive, the allegations in Count II are sufficient to survive a motion to dismiss in that they reveal the exact nature of Lowry’s grievance and something of the mechanism by which defendant allegedly committed the wrong.

We are not unmindful of the fine line which must be drawn between what might be termed insubordination on the one hand and freedom of speech on the other, a distinction involved in Sewell v. Grand Lodge of the International Association of Machinists and Aerospace Workers, 445 F.2d 545 (5th Cir. 1971), cert. denied, 404 U.S. 1024, 92 S.Ct. 674, 30 L.Ed.2d 674 (1972). Although that case was in part disposed of on a statute of limitations point, Judge Gewin on behalf of the court also addressed himself to the secondary point:

“We fully concur with his contention that each member of a labor union is guaranteed the right of free expression as well as the right to participate freely in the union’s democratic processes. Disciplinary action for the exercise of such rights offends the terms of the Labor Management Reporting and Disclosure Act. Moreover, the rights of free expression, and assembly as well as other rights protected by the statute may be exercised fully and freely by any member of the union; the mere fact that a member is an appointed or elected- official of the union does not destroy his statutory rights. This conclusion, however, does not permit an employee who accepts employment for the performance of certain specified duties to take the largesse and pay of the union, on the one hand, and, on the other, to completely subvert the purposes of his employment by engaging in activities diametrically opposed to the performance of his specified duties.” 445 F.2d at 550-551. (Footnotes omitted.)

Judge Gewin cited the King case in support of the recognition of retention of statutory rights by elected or appointed officials.

The determination that the statutory rights are not available because the disciplinary action was proper within the protective mantle of dealing with insubordination is a determination which should be reached only sparingly on a motion to dismiss. In Sewell, although there was a motion to dismiss which was sustained in the district court, the court on appeal had the benefit of substantial additional undisputed factual information including the facts found in a companion N.L.R.B. case. We are not so aided in the present case.

Another factor is present in this case which, insofar as we are aware, has not been given separate consideration but which is an aspect of the insubordination-speech issue and that is that Lowry was elected by the members of the division of the union. He was not ousted from that position by any democratic procedure but by the unilateral action of the president of the parent union who was not responsible for Lowry’s officer status. That which could be ranked as insubordination would seem to equate more with the appointive official. Again, however, this is a matter which would be controlled by the particular facts which Lowry should be permitted, but was not, to develop.

Finally, Dennis relies on Lowry’s failure to exhaust his internal union remedies before bringing suit. That the internal union remedies promise to be fruitless is reflected in the district court’s opinion. Defendant Dennis appoints the hearing officer, who makes recommendations to defendant Dennis, who “will then carefully review the entire record and arrive at a determination and render a decision.” After that, Lowry could avail himself of the appellate procedure in the union constitution. But that constitution, which the district court had before it on defendant’s motion, revealed that it would not be until 1975 that Lowry could finally exhaust his internal remedies. The complaint itself also was quite specific in the need for immediate relief. These allegations reveal that plaintiffs’ complaint was not merely conclusionary on the lack of an adequate internal remedy. “Here the complaint alleges in the clearest possible terms that a formal effort to pursue . administrative remedies would be absolutely futile. . . . [Insistence that petitioners exhaust the remedies administered by the union . . . would only serve to prolong the deprivation of rights to which these petitioners according to their allegations are justly and legally entitled.” Glover v. St. Louis-San Francisco Railway Co., 393 U.S. 324, 331, 89 S.Ct. 548, 552, 21 L.Ed.2d 519 (1969). See Waters v. Wisconsin Steel Works of International Harvester Co., 427 F.2d 476, 490 (7th Cir. 1970), cert. denied, 400 U.S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151.

We turn now to Count I of the complaint. It is the contention of Wood and Bowers that the removal of Lowry from his position as President of the T-C Division violated their membership rights guaranteed by § 101(a)(1). Aside from this blanket allegation, however, there is little specificity as to which rights have been violated. We must read the complaint carefully to discover these plaintiffs’ true theory. Reference is made to equal voting rights of plaintiffs in the International Executive Council, but such rights are more closely derivative from the union constitution than from the LMRDA, which protects direct, rather than indirect, electoral rights. The unarticulated premise of Count I appears to be that the membership rights of the union electorate are violated any time an elected union officer is removed from his position.

However, in Schonfeld v. Penza, supra, the Second Circuit indicated that the removal of an officer was not a sufficient basis in itself to support a direct action by a rank and file union member for violation of Title I membership rights to nominate and elect. The court cited Cal-hoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964), for this position. However, the court proceeded to hold that where the removal constituted a form of intimidation of the membership, a basis would exist for proceeding under Title I. The present case is distinguishable, lacking the extra factual basis adverted to in Schonfeld, 477 F.2d at 902-903.

While it is not entirely clear to us that Calhoon actually controls the issue of removal of an officer, we do not have to decide that point since it is clear that plaintiffs’ theory goes beyond the protective limits of Title I. As noted above, it was expressly contemplated 'that officers would be subject to summary removal without the procedural safeguards quaranteed by § 101(a)(5). Summary removal is irreconcilable with the notion that members have an absolute right to their elected officials. In sum, we decline to extend the voting rights provisions of § 101(a)(1) to subsequent procedures not directly affecting the exercise of the guaranteed rights. We, therefore, affirm the district court’s dismissal of Count I.

The fate of Counts III and IV will be dependent upon the course of litigation with regard to Count II.

For the reasons given hereinbefore, the judgment of the district court is reversed in part and remanded for further proceedings not inconsistent herewith.

Reversed in part, affirmed in part, and remanded.

STEVENS, Circuit Judge

(concurring in the result).

The disposition of this case by the district court was somewhat unusual. On the basis of defendant’s motion to dismiss, supported by affidavits, and without hearing evidence tendered by the plaintiffs at a preliminary hearing, the district court made “findings of fact” and dismissed the action for want of jurisdiction. I agree with the majority that the district court committed error. For two reasons, however, I am not prepared to adopt the rationale of the Ninth Circuit in King.

First, although I certainly agree that the same words may have different meanings in different parts of the same statute, I am not persuaded that the phrase “to fine, suspend, expel, or otherwise discipline” in § 609 was intended to be any broader than the strikingly parallel phrase “fined, suspended, expelled, or otherwise disciplined” in § 101 (a)(5). One section deals with procedural safeguards and the other with impermissible grounds for discipline. If Congress had intended the coverage of the substantive protection to be significantly broader than the procedural provision — and certainly the King rationale identifies a most significant difference —I seriously doubt that the intent would have been expressed in such an obscure way.

Second, as I understand the King rationale — at least as it applies to Unions which have not adopted such speech-inhibiting regulations as may be permitted by the proviso to § 101(a)(2) — the removal of an appointed union executive who publicly disagrees with the leadership of the union on questions of policy is prohibited. Patronage is by no means an essential attribute of democracy, see Illinois State Employees Union v. Lewis, 473 F.2d 561 (7th Cir. 1972), cert. denied 410 U.S. 928, 93 S.Ct. 1364, 35 L.Ed. 2d 590 but it is difficult to believe that Congress intended to address the patronage issue when it enacted the LandrumGriffin Act in 1959. Had it done so, I am inclined to believe that appointed policy-making officials would have been subject to removal by their sponsors. See Sewell v. Grand Lodge, 445 F.2d 545, 551-552 (5th Cir. 1971). Cf. Illinois State Employees Union v. Lewis, supra, 473 F.2d at 574. I therefore disagree with the view that the concept of “discipline” described in § 609 is substantially broader than in § 101(a)(5).

That disagreement does not necessarily lead to the conclusion that it is clear “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80.

No issue under § 101(a)(5) has been raised by plaintiffs, presumably because it is clear under this court’s holding in Air Line Stewards, et al. v. Transport Workers Union of America, 334 F.2d 805, 808-809 (1964), that Lowry’s suspension pending a full hearing on the Union’s charges is not “discipline” within the meaning of that section. Even so, it is possible that additional acts of retribution may constitute discipline. See, e. g., Martire v. Laborers’ Local Union 1058, 410 F.2d 32, 35 (3rd Cir. 1969); furthermore, the important fact that defendant’s actions were directed against an elected rather than an appointed officer may bring this controversy within the Second Circuit’s rationale in Schonfield v. Penza, 477 F.2d 899 (1973). See Driscoll v. International Union of Operating Engineers, Local 139, et al., 484 F.2d 682 (7th Cir. September 11, 1973).

As presently framed, I am inclined to believe that the allegations are insufficient. But since the district court refused to permit the plaintiffs to present additional material for its consideration and dismissed the original complaint with prejudice, I agree that the judgment should be reversed and the case remanded for further proceedings.

ENOCH, Senior Circuit Judge

(dissenting).

With regret I find myself unable to agree with my colleagues. The majority opinion, as did the opinions in King and Air Line Stewards, holds that Congress did not intend § 101(a)(5) to preclude summary removal of a member from Union office. King has been analyzed, however, as going on to hold that a claim was stated under § 609 on the theory that the words “otherwise discipline” in § 101 (a) (5) were not intended by Congress to include removal from office, but the same words were so intended in § 609. Otherwise, the Ninth Circuit reasoned, use of an effective weapon of reprisal against officers exercising rights guaranteed by the Act would have been immunized, without serving any apparent legislative purpose.

I think, basically, this is the thinking behind the decisions of the numerous courts to which the majority refers who have adopted King and that this fear dictates the majority’s assertion that there is no legislative history to indicate that officers forfeited their Title I rights to equal membership rights and free speech by the mere act of becoming Union officials.

I do not question the cogent argument of the majority that the same words in different context may have different meanings, but I feel that insufficient consideration has been given to the complete legislative history of § 609.

There is apparently no. disagreement among the Courts that § 101(a)(5) provides a right to procedural due process only to members as members and that § 609 provides enforcement for rights set out in other portions of the Act. King, the majority here, and other decisions in conformity with King, adopt the position that if the same words are construed to have the same meaning in § 101(a)(5) and § 609, then officers would have no remedy against removal from office for exercising rights which would be protected for them as members, if they were not officers as well. These decisions all view such an interpretation as unreasonable, although none of these decisions seem to question the fact that § 609 is an enforcement provision only, which provides no additional rights.

Section 609 was originally proposed to allow civil enforcement through the Secretary of Labor (see 2 Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, page 1567) but the section was subsequently amended to provide for individual members to bring actions in their own names only to meet certain objections of some members of Congress. (See 2 Legislative History, -LMRDA, page 1662). Thus '§ 609 was in the process made virtually a duplicate of the provisions of § 102.

The gloss placed on the wording of § 609 by the Circuits following King is appealing, but I see us as adventuring beyond the intent of Congress in adopting the majority interpretation. Instead of leaving to legislative action the fashioning of a remedy for the evils envisaged by King, we are legislating by judicial fiat in the guise of interpretation. I would affirm the decision of the District Court.

FAIRCHILD, Circuit Judge, joins in the dissent of ENOCH, Circuit Judge.

      . Section 101(a)(1), 29 U.S.C. § 411(a)(1), provides:
      “ (a) (1) Equal rights.
      Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organizations, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization’s constitution and bylaws.”

      . Section 102, 29 U.S.C. § 412, provides:
      “Civil action for infringement of rights; jurisdiction.
      Any person whose rights secured by the provisions of this subchapter have been infringed by any violation of this subchap-ter may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate. Any such action against a labor organization shall be brought in the district court of the United States for the district- where the alleged violation occurred, or where the principal office of such labor organization is located.”

      . Section 101(a)(2), 29 U.S.C. § 411(a)(2), provides:
      “(a) (2) Freedom of speech and assembly.
      Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization’s established and reasonable rules pertaining to the conduct of meetings: Provided, That nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations.”
      Section 609, 29 U.S.C. § 529, provides: “Prohibition on certain discipline by labor organization.
      It shall be unlawful for any labor organization, or any officer, agent, shop steward, or other representative of a labor organization, or any employee thereof to fine, suspend, expel, or otherwise discipline any of its members for exercising any right to which he is entitled under the provisions of this chapter. The provisions of section 412 of this title shall be applicable in the enforcement of this section.”

      . Section 101(a)(5), 29 U.S.C. § 411(a)(5), provides:
      “Safeguards against improper disciplinary action.
      No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been
      (A) served with written specific charges;
      (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing.”

      . Schonfeld v. Penza, 477 F.2d 899 (2d Cir. 1973); Sewell v. Grand Lodge of Int’l Ass’n of Machinists & Aerospace Workers, 445 F.2d 545 (5th Cir. 1971), cert. denied, 404 U.S. 1024, 92 S.Ct. 674, 30 L.Ed.2d 674 (1972); Navarro v. Gannon, 385 F.2d 512 (2d Cir. 1967), cert. denied, 390 U.S. 989, 88 S.Ct. 1184, 19 L.Ed.2d 1294 (1968); Salzhandler v. Caputo, 316 F.2d 445 (2d Cir. 1963), cert. denied, 375 U.S. 946, 84 S.Ct. 344, 11 L.Ed.2d 275; Nix v. Fulton Lodge No. 2 of Int’l Ass’n of Machinists & Aerospace Workers, 78 LRRM 2915 (N.D.Ga. 1970), aff’d, 452 F.2d 794 (5th Cir. 1971), cert. denied, 406 U.S. 946, 92 S.Ct. 2044, 32 L.Ed.2d 332 (1972); Cefalo v. Int’l Union of District 50, United Mine Workers of America, 73 LRRM 2964 (D.D.C.1970), aff’d, 73 LRRM 2970 (D.C. Cir. 1970); Gleason v. Chain Service Restaurant Employees Union, 300 F.Supp. 1241 (S.D.N.Y.1969), aff’d, 422 F.2d 342 (2d Cir. 1970); Retail Clerks Union Local 648 v. Retail Clerks Int’l Ass’n, 299 F.Supp. 1012 (D.D.C.1969); DeCampli v. Greeley, 293 F.Supp. 746 (D.N.J.1968); Gulickson v. Forest, 290 F.Supp. 457 (E.D.N.Y.1968); George v. Bricklayers, Masons and Plasterers Int’l Union, 255 F.Supp. 239 (E.D.Wis.1966); Etelson and Smith, Union Discipline Under the Landrum-Griffin Act, 82 Harv.L.Rev. 727, 735 et seq. (1969); Lew, Landrum-Griffin Protections Against Union Discipline, 13 N.Y.U.Law Forum 16, 50 et seq. (1967).

      . Machinist Grand Lodge v. King, 335 F.2d 340 (9th Cir. 1964). The portion of the King opinion which holds that the definition of “discipline” in § 609 is broader than in § 101(a)(5) has not, as far as I have been able to determine, been followed by any other Court of Appeals prior to this decision.

      . See 335 F.2d at 346.

      . Since I do not believe Congress intended to address the patronage issue in this statute, I also doubt the validity of the implied exception permitting disciplinary discharges for “insubordination.”

      . It may be worth noting that the risk of fiscal misconduct, which explains why the temporary suspension of a union officer is not regarded as discipline within the meaning of § 101(a)(5), see the statement by Senator Kennedy quoted in King, 335 F.2d at 342, does not require or justify a narrow interpretation of the word discipline in other situations, including permanent removal, in which the officer is plainly being punished. Why a person occupying an office of trust should be less entitled to fair procedures than other citizens is difficult to understand.


source: Caselaw Access Project

author: J. JOSEPH SMITH, Circuit Judge: OAKES, Circuit Judge

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. George Charles SUNDSTROM, Appellant.
    No. 395, Docket 73-1949.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 14, 1973.
    Decided Dec. 27, 1973.

      Alfred Lawrence Toombs, New York City, for appellant.
    George E. Wilson, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., for the Southern District of New York, S. Andrew Schaffer, Asst. U. S. Atty., of counsel), for appellee.
    Before KAUFMAN, Chief Judge, and SMITH and OAKES, Circuit Judges.
   J. JOSEPH SMITH, Circuit Judge:

This appeal presents the rather unusual question of whether a successor judge can enter a conviction after his predecessor in a non-jury trial has made detailed factual findings, but has left the verdict open in order to consider an essentially legal defense. Because we believe Judge McLean, the trial judge, had decided all relevant factual questions against appellant before his untimely death, and that Judge Cannella, the successor judge, thereafter properly found that appellant had failed to establish his “order of call” defense, we affirm the two judges’ necessarily cumulative verdict.

Appellant’s selective service problems began in January of 1970 when he was ordered to a pre-induction physical. He immediately wrote to his local board requesting information on various deferments and a change in the location of the physical; the board promptly complied with both requests. In April, approximately one month before the physical was to occur, the board received appellant’s annual “Current Information Questionnaire,” which was covered with a rather bizarre potpourri of his “political and social beliefs.” A few days later, appellant again wrote to the board requesting information on medical exemptions and board personnel; the board again replied promptly. Finally on May 7, a few days before the rescheduled physical, appellant once again wrote to the board to claim an exemption as a newly ordained minister in the Universal Life Church. This time the board did not respond, apparently because it had been advised, as Judge McLean later found, that the “church” was a total fraud.

On May 18, appellant reported for his physical dressed in black robes, veil, and facial make-up — his representation of the “death symbol.” The examination center psychiatrist, who interviewed this apparition before he was ejected, concluded that appellant was merely malingering and reported the performance to the local board. The board thereupon ordered appellant to a second physical, but the notice failed to reach the potential inductee who was traveling about the country without benefit of a forwarding address.

After learning that appellant had failed to appear for his second physical, the board ordered him to report for immediate induction, pursuant to a new selective service regulation allowing such orders without the formerly required pre-induction physical. In September, approximately two weeks before this induction was to occur, appellant informed the board by letter that his physical acceptability had not yet been established and that he was, therefore, returning the induction order which he believed to be erroneously issued.

Rather than explaining that a pre-in-duction physical was no longer required, the board reported appellant as a violator. However, at the behest of the Justice Department, the board gave appellant one more chance to comply. Again appellant received the notice of his induction, which was now scheduled for December, in ample time to comply; but he nevertheless waited until the appointed day to remind the board that they were powerless to induct him without a physical. After this second failure to report, prosecution began.

Appellant was tried in July of 1972 before Judge McLean, who, after six days of testimony, rendered detailed factual findings to the effect that “apart from the order of call defense, the government has established the defendant’s guilt . . . beyond a reasonable doubt.” Judge McLean then asked opposing counsel to prepare a summary of the selective service files of the challenged registrants to aid him in his evaluation of the order of call defense. The summaries were prepared, but Judge McLean died before ruling on the defense or rendering a final verdict.

Judge Cannella, who was assigned the case, recognized its unusual posture, but nevertheless concluded that the only unresolved issue, the order of call defense, was a legal matter which he as successor judge could determine on the basis of the selective service records and regulations before him. After reading the entire record and briefs submitted by both sides, Judge Cannella proceeded to hold that appellant had failed to demonstrate that a 'sufficient number of the challenged registrants were improperly classified, and that therefore the two induction orders were valid. Judge Cannella thereupon entered a judgment of conviction based on his and Judge McLean’s findings.

I. The Order of Call Defense

Appellant’s primary contention is that Judge Cannella had no authority to rule on the order of call defense since it was a mixed question of law and fact that could be decided only by Judge McLean, the trier of fact. In this regard, it should be noted that this is a highly unusual case — apparently one of first impression — in that the trial judge died after making his factual findings, but before rendering a final verdict. Thus the government concedes that had Judge McLean died before stating his factual conclusions, a mistrial would have been mandated. And appellant concedes that had Judge McLean rendered a final verdict, any subsequent legal motions could have been argued before, and sentence could have been imposed by, a successor judge under Rule 25(b) of the Federal Rules of Criminal Procedure.

Unfortunately, the framers of Rule 25 apparently never anticipated the facts of this case, and the rule therefore provides no direct answer to our problem. Nevertheless, we believe — and appellant apparently agrees — that the intent behind Rule 25 was to perpetuate the traditional dichotomy between “law” and “fact,” and thus authorize a successor judge to decide purely legal matters, while reserving to the original judge any question of fact.

The problem thus becomes: Was appellant’s order of call defense — in which he had to demonstrate that the board acted arbitrarily in ordering his induction while bypassing others who should have been called first — a question of “law” or “fact”? We think that in this case, the defense was a purely “legal” matter.

In United States v. Strayhorn, 471 F.2d 661, 665 (2d Cir. 1972), we held, “the order of call defense, going as it does to the validity of the induction order, is properly heard by the court, not the jury." This conclusion is, in turn, derived from Cox v. United States, 332 U.S. 442, 452-453, 68 S.Ct. 115, 92 L.Ed. 59 (1947), where the Supreme Court first held that the validity of an induction order, and the review of the administrative proceedings behind it, were questions for the court, rather than the jury. See also, United States v. King, 455 F.2d 345, 353 (1st Cir. 1972); United States v. Jones, 431 F.2d 619, 621 (9th Cir. 1970), cert. denied, 401 U.S. 926, 91 S.Ct. 882, 27 L.Ed.2d 829, reh. denied, 401 U.S. 1014, 91 S.Ct. 1251, 28 L.Ed.2d 553 (1971); United States v. Lloyd, 431 F.2d 160, 164 (9th Cir. 1970), cert. denied, 403 U.S. 911, 91 S.Ct. 2210, 29 L.Ed.2d 688 (1971).

This is not to say that order of call cases will never involve factual determinations. Such questions will arise once the defendant has demonstrated that he would not have been called were it not for errors or irregularities in board procedures. Once such an “apparent departure” from the proper order of call has been shown, the burden shifts to the government to explain the irregularity in terms other than pure arbitrariness or discrimination against the defendant —a factual question which may well involve the very credibility of local board officials. See, United States v. Weintraub, 429 F.2d 658, 660 (2d Cir. 1970), cert. denied, 400 U.S. 1014, 91 S.Ct. 572, 27 L.Ed.2d 627 (1971); United States v. Griglio, 467 F.2d 572, 575 (1st Cir. 1972); United States v. Strayhorn, 471 F.2d 661, 663-664 (2d Cir. 1972).

Here, however, no such factual inquiry was necessary, for appellant failed to prove that even one of the challenged registrants had been unreasonably bypassed. Our own review of the file summaries — together with Judge Can-nella’s discussion, 359 F.Supp. 1252, 1259-1260 — convinces us that appellant simply was not called prematurely. In this regard, it should be noted that though appellant strenuously argues that the order of call issue is factual in nature, he has not indicated any instance where Judge Cannella’s conclusion is “factually” incorrect.

In sum, we hold that since appellant failed to demonstrate that a sufficient number of other registrants were improperly bypassed, the order of call defense in this case presented only questions of law — based solely on legal records and regulations — which Judge Cannella, as successor judge, was entitled to decide.

II. The Finding of Willfulness

Appellant advances a two-pronged attack on the finding that his conduct constituted a willful failure to report for induction. There is, of course, no doubt that Judge McLean made such a finding, and that in so doing he explicitly rejected appellant’s contention that he was justified in refusing to report because he mistakenly believed the former regulation requiring a pre-induction physical was still in effect.

Appellant contends, however, that this factual question was left open at the time of Judge McLean’s death. He notes that a few days before Judge McLean made his findings, the judge asked defense counsel, in a rather rhetorical fashion, whether he could cite any precedent for his position that ignorance of the selective service law was a justification for refusing to report. Here appellant relies solely on Brennan v. Grisso, 91 U.S.App.D.C. 101, 198 F.2d 532 (1952), a decision applying Rule 63 of the Federal Rules of Civil Procedure —the counterpart of Rule 25 in the Criminal Rules. Brennan is, however, clearly inapposite, since there the trial judge merely expressed orally his views on some of the issues but did not make any explicit factual findings. Moreover, the additional evidence presented to the trial judge was relevant to a critical factual determination. Here, by contrast, Judge McLean’s rather rhetorical query prior to his explicit rejection of appellant’s position constituted, at very most, an indication that he would consider further legal argument. But such argument, as discussed above, would just as properly have been considered by Judge Cannella, who apparently had just as little sympathy for this defense.

Appellant’s second line of attack is that both Judges McLean and Cannella simply failed to appreciate his “mistake of law” defense. The short answer to this contention is that, as has been repeatedly held, even a good faith belief, on advice of counsel, that one is exempt from selective service does not justify a refusal to obey an induction order. United States v. Mercado, 478 F.2d 1108, 1111 (2d Cir. 1973); United States v. Steiner, 469 F.2d 760, 769 (5th Cir. 1972); United States v. Jacques, 463 F.2d 653, 657 (1st Cir. 1972); United States v. Stom, 448 F.2d 1332, 1333-1334 (9th Cir. 1971); United States v. Wood, 446 F.2d 505, 507 (9th Cir. 1971); United States v. Goodman, 439 F.2d 810, 812-813 (9th Cir. 1971), cert. denied, 404 U.S. 832, 92 S.Ct. 77, 30 L.Ed.2d 61 (1971).

This is not to say that in assessing willfulness the trier of fact may not consider a good faith, though mistaken, belief based on a legitimate disagreement with selective service officials. But it does mean that we cannot, as a matter of law, overturn Judge McLean’s completely reasonable finding that appellant’s obdurate assertion of what was never more than a mere technicality in the face of two valid induction orders constituted a willful failure to comply.

Affirmed.

OAKES, Circuit Judge

(concurring): I concur in the result.

      . For a brief discussion of the elements of the defense, sec p. 862 infra. See also, United States v. Strayhorn, 471 F.2d 661, 662-664 (2d Cir. 1972); United States v. Weintraub, 429 F.2d 658, 659-660 (2d Cir. 1970), cert. denied, 400 U.S. 1014, 91 S.Ct. 572, 27 L.Ed.2d 627 (1971).

      . Judge McLean found that appellant’s careless failure to provide a forwarding address negated the conclusion that his failure to appear was willful and knowing. Accordingly, Judge McLean acquitted appellant on the separate count of failing to report for the physical. 359 F.Supp. 1252, 1255-1256.

      . The former regulation, 32 C.F.R. § 1631.7(a) had required that a registrant be given twenty-one days notice after his acceptability had been established at a pre-induction physical. This requirement was rescinded by Local Board Memorandum 106, providing that a registrant who failed to report for his pre-induction physical would be ordered to an immediate induction and simultaneous examination.

      . Judge McLean also rejected appellant’s defenses that he was exempt as a conscientious objector, that he should have been deferred as a minister in the Universal Life Church, and that he was temporarily insane, 359 F.Supp. 1252, 1255-1257.

      . E'ed.R.Crim.P. 25:
      (a) During Trial. If by reason of death, sickness or other disability the judge before whom a jury trial has commenced is unable to proceed with the trial, any other judge regularly sitting in or assigned to the court, upon certifying that he has familiarized himself with the record of the trial, may proceed with and finish the trial.
      (b) After Verdict or Finding of Guilt. If by reason of absence, death, sickness or other disability the judge before whom the defendant has been tried is unable to perform the duties to be performed by the court after a verdict or finding of guilt, any other judge regularly sitting in or assigned to the court may perform those duties ; but if such other judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial.

      . In view of our finding that only legal questions remained after Judge McLean’s death, we must reject appellant’s analogy between this case and those involving the death or disability of a juror. In the jury context, such disability before a final verdict will re-suit in a mistrial unless the defendant waives his right to a full panel. Fed.R. Crim.P. 23(b). Since the fact-finding function had been completed by Judge McLean, arguments based on jury-related rights which appellant would have retained had he not waived his right to jury trial are clearly inapposite.

      . There was some disagreement as to whether appellant had to demonstrate that nine or ten of the twenty-four challenged registrants were improperly classified. Judge Cannella found it unnecessary to resolve this dispute since appellant failed to demonstrate that any were so bypassed. D.C., 359 F.Supp. 1252, 1254-1255 & n. 6.

      . Defendant’s ignorance of the law was no excuse for his failure to obey the indue-tión order. Moreover, lie was not entitled to rely upon his own views as to the law. It was his duty to obey the order and, thereafter, to challenge the validity of the order, if he so desired, by habeas corpus after his induction, if he was accepted for service.
      359 F.Supp. 1252, 1256.

      . Similarly, we must also reject appellant’s contention that the local board had an affirmative obligation in this case to disabuse him of his misconception that a pre-induction physical was still required. While a board may not mislead a registrant as to his fundamental rights, and while it might have been, in any event, better practice to have corrected appellant, we do not think the board was obligated to continue its running debate with a registrant who was adamantly asserting an outdated technicality without ever seeking a clarification of his status.


author: FAIRCHILD, Circuit Judge. SPRECHER, Circuit Judge,

text:
    UNITED STATES of America ex rel. Samuel SAIKEN, Plaintiff-Appellee, v. Peter B. BENSINGER, Director, Department of Corrections, State of Illinois, et al., Respondents-Appellants.
    No. 72-2049.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 20, 1973.
    Decided Nov. 16, 1973.
    William J. Scott, Atty. Gen., James B. Zagel and Thomas E. Holum, Asst. At-tys. Gen., Chicago, 111., for respondents-appellants.
    Peter Georges, John J. O’Toole, Chicago, 111., for plaintiff-appellee.
    Before KILEY, FAIRCHILD, and SPRECHER, Circuit Judges.
   FAIRCHILD, Circuit Judge.

This is an appeal from an order granting a writ of habeas corpus releasing petitioner Samuel Saiken from state custody. Many of the facts appear in the opinions of the district court, Saiken v. Elrod, 350 F.Supp. 1156 (N.D.Ill., 1972) and of the Supreme Court of Illinois, affirming the conviction which resulted in his being in custody. People v. Saiken, 49 Ill.2d 504, 275 N.E.2d 381 (1971), cert. denied 405 U.S. 1066, 92 S.Ct. 1499, 31 L.Ed.2d 796.

The district court concluded that the affidavit for the search warrant was insufficient and we agree. The state has raised another claim, that the fourth amendment did not require a warrant because of the character of the place where the search was conducted. This point was not discussed by the Supreme Court nor the district court. No one has questioned the application of the exclusionary rule in the situation here, i. e., to the use by one state in prosecuting an offense within its borders of evidence obtained by another state in the course of investigation of a possible offense within its borders, on an allegedly insufficient warrant.

(1) Was the affidavit for the search warrant sufficient?

In Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the Supreme Court held that where an affidavit is based upon hearsay, as in the instant case, the magistrate must be informed of: (1) some of the underlying circumstances from which the informant concluded that the property sought was where the informant claimed it was, and (2) some of the underlying circumstances from which the officer concluded that the informant was credible or his information reliable.

Turning to the first prong of the Aguilar test, there is no statement in the affidavit indicating the manner in which Joel Saiken, the informant, came by his information. Nonetheless, the state urges that the affidavit attributes to the informant information of sufficient detail to enable the magistrate to infer that the informant gained his information by observation or other reliable means. See Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

Deference is to be given to the magistrate’s determination of probable cause. Jones v. United States, 362 U.S. 257, 270, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). We think that the magistrate could reasonably determine from within the four corners of the affidavit that the informant’s representation was based upon more substantial information than “a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.” Spinelli, supra, 393 U.S. 416, 89 S.Ct.; United States v. Nasse, 432 F.2d 1293, 1300 (7th Cir., 1970), cert. denied 401 U.S. 938, 91 S.Ct. 927, 28 L.Ed.2d 217. The informant supplied details about sex and age of the body, its location, and the description and ownership of the farm. Assuming credibility of the informant, one could readily infer that he either was present at the burial or was relating a report which he had reason to believe was based on observation.

The more difficult question is whether the second prong of Aguilar, with such liberalization as may be read from United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), has been satisfied. Did the affidavit describe some of the underlying circumstances from which the affiant concluded that the informant was credible?

The affidavit held sufficient in Harris did not aver previous experience with the informant as a basis for affiant’s conclusion that the informant was credible. It did contain four elements: (1) affiant’s statement that on interview he had found the informant to be prudent, (2) attribution to the informant of personal and recent observations of the suspect’s criminal activity, (3) corroboration of the informant’s report by reason of affiant’s knowledge of the suspect’s reputation for activity of the type reported, (4) the informant’s admission against penal interest in his disclosure that he had participated in the suspect’s criminal activity. Three justices joined in emphasizing the presence of the four elements, although it is not clear that they would have required all four. Another justice relied on .(1), (2), and (3). Another agreed with the conclusions as to (4), but also considered-the affidavit “as a whole.” All five agreed on the ultimate proposition that the affidavit was sufficient. Four deemed it insufficient.

In United States v. Unger, 469 F.2d 1283 (7th Cir., 1972), cert. denied 411 U.S. 920, 93 S.Ct. 1546, 36 L.Ed.2d 313, we noted that Harris suggests a more flexible approach and held an affidavit sufficient. The affiant officer characterized the informant as a “citizen” who had contacted the officer, explained that the informant had occasion to be in the premises while working at his occupation, set forth in great detail the items of property observed, and stated that the citizen pointed 'out the building and gave the officer a diagram of the relevant area of the interior. We read some implication into the affiant’s description of the informant as a “citizen” who came forward to give information, gained in the course of his employment, to the police, without appearance of spite or self-interest, and we felt that the close observation and detail described could be given weight in determining credibility.

In the instant case, as in Unger, the affiant did not specifically express his belief in the informant’s credibility although he said he had good reasons to and did believe the facts set forth. As in Harris and Unger, this affidavit contains considerable detail, but it does not show that the informant gained his knowledge by observation or some other reliable way, it does not state information known to affiant and tending to corroborate the informant’s report, and there is no admission against penal interest unless one assumes the unasserted fact that the informant disclosed that he had participated in the unlawful burial or concealment.

We agree with the Supreme Court of Illinois that informant’s disclosure of his participation in the burial would constitute an admission against his penal interest as well as an explanation of the manner in which he obtained his knowledge. 275 N.E.2d at 386-387. Our difficulty, however, lies in the fact that this information was not set forth in the affidavit, and the state does not contend here that any information not in the affidavit can be relied upon as having been considered by the magistrate. See Aguilar, supra, 378 U.S. p. 109, footnote 1, 84 S.Ct. 1509.

The affidavit does disclose the name of the informant, Joel Saiken. It also discloses that the owners of the property are Sam and Minnie Saiken. The state argues that the identity of the surnames is a basis for the conclusion that the informer would have reason to know of the burial. Perhaps relationship would be a reasonable inference if the name were not common in the particular area. It seems speculative, however, to infer knowledge from relationship. With respect to the credibility prong of Aguilar, the more difficult problem here, it might be reasonable to suppose that a family member in good standing would not tell the police of a hidden body on the family farm unless it was there. But identity of surname does not establish either the degree of relationship or that the individuals are on good terms.

We conclude that the district court correctly decided that the affidavit was an insufficient foundation for the warrant.

(2) Was the search within the curtilage of petitioner’s dwelling?

The state contends that even if the search warrant is inadequate, the challenged evidence is admissible because the search and seizure complained of occurred beyond the curtilage of the petitioner’s residence and accordingly does not come within the fourth amendment’s proscription against unreasonable searches and seizures.

The fourth amendment protects “[the] right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” In Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), the Supreme Court held that this protection does not extend to “the open fields.” The test traditionally used has been whether the search occurred within the curtilage. In applying this test courts have traditionally considered “the proximity or annexation [of the place searched] to the dwelling,” “the inclusion [of the place searched] within the general enclosure surrounding the dwelling,” and the “use and enjoyment [of the place searched] as an adjunct to the domestic economy of the family.” Care v. United States, 231 F.2d 22, 25 (10th Cir., 1956), cert. denied 351 U.S. 932, 76 S.Ct. 788, 100 L.Ed. 1461. See Wattenburg v. United States, 388 F.2d 853, 856-857 (9th Cir., 1968) and cases cited therein.

In Jones v. United States, 362 U.S. 257, 266-267, 80 S.Ct. 725, 4 L.Ed. 2d 697 (1960), the Supreme Court emphasized the undesirability of importing into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle common law property distinctions. In Katz v. United States, 389 U.S. 347, 350-353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1969) the Court declined to deal with a problem of electronic surveillance in terms of the type of area and the law of trespass, but found a constitutionally protected entitlement to privacy of conversation within a public telephone booth. These cases caution a court to be alert, in applying the traditional curtilage test, to considerations which would make reasonable a constitutionally protected entitlement to privacy regardless of the area involved. Even so, we do not equate an individual’s interest in effective concealment of evidence of crime with entitlement to privacy for the purposes of the fourth amendment. See Wattenburg v. United States, supra, 388 F.2d 857-858; United States v. Minker, 312 F.2d 632, 634 (3rd Cir., 1962).

Petitioner asserts that we should not consider the curtilage issue because that issue is not properly before this court. We disagree. Although neither party raised this issue in the state trial court, the judge called a witness to testify about the physical layout of the Sai-ken farm and held in the alternative that the search occurred within an “open field.” Petitioner also offered proof on this issue. In the appeal to the Illinois Supreme Court, both parties briefed the curtilage question. The Illinois Supreme Court deemed the search warrant valid and affirmed the conviction without discussion of the curtilage issue. People v. Saiken, supra. In the federal habeas corpus proceeding, the state alleged that the body was not found within the curtilage of the farm; but for some reason, no evidence was offered on this issue by either party, On motion of the state, we granted leave to file the record of the state proceedings as an exhibit on appeal.

An analysis favorable to petitioner would be that the state had the burden, in defending against the habeas petition in federal district court,, not only of pleading, but also of producing evidence that the character of the place searched was such that no warrant had been necessary. As a result the state might be foreclosed by waiver from urging the claim in this court. Another arguably correct analysis would be that it was petitioner’s burden in order to obtain ha-beas relief, to plead and prove facts showing that a warrant had been required as well as facts showing the warrant invalid. Under the circumstances it is unsatisfactory to decide the question on the ground that the party with the burden waived. It would especially be undesirable from the point of view of judicial economy if the analysis unfavorable to the petitioner were adopted, since he would be at liberty to petition anew.

The state court record reveals testimony at least indicating that the body was found in an open area. The twenty-acre tract has often been referred to as a farm. The record is unclear as to the distances between the various structures and the location of the body, the occupancy of buildings and trailers, and other relevant matters. The crucial question is left in great doubt.

It is evident that the officers did a considerable amount of digging before finding the body. Questions of the existence of liability for damages for such interference with property are not before us. If a constitutionally protected entitlement to privacy can not be established otherwise, we are not prepared on this record to say that digging beneath the surface of the soil establishes it.

We think the curtilage issue should be decided by the district court after the facts have had further illumination. If it be decided that a warrant was required, petitioner will be entitled to release, since it has been established that the warrant was issued on an insufficient affidavit. The district court is at liberty to continue petitioner on bail, pending decision.

The judgment granting the writ of habeas corpus is vacated, and the cause remanded for further proceedings.

SPRECHER, Circuit Judge,

(concurring in part and dissenting in part).

I concur in the remanding of the cause for further proceedings regarding the curtilage question, but I dissent from that part of the majority opinion which holds that the affidavit was an insufficient foundation for the warrant because I believe that the opinion pushes the exclusionary rule to its ultimate “ridiculous lengths.” I believe that this is the first case in which a murdered body is to be suppressed by operation of the rule.

Cardozo stated the extreme case hypothetically in People v. Defore, 242 N.Y. 13, 21, 23-24, 150 N.E. 585, 587, 588 (1926):

“The criminal is to go free because the constable has blundered. . A room is searched against the law, and the body of a murdered man is found. . . . The privacy of the home has been infringed, and the murderer goes free.”

Mr. Chief Justice Burger commented upon Cardozo’s hypothetical horrible extreme while a Circuit Judge in Killough v. United States, 114 U.S.App.D.C. 305, 315 F.2d 241, 259 (1962) (dissenting):

“If indeed the evidence relating to the body of a homicide victim is to be excluded because of the manner of its discovery, we will have achieved the distinction of fulfilling Cardozo’s prophetic warning that, once adopted, the Suppression Doctrine might some day be carried to these ridiculous lengths. Cardozo did not really believe this could happen; he was indulging in a form of judicial hyperbole to make a point. It is inconceivable that judges would go to such lengths ignoring a reasonable balance between individual rights and protection of the public.”

Inasmuch as the majority opinion in Killough did not expressly pass upon the suppression of the body as “fruit of the poisonous tree” and remanded that case for a new trial, Mr. Chief Justice Burger in his dissent in Bivens v. Six Unknown Named Agents, 403 U.S. 388, 413, n. 3, 91 S.Ct. 1999, 2013, 29 L.Ed.2d 619 (1971) said that

“What Cardozo suggested as an example of the potentially far-reaching consequences of the suppression doctrine was almost realized in Killough. .” (emphasis added).

It has been fully realized for apparently the first time in the portion of the majority opinion which finds that the district court correctly decided that the affidavit was an insufficient foundation for the warrant and consequently suppressed the body of a murdered girl.

This case involved a particularly brutal murder of a 17-year old girl who “was a friend” of both a father and his son. The son, Joel Saiken, accused his father of the murder and the father, Samuel Saiken, accused the son. People v. Saiken, 49 Ill.2d 504, 275 N.E.2d 381, 383, 384 (1971). The body was found buried on the father’s farm in Indiana after the son told a police officer the specific place where he had buried it after his father admitted to him that he had killed the girl.

A search warrant for the body was issued by an Indiana Justice of the Peace, based upon a police officer’s affidavit, which in pertinent part recited that

“. . . by virtue of information voluntarily conveyed to him by one JOEL SAIKEN . . ., affiant has good reasons to believe, and does believe, that a dead human body, to-wit: a white, female approximately seventeen (17) years of age is secreted in and about the following real estate in Porter County, Indiana:
[Complete legal description of 20-acre farm]
said real estate being the property of Sam D. and Minnie Saiken, said dead body being secreted in the following place and manner, to-wit: [specifying location behind goose house].”

The body was found by the police, digging at the specified location.

The father was indicted for murder and conspiracy to obstruct justice. A jury returned a verdict of not guilty on the murder charge but found him guilty of obstructing justice. He was sentenced to a term of not less than two nor more than three years. The conviction was affirmed by the Supreme Court of Illinois in People v. Saiken, supra, which concluded at 275 N.E.2d at 386-387:

“In the case at bar, the informant, Joel Saiken, personally saw or perceived the facts asserted. He buried the body. A number of facts are recited as to the location of the body, The remaining question is whether there is a basis presented in the affidavit to suggest that the informant is honest in what he has said. The assertions of the informant — -that he buried and hid a dead body — constitutes an admission of his implication in a crime, which is sufficient to lend credence to what he has said. We believe there was substantial basis for crediting the hearsay information, and that the search warrant was properly issued upon the affidavit.”

However, the district court, in granting Samuel Saiken’s petition for habeas corpus, said in United States ex rel. Saiken v. Elrod, 350 F.Supp. 1156, 1158 (N.D.Ill.1972):

“It is apparent that the Justice of the Peace must have issued the search warrant because of knowledge or information which he obtained outside of the four corners of the document. Either he knew or was told or surmised that the informant was the defendant’s son and therefore may have been reliable. Also he must have known or surmised that the informant was involved in a crime and was making an admission against his interest in the affidavit. Further, he must have surmised that the informant had been on the scene when the body was buried or had received this information from a reliable source, such as his father. None of this appears from the face of the warrant, however, and therefore none of it can properly be considered in determining the reasonableness of the Justice of the Peace’s determination of probable cause.”

The majority opinion finds that the first prong of the Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) test (“the magistrate must be informed of . some of the underlying circumstances from which the informant concluded that the property sought was where the informant claimed it was”) was met:

“The informant supplied details about sex and age of the body, its location, and the description and owner- • ship of the farm. Assuming credibility of the informant, one could readily infer that he either was present at the burial or was relating a report which he had reason to believe was based on observation.”

But the majority finds that the second prong — “some of the underlying circumstances from which the officer concluded that the informant was credible or his information reliable” — is lacking in this case.

We must begin with the observations made in United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed. 2d 684 (1965):

“These decisions reflect the recognition that the Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlaw-yers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.”

Second, in United States v. Unger, 469 F.2d 1283, 1286-87, n. 4 (7th Cir. 1972), we emphasized the inherent reliability of an eyewitness, victim or “citizen” as opposed to the ordinarily criminally-oriented government informant.

The very fact that a person named Saiken was giving specific information about property owned by two people named Saiken leads to the strong inference that the informant was either an eyewitness, victim or citizen and not a professional informer inasmuch as it would be incredible that the similarity in names was a pure coincidence.

Third, the courts have had no difficulty whatever in finding an informer’s reliability when he or she is a relative of the person who is the target of the search warrant. Parker v. United States, 407 F.2d 540 (9th Cir. 1969); United States v. Brown, 455 F.2d 1201 (9th Cir. 1972). The similarity in names in the present case gives rise to the inference that the informant was related in some way (whether son, father, brother, cousin) to the target of the search warrant. Presumably the reliability of the informer here would have been fully established if Joel had been characterized as “son” or Samuel as “father.”

Finally, I would apply these principles in this case to avoid reaching the ultimate Cardozo horror of permitting a murderer or an obstructor of justice to go free because of a hyper-technical reading of the text within the four corners of a search warrant affidavit.

This case, much more so than the one in which the quotation was first used, “illustrates graphically the monstrous price we pay for the exclusionary rule in which we seem to have imprisoned ourselves.” Coolidge v. New Hampshire, 403 U.S. 443, 493, 91 S.Ct. 2022, 2051, 29 L.Ed.2d 564 (1971) (Mr, Chief Justice Burger dissenting). '

I would vacate the order granting the writ of habeas corpus.

      . There seems to be no question but that petitioner had exhausted his state remedy in this respect as well as the claim of invalidity of the warrant.

      . In Coolidge v. New Hampshire, 403 U.S. 443, 445, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), involving the “particularly brutal murder” of a 14-year old girl, sweepings taken from the defendant’s car were suppressed but the cause was remanded for a new trial and there was substantial evidence in addition to the sweepings.

      . Or a perpetrator or co-perpetrator, in which case an admission of crime carries its own indicia of credibility. United States v. Harris, 403 U.S. 573, 583, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971).


author: STEVENS, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Herbert OTT, Defendant-Appellant.
    No. 73-1251.
    United States Court of Appeals, Seventh Circuit.
    Argued Oct. 19, 1973.
    Decided Dec. 5, 1973.

      Allan A. Ackerman, Chicago, 111., for defendant-appellant.
    James R. Thompson, U. S. Atty., William T. Huyck, William J. Schilling, Asst. U. S. Attys., Chicago, 111., for plaintiff-appellee.
    Before KILEY and STEVENS, Circuit Judges, and WYZANSKI, Senior District Judge.

       Senior District Judge Charles Edward Wy-zanski, Jr., of the District of Massachusetts, is sitting by designation.

   STEVENS, Circuit Judge.

The principal question is whether a material misstatement to the trial judge is the kind of prosecutorial misconduct which requires reversal. Possibly because we are influenced by the prosecutor’s failure to acknowledge the error in his brief, or at the opening of oral argument, in this court, we conclude that it does. We also hold that defense counsel was entitled, during cross-examination of an important witness, to learn where and by whom the witness was employed.

Defendant was indicted for knowingly possessing checks stolen from the mail in violation of 18 U.S.C. § 1708. The trial judge directed a verdict of acquittal on one count; the jury found defendant guilty on the other three.

The principal witness on the issue of knowledge was a government informer named Moshis, who testified that he and one T. W. Allen had purchased checks from mailmen and resold them to the defendant to be negotiated. At the time of trial, Moshis was on parole. In order to prevent that fact from coming to the attention of his employer, the judge sustained objections to questions on cross-examination asking the witness for the name and address of his employer. The court also refused to permit the defendant to try to establish that T. W. Allen, as well as Moshis, was a government informer. In resisting that attempt, the government misled the trial judge.

The prosecutor stated:

“Your Honor, I think a basic fact that Mr. Ackerman is assuming is that Mr. Allen was an informer. If Mr. Allen was a Government informer at this time, a good question is why was he found guilty of the offense he was charged with. I will put on as many Government agents as I can that will say he was never an informant, he never was.” (Emphasis added.) Tr. 348.

Another case which we recently heard en banc involved the validity of a search warrant based on information about stolen checks provided to the government by T. W. Allen. In that case, the government represented that T. W. Allen was “a reliable informant, whose information in the past has led to the conviction of at least six people.” In response to questions from the court during oral argument of this appeal, government counsel acknowledged that the T. W. Allen who was relied upon as an informant in Carmichael is the same T. W. Allen whose status as an informant was vehemently denied in the court below.

We assume that the denial by the trial attorney was made in good faith in the sense that he did not know that his representation was factually erroneous. Nevertheless, when an unequivocal material representation of this kind is made to the trial judge for the purpose of persuading him to make a ruling favorable to the government, the prosecutor is charged with the knowledge of his associates. Whether the misstatement “was a result of negligence or design, it is the responsibility of the prosecutor. The prosecutor’s office is an entity and as such it is the spokesman for the Government.” Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 33 L.Ed.2d 104.

Moreover, this court is entitled to expect candor from attorneys representing the United States. Even though appellate counsel for the government knew that trial counsel had misled the trial judge in connection with a ruling challenged on appeal, no disclosure of that fact was made to the appellant or to this court prior to oral argument. Only after questions from the bench, which were prompted by familiarity with the record in the Carmichael case, did government counsel make the disclosure. At that time the acknowledgment was both forthright and unequivocal. Nevertheless, if silence would have served to perpetuate continued judicial reliance upon the prosecutor’s false statement, it is evident that the attorney for the sovereign would have been content.

A committee of The American Bar Association has set forth the relevant standard governing professional conduct: “Fraudulent, deceptive, or otherwise illegal conduct by a participant in a proceeding before a tribunal . is inconsistent with fair administration of justice, and it should never be participated in or condoned by lawyers.” Final Draft of the Proposed Code of Professional Responsibility, p. 107. The principle underlying such a rule is broad enough to encompass not only deceptive acts, but also deceptive omissions.

Though the prosecutors are no doubt familiar with Mr. Justice Sutherland’s classic statement of the obligation of the attorney for the sovereign in Berger v. United States, on occasions zeal for victory nevertheless supersedes the overriding obligation to govern impartially. to make it plain that the language of Berger conveys a message which must be heeded, not just admired, reversal is sometimes required.

Of course, every lack of professionalism will not require reversal. But the combination of factors presented by this record demands more than adverse comment. First, the misrepresentation was made not by an attorney for a private party but by the Assistant United States Attorney. Second, even assuming that the misrepresentation to the trial judge was the product of a misunderstanding by trial counsel, his factual assertion was unequivocal. Third, even though Allen’s true status was arguably collateral to the issue presented to the judge, both parties sought to influence the court in the exercise of its discretion by appealing to differing versions of that status. *Finally, and perhaps most troublesome, long after the pressures of the trial were past, notwithstanding admitted knowledge of the truth, an awareness of the argument advanced in this court by appellant, and with the benefit of the reflection that should attend the preparation of an appellate brief and oral argument, the prosecutor was content to allow us to appraise the issue on the basis of a false predicate.

Almost four decades ago a unanimous Supreme Court held that “the rudimentary demands of justice” were violated by “a deliberate deception of court and jury by the presentation of testimony known to be perjured.” Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 342, 79 L.Ed. 791. This principle encompasses the prosecutor’s failure to correct false testimony, even though unsolicited and even though it related only to the witness’s own credibility. In the case before us, we must regard as deliberate the prosecutor’s misstatement, his offer to produce inaccurate testimony, and his failure to correct his own misrepresentation. We need not decide whether such conduct violates the standards of constitutional due process; unquestionably, however, the principle underlying Berger and Mooney requires us to reverse this federal conviction and remand for a new trial.

We are also persuaded that the trial judge placed an improper limitation upon the cross-examination of the witness Moshis. Generally, the “extent to which cross-examination of a witness will be allowed rests in the sound judicial discretion of the trial court.” Rulings by the trial judge in the midst of the examination which, for example, prevent counsel from quibbling with the witness, or asking questions outside the scope of the direct examination, are respected upon appeal. But the latitude of the trial judge is more limited when ruling on foundation questions ordinarily asked at the outset of cross-examination.

In Smith v. Illinois, the Supreme Court held that it was constitutional error to sustain objections to defense counsel’s questions asking a witness for his name and where he lived, stating:

“The witness’ name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.” 390 U.S. 129, 131, 88 S.Ct. 748, 750, 19 L.Ed.2d 956.

The questions counsel propounded here were precisely of that character.

There are occasions, of course, when compelling reasons, such as concern for the safety of a witness, may justify curtailing even this preliminary inquiry. The trial judge has discretion to determine when such reasons exist. Given the necessity of permitting counsel to begin an adequate cross-examination, however, the scope of discretion is more limited at that point than after an adequate foundation has been established. For “when the credibility of a witness is in issue, the very starting point in ‘exposing falsehood and bringing out the truth’ through cross-examination must necessarily be to ask the witness who he is and where he lives.” Smith v. Illinois, supra, 390 U.S. at 131, 88 S.Ct. at 750.

In the present ease, when defense counsel sought to learn where the witness was employed, counsel for the government objected. The trial judge sustained the objection, on the ground that if the witness’ employer were to learn that the witness was on federal parole, the witness’ job might be endangered. We conclude that such a question, like asking a witness his name and address, was “an essential step in identifying the witness with his environment, to which cross-examination may always be directed.” Alford v. United States, supra, 282 U.S. at 693, 51 S.Ct. at 220. Although the trial judge’s motive was commendable, the reason expressed is not sufficiently compelling to override defendant’s right to conduct a meaningful cross-examination.

The judgment is reversed and the ease remanded for a new trial.

      . See United States v. Carmichael, 489 F.2d 983 (7th Cir., 1973). The affidavit presented to the magistrate in the Carmichael case did not identify Allen as the informant, but his identity was subsequently disclosed and is acknowledged by the government.

      . Professional responsibility, thus, extends even to requiring counsel to cite pertinent legal authority contrary to his position to the court. Id., at p. 82. The conduct of the United States Attorneys commended by Judge Friendly in United States v. Adams, 385 F.2d 548, 550 (2d Cir. 1967), is conduct which the court is entitled to expect from counsel who are engaged, with it, in administering justice. This is especially true if counsel is representing the United States.

      . “The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vig- or — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314.

      . Cf., United States v. Powers, 467 F.2d 1089, 1097-1098 (7th Cir. 1972) (dissenting opinion).

      . We are acutely aware of the cost to society of ordering reversal. The difficulty a court faces in having to apply Berger is illustrated by Judge Learned Hand’s comment in United States v. Lotsch: “Unhappily, it would accomplish little towards punishing the offender, and would upset the conviction of a plainly guilty man. No doubt such an impropriety may be grave enough to demand this extreme course: the Supreme Court found us too complaisant, for example, in Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314. It is hard to know where to draw the line; but the offense was far less flagrant here than in Berger’s case, and it, seems to us that a reversal would be an immoderate penalty.” 102 F.2d 35, 37 (2d Cir. 1939). In this case we conclude that reversal is not an immoderate, but rather is the required, penalty.

      . Defendant was endeavoring to establish the basis for an entrapment defense. We agree with the government that proof that Allen was an informant would not have been sufficient to demonstrate entrapment. That agreement, however, does not dispose of the problem. For if defendant had obtained a favorable ruling in connection with the dispute over Allen’s status, lie might have elected to testify and we have no way of evaluating the strength of the entrapment defense which might have been supported by that testimony buttressed by a correct description of Allen’s relationship to the government. We do not reach the question whether the evidence about T. W. Allen should have been received. That is a question for the trial judge to decide in the first instance. But that decision must not be influenced by affirmative misstatements on behalf of the government about the status of T. W. Allen. We cannot say that the government’s misstatements could not “have had an effect on the outcome of the trial.” Na-pue v. Illinois, 360 U.S. 264, 272, 79 S.Ct. 1173, 1179, 3 L.Ed.2d 1217.

      . This point was recognized in Justice Schaefer’s dissenting opinion in Napue v. People, 13 Ill.2d 566, 150 N.E.24 613, 616-618 (1958), and embraced by a unanimous Supreme Court in Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217.

      . “The staff lawyers in a prosecutor’s office have the burden of ‘letting the left hand know what the right hand is doing’ or has done. That [inconsistency between the actions of different prosecutors] was inadvertent does not lessen its impact.” Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427.

      . Beck v. United States, 298 F.2d 622, 629 (9th Cir. 1962).

      . The analysis offered by Mr. Justice Stone in Alford v. United States elucidates the purpose for the strict rule governing the commencement of cross-examination:
      “Counsel often cannot know in advance what pertinent facts may be elicited on cross-examination. For that reason it is necessarily exploratory; and the rule that the examiner must indicate the purpose of his inquiry does not, in general, apply. Knapp v. Wing, 72 Vt. 334, 340 [47 A. 1075]; Martin v. Elden, 32 Ohio St. 282, 289. It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop. Prejudice ensues from a denial of the opportunity to place th'e witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them. Tla-Koo-Yel-Lee v. United States, [167 U.S. 274, 17 S.Ct. 855, 42 L.Ed. 166] supra; King v. United States, supra; People v. Moore, 96 App.Div. 56, [89 N.Y.S. 83]; affirmed without opinion, 181 N.Y. 524, [73 N.E. 1129]; cf. People v. Becker, 210 N.Y. 274 [104 N.E. 396]. To say that prejudice can be established only by showing that the cross-examination, if pursued, would necessarily have brought out facts tending to discredit the testimony in chief, is to deny a substantial right hnd withdraw one of the safeguards essential to a fair trial. Nailor v. Williams, 8 Wall. 107, 109, [19 L.Ed. 348]; see People v. Stevenson, 103 Cal.App. 82 [284 P. 487, 491]; cf. Brasfield v. United States, 272 U.S. 448 [47 S.Ct. 135, 71 L.Ed. 345]. In this respect a summary denial of the right of cross-examination is distinguishable from the erroneous admission of harmless testimony. Nailor v. Williams, supra.
      “The present case, after the witness for the prosecution had testified to uncorroborated conversations of the defendant of a damaging character, was a proper one for searching cross-examination. The question ‘Where do you live?’ was not only an appropriate preliminary to the cross-examination of the witness, but on its face, without any such declaration of purpose as was made by counsel here, was an essential step in identifying the witness with his environment, to which cross-examination may always be directed. State v. Pugsley, 75 Iowa 742 [38 N.W. 498]; State v. Fong Loon, 29 Idaho 248, 255ff., [158 P. 233]; Wallace v. State, [41 Fla. 547, 26 So. 713] supra; Wilbur v. Flood, [16 Mich. 40] supra; 5 Jones Evidence (2d ed.) § 2366.” 282 U.S. 687, 692-693, 51 S.Ct. 218, 219, 75 L.Ed. 624.

      . Tr. 196.

      . Since the prosecutorial misconduct requires reversal, we need not decide whether the limitation on cross-examination was reversible error.

      . United States v. Crovedi, 467 F.2d 1032, 1034-1035 (7th Cir. 1972); see also Smith v. Illinois, supra, 390 U.S. at 133-134, 88 S. Ct. 748 (White, J., concurring); United States v. Smaldone, 484 F.2d 311, 318-319 (10th Cir. 1973).

      . See Pointer v. Texas, 380 U.S. [400], at 404, 85 S.Ct. 1065, 13 L.Ed.2d 923 (footnote is the Supreme Court’s).