text:
    UNITED STATES of America, Appellee, v. Joseph IACOPELLI, Appellant.
    No. 1042, Docket 73-1128.
    United States Court of Appeals, Second Circuit.
    Submitted July 16, 1973.
    Decided Aug. 8, 1973.

      John C. Dillon, Lynbrook, N. Y., for appellant.
    Paul D. Lazarus, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty. E. D. N. Y., and L. Kevin Sheridan, Asst. U. S. Atty.), for appellee.
    Before MOORE and OAKES, Circuit Judges, and GURFEIN, District Judge.

       Of the Southern District of New York, sitting by designation.

   PER CURIAM:

This appeal is from a conviction under 21 U.S.C. § 843(a)(3), making it unlawful for any person knowingly or intentionally to obtain possession of a “controlled substance” — here sodium secobar-bital — by misrepresentation or deception. It raises only two questions. The first is whether the defendant obtained any quantity of sodium secobarbital from the American Quinine Co. as charged in the indictment, and the second is whether the Government proved that he obtained that quantity by furnishing the Company with altered copies of the Bureau of Narcotics and Dangerous Drugs (BNDD) Form No. 222-C, as charged. We find against the appellant on both issues and accordingly affirm his conviction, which resulted in a term of imprisonment of one year and a day.

Appellant was a part-time pharmacist for and frequent visitor to Gateway Chemists, Ltd., in Patchogue, New York. By furnishing a prescription he obtained a BNDD Form No. 222-C from Milton Panzer, a licensed pharmacist and part owner of Gateway, for “12 x 100,” that is, 12 bottles of 100 capsules, of sodium secobarbital. Appellant told Panzer that the drug was for an elderly aunt who had been given a prescription for that amount.

A person identifying himself as Mr. Panzer had earlier telephoned Nat-Con Chemical Co., the parent company of American Quinine located at the same address. The purported Mr. Panzer had ordered ten bottles of 1,000 capsules of this particular “controlled substance” and had been informed by the Nat-Con sales administrator, Miss Whelan, that she would need the BNDD number. The caller subsequently supplied this information by phone to Miss Whelan and increased the order by two bottles, so that the sales order filled out by the sales administrator was altered to read “12 x 1000” instead of the original “10 x 1000.” The Government proved that in response to the order the traffic manager for the American Quinine Co., Wilson Alonso, removed a sealed box bearing a label with the words “secobarbital, sodium, USP,” with a control number and the figures “12 x 1000” stamped on the box. Mr. Alonso then marked the warehouse record book accordingly.

Later the same morning appellant arrived at the traffic manager’s office to pick, up the box, signed the sales order falsely “M. Panzer” and paid almost $90 for the capsules. He was given the sealed box by Alonso and then handed -the BNDD form to the traffic manager who put it aside without looking at it.

Subsequently appellant gave the real Mr. Panzer one bottle containing 1000 capsules of sodium secobarbital with the same control number as on the sealed box and told Panzer that he had saved out two bottles of 100 each for his aunt. A day or so later, however, Pharmacist Panzer checked the doctor in regard to the prescription which appellant had given him for his “aunt” and found the doctor to be a pediatrician who was apparently sticking to his specialty. Panzer then requested the return of the 200 capsules obtained for the “aunt.” These were brought by appellant in a plastic bag secured by a tie and, at appellant’s request, Panzer gave him back the prescription.

A few days later appellant, still masquerading as “Mr. Panzer,” met the vice president in charge of sales for American Quinine, Mr. O’Grady. Mr. O’Grady sold appellant 5,000 placebos and gave him a tour of the plant and American Quinine’s merchandise. On that same day the real Milton Panzer received an invoice from the American Quinine Co. reflecting the purchase six days before of the 12,000 secobarbital capsules. Appellant falsely claimed after being duly warned that he had delivered a sealed carton to Milton Panzer and denied any knowledge of 12,000 capsules, claiming he picked up only 1,200.

In the light of the foregoing evidence, appellant’s claim that the Government did not prove that the sealed box actually contained 12,000 capsules of sodium secobarbital is totally frivolous. Circumstantial evidence to prove the nature and quantity of the drug in question was sufficient. United States v. Bentvena, 319 F.2d 916, 927 (2d Cir.), cert. denied sub nom. Ormento v. United States, 375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.2d 271 (1963); United States v. Agueci, 310 F.2d 817, 828 (2d Cir. 1962), cert. denied, 372 U.S. 959, 83 S.Ct. 1013, 10 L.Ed.2d 11 (1963). The jury could infer the amount of the capsules delivered from the circumstantial evidence that appellant was the one who made the two phone calls resulting in an order for 12,000 capsules. Further, the sales order itself, the controlled drug book in the warehouse and the final invoice all reflected a transaction for 12,000 capsules. The box itself referred to “12 x 1000” capsules. Beyond this, the traffic manager noticed no discrepancy in the weight of the sealed box he delivered to appellant originally, as he testified he would have had any bottles been missing.

Much of the same evidence establishes circumstantially that appellant knew he was picking up sodium secobarbital and not some other substance, and that sodium secobarbital was in fact in the box appellant picked up. The telephone caller ordered sodium secobarbital; the records of American Quinine Co. all reflected a sodium secobarbital transaction; the label on the box given appellant denoted the box as containing sodium secobarbital; and appellant gave the real Mr. Panzer a sealed bottle containing many capsules with the label denoting the contents as sodium secobarbital and bearing the same control number as the control number on the sealed box. No showing was made of any departure from American Quinine’s normal course of operations in filling orders that might lead one to suspect sodium seco-barbital was not in the carton appellant picked up. The Government “need not exclude every remote possibility of innocence before its case warrants submission to the jury.” United States v. Agueci, supra, 310 F.2d at 830.

Similarly appellant’s point that he obtained delivery of the sealed box from Mr. Alonso without being requested to furnish him with the BNDD form which he subsequently handed Alonso borders on the frivolous. The original order would never have been completed by Miss Whelan without the BNDD number being given to her as sales administrator of Nat-Con. While to be sure there is no direct proof that appellant was the person who placed the telephone orders for the merchandise, the circumstantial evidence that he was the caller was very strong indeed in view of the fact that he subsequently falsely masqueraded as Mr. Panzer and previously had lied to Mr. Panzer relative to his aunt’s prescription. In addition to the telephone caller’s having furnished the Nat-Con sales administrator with the BNDD number, there was evidence from the traffic manager that he delivered drugs by hand only when the front office had properly identified the caller. So far as the trial disclosed, the only document that appellant possessed which would identify him as “Mr. Panzer” was'the BNDD form which he had obtained from the real Mr. Panzer. We think that while the inference is on the speculative side, it nevertheless is justifiable that at the front office appellant presented this document to identify himself and thereby get through to the shipping department and Mr. Alonso. This is not a case, then, where it is necessary to determine whether there was an amendment to the indictment, see Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), for the jury could find that employees of American Quinine did in fact rely to some extent on the altered BNDD form in selling the sodium secobarbital capsules to appellant as originally charged.

Judgment affirmed.


source: Caselaw Access Project

author: TRASK, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Rigoberto SALCIDO-MEDINA, Defendant-Appellant.
    No. 72-3203.
    United States Court of Appeals, Ninth Circuit.
    Aug. 6, 1973.
    Certiorari Denied Dec. 3, 1973.
    See 94 S.Ct 582.

      Robert W. Ripley, Jr. (argued), Federal Defender, San Diego, Cal., for defendant-appellant.
    Donald F. Shanahan, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., Stephen G. Nelson, Michael E. Quinton, Asst. U. S. Attys., San Diego, Cal., for plaintiff-appellee.
    Before DUNIWAY and TRASK, Circuit Judges, and LUCAS, District Judge.

       Honorable Malcolm M. Lucas, United States District Judge for tlie Central District of California, sitting by designation.

   TRASK, Circuit Judge:

This is an appeal from a judgment of conviction entered against Rigoberto Salcido-Medina following a jury trial for violation of 18 U.S.C. § 371 and 8 U.S.C. § 1324, conspiracy to bring in and harbor aliens. At the time of conviction, appellant was seventeen years of age and was found suitable for handling under the Federal Youth Corrections Act. Imposition of sentence was suspended and pursuant to 18 U.S.C. § 5010(a) appellant was placed on probation for three years.

On August 26, 1972, at approximately 9:30 p.m., appellant drove a 1954 Cadillac into the United States from Mexico at the Tecate port of entry. He parked his car near the entry and raised the hood of his car. A few minutes later, Arcenio Ontiverso drove a 1966 Buick through the Tecate entry, drove around in the parking lot where appellant had stopped and appeared to signal appellant to follow. Appellant did follow and both vehicles proceeded toward an area known as Little Tecate.

Agent Button, who had observed both cars enter the United States, radioed agent Kitchens to watch for the two cars. After approximately 15 to 20 minutes, Kitchens saw both cars come onto Highway 94 from Tecate Road, and shortly thereafter he stopped the Cadillac. At that time, Ontiverso was driving this car and appellant was a passenger. In response to a call from Kitchens, agent Button proceeded west on Highway 94 where he caught the 1966 Buick, driven now by Raul Renteria. This vehicle held five other males, all Mexican nationals illegally in the United States.

Testimony of some of the Mexican nationals established that appellant was seen in Tijuana with co-defendant On-tiverso, that one Mexican, Jesus Abran, had made a phone call to a girl friend about a $300 payment for transportation, and that the appellant had accompanied Abran while the phone call was made, and had spoken to the girl for assurances that payment would be available. Appellant allegedly accompanied Abran at the direction of Ontiverso.

On September 11, 1972, appellant advised the trial court that he was seventeen, that he wished to proceed as a juvenile delinquent, under the provisions of the Federal Juvenile Delinquency Act, 18 U.S.C. § 5033 (F.J.D.A.), but that he did not wish to waive his right to a jury trial. The appellant was informed that he was not entitled to a jury trial if he elected to proceed under an information as a juvenile delinquent; appellant thereupon elected to proceed to a trial by jury on the criminal indictment, because he did not want to waive his jury trial.

At the outset, the government has raised the issue of the standing of appellant Medina to challenge the constitutionality of the F.J.D.A. It points out that in United States v. James, 464 F.2d 1228 (9th Cir. 1972), the juvenile elected to accept the advantages of F.J.D.A. and thereby was foreclosed by its terms from her constitutional right to a jury trial. Her election, she unsuccessfully argued, compelled her to accept an unconstitutional condition, a waiver of a jury trial. In Medina, per contra, the election was to accept the constitutional right to a jury trial. Because the F.J. D.A. was not invoked here, the government contends that its provisions, conditions and limitations are not before the court at all and were not before the trial court. Therefore, argues the government, there is no standing to consider it. We do not view the question of standing here so narrowly. The alternatives granted create a package. By choice of one, the other must be foregone. Each is one which has been provided for the protection and well being of a citizen. The right to a jury trial is a right guaranteed by the constitution. The rights under F.J.D.A. were granted by Congress in an attempt to benefit and protect the juvenile. Whether the question is raised by a defendant by choice of either, that choice would carry with it the elements of a case or controversy within the framework of Article III of the Constitution. The litigant has the personal stake and interest that imparts concrete adverseness as required by that provision. Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970); Association of Data Processing Service Organizations, Inc., v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970).

Having raised the issue of the constitutionality of section 5033 of the Act, however, that issue must be decided against him. United States v. James, 464 F.2d 1228 (9th Cir. 1972); Cotton v. United States, 446 F.2d 107 (8th Cir. 1971). Preferential and protective treatment of juveniles charged with crime has been a concern of both the Congress and the various states. This court has specifically decided that the Act of Congress in question here is not constitutionally impermissible. United States v. James, supra. It is not intended to be a criminal trial and no jury is required to be provided. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971).

The second point urged by appellant is the alleged error of the court in refusing to give the “stake in the venture” instruction. The instruction was a lengthy one, the last sentence of which told the jurors,

“Each defendant must in some sense promote their venture himself, make it his own, have a stake in its outcome.” C.T. at 38.

The sentence is part of a considerable discussion of the law of conspiracy by Judge Learned Hand in United States v. Falcone, 109 F.2d 579, 581 (2nd Cir. 1940). In affirming, the Supreme Court did not mention the language quoted. United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940). The phrase “stake in the venture” appears again in Direct Sales Co. v. United States, 319 U.S. 703, 63 S.Ct. 1265, 87 L.Ed. 1674 (1943). Again in discussing the elements of conspiracy the Court comments, with reference to the particular facts there,

“And there is also a ‘stake in the venture’ which, even if it may not be essential, is not irrelevant to the question of conspiracy.” 319 U.S. at 713, 63 S.Ct. at 1270.

We have been cited to no case which states that the language is essential to a proper instruction on conspiracy. An examination of the entire instruction given by the court here discloses that the elements of the offense were properly defined and no error of omission has been detected.

The judgment is affirmed.

      . The Federal Juvenile Delinquency Act, June 25, 1948, 62 Stat. 857, 18 U.S.C. §§ 5031-5037, is an act which accords a person who has not reached eighteen years of age, special treatment when in violation of a law of the United States. The juvenile must consent to be proceeded against under the Act and if consent is given, no criminal prosecution shall be instituted for the alleged violation and the consent shall be deemed a waiver of a trial by jury. See United States v. James, 464 F.2d 1228 (9th Cir. 1972).

      . Factually, this is not the case. At the hearing on jury trial setting on September 11, 1972, defendant’s counsel called to the attention of the trial judge, the defendant’s minority and made a request that he be given the advantages of the F.J.D.A. Said defendant’s counsel:
      “Mr. Ripley: Also I would ask that, in this particular incident, since the boy is seventeen and does not have a prior record, perhaps the courts could go along with letting the boy go via a juvenile delinquency complaint and also letting him have a jury trial. . . .” R.T. at 4.
      The court thereupon directed defendant’s counsel to explain to the defendant in open court the relative merits of each course of action and asked the defendant personally what choice he would make. He chose the jury trial. R.T. at 8.


author: DUNIWAY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Peter ERLENBORN, Defendant-Appellant.
    No. 73-1307.
    United States Court of Appeals, Ninth Circuit.
    July 13, 1973.

      George S. L. Dunlop (argued), San Francisco, Cal., for defendant-appellant.
    F. Steele Langford, Asst. U. S. Atty. (argued), James L. Browning, Jr., U. S. Atty., Paul J. Fitzpatrick, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee.
   OPINION

Before DUNIWAY and WRIGHT, Circuit Judges, and SMITH , District Judge.

DUNIWAY, Circuit Judge:

On November 13, 1972, Erlenborn pled guilty to a charge of possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). On December 22, 1972, the date set for sentencing, Erlenborn moved in open court under Rule 32(d) F.R. Crim.P. to withdraw his guilty plea, and for an evidentiary hearing on the motion. The court denied these motions, and sentenced Erlenborn. He appeals and we affirm.

Erlenborn’s attorney at the time of the November 13 hearing-was a Mr. Shapiro. He informed the court that Erlen-born wished to plead guilty to the charge of possession with intent to distribute, and that the government was to move the court to dismiss a misdemeanor count in the indictment (possession of a controlled substance, in violation of 21 U.S. C. § 844(a)), and would not seek to have Erlenborn indicted for filing a false passport application. The court questioned Erlenborn concerning his plea. However, when Erlenborn was asked whether he was pleading guilty because he was in fact guilty, he replied, “No, I’m not pleading guilty because of that. I’m pleading guilty because of extraneous circumstances.” The court pursued the matter, pointing out that the plea would not be accepted unless the court was convinced that Erlenborn was guilty. While not maintaining that he was not guilty, Erlenborn repeatedly refused to give a straightforward answer to the question whether he was in fact guilty. He stated only that he wanted to plead guilty. When the court asked him “Do you feel that you’re being coerced in this regard?,” he responded “I’m being coerced by virtue of the facts of the case and the evidence that would be brought up in a criminal proceeding.” The court refused to accept the plea, and suggested that at the noon recess Erlenborn and his attorney could discuss the question further.

At the afternoon session Erlenborn told the court in definite terms of his involvement in the illegal activity. In narrative form, here is what he said:

“Well, the basis of the facts are that my house was indeed used for a transaction, that certain people did come there to do a transaction concerning marijuana in hashish form, and that I was aware of the fact that these people were coming, and I was aware of the fact what they were going to do. I was going to receive money out of the transaction. I knew that this was illegal to do and that possession and distribution of marijuana in hashish form is against the law. I knew that my house was being used, and that I would have received money by this illegal transaction. I was not intoxicated at the time nor under the form [sic — influence?] of any narcotics myself or being coerced by anyone. I did it freely and voluntarily and of my own free will for the purpose of monetary reward; I would say it extends beyond that, but for the record, I think that suffices; I was going to make money out of the transaction.”

The court then continued to question Er-lenborn, until it was satisfied that the plea was voluntarily and knowingly made and that there was a factual basis for it.

On December 22, 1972, the date set for sentencing, Erlenborn had a new attorney, Mr. Dunlop. In the interim, one of

Erlenborn’s co-defendants in the indictment, Wolfe, had been acquitted by a jury of violating 21 U.S.C. § 841(a)(1).

1. Rule 11.

Erlenborn’s contention that the court did not comply with Rule 11 is without merit. He concedes that the inquiries of the court at the afternoon session on November 13 reflect compliance with Rule 11, but argues that, when the afternoon session is viewed in the light of what took place during the morning session, it should be clear that Rule 11 was not complied with. The theory is that Erlenborn’s hesitancy during the morning session to tell the facts concerning his involvement in the crime in some manner vitiated the voluntary knowing quality of the plea, or its factual basis. We cannot accept this theory. Erlenborn’s responses to the court’s questioning during the morning session reflected the fact that his plea of guilty was induced in part by the plea bargain and in part by the facts that made him guilty. Nothing that he said during the afternoon was inconsistent with any statement of his or of his attorney that was made during the morning session.

Compare United States v. Landry, 9 Cir., 1972, 463 F.2d 253. In Landry the guilty plea was accepted despite initial equivocation by the defendant (which caused the court to recess the proceedings) in responding to the court’s Rule 11 in questioning. This court reversed because the defendant did not acknowledge, as Erlenbom did, and the record did not reveal, that the defendant understood the elements of the crime. See Maxwell v. United States, 9 Cir., 1966, 368 F.2d 735 (trial court refused to accept guilty plea because defendant stated he had been drinking and had no recollection of committing the crime) and United States v. Pineda-Espinoza, 9 Cir., 1972, 455 F.2d 498 (Ely, J., concurring) (tendered guilty plea refused because defendant denied knowledge that packages he possessed contained heroin; if record had disclosed plea was induced by plea bargain, acceptance of plea might have been appropriate even so). See also North Carolina v. Alford, 1970, 400 U.S. 25, 35-37, 91 S.Ct. 160, 27 L.Ed.2d 162.

2. Denial of a hearing.

Erlenbom argues that he was improperly denied a hearing on his motion to withdraw his guilty plea. If there existed factual matters truly in controversy and bearing directly on the plea, and not resolved in the Rule 11 colloquy, we would be disposed to remand for an evidentiary hearing. See United States v. Joslin, 1970, 140 U.S.App.D.C. 252, 434 F.2d 526, 531; Zaffarano v. United States, 9 Cir., 1962, 306 F.2d 707, 710. Cf. Sherman v. United States, 9 Cir., 1967, 383 F.2d 837. However, in this case we cannot say that a hearing was necessary.

In his affidavit and Motion to Withdraw Plea of Guilty Erlenbom made a number of allegations: 1) that his plea was made without full understanding of the offense and possible punishment; 2) that his attorney, Shapiro, did not effectively assist him; 3) that Shapiro during the noon recess on November 13 “pressured” him into answering the court’s inquiry as to the factual basis for the plea; and 4) that he is innocent of the charges to which he pled guilty.

In all significant respects, these allegations were answered during the proceedings of November 13 and December 22. See Sherman v. United States, supra. Indeed, it was because of Erlenborn’s initial hesitancy to discuss the factual basis underlying his plea that the court, hoping to resolve such problem, engaged in rather extensive colloquies with Erlenbom and his attorneys.

Erlenborn’s first claim, that his plea was made without full understanding of the offense and possible punishment, is directly belied by the record. These matters were fully explained to him and he told the court that he understood them.

His second claim is likewise belied by the record, which reveals that the court made sufficient inquiry as to the quality of assistance rendered Erlenborn by Shapiro, and Erlenborn’s satisfaction with it.

Erlenborn’s third claim, that he was “pressured” by his attorney during the noon recess on November 13 into spelling out to the court the facts of his involvement in the crime is also contradicted by the record. At the beginning of the afternoon session on November 13, Shapiro told the court what had occurred during the afternoon recess:

“MR. SHAPIRO: * * *
I explained to Mr. Erlenborn that as I understood his situation with respect to Count 2, that the facts in which he was involved would bring him within the ambit of guilty according to Count 2, and that if you want the words from Mr. Erlenborn, he would tell you the facts underlying his plea to Count 2.
He was confused when you asked him for the facts as to the plea, not realizing that the facts that you were discussing with him was [sic] relegated to Count 2 and what his culpability was, insofar as Count 2 is concerned.
* * -x-
On that basis, I advised him that he was in fact within the ambit of that section and that his plea would be based upon those facts.”

Further, the court’s observation of Er-lenborn convinced it that his statements were freely and knowingly given:

“Mr. Erlenborn certainly was not shaken. He was certainly not disturbed. I watched his demeanor here and watched his- stance, and what have you, and he spoke to me very clearly and intelligently. It is the Court’s opinion that he knew exactly what he was doing.”

Erlenborn’s fourth claim, that he is innocent of the charges to which he pled guilty, is mere assertion. He does not retract the statements that he made on the afternoon of November 13 concerning his involvement in the crime.

It was not error for the district court to deny the motion for a hearing. In cases where a motion to withdraw a guilty plea is made, as here, before sentencing, the motion should be granted “if for any reason the granting of the privilege seems fair and just.” Kercheval v. United States, 1927, 274 U.S. 220, 224, 47 S.Ct. 582, 583, 71 L.Ed. 1009. Generally speaking, a motion made before sentencing should be freely allowed. Kadwell v. United States, 9 Cir., 1963, 315 F.2d 667, 670. However, this is a matter within the discretion of the trial court, and we will not disturb the trial court’s ruling denying such motion unless an abuse of discretion has been shown. United States v. Youpee, 9 Cir., 1969, 419 F.2d 1340; Sherman v. United States, supra; Zaffarano v. United States, 9 Cir., 1964, 330 F.2d 114, cert. denied, 379 U.S. 825, 85 S.Ct. 52, 13 L.Ed.2d 35. We cannot, in the circumstances of this case say that the court abused its discretion in denying the motion. We find nothing in the decision in Fontaine v. United States, 1973, 411 U.S. 213, 93 S.Ct. 1461, 36 L.Ed.2d 169, that indicates that an evidentiary type hearing was required in this case. In that case, the factual allegations made by Fontaine had not been considered at all in the Rule 11 hearing. Rather, this is a case in which to apply the “generalization” approved by the Court in Fontaine, “that when a defendant expressly represents in open court . . . that his plea is voluntary . he ‘may not ordinarily’ repudiate his statements to the sentencing judge.”

We do not rely on the government’s argument that Erlenbom’s waiting until his co-defendant, Wolfe, had been acquitted before Erlenborn sought to withdraw the plea prejudiced the government. It does seem pretty clear, however, that it is Wolfe’s acquittal, not the four reasons stated in Erlenborn’s motion, that caused him to change his mind. In short, he appears to have been playing games with the court.

Affirmed.

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


author:
GIBSON, Circuit Judge.
      LAY, Circuit Judge

text:
    Gerald Robert SHERIDAN, Appellant, v. UNITED STATES of America, Appellee.
    No. 72-1725.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 26, 1973.
    Decided Aug. 10, 1973.
    Certiorari Denied Dec. 3, 1973.
    See 94 S.Ct. 594.
    John S. Connolly, St. Paul, Minn., for appellant.
    John F. Lee, Asst. U. S. Atty., Minneapolis, Minn., for appellee.

      Before GIBSON, LAY and STEPHENSON, Circuit Judges.
   GIBSON, Circuit Judge.

In a trial to the court without a jury Gerald Robert Sheridan was convicted of failure to report for and submit to induction into the Armed Forces of the United States in violation of Title 50 U. S.C. App. § 462. He received a two-year sentence, with 18 months thereof suspended. A timely appeal followed.

Sheridan registered with Local Board No. 105 in Duluth, Minnesota, on March 28, 1969, and received a I-S-H classification at that time as he was still in high school. On June 21, 1969, he was classified I-A and was sent the usual notice of classification and notice of his right to a personal appearance and appeal. He took no appeal at that time. On June 30, 1969, he submitted a current information questionnaire in which he indicated that he would be at Creighton University, Omaha, Nebraska for the fall 1969 school year. On July 23, 1969, he wrote to the board and indicated that he did not believe that his I-A classification was correct, that he was entitled to a student deferment. He requested a personal appearance, “unless this can be cleared up through the mail.” The local board sent him SS Form 104, which is used to request a student deferment, requested him to submit it to the board “when [he became] a full-time student,” and told him that the college should forward SS Form 109. Neither of these forms was returned to the board.

However, on October 13, 1969, the board received a card from Creighton University, signed by Sheridan, advising the board that Sheridan was enrolled as a full-time student and that he might expect to graduate in June 1973. His file remained dormant for one year. In October 1970, he was ordered to and did report for a physical examination. He was found medically acceptable for induction. On November 30, 1970, the board received a student certificate from the college of St. Scholastica, Duluth, Minnesota. Sheridan also filed at that time the SS Form 104 seeking a student deferment. In the form he indicated that he was asked not to return to Creighton because of his poor scholastic performance and that he had earned only nine credits toward his ultimate graduation during the preceding year; 180 credits were required for graduation in the program he was taking.

On December 21, 1970, the board advised Sheridan that it had reviewed his file and determined that there was no justification for changing his classification from I-A. On January 28, 1971, he was ordered for induction. This induction date was postponed until March 30, 1971, at which time he refused induction.

Sheridan contends that he was denied due process in the board’s refusal to grant him a student deferment in December 1970.

The statutory authority for the granting of student deferments during the period at issue is set forth in Title 50 U. S.C. App. § 456(h)(1). Pursuant to the authority and mandate of this section the Selective Service adopted, and had in effect during the period of time when Sheridan’s request for deferment was considered, a regulation pertaining to student deferments. 32 C.F.R. § 1622.25.

It is the responsibility of the registrant to request a student deferment, 32 C.F.R. § 1622.25(a), and to submit evidence that he is entitled to such a deferment. 32 C.F.R. § 1622.-25(d); United States v. Wilbur, 427 F. 2d 947, 949 (9th Cir.), cert. denied, 400 U.S. 945, 91 S.Ct. 250, 27 L.Ed.2d 250 (1970). We need not decide, however, whether the unofficial notification by the college, even though signed by Sheridan, was sufficient to request the student deferment as the District Court held that, even if the reclassification were required at the time the local board received the card in 1969, the board’s failure to reclassify in 1969 furnished no defense to the offense charged.

The District Court thus, in effect, treated Sheridan as having a de facto II-S classification for the 1969 school year, which classification was subsequently lost by his poor scholastic performance. The question we here consider is whether or not the board’s failure to classify Sheridan II-S in 1969 could furnish him a defense to the 1971 induction order and subsequent prosecution.

The actual effect of the board’s failure to properly classify Sheridan in 1969 was that the board did not have to reclassify him I-A in 1970 when he was no longer eligible for the student deferment. This had the effect of denying Sheridan a personal appearance and an appeal from the reclassification.

It is clear that Sheridan was not entitled to a student deferment at the time he applied for it in December 1970. The statute provided for a deferment only for those students who were then “satisfactorily pursuing a full-time course of instruction.” 50 U.S.C. App. § 546(h) (1). The regulation previously quoted provides that in order to be satisfactorily pursuing a course of study the student must have completed a proportional number of credits during the prior 12-month period (academic year) to complete his degree within the normal period of time. Normally, for a four-year program, a registrant would be expected to earn 25 per cent of his credits during the first year; Sheridan had earned only 5 per cent.

Even though we assume that the board improperly failed to grant Sheridan a deferment during his first year of college (as was argued at the trial) based only on the card which Creighton University sent to the board, he was not entitled to have the deferment continued during his second year as his “pursuit” was no longer satisfactory. This Court has previously determined that procedural errors which do not result in “substantial prejudice” are no defense to an otherwise lawful induction order. United States v. Chaudron, 425 F.2d 605, 608 (8th Cir.), cert. denied, 400 U.S. 852, 91 S.Ct. 93, 27 L.Ed.2d 89 (1970). Like the trial court, we cannot see how the board’s failure to classify Sheridan II-S for the 1969-70 school year could have resulted in prejudice. He was not ordered for induction during the academic year for which such a deferment would have been effective. During the year of his induction he applied for the deferment and his application was considered by the board. Had he possessed, during the prior school year, a student deferment, he would have lost it for failure to satisfactorily pursue his course of instruction. United States v. Rundle, 413 F.2d 329 (8th Cir. 1969), the only authority cited by Sheridan, is distinguishable from the instant ease. That opinion shows that Rundle’s selective service file reflected a series of changes in classification from I-A to II-S and back throughout Rundle’s academic career, apparently due to Rundle’s failure to pay his college fees»when due. At the time the induction notice was sent, May 5, 1967, Rundle was classified I-A. Immediately thereafter the board received a notice from the college that he was a full-time student. Rundle refused induction and was prosecuted and convicted of the draft offense, based on the May 5, 1967 order for induction.

A majority in Rundle viewed its facts as presenting a mandatory reopening situation and, since a reopening would have automatically required the cancellation of the induction order upon which the prosecution was based, 32 C.F.R. § 1625.14, found prejudice. In the instant case no mandatory reopening situation existed that would have required the cancellation of any outstanding orders for induction pursuant to the regulations. 32 C.F.R. § 1625.14. Here, the registrant did not present facts concerning his satisfactory pursuit of his course of instruction that would have justified a change in the registrant’s classification. 32 C.F.R. § 1625.2. The board, therefore, properly refused to reopen the registrant’s classification. 32 C.F.R. § 1625.4.

The cases discussed by the dissent present factual situations where the registrant presented a prima facie entitlement to the board. We do not view these as analogous to the instant case because of the undisputed evidence in this case that the defendant was no longer entitled to the deferment. In Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970), the leading case where the defendant had made a prima facie showing but was denied a reopening by the board, the Court recognized that the classification need not be reopened if the truth of the new allegations, establishing the prima facie case, was “conclusively refuted by other reliable information in the registrant’s file.” Mulloy v. United States, supra at 416, 90 S.Ct. at 1771. Here no prima facie case was made. No refutation was even required. The registrant’s own application on its face shows he did not qualify for a II-S for the 1970 school year. Under these circumstances the registrant would not be entitled to the procedural rights of a personal appearance and an appeal.

Many of the other cases cited in the dissent involved the situation present in United States v. Pickett, 460 F.2d 1255 (8th Cir. 1972). In those cases, all occurring after the Selective Service had ceased to defer graduate students, the registrants had received notices of induction while enrolled in school. The courts held that they were entitled to a I-S deferment until the end of the school year as provided by statute. The boards, however, only postponed their induction until the end of the school year. First, the prima facie showing that they were entitled to a deferment was sufficient to trigger the requirement that their files be reopened, and thus have all outstanding orders of induction canceled. This in itself would have been sufficient to prevent any prosecution on the void orders. The courts went on to hold that while the registrants were under the induction notices they were prevented from seeking any other form of deferment, such as conscientious objector or occupational deferments, and this sufficed to show prejudice in the procedure followed by the boards. Unlike the registrants in those cases, however, Sheridan was not under induction orders during the period following the board’s procedural error, if it can thus be characterized. Sheridan was retained in a I-A classification, but received no notices of induction during his first year of college at Creighton, or until five weeks after the board refused to change his classification on December 21,1970.

The board’s procedure did not prejudice the presentation of his conscientious objector claim. Sheridan could have presented this claim at any time prior to the induction notice. He further had time to present his claim subsequent to the board’s action in December and prior to his induction notice of January 28. He did not even request SS Form 150 until after receipt of the induction notice, indicating that his was a late maturing claim which would not have been presented at a hearing in December.

Sheridan asks this Court to hold that he had established a prima facie case which would warrant the reopening of his classification on the showing that it was still possible for him to graduate by the end of his fourth year without regard to the number of credits which he earned in the first year. To do so would be to disregard the statutory scheme established by Congress which authorized the Executive Branch to determine what would constitute satisfactory pursuit of a course of study. In determining eligibility for a continuing deferment for university or college attendance, a check of the past year’s performance of a student at that university is a reasonable guide to determine his progress. When he fails to meet the schedule of credits required by the regulations, his basis for scholastic deferment vanishes.

In conclusion, we think the dissent’s reference to the board’s action in not classifying Sheridan II-S during the 1969 school year as “callous” merits discussion. Sheridan informed the board during the summer of 1969 that he intended to enroll at Creighton for his collegiate studies. He received from the board its SS Form 104, which he was instructed to complete after enrolling in college, and SS Form 109, which Creighton was required to complete and forward. Sheridan could not be placed in II-S until he actually commenced his course of instruction. Had he then used the proper forms that had been previously sent to him, the board undoubtedly would have placed him in II-S for that school year. He carried the burden of making a proper request and demonstrating to the board his entitlement to the scholastic deferment. United States v. Wilbur, supra. This he did not do, but Creighton itself sent a facsimile type form, signed by Sheridan, showing his enrollment. We are not overly concerned on matters of form and would probably hold that Creighton’s form was sufficient notification, if properly brought to the attention of the board. Although this form was placed in Sheridan’s file, it was not recognized by the board’s clerical personnel as the normally-used form to request a II-S deferment. The clerical personnel failed to realize the significance of Creighton’s facsimile form. This miscue does not demonstrate a callous disregard of the registrant’s rights. The District Court recognized and treated the registrant as having a de facto deferment for the 1969 school year. If his induction order had been issued in that school year, he would have been prejudiced by the failure of the board not to recognize the significance of the Creighton form, and we would hold that any induction order issued during that year was invalid.

However, it was incumbent upon Sheridan, in order to maintain a II-S deferment from year to year, to provide the board with information showing a satisfactory pursuit of a full-time course of instruction during the prior year. This he did not do on the basis of his record at Creighton, and, therefore, he was not entitled to a deferment for the 1970-71 school year. Since clearly under the regulations Sheridan had not satisfactorily pursued a course of instruction during the prior year, the board properly refused his request of November 30, 1970, for a II-S deferment. Under these facts, he was not prejudiced. Even at this stage, Sheridan could have applied for a C-0 classification. He, however, waited until after the induction order was issued on January 28, 1971, to apply for a C-0 classification.

We think his induction order at that time was valid. When he refused to be inducted, another person had to be called in his place. We fail to see how he was ill treated. He alone made his decision not to be inducted and to suffer the consequences. If it be the law that every procedural action or step taken by a board must be perfect in all respects in order to issue a valid order of induction, then any error gives rise to a defense against an induction order. However, not every defect in processing a registrant’s file should be a defense to an induction order. A registrant who has received substantially fair consideration of his claim and has been given the opportunity to receive deferments accorded under the law to those in like situations should be amenable to the induction laws. Whether or not he chooses to respond to the obligations of that law is a matter for his own decision.

The judgment is affirmed.

LAY, Circuit Judge

(dissenting).

I would reverse.

In the host of selective service cases which have been passed upon by the courts in recent years, this becomes the only decision which holds that a local draft board may justify by subsequent events postponement of a registrant’s induction in lieu of granting him his rightful statutory deferment. The concomitant denial of due process flowing from the registrant’s loss of his right to a personal appearance and an administrative appeal not only is contrary to the law of this circuit but the law everywhere else. See, e. g., United States v. Rundle, 413 F.2d 329, 332-334 (8 Cir. 1969); Davis v. United States, 410 F.2d 89, 95-96 (8 Cir. 1969); United States ex rel. Vacca v. Commanding Officer, Ft. Hamilton, 446 F.2d 1079, 1083 (2 Cir. 1971); United States v. Feldman, 437 F.2d 888, 889 (9 Cir. 1971); United States v. Zablen, 436 F.2d 1075 (9 Cir. 1971); Magaro v. Cassidy, 426 F.2d 137, 141-142 (5 Cir. 1970); Nestor v. Hershey, 138 U.S.App.D.C. 73, 425 F.2d 504, 523-526 (1969); United States v. Turner, 421 F.2d 1251, 1252-1253, 1256 (3 Cir. 1970); United States v. Freeman, 388 F.2d 246, 249-250 (7 Cir. 1967), rehearing denied en banc (1968); Miller v. United States, 338 F.2d 973, 976-977 (9 Cir. 1967); Stain v. United States, 235 F.2d 339, 343 (9 Cir. 1956); Olvera v. United States, 223 F.2d 880, 883-884 (5 Cir. 1955), overruled on other grounds, Robertson v. United States, 404 F.2d 1141 (5 Cir. 1968), reversed on other grounds, 417 F.2d 440 (5 Cir. 1969); United States v. Vincelli, 215 F.2d 210, 213 (2 Cir. 1954), rehearing denied 216 F.2d 681; United States ex rel. Berman v. Craig, 207 F.2d 888, 890-892 (3 Cir. 1953); United States ex rel. Mulford v. Commanding Officer, 338 F.Supp. 1120, 1124 (E.D.N.Y.1971); Waguespack v. Tarr, 317 F.Supp. 448, 451-452 (E.D.La.1970); Weppler v. Hershey, 308 F.Supp. 447, 448-449 (N. D.Ill.1969); Williams v. Hershey, 307 F.Supp. 409, 411-412 (W.D.Wis.1969); Turley v. Selective Service System, Local Board No. 134, 301 F.Supp. 845, 853-854 (C.D.Cal.1969). Cf. Mulloy v. United States, 398 U.S. 410, 416-418, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970) ; Simmons v. United States, 348 U.S. 397, 75 S.Ct. 397, 99 L.Ed. 453 (1955); United States v. Bender, 469 F.2d 235, 239 n. 5 (8 Cir. 1972); United States v. Pickett, 460 F. 2d 1255 (8 Cir. 1972); McLain v. Selective Service Local Board No. 47, 439 F. 2d 737, 739 n. 3 (8 Cir. 1971); United States v. Kelly, 473 F.2d 1225, 1227-1228 (9 Cir. 1973); United States v. Fry, 203 F.2d 638 (2 Cir. 1953); United States v. Schmidt, 313 F.Supp. 456, 460 n. 2 (D.Minn.1970); United States v. Walsh, 279 F.Supp. 115, 121 (D.Mass. 1968).

The majority finds that the Board’s failure to grant Sheridan a II-S deferment in 1969 resulted in no prejudice to him. The “no prejudice” thesis is premised on the fact that Sheridan satisfactorily completed only nine hours of study his first year of enrollment at Creighton University and therefore his subsequent enrollment in the fall of 1970 at St. Scholastica College would have no longer entitled him to a II-S classification. It is then reasoned that the Board would have had to reclassify Sheridan as I-A in any event and therefore the Board’s “procedural irregularity” in failing to properly grant his lawful deferment in 1969 was a mere technicality resulting in no prejudice. As indicated, the main difficulty with such hindsight reasoning is that it is contrary to the overwhelming case law in the country. Numerous courts have held that an unlawful denial to reopen is not mooted because a registrant is no longer a student or otherwise fails to qualify for a student deferment. See, e.g., United States v. Rundle, 413 F.2d 329 (8 Cir. 1969); Nestor v. Hershey, 425 F.2d 504, 523-526 (D.C.Cir.1969); United States ex rel. Mulford v. Commanding Officer, 338 F.Supp. 1120, 1124 (E.D.N. Y.1971); Waguespack v. Tarr, 317 F. Supp. 448, 451-452 (E.D.La.1970); Weppler v. Hershey, 308 F.Supp. 447, 448-449 (N.D.Ill.1969); Williams v. Hershey, 307 F.Supp. 409, 411-412 (W.D.Wis.1969); Turley v. Selective Service System, Local Board No. 134, 301 F.Supp. 845, 853-854 (C.D.Cal.1969). Cf. United States v. Zablen, 436 F.2d 1075 (9 Cir. 1971). Contra Robinson v. Hershey, 2 SSLR 3191 (7 Cir. 1969). Subsequent events should never determine the loss of substantive rights flowing from a denial of procedural fair dealing. Such reasoning constitutes a dangerous precedent.

In Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970), the Supreme Court emphasized the importance of the procedural safeguards incorporated in the reopening of a registrant’s classification. The petitioner in Mulloy presented a credible claim for a conscientious objector exemption to his Local Board, but the Board refused to reopen his classification although they permitted him to appear. The Court said:

' “Because of the narrowly limited scope of judicial review available to a registrant, the opportunity for full administrative review is indispensable to the fair operation of the Selective Service System. Where a prima facie case for reclassification has been made, a board cannot deprive the registrant of such review by simply refusing to reopen his file. .
“ . . . The board could not deprive the petitioner of the procedural protections attending reopening by making an evaluative determination of his claim while purportedly declining to reopen his classification.” (My emphasis.) Id. at 416-418, 90 S.Ct. at 1771.

In an earlier case, Simmons v. United States, 348 U.S. 397, 75 S.Ct. 397, 99 L.Ed. 453 (1955), the Supreme Court reversed the conviction of a registrant claiming a conscientious objector exemption because the Department of Justice failed to furnish him with a fair resume of adverse information in an FBI report as required by the Universal Training and Service Act. The government urged that no prejudice was shown, but the Court stated:

“The Government’s argument that no prejudice was shown and none resulted can be readily disposed of. . . . This is not an incidental infringement of technical rights. Petitioner has been deprived of the fair hearing required by the Act, a fundamental safeguard, and he need not specify the precise manner in which he would have used this right — and how such use would have aided his cause — in order to complain of the deprivation.” Id. at 405-406, 75 S.Ct. at 402.

The cases relied on by the district court and followed by the majority, United States v. Chaudron, 425 F.2d 605 (8 Cir. 1970), cert. denied, 400 U.S. 852, 91 S.Ct. 93, 27 L.Ed.2d 89; United States v. Spiro, 394 F.2d 159 (3 Cir. 1967), cert. denied, 390 U.S. 956 (1968); Bradshaw v. United States, 242 F.2d 180 (10 Cir. 1957); and Rowton v. United States, 229 F.2d 421 (6 Cir. 1956), are factually inapposite. They do not involve (1) the failure of the board to grant a statutory II-S deferment to which the registrant was entitled as a matter of law; (2) the denial of the lawful right to a reopening and personal appearance before the board; and (3) the denial of the benefit of the regulations which allow a registrant the right of appeal to the state appeal board and possibly the Presidential Appeal Board.

The “substantial prejudice” alleged in Chaudron was (1) that the local board’s clerk, instead of the board itself, sent the conscientious objector civilian work choices to Chaudron, even though the board subsequently ratified the selection; (2) that the board failed to reconsider Chaudron’s request for work assignment; (3) that since the local board without notification changed its number from 100 to 220, the board lacked jurisdiction; (4) that two of the four board members lived outside the board area; and (5) that the board was allowed to supplement the clerk’s account of a board meeting to include a reference to their direction to issue an Order to Report for Civilian Work and Statement of Employer form. The Chaudron court concluded that the petitioner’s conviction was “attributable to an unbending and adamant refusal to accept any civilian employment except that of his own choosing.” United States v. Chaud-ron, 425 F.2d at 612. In Spiro the petitioner complained that the board failed (1) to notify him that an appeal agent was available to advise him (this was posted on a bulletin board), (2) to apprise him that the appeal agent had ten days within which to request either reconsideration by the board or a Presidential appeal, and (3) to wait ten days after sending the notice of classification before issuing an induction order. In both Bradshaw and Rowton the claimants urged that they were prejudiced by the failure to post the names and addresses of advisors to applicants — the Rowton opinion described this as reliance on a “bare technicality.” Rowton v. United States, 229 F.2d at 422. Compare Steele v. United States, 240 F.2d 142 (1 Cir. 1956). None of these decisions approach the prejudicial magnitude fraught in a postponement of a lawful deferment and the ensuing denial of a personal appearance and an administrative appeal.

The requirement of proof of prejudice, after the fact, is ill-conceived. A registrant may change his whole course of life because a board erroneously postpones an induction rather than grant a proper deferment. A registrant wrongfully denied deferment might voluntarily terminate his schooling in anticipation of an early induction. A registrant should not have the negative burden to show that the harm could not have possibly occurred if the board had performed its lawful duty. It becomes untenable to say that the government can hide behind the absence of proof where its own conduct has created the fertile ground for prejudice to occur.

Sheridan is now branded as a felon for the rest of his life. As such his prospects as a useful citizen in a competitive society are remarkedly diminished. It can be argued that his own conduct led him to this ignominous future, on the other hand, it is equally plausible that the callous and illegal action of his draft board was more instrumental. If Sheridan had been given his II-S deferment in 1969 without the threat of impending induction, perhaps he would have been motivated to earn better grades. There should be nothing novel in the realization that a prospect of impending service in the armed forces often lessens a young person’s enthusiasm for his present course of study. If Sheridan had been given a personal appearance, perhaps the local board or the appeal board would have been persuaded as to his sincerity in changing his school major and would have allowed him, in their discretion, to at least finish the current school term before again reviewing his classification. Perhaps the local board would have realized that since Sheridan was not actually classified II-S when he was enrolled at Creighton in 1969, that the first year to count for credit hours under the selective service regulation was 1970 and that he thus would have then qualified for a II-S deferment. Perhaps, Sheridan, if given a personal appearance and immediately informed of the Board’s intent to reclassify him, would have chosen to pursue instead some occupational deferment. Perhaps he would have immediately realized the necessity of seeking a conscientious objector classification before an induction order was mailed. See generally Nestor v. Hershey, 425 F.2d at 524-525. Who can say? It is all a matter of speculation — but this points up the difficulty in placing the negative burden on a registrant, after the fact, to show that the Board’s unlawful acts constituted prejudice. It has often been said, but the frailities of human nature seem to require its constant repetition, that it is fundamental to the preservation of a free society that government in its relationship with individual citizens must be strictly held to standards of lawful conduct. To sell short this concept on a hindsight rationalization of “no prejudice” arising from subsequent events strikes hard, in my judgment, at the basic concepts of constitutional justice.

      . The Honorable Philip Neville, United States District Judge for the District of Minnesota.

      . Although lie thereafter requested and returned an SS Form 150 applying for conscientious objector status there was no contention made at trial that he was entitled to have the claim considered. Ehl-ert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971).

      . The statute read in pertinent part:
      “(h) (1) Except as otherwise provided in this paragraph, the President shall, under suck rules and regulations as he may prescribe, provide for the deferment from training and service in the Armed Forces of persons satisfactorily pursuing a full-time course of instruction at a college, university, or similar institution of learning and who request such deferment. A deferment granted to any person under authority of the preceding sentence shall continue until such person completes the requirements for his baccalaureate degree, fails to pursue satisfactorily a full-time course of instruction, or attains the twenty-fourth anniversary of the date of his birth, whichever first occurs.”
      In 1971 the statute was amended to delete this provision for a four-year deferment thus allowing a deferment only until the end of the term during which a student is ordered for induction, or if in his last year, until the end of the academic year.

      . That regulation read :
      “1622.25 Class II-S Registrant deferred because of activity in study.
      “(a) In Class II-S shall be placed any registrant who has requested such deferment and who is satisfactorily pursuing a full-time course of instruction at a college . . . such deferment to continue until such registrant completes the requirement for his baccalaureate degree, fails to pursue satisfactorily a full-time course of instruction, or attains the twenty-fourth anniversary of the date of his birth, whichever occurs first.
      ^ ^ :|; :¡;
      “(c) A student shall be deemed to be ‘satisfactorily pursuing a full-time course of instruction’ when, during his academic year, he has earned, as a minimum, credits toward his degree, which, when added to any credits earned during prior academic years, represent a proportion of the total number required to earn his degree at least equal to the proportion which the number of academic years completed bears to the normal number of years established by the school to obtain such degree. For example, a student pursuing a four-year course should have earned 25% of the credits required for his baccalaureate degree at the end of his first academic year, 50% at the end of his second academic year, and 75% at the end of his third academic year.
      “ (d) It shall be the registrant’s duty, to provide the local board each year with evidence that he is satisfactorily pursuing a full-time course of instruction at a college, university, or similar institution of learning.”

      . The District Court held:
      “It is long established that procedural irregularities, if any, in local board treatment of cases must result in some prejudice to a registrant. United States v. Spiro, 384 F.2d 159 (3rd Cir. 1967), cert. denied, 390 U.S. 956 [88 S.Ct. 1028, 19 L.Ed.2d 1151] (1968) ; United States v. Jones, 384 F.2d 781 (7th Cir. 1967) ; Bradshaw v. United States, 242 F.2d 180 (10th Cir. 1957) ; Rowton v. United States, 229 F.2d 421 (6th Cir. 1956), cert. denied, 351 U.S. 930 [76 S.Ct. 788, 100 L.Ed. 1460] (1956).
      “The court cannot conceive any possible prejudice here for had the registrant received his II-S deferment in the fall of 1969 by complying with the request to submit: forms it is patent that he would not have had it renewed in November or December of 1970 a year or more later even though he changed colleges. He is relying on a mere formal technicality in the board proceedings to attempt to extricate himself from the charge leveled in the indictment. The court can see no denial of due process here and certainly there was a basis in fact for the board’s I-A classification and a denial of the II-S request.”

      . Rundle, involving a mandatory reopening situation, is not applicable to this case, since Sheridan did not present a prima facie case on November 30, 1970, showing a satisfactory pursuit of his instruction. The defendant in Rundle did present a prima facie case, as the Court held, when the “University notified the board by Form 109 that Rundle was a ‘full-time’ student.” United States v. Rundle, supra at 331.
      The applicability of Rundle to other factual situations is questionable. Each judge wrote a separate opinion. Judge Blaekmun (now, Mr. Justice Blackmun) concurred with the majority opinion only because “on the facts we seem to have a mandatory reopening situation here,” which presented a technical defense. United States v. Rundle, supra at 335 (emphasis added). Judge Mehaffy dissented.

      . There can be no question that the registrant sent a request for a II-S deferment to his local draft board upon his enrollment in Creighton University in the fall of 1969. Although Sheridan did not make this request by using the proper Selective Service System Form 109, the Board was aware of his desire for such a deferment in July of 1969. Thereafter the selective service file shows that the local board received a punch card from Creighton University, signed by Sheridan, in the* fall of 1969 certifying that he was duly enrolled and satisfactorily pursuing a full course of study. It was then readily obvious to any reasonable person that this young man was requesting a II-S deferment. For the Board to ignore Sheridan’s request on the basis that he had not used the proper form was incredible. In Vaughn v. United States, 404 F.2d 586, 591 (8 Cir. 1968), reversed on other grounds, 339 U.S. 526, 90 S.Ct. 2230, 26 L.Ed.2d 776 (1970), Judge Matthes wrote:
      “We believe, however, that classification in accordance with the law should not rest upon technical considerations. Substance, not form, is the controlling factor.”
      The record is undisputed that Sheridan was entitled to a statutory II-S deferment in the fall of 1969. Breen v. Selective Service Local Board No. 16, 396 U.S. 460, 464-465, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970). Yet the Board wrongfully chose to continue his I-A classification and simply postpone his order of induction.

      . There is some evidence that only nine hours were transferred from Creighton to St. Scholastica because only grades of C or above could be transferred. Furthermore, because the Board failed to reopen the case and Sheridan was not permitted to appear and present evidence, it was never established that Sheridan could not complete his studies in the remaining three years. Although Sheridan did not fulfill the requisite 25% of his college credits in his freshman year, it surely was within the Board’s discretion to consider these additional factors before classifying him I-A.

      . In United States v. Rundle, 413 F.2d at 332 (J. Mehaffy dissenting), in reversing the judgment, we said:
      “However, in view of the fact that the evidence conclusively shows that at the time Rundle received his induction order in May, he was pursuing his education and upon certification of that fact to the board under 32 C.F.R. § 1622.15(b) and the statute 50 U.S.C. App. § 456 (i) (2) the board was nonetheless required to reopen and reconsider his I-A classification and cancel his induction order. 32 C.F.R. § 1625.14. See United States ex rel. Berman v. Craig, 207 F.2d at 890 (3 Cir. 1953). To hold otherwise would be to permit a board to disregard a mandatory duty to reopen by simply delaying consideration until the registrant’s status has changed sufficiently so that he is no longer entitled to the requested reclassification. Indeed, a board’s delay might in itself cause a change in a registrant’s status. The local board’s delay, coupled with both its evident reluctance to grant a II-S classification and the outstanding induction order might well have caused Bundle to conclude that registration for summer school was a futile act. For the same reason, Bundle’s subsequent withdrawal of his request for a II-S deferment on June 23 and his application then to be consideration for a I-A-O status cannot affect the board’s mandatory duty under the regulations to reopen and consider anew his classification.” (My emphasis.)


author: JONES, Circuit Judge:

text:
    The JOSLIN DRY GOODS CO., Petitioner-Appellee, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Respondent-Appellant.
    No. 72-1172.
    United States Court of Appeals, Tenth Circuit.
    Aug. 15, 1973.

      Jack L. Whitacre, Kansas City, Mo. (Jack L. Whitacre, Spencer, Fane, Britt & Browne, Kansas City, Mo., Bruce Sat-tler, Holland & Hart, Denver, Colo., on the brief), for appellee.
    Ellis L. Bert, Albuquerque, N. M., (John de J. Pemberton, Jr., Acting Gen. Counsel, Julia P. Cooper, Chief, Washington, D. C., Appellate Section, Ellis L. Bert, Field Atty., Albuquerque, N. M. Charles L. Reischel, Atty., E. E. O. C., Washington, D. C., on the brief), for appellant.
    Before LEWIS, Chief Judge, and JONES and McWILLIAMS, Circuit Judges.

       Of the Fifth Circuit, sitting by designation.

   JONES, Circuit Judge:

The Joslin Dry Goods Co., the appellee, operated retail department stores in the Denver, Colorado, area. It operated a Downtown Denver store and one on West Almeda Street in Denver. It had stores in Aurora, Englewood and Lakewood in suburban Denver. Other stores were located in Greeley and Boulder, each of which is some distance from Denver. The Lakewood store was discontinued prior to the initial hearing in this proceeding.

Mrs. Elnora Thompson filed a charge with the Colorado Civil Rights Commission claiming that she had been the subject of a racially motivated discharge as an employee at Joslin’s Downtown Denver store. The proceeding terminated and she filed a charge with the appellant, Equal Employment Opportunity Commission, reading as follows:

“The respondents discriminated against me on November 16, 1970, by discharging me from my job, such action being based in whole or in part on my race or color, Negro/Black. The respondent also fails and refuses to hire Negroes and persons of Mexican ancestry.”

It was asserted that Mrs. Thompson’s discharge was precipitated, at least in part, by an adverse “Shoppers Report” of Fitzsimmons, Winters & Co. These reports describe customer service and whether the sale of merchandise is properly recorded and cash properly handled.

The EEOC served Mrs. Thompson’s charge on Joslin on March 30, 1971. During the ensuing investigation Joslin voluntarily provided the EEOC with the following information: (1) the current EEO-1 report showing a numerical or statistical breakdown of the employees at the Downtown Denver store according to job position, race or ethnic background and sex; (2) an additional summary breakdown by department of all employees in the Downtown Store according to race and ethnic background; (3) a breakdown of managers according to race and ethnic background; (4) the complete personnel file of Mrs. Thompson, including the Fitzsimmons, Winters & Co. reports, and (5) the job position, race, and sex of the only other person terminated during the prior year, in whole or in part, because of adverse information contained in a Fitzsimmons, Winter & Co. shopping report.

The Commission decided that this information was insufficient for an adequate investigation of the charge and, on May 26, 1971, served Joslin with an administrative subpoena, styled a “Demand for access to evidence and compliance to give testimony under oath,” pursuant to Sections 709(a) and 710(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. §§ 2000e — 8(a) and 2000e — 9 . (a). The subpoena demanded “access to, . for the purpose of examining and copying . . .”, the following:

1. A roster of all employees presently employed in the following locations :

Downtown Store, Denver 'Aurora Store

J. C. R. S. — Lakewood Greeley Boulder Villa Italia

Such roster to include:

a. Name of employees

b. Date of hire

c. Position and/or department of employees

d. Racial/ethnic group of each employee

e. Starting and current salary

2. A list of all employees terminated since January 1, 1970, to the present, from the Downtown, Aurora, Englewood, J. C. R. S. — Lakewood, Greeley, Boulder, and Villa Italia Stores, inclusive of:

a. Name of employees

b. Date of hire

c. Position and/or employees’ department

d. Racial/ethnic group of each employee

e. Date of termination

f. Reason for termination

3. A roster of the managerial staff for the Downtown, Aurora, Engle-wood, J. C. R. S. — Lakewood, Greeley, Boulder, and Villa Italia Stores, inclusive of:

a. Name of employees

b. Date of hire

c. Racial/ethnic group of each employee

d. Position held

4. “Fitzsimmons and Winters reports on the Downtown, Aurora, Englewood, J. C. R. S. — Lakewood, Greeley, Boulder, and Villa Italia Stores since January 1,1970, to the present. Such reports to include findings based on the checks and/or investigations and/or “shoppings” made during the aforementioned period. The reports are to include:

a. Name of individual(s) cheeked or investigated

b. Date of hire of individual(s) checked or investigated

c. Position held by such individu-ales)

d. Racial/ethnic group of such individual(s)

e. The report to include the number and name of employees that have been discharged as a result of the checks, investigations and “shoppings” made since January 1, 1970, by “Fitzsimmons and Winters.”

5. Any like or related records retained in a different form from the documents heretofore enumerated, but reflective of the substance of the evidence in the DEMAND.

As is shown by the Demand, the EEOC requested information as to the operations of Joslin’s Downtown Store and also to the operations of the other Joslin stores. Joslin refused to furnish the information as to the other stores. It filed in the district court a “Petition to Set Aside Demands for Production of Documents” as authorized by Section 710 (c) of the Act, 42 U.S.C.A. § 2000e — 9 (c). The Commission answered and petitioned for enforcement of its Demand.

The district court rendered an opinion reported as Joslin Dry Goods Co. v. Equal Employment Opportunity Commission, 336 F.Supp. 941. Before it was an affidavit of a vice president of Joslin and it found that the seven Joslin stores maintain separate personnel records and that there is no master file or records of employees. The district court found that “. . . although Joslin maintains every record and makes every report required by the EEOC, it does not maintain:

(a) A schedule of employees showing starting salaries.

(b) A list of employees terminated since January 1, 1970. [A separate personnel file is kept for each employee, and such a list would have to be compiled from a review of all the files.]

(e) ‘Fitzsimmons and Winters’ reports including the information described in the . . . demand.”

The district court determined that to supply the information demanded would require a review of every personnel file maintained by the company and the compilation of a substantial amount of information, which “could not be compiled without the expenditure of a substantial amount of money by Joslins.” The district court decided that:

“[T]here is no way that the statute can be read to require an employer to compile information. Sec. 2000e — 8 gives the right to copy, and Sec. 2000e — 9 requires the production of documentary evidence. No statute requires the employer' to compile anything, and the courts have so held.” Georgia Power Co. v. EEOC, 5th Cir. 1969, 412 F.2d 462, 465.

This ruling disposed of most, but not all, of the EEOC’s Demand. There was no request for modification of the Demand and the district court declined to winnow it down, choosing instead to set it aside without prejudice to the right of EEOC to serve a new Demand consistent with the court’s opinion. The opinion went on to set forth additional limitations upon the scope of any new Demand. It was determined that Mrs. Thompson has no Standing to challenge the hiring practices of Joslin. The rationale of this determination is twofold. It was first decided that Mrs. Thompson was not injured by Joslin’s hiring practices. Next it was held that the requirement of 42 U.S.C.A. § 2000e — 5(a) that an EEOC Commissioner must have “reasonable cause” before initiating an investigation was not met since Mrs. Thompson’s charge contained no fact establishing “reasonable cause” for believing she or anyone else had been discriminated against by the company’s hiring practices.

In discussing the right of Mrs. Thompson to question Joslin’s hiring practices the district court considered and distinguished the opinion in Georgia Power Co. v. EEOC, 5th Cir. 1969, 412 F.2d 462. We do not think the district court intended, as EEOC suggests, to hold that EEOC could obtain no more data on Jos-lin’s firing practices at the Downtown Store than it had been given.

Another limitation imposed by the district court’s opinion is that the investigation must be confined to Joslin’s Downtown Store, where Mrs. Thompson had been employed, and could not include the other Joslin stores. The basis for this determination was that the Downtown Store maintains its own separate personnel records and there are no central employment records, and that nothing in Mrs. Thompson’s charge or the pleadings suggested company-wide hiring and firing policies and practices. Under these circumstances the court held it would be unreasonable and beyond the statutory intent to countenance such a broad investigation.

The district court’s opinion, to which reference has been made, is dated December 3, 1971. It was filed on December 8, 1971. It is styled “Memorandum Opinion.” The last two paragraphs of the opinion are in these words:

“For these reasons, it is ordered that the demand of the Equal Employment Opportunity Commission dated May 24, 1971, be set aside, and it is ordered that defendant’s request for an order enforcing compliance with the demand be, and the same hereby is denied.
“This order is without prejudice to whatever rights defendant may have to serve a new demand on plaintiff, consistent with the views expressed in this opinion.”

On December 14, 1971, the district judge signed a “Judgment” which was filed the following day. It reads as follows :

“Pursuant to and in accordance with the Memorandum Opinion filed in this office on December 8, 1971,
“IT IS HEREBY ORDERED that the demand of the Equal Employment Opportunity Commission dated May 24, 1971, be set aside, and that Defendant’s request for an order enforcing compliance with the demand be, and the same hereby is denied. ■
“This order is without prejudice to whatever rights Defendant may have to serve a new demand on Plaintiff, consistent with the views expressed in the Memorandum Opinion.”.

On January 26, 1972, EEOC filed a notice of appeal in these terms:

“Notice is hereby given that the Equal Employment Opportunity Commission, defendant above named, hereby appeals to the United States Court of Appeals from the Order of the Court, issued in this action on December 3, 1971, insofar as it forbids the Equal Employment Opportunity Commission from serving any new demand on the Joslin Dry Goods Co., concerning the charge of Elnora Thompson, received by the Commission on December 28, 1970, which is not consistent with the views expressed in page 13-18 of the Memorandum Opinion of December 3, 1971.”

It may be observed that EEOC has appealed from the “Memorandum Opinion” but not from the “Judgment” of the court. The provisions of the order incorporated in the opinion have the same degree of finality as have the provisions of the order. The appeal is not defective because it is taken from the Memorandum Opinion instead of the Judgment.

It will be noted that EEOC does not assert error in the setting aside of its demand. It does not question the district court’s holding with respect to the compilation of information. It does challenge the other limitations imposed by the district court which are applicable to any new demand that EEOC may serve on Joslin.

At the outset Joslin urges that “the EEOC’s selective appeal is premature.” The substance of its contention may best be ascertained from its brief where it is said:

“The judgment of the district court set aside the Commission’s demand of May 24, 1971. The Commission did not appeal this order. There is no demand pending in any form at this time. The Commission in its appeal asked-this Court to review and revise the views expressed by the district court on the issue of Mrs. Thompson’s standing to challenge alleged discriminatory hiring practices and on the issue of whether the information sought was relevant to the charge under investigation. Curiously, this Court is not asked to enforce the demand, rather the EEOC requests this Court engage in a dialogue with the district court.”

Joslin says that it brought an action to set aside the EEOC demand and the court set it aside, that EEOC sought to have the demand enforced and this was denied, that EEOC makes no claim before this Court that the demand should be enforced or that it should not have been set aside. With this theorem established to its satisfaction, it urges that the appeal be dismissed. The Joslin position, as we see it, is not that the appeal is premature, or that there is no finality of the judgment, but rather that there is no justiciable controversy before this Court.

The judgment of the district court set aside the demand of EEOC without prejudice to the serving of a new demand with a proviso that the new demand could not require Joslin to compile data, that hiring policies and procedures could not be investigated and that the investigation must be limited to the Downtown Denver store. While the notice of appeal might have been cast in different terms, it is sufficient to show that EEOC seeks review of portions of the proviso annexed to the permission to serve a new demand. The judgment is final and notice of appeal presents issues for review by this Court.

The record before this Court is adequate to permit an inference that each of the Joslin stores was a separate employing unit. It was not shown that there were any hiring or firing practices and procedures applicable to all of the stores. This being so, the decision of the district court limiting the demand of EEOC to the Downtown Denver store is affirmed.

The district court held that no investigation could be made of the hiring practices of Joslin on the complaint of Mrs. Thompson because she had not been the object of any hiring discrimination. The district court’s holding was unduly restrictive. The question, in our view, is more one of relevance than of standing. The factual statement of a wrongful discharge is enough to justify an investigation of employment practices and policies, as to hiring as well as to firing. Although the charge as to hiring practices was less than might have been desired, it was sufficient to initiate the discovery procedures contemplated by the statutes. United States Steel Corp. v. United States, 10th Cir. 1973, 477 F.2d 925 [decided April 19, 1973] and cases therein cited. It is our conclusion that EEOC is entitled to investigate the hiring as well as the firing practices and procedures at the Downtown Denver Joslin store. The holding otherwise of the district court is reversed on this part of the district court’s order.

Paragraph 5 of the demand of EEOC would have required the production of “any like or related records retained in a different form from the documents heretofore enumerated, but reflective of the substance of the evidence in the demand.” This is not expressly attacked on the appeal. However, it is suggested that the language is too broad and too vague to require compliance with any requirement for production.

The judgment of the district court is affirmed in part and reversed in part, and remanded to the district cqurt for such further proceedings as may be required to give effect to that which has been here determined.

Affirmed in part and reversed in part and remanded.


text:
    Hullon DAVIS, Plaintiff-Appellant, v. CHAS. KURZ & CO., INC., and Northwest Marine Iron Works, Defendants-Appellees. NORTHWEST MARINE IRON WORKS, Third Party Plaintiff-Appellee, v. PACIFIC MARINE SERVICE, Third Party Defendant-Appellee (two cases). Hullon DAVIS, Plaintiff-Appellee, v. CHAS. KURZ & CO., INC., et al., Defendants-Appellees (two cases). NORTHWEST MARINE IRON WORKS, Third Party Plaintiff-Appellant, v. PACIFIC MARINE SERVICE, Third Party Defendant-Appellee. Hullon DAVIS, Plaintiff-Appellee, v. CHAS. KURZ & CO., INC., et al., Defendant-Appellant. NORTHWEST MARINE IRON WORKS, Third Party Plaintiff-Appellee, v. PACIFIC MARINE SERVICE, Third Party Defendant-Appellant.
    Nos. 71-1168 through 71-1171.
    United States Court of Appeals, Ninth Circuit.
    July 20, 1973.

      Edwin A. York (argued), Charles Paulson, Portland, Ore., for plaintiff-appellant.

      Jack L. Kennedy (argued), Portland, Ore., John G. Holden (argued), of Wood, Wood, Tatum, Mosser & Brooke, Portland, Ore., Jerald S. Weigler (argued), of Lindsay, Nahstoll, Hart, Duncan, Dafoe & Krause, Portland, Ore., Richard L. Lang, of McMenamin, Jones, Joseph & Lang, Portland, Ore., Dennis W. Skarstad, Portland, Ore., for defendants-appellees.
    Before BARNES and DUNIWAY, Circuit Judges, and BATTIN, District Judge.

       The Honorable James F. Battin, United States District Judge, District of Montana, sitting by designation.

   DUNIWAY, Circuit Judge:

On March 30, 1968, appellant Davis was injured as he entered a hatch on board the vessel Julesburg. The vessel was at the time in the Portland, Oregon, Swan Island Ship Repair Facility undergoing substantial repairs, and was not in navigation. The owner of the vessel, Charles Kurz & Co. (Kurz) had contracted the repair work to Northwest Marine Iron Works (Northwest) which had in turn subcontracted the job of sandblasting the forepeak tank to Pacific Marine Iron Works, Inc. (Pacific). Davis was a shore-based employee of Pacific. At the time that he was injured, he was attempting to descend into the forepeak tank. The hatch cover, which had been leaning against a bulkhead, fell on top of him, causing the injuries.

Davis brought suit against Kurz and Northwest, alleging negligence as to both, and also alleging breach of the warranty of seaworthiness against Kurz. Section 5 of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq., under which Davis received compensation from his employer Pacific, was a bar to further action against Pacific. 33 U.S.C. § 905.

Northwest impleaded Pacific for indemnity, and cross-claimed against Kurz for indemnity. Before the impleader, Kurz had brought an action seeking indemnity against Northwest and Pacific for breach of a common law warranty of good workmanship, and against Northwest alone for breach of an express contract between Kurz and Northwest. Pacific cross-claimed against both Kurz and Northwest for indemnity and for negligence. The actions were consolidated.

The case was tried before the court without a jury. The court found that only Pacific had been negligent, and that its negligence had been the proximate cause of the injury to Davis. From this finding Pacific appeals. Davis appeals from the finding that neither Kurz nor Northwest was negligent. The court also found that the vessel was a “dead ship” and that no warranty of seaworthiness was owed to Davis by Kurz. Davies does not appeal this finding. The court next held that as between Kurz and Northwest, Kurz was entitled to indemnity for expenses incurred in defending the action, on the basis of provisions of the express contract between Kurz and Northwest. Northwest does not challenge this ruling, but argues that should this court find Kurz negligent, Kurz should not then be entitled to indemnity against Northwest by virtue of the contract. Kurz’s position is that if this ruling should be disturbed on appeal, it still is entitled to indemnity from Northwest by virtue of an implied warranty of good workmanship. The court held further that neither Kurz nor Northwest was entitled to indemnity from Pacific. Northwest appeals this ruling. Kurz contends, again as a protective matter, that should the district court’s holding that it is entitled to indemnity from Northwest be overturned, it is entitled to indemnity from Pacific. Finally, Kurz appeals the award of defense fees ($3,-000) as indemnity from Northwest, contending the sum is too low. We affirm the holdings of the trial court in all respects.

1. Davis urges us to overturn the court’s finding that Northwest and Kurz were free from negligence. Pacific urges us to overturn the related finding that it was negligent and that its negligence was the proximate cause of the injuries. The court found that Pacific, by running four electric cords for the operation of the sandblasting machines by and around the hatch cover, and through the escape hatch into the forepeak tank, made the hatch unreasonably dangerous. The court found that pressure on one or more of the cords caused the hatch cover to fall and to strike Davis. Both parties argue, as they must, that the pertinent findings are “clearly erroneous,” Rule 52 F.R. Civ.P. Having reviewed the record, we are not left with “the definite and firm conviction that a mistake has been committed,” United States v. United States Gypsum Co., 1948, 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 726. See Luttrell v. United States, 9 Cir., 1970, 423 F.2d 1197, cert. denied, 400 U.S. 915, 91 S.Ct. 173, 27 L.Ed.2d 154.

2. We next consider Northwest’s claim that it is entitled to indemnity against Pacific for expenses incurred by Northwest in defending against Davis’ suit.

Northwest asserts two theories of recovery. The first is that an implied warranty of workmanlike service runs from the subcontractor Pacific to the general contractor Northwest, that Pacific breached the warranty, and that Northwest is accordingly entitled to indemnification. We see no reason to imply the existence of such a warranty running from Pacific to Northwest. The leading case of Ryan Stevedoring Co., Inc. v. Pan-Atlantic S. S., 1956, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133, established that a stevedoring contractor who enters into a service agreement with a shipowner is liable to indemnify the owner for damages sustained as a result of the stevedore’s causing the ship to be unseaworthy. The Court held that a warranty of workmanlike service ran from the stevedoring company to the shipowner, and that such a warranty amounted to an agreement to hold the shipowner harmless. This doctrine has been expanded somewhat by subsequent decisions. See Italia Societa v. Oregon Stevedoring Co., Inc., 1964, 376 U.S. 315, 84 S.Ct. 748, 11 L.Ed.2d 732; Waterman S. S. Corp. v. Dugan & McNamara, Inc., 1960, 364 U.S. 421, 81 S.Ct. 200, 5 L. Ed.2d 169; Crumady v. The J. H. Fis-ser, 1959, 358 U.S. 423, 79 S.Ct. 445, 3 L.E.2d 413; Weyerhaeuser S. S. Co. v. Nacirema Operating Co., Inc., 1958, 355 U.S. 563, 78 S.Ct. 438, 2 L.Ed.2d 491. The rationale underlying Ryan and the later cases is that when a shipowner owes a duty of seaworthiness to an injured party (and consequently its liability is not dependent on a finding of its fault) a corresponding duty of indemnity should devolve upon a stevedore whose failure to perform with reasonable safety caused the injury. See Italia Societa v. Oregon Stevedoring Co., Inc., supra, 376 U.S. at 324, 84 S.Ct. 748; Schwartz v. Compagnie General Transat-lantique, 2 Cir., 1968, 405 F.2d 270; Loffland Bros. Co. v. Roberts, 5 Cir., 1967, 386 F.2d 540; DeGioia v. United States Lines Co., 2 Cir., 1962, 304 F.2d 421.

Northwest argues that the existence of the warranty does not depend on a corresponding existence of a duty of seaworthiness. We think that it does. The circumstance which gives rise to the implied warranty is the duty of seaworthiness owed by the party seeking indemnification. See Italia Societa v. Oregon Stevedoring Co., Inc., supra, 376 U.S. at 323-324, 84 S.Ct. 748; DeGioia v. United States Lines Co., supra, 304 F.2d at 426. That circumstance is not present here. The district court found that there was no duty of seaworthiness owed to Davis. In any event, such a duty would be owed to Davis by Kurz, not Northwest.

Northwest’s second argument is that it is entitled to indemnity by virtue of its contract with Pacific. Northwest argues that Pacific violated a duty owed directly to Northwest to exercise reasonable care to avoid foreseeable harm to Northwest arising from injuries to Pacific’s employees. However, the rule in this circuit is that in the absence of a contractual indemnity agreement, express or implied, between the party suing and the party protected by an exclusive liability provision such as § 5 of the Longshoremen’s and Harbor Workers’ Act, the former may not recover indemnity from the latter. Wien Alaska Airlines, Inc. v. United States, 9 Cir., 1967, 375 F.2d 736; United Air Lines, Inc. v. Wiener, 9 Cir., 1964, 335 F.2d 379, 403. Northwest directs our attention to no such express contractual agreement. And as noted in our discussion above, Ryan does not require that one be implied. See also Grace Lines, Inc. v. Central Gulf S.S. Corp., 5 Cir., 1969, 416 F.2d 977.

3. Northwest does not challenge the district court’s ruling that Kurz is entitled on the basis of the express contract between them to indemnify for its expenses incurred in defending the suit. Rather, its position on this question is that if this court should find the shipowner Kurz to have been negligent, no indemnity should be owing from Northwest to Kurz. We need not reach this question because we affirm the court’s finding that Kurz was not negligent. Neither need we reach Kurz’s alternate contentions that it is in any event entitled to indemnity from Northwest by virtue of an implied warranty of good workmanship, or that it is entitled to indemnity from Pacific.

4. We come last to Kurz’s claim that the defense fees awarded it as indemnity from Northwest were too low. The court awarded fees of $3,000; Kurz claims that a figure of $7,500 is proper. The conflict stemmed from the inability of Kurz’s attorneys to separate the hours spent on defense efforts from those spent on the indemnity question. In such circumstances we cannot say that the district court abused its discretion in setting the fees at $3,000. See Arico v. Cie. De Navegacion Transoceanique, 2 Cir., 1969, 409 F.2d 1002.

Affirmed.

      . The court dismissed Pacific’s claims as to negligence and for indemnity from Kurz and Northwest. Pacific appeals, arguing only that if the district court’s rulings that neither Kurz nor Northwest is entitled to indemnity from it should be altered, its claims should be reconsidered. Since we do not disturb these rulings, we do not reach Pacific’s claims.