author: BAZELON, Chief Judge:

text:
    Daniel JACKSON, Appellant, v. Luther ROBINSON.
    No. 71-1950.
    United States Court of Appeals, District of Columbia Circuit.
    March 20, 1973.
    As Amended March 27, 1973.
    Joseph Pauli, Washington, D. C., for appellant.
    Harold H. Titus, Jr., U. S. Atty. and John A. Terry, Asst. U. S. Atty., entered appearances for appellee.
    Before BAZELON, Chief Judge, and LEVENTHAL and ROBB, Circuit Judges.

       Circuit Judge ROBB did not participate in this Opinion.

   BAZELON, Chief Judge:

This is a motion for stay of Jackson’s appeal from a denial by the District Court of his petition for habeas corpus. In the interval between filing of the appeal and its consideration by this court, Jackson has been afforded partial relief on his petition, and he has filed a new petition in the District Court seeking the remaining relief to which he feels entitled. Nevertheless, he now asks this court to stay proceedings and retain jurisdiction on his appeal “because of the asserted power of the Hospital to return him to maximum security without even a minimal due process hearing.” Although we are deeply troubled by appellant’s plight for reasons which are developed below, we nevertheless deny his petition for stay. He must therefore choose whether to pursue his appeal or dismiss it.

Daniel Jackson was committed to St. Elizabeths Hospital on March 3, 1969 by the District Court after having been found not guilty by reason of insanity of burglary and rape charges. Jackson is mentally retarded, at the lower end of the mild retardation range. He was a patient in the John Howard Pavilion since his admission in 1969. In August of 1970 he was transferred to a minimum security ward and eloped from the Hospital shortly thereafter. He voluntarily returned with his mother approximately one week later. After a brief stay in a minimum security ward, he was placed in maximum security.

In the petition for habeas corpus from which Jackson has appealed, he asserted that he was being illegally confined in maximum security as punishment for elopement and without minimal due process afforded him. Jackson further alleged that he should be treated as a substantially retarded person under 21 D.C. Code, ch. 11, and released from St. Elizabeths. On the basis of the testimony of the psychiatrist in charge of Jackson’s ward, the District Court found that the Hospital’s medical opinion that Jackson “has failed to demonstrate proper motivation and behavior to merit a transfer from the maximum security ward” is “reasonable in view of the relevant information available to it.” The court held that therefore Jackson was being legally detained in maximum security. The court further held that since Jackson had not shown that he was entitled to unconditional release under 24 D.C. Code § 301(e), he was not a feeble-minded person as defined in 21 D.C.Code § 1101 and was not entitled to treatment under that chapter.

Jackson challenged both holdings in his appeal, notice of which was filed on October 28, 1971. Appellant’s brief was filed on September 15, 1972. On November 10, 1972, Jackson filed the petition for stay of proceedings in this court which is now before us. In this petition, Jackson asserts the following:

1. Since filing this appeal, appellant has been afforded partial relief in that he has been placed in minimum security and has been given ground privileges at St. Elizabeths Hospital. As a result, he does not wish to be treated as a feeble-minded person.
2. He has reason to believe that a new habeas corpus action may cause his release or conditional release thus giving him the relief he requested.
3. Nevertheless, he desires this Court to retain jurisdiction because of the asserted power of the Hospital to return him to maximum security without even a minimal due process hearing.

It appears that Jackson is attempting to insure judicial scrutiny of a future transfer into maximum security, at least during the pendency of his new petition for habeas corpus in the District Court.

We recognize the importance of the issue which Jackson is trying to keep alive. Numerous complaints to the District Court and to this court have attacked the lack of adequate administrative procedures to afford minimal due process to patients confined in or transferred to maximum security wards in the John Howard Pavilion. There are indications that the cases actually considered by this court may be merely the tip of the iceberg. Certainly we know that it is often impossible for a patient to obtain full judicial review of hospital procedures and dispositions involving cognizable rights before his complaint is rendered moot by a change in his circumstances — transfer, grant of conditional release or other remedial efforts —as has happened in this case.

We are disturbed to think that this reality allows the Hospital to refrain from adopting the record-keeping and decision-making procedures which we have construed both statute and the Constitution to require. We repeat our by now familiar litany urging the Hospital to establish internal review and grievance procedures to supervise placement in maximum security, as well as release and treatment practices. And we are even more concerned that the hospital may be able to deliberately render issues moot prior to judicial consideration, and thus avoid the case-by-case review of complaints and grievances which serve as the “safety catch” on any administrative system.

Jackson seeks to fashion his own remedy to the potential problem of mootness by having this court stay its consideration of the issue, retain jurisdiction and “hover in the wings” should his rights be placed in jeopardy again.

This we decline to do, since Jackson’s case would perhaps then raise substantially different factual grounds relevant to immediate relief which would require de novo hearing. Furthermore, the issue could properly be raised in Jackson’s petition for habeas corpus, which we assume from this motion is now pending in the District Court. Finally, Jackson may be able to obtain the relief he seeks by pursuing the instant appeal. He may not have lost his right to a determination of the validity of his previous confinement in maximum security —either because that confinement may have continued collateral consequences or because the case presents a question of substantial importance which is likely to recur and which may be impossible to reach while the confinement continues.

In this posture, we are reluctant to agree that fresh challenges to Jackson’s confinement in maximum security should be brought directly to this court and we therefore deny the petition for stay.

ON APPELLANT’S MOTION TO WITHDRAW APPEAL

On March 20,1973, the date of issue of this opinion, it was brought to the attention of this court for the first time that Jackson had submitted a motion to withdraw this appeal on February 14, 1973. Upon a petition of St. Elizabeths Hospital in a new proceeding, on February 8 the District Court approved the Hospital’s request for Jackson’s conditional release. In these circumstances, this court sees no reason to deny appellant his choice not to pursue this appeal, and his motion to withdraw it is granted.

      . In 1970 Jackson petitioned for release charging substantially the same violations of his rights. The District Court discharged the writ and Jackson apparently ' did not appeal.

      . Jackson v. Robinson, Findings of Fact and Conclusions of Law, HC No. 85-71, issued October 19, 1971, citing Williams v. Robinson, 139 U.S.App.D.C. 204, 208, 432 F.2d 637, 641 (1970) and Tribby v. Cameron, 126 U.S.App.D.C. 327, 328, 379 F.2d 104, 105 (1967).

      . If pursuant to the new writ Jackson is released from the Hospital, presumably it will no longer have the power to detain him in maximum security. If his writ is denied, there is some question whether Jackson will pursue this appeal -in its stead.

      . Covington v. Harris, 136 U.S.App.D.C. 35, 419 F.2d 617 (1969); Dixon v. Jacobs, 138 U.S.App.D.C. 319, 427 F.2d 589 (1970); Williams v. Robinson, 139 U.S.App.D.C. 204, 432 F.2d 637 (1970); Jones v. Robinson, 142 U.S.App.D.C. 221, 440 F.2d 249 (1971); Justin v. Jacobs, 145 U.S.App.D.C. 355, 449 F.2d 1017 (1971); Waite v. Jacobs, 154 U.S.App. D.C. _, 475 F.2d 392; Moffitt v. Robinson (Crim. No. 1450-69 pending in District Court).

      . From the cases seen by this court in the seven years since Rouse v. Cameron, 125 U.S.App.D.C. 366, 373 F.2d 451 (1966) highlighted the lack of administrative and record-keeping procedures at St. Elizabeth’s, there is no indication of the adoption of any general revision of procedure or regulations.

      . For example, Williams v. Robinson, 139 U.S.App.D.C. 204, 432 F.2d 637 (1970). And see Justin v. Jacobs, supra note 4, 145 U.S.App.D.C. at 358, 449 F.2d at 1020.

      . See cases cited note 4, supra. We note that in this case the District Court’s determination with regard to the “reasonableness” of the Hospital’s decision was apparently based entirely on the testimony of the psychiatrist at the hearing. In Williams v. Robinson, supra note 4, 139 U.S.App.D.C. at 209, 432 F.2d at 642 we held that:
      “except as noted below, when a patient at Saint Elizabeths seeks to challenge the legality of hospital decisions regarding the treatment accorded him or the manner of his confinement, the hospital may not rely upon information or explanations not in the patient’s hospital record to justify its decision.”

      . See Rouse v. Cameron, supra note 5, 125 U.S.App.D.C. at 371 n. 22, 373 F.2d at 456, n. 22; Bolton v. Harris, 130 U.S. App.D.C. 1, 10, n. 58, 395 F.2d 642, 652 n. 58 (1968); Covington v. Harris, supra note 4, 136 U.S.App.D.C. at 45, 419 F.2d at 627.

      . Cf. Covington v. Harris, supra note 4, 136 U.S.App.D.C. at 42, 419 F.2d at 624.

      . See, e. g., Jones v. Robinson, supra note 4, 142 U.S.App.D.C. at 222, n. 1, 440 F. 2d at 250, n. 1; Justin v. Jacobs, supra note 4, 145 U.S.App.D.C. 355, 449 F.2d 1017; Hudson v. Hardy, 137 U.S.App.D.C. 366, 424 F.2d 854 (1970); Matthews v. Hardy, 137 U.S.App.D.C. 39, 420 F.2d 607 (1969).

      . Jemison v. Robinson (Civ. No. 927-70, D.D.C. three-judge court, Oct. 19, 1970); cf. Alton & Southern R. Co. v. International Association of Machinists, 150 U.S.App.D.C. 36, 463 F.2d 872 (1972).
      Consideration of Jackson’s appeal on these grounds would afford relief only to him. A more exhaustive investigation into existing Hospital procedures and their effects on patients’ rights, and into the problem of mooting out complaints, could be obtained only through a class action.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, v. James L. COCKERHAM, Appellant.
    No. 71-1955.
    United States Court of Appeals, District of Columbia Circuit.
    March 28, 1973.

      Bruce J. Terris, Washington, D. C. (appointed by this court), was on the brief for appellant.
    Harold H. Titus, Jr., U. S. Atty., and John A. Terry, Robert A. Shuker and Robert E. L. Eaton, Jr., Asst. U. S. Attys., were on the brief for appellee.
    Before McGOWAN and MacKINNON, Circuit Judges, and WINTER, United States Circuit Judge for the Fourth Circuit.

       Sitting by designation pursuant to 28 U.S.C. § 291(a).

   PER CURIAM:

In this appeal from a jury conviction of second-degree murder, the contentions which merit discussion are that the District Court erred in failing to ask certain questions during its voir dire of prospective jurors, in admitting inflammatory evidence, and in its control of the conduct of trial respecting the presentation of appellant’s insanity defense.

Appellant was indicted for the murder of, and taking indecent liberties with, a seven-year old girl whose cause of death was exsanguination from a deep slash wound across the throat. She was also strangled and scalded, and suffered a blow to the back of the skull and injuries from a sexual assault. At trial appellant revealed he would not in any material way contest the facts of the crime, but would instead rely entirely on the insanity defense.

Having decided to conduct the voir dire himself as was his right, Fed. R.Crim.P. 24(a), the trial judge solicited proposed questions from the parties. Appellant proffered fourteen, of which seven were rejected. He contends the rejected questions were designed to ascertain attitudes towards the insanity defense, and that failure to ask them deprived him of information essential to the exercise of peremptory challenges and challenges for cause. Without citation to authority, and we can find no federal cases to support this particular proposition, compare Brundage v. United States, 365 F.2d 616 (10th Cir. 1966), appellant urges that the rejection of such questions violated his right to an impartial jury.

The record suggests that the trial judge appears to have believed the insanity defense to be an inappropriate subject for examination on voir dire. While we do not think this proposition stated so broadly is a safe guide to the conduct of criminal trials, we cannot say that under the circumstances here presented the action of the trial judge constituted an abuse of the broad discretion that was his to exercise in conducting the voir dire. Aldridge v. United States, 283 U.S. 308, 310, 51 S.Ct. 470, 75 L.Ed. 1054 (1931).

Of the seven questions rejected, only four were directly related to the insanity defense, and one of these four would have revealed only the neutral fact of prior jury service when the defense was raised. Of the remaining three, the trial judge covered one in substance by his questions concerning prior study in psychology or psychiatry, and prior employment in mental institutions. The final two questions essentially probed the willingness of the veniremen to accept the insanity defense. Absent any indication in the record that would negate the presumption of prospective jurors’ impartiality toward the defense, cf. Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Connors v. United States, 158 U.S. 408, 415, 15 S.Ct. 951, 39 L.Ed. 1033 (1895); and, in view of the careful examination conducted by the court which consumed approximately forty-five pages of transcript, we think it was not reversible error to omit further questioning.

Appellant urges that the admission of certain items of evidence was prejudicial error. We sympathize with all parties involved in the trial of such a case as this, and, while our review is designed to- detect the introduction of unduly prejudicial material, we recognize the inevitability of some inflammatory material reaching the jury as the Government properly attempts to prove its case.

Appellant attempted to stipulate all facts of the crime proof of which would have tended to have inflammatory impact, and argues now that he had a right to so stipulate. We agree with other courts that have considered the matter and held there is no such right, and find that the trial judge acted properly in refusing to require the Government, which had agreed to several stipulations, to agree to others offered. United States v. Brickey, 426 F.2d 680, 686 (8th Cir. 1970); Alire v. United States, 313 F.2d 31, 34-35 (10th Cir. 1962), cert. denied, 373 U.S. 943, 83 S. Ct.. 1554, 10 L.Ed.2d 699 (1963); Parr v. United States, 255 F.2d 86, 88 (5th Cir.), cert. denied, 358 U.S. 824, 79 S.Ct. 40, 3 L.Ed.2d 64 (1958). And, in our examination of the record, we find that, while the advisability of permitting certain testimony may be in doubt, taken as a whole the trial judge did not abuse his discretion in permitting evidence of the murder to be introduced. The Government’s proof went both to establishing elements of the crime and to showing circumstantially that appellant' perpetrated the crime in a manner inconsistent with his defense of insanity. Its probative value thus sufficiently outweighed the danger of unfair prejudice to justify its admission. See Rule 403, Proposed Rules of Evidence for United States Courts and Magistrates, 56 F.R.D. 183, 218.

Appellant contests the admission of his handwritten statement made to a psychologist who appeared as an expert witness for the defense, and who was using the statement in court to refresh his recollection. The psychologist acknowledged the statement to be a part of the basis for his diagnosis, and, apart from its discoverable nature, it was an appropriate subject for cross-examination and especially important for proper jury consideration of the insanity defense. Brawner, supra note 3, 152 U.S. App.D.C. at 26, 471 F.2d at 994 and cases cited at n. 45.

Appellant also contends that the admission of evidence of his sexual assault on the victim within the meaning of 22 D.C.Code § 3501(a) (Supp. V, 1972) was reversible error since the court eventually dismissed the indecent liberties charge for insufficient evidence, a claim appellant had made in his pretrial motion. The record reveals sufficient medical evidence to support the decision to allow the Government to proceed with its case in the first instance, and the testimony it brought forth merely added detail to what the jury was aware of generally from appellant’s own statement to the psychologist, held admissible above.

Affirmed.

      . In responding to appellant’s objection to the failure to ask questions which would reveal juror attitudes toward the insanity defense, the trial judge said: “It isn’t their attitudes. It is the law they have to comply with.” Later he said: “We know the insanity defense is a very technical legal charge they have to get. It is like asking jurors if they agree with tire presumption of innocence and burden of proof. I will instruct them in due course. I won’t ask anything on insanity.”

      . The suggestions that a number of citizens condemn those suffering from mental illness, see. e. g., United States v. Brawner, 153 U.S.App.D.C. 1, at 19 n. 26, 471 F. 2d 969, at 987 n. 26 (1972), and that some jurors may resist the insanity defense, particularly given vengeful attitudes likely to prevail concerning the serious offenses for which insanity is commonly raised as a defense, see, e. g., Goldstein, The Insanity Defense 24, 42, 214-15 (1967), or because they fear inadequate confinement might result from an acquittal by reason of insanity, see, e. g., Kalven and Zeisel, The American Jury 404-05 (1966), combine to reveal the possible existence of attitudes which the voir dire is designed to disclose. Thus where, for example — unlike here — the examination of jurors is otherwise brief and limited in scope, or elicits an indication of possible bias against the defense, it would seem inappropriate to refuse an inquiry into the matter at the risk of denying a defendant protection from juror partiality. See generally Annots., 112 A.L.R. 531 (1938); 99 A.L.R.2d 7, 23 n. 15 (1965).
      Tiie trial judge appeared to rest his decision on the ground that the insanity defense, like the presumption of innocence and burden of proof, is a proposition of law to be governed by the court’s instructions to the jury. To the extent the analogy is an apt one, the cases which address the exclusion of questions from the voir dire concerning propositions of law, i. e., the presumption of innocence and the reasonable doubt standard, do not say their inclusion would be improper. United States v. Crawford, 444 F.2d 1404, 1405 (10th Cir. 1971) cert. denied, 404 U.S. 855, 92 S.Ct. 98, 30 L.Ed.2d 95 (1972); United States v. Williams, 417 F.2d 630, 631 (10th Cir. 1969); United States v. Gillette, 383 F.2d 843, 849 (2nd Cir. 1967); Grandsinger v. United States, 332 F.2d 80, 81 (10th Cir. 1964); Stone v. United States, 324 F.2d 804, 807 (5th Cir. 1963). And, insofar as they rely upon the efficacy of the court’s instructions to the jury — as did the trial judge here — to hold the exclusion of such questions not to constitute an abuse of the court’s discretion, we note this reliance may on occasion be misplaced. Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

      . The questions asked by the trial judge provided sufficient opportunity for such an indication to have appeared. When an indication of bias of another sort did arise, the trial judge displayed a conscientious desire to insure a fair voir dire, as illustrated by his asking one of the questions earlier rejected — concerning prejudice against a defendant with a prior record of car theft convictions — to a juror who revealed his family had been the subject of numerous such thefts.

      . For example, three descriptions of the victim’s neck wound were permitted. However, given the proper admissibility of some description of the wound which caused the death, the clinical nature of the - most complete description of that wound, and the proper admission of other evidence similarly inflammatory, we are unable to say that reversible error occurred. We note also in this regard that, had appellant gained stipulations as to these and other facts, they still would have been announced to the jury as were the other stipulations.


author: McGOWAN, Circuit Judge:

text:
    FOOD STORE EMPLOYEES UNION, LOCAL NO. 347 AMALGAMATED MEAT CUTTERS and Butcher Workmen of North America, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 71-1550.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 17, 1972.
    Decided March 21, 1973.
    As Amended April 3, 1973.
    Rehearing Denied May 18, 1973.

      Mozart G. Ratner, Washington, D. C., and Judith A. Lonnquist, Chicago, Ill., with whom Albert Gore, Chicago, Ill., was on the brief, for petitioner.
    Robert E. Williams, Atty., N. L. R. B., of the bar of the Supreme Court of Illinois, pro hac vice, by special leave of court, with whom Marcel Mallet-Prevost, Asst. Gen. Counsel, and Steven R. Semler, Atty., N. L. R. B., were on the brief, for respondent.
    Before BAZELON, Chief Judge, and McGOWAN and LEVENTHAL, Circuit Judges.
   McGOWAN, Circuit Judge:

In this direct review proceeding under the National Labor Relations Act, we are concerned only with remedies. The wrongs — consisting of Section 8(a)(1) and (5) violations — were before us in Food Stores Employees Union, Local 347 v. NLRB, 139 U.S.App.D.C. 383, 433 F.2d 541 (1970). We there granted enforcement of the Board’s order, but, in response to the Union’s contention that the Board should have gone further in providing adequate relief, we remanded the case to the Board for reconsideration of the Union’s requests in this regard. Although the Board has increased somewhat the range of the relief granted by it initially, the Union has renewed its complaint to this court that the Board has fallen short of proper effectuation of the policies of the Act. To the limited extent hereinafter indicated, we find this to be true; and we enlarge the remedies accordingly.

I

The employing company, Heck’s Incorporated, is not a stranger to the processes of the Board. Operating a chain of discount stores in the Southeast, this is the eleventh time that its resistance of union organization has embroiled it in Board proceedings. In none has it prevailed at the Board level, and its fortunes in the Courts of Appeals have been only marginally better. In its first opinion in this case, the Board characterized Heck’s as having “a labor policy in all of its stores that is opposed to the policies of the Act.” In its Supplemental Decision following upon our remand, the Board asserts that “it is by now clear that [Heck’s] conduct here is but part of a pattern of unlawful anti-union conduct engaged in by [Heck’s] top officials throughout [its] entire operations for the purpose of denying to all of its employees the exercise of those rights guaranteed the employees by Section 7 of the Act;” and, viewing Heck’s conduct not “in isolation” but “in the total context,” the Board characterized Heck’s unfair labor practices as “clearly aggravated and pervasive.”

The unfair labor practices involved in this case grew out of the Union’s effort to organize the employees of Heck’s store in Clarksburg, West Virginia. The 8(a)(1) violation was found by the Board to reside in unlawful questioning and threatening of employees, and management polling by nonsecret ballot to ascertain the degree of employee support for the Union. The 8(a)(5) dereliction consisted of a refusal to bargain despite the existence of cards showing a majority in favor of the Union. The remedies initially afforded by the Board included a bargaining order, and the conventional command that the employer cease and desist from interfering with Section 7 rights. Appropriate notices of the relief given were directed to be posted at all of Heck’s stores.

The Union’s requests for additional relief at issue on the remand were as follows:

1. A copy of the notices ordered to be posted should also be sent to the home of each Heck’s employee, and the president and vice-president of Heck’s should be required to read the notices to employees at all Heck’s locations.
2. To facilitate Union access to employees, Heck’s should (a) provide the union with a list of names and addresses of all its employees; (b) afford the Union access to company bulletin boards and other posting places; (c) permit Union use of employer facilities in non-working parts of the stores during non-working hours; and (d) permit the Union to call a meeting in each store on company time in facilities customarily used for employee meetings.
3. Heck’s should be ordered to bar-, gain with the Union on a company-wide basis, i. e., the Board should recognize a bargaining unit encompassing all the stores in the Heck’s chain.
4. The General Counsel should be ordered to seek injunctions under § 10(j) of the Act whenever a complaint issues against Heck’s.
5. Heck’s should be ordered to reimburse employees for the loss of wages and fringe benefits that would have obtained if it had not flagrantly violated § 8(a)(5) by refusing to bargain about a contract.
6. Heck’s should be ordered (a) to pay the Union the amount of dues and fees which would have been paid by the employees of the Clarksburg store during the period of Heck’s refusal to bargain; and (b) to compensate the Union for its litigation expenses, including reasonable attorney’s fees, and for excess organization expenses caused by the unfair labor practices to which it was subjected.

The proceedings upon remand consisted of the receipt by the Board of statements of position from the General Counsel, the Union, and Heck’s. After consideration of these statements, the Board issued a Supplemental Decision and Amended Order, which enlarged the remedies in the following respects:

1. The notices required to be posted at all of Heck’s stores are also required to be mailed to each employee at his home.
2. The Union is to be afforded access for a one-year period to.’ Heck’s bulletin boards, and other places where notices to employees are customarily posted, for the posting of Union notices, bulletins, and other organizational literature.
- 3. The Union is to be furnished by Heck’s with a list of all of its employees’ names and addresses, such list to be kept current for a one-year period.

Dissatisfied with the degree to which the Board thus moved in the direction of meeting its requests, the Union petitioned for review in this court'. The Board has responded in defense of its actions, but Heck’s, although its position on remand was that no additional relief was in order, has not intervened and is not now before us.

II

We turn first to the controversies that remain with respect to non-monetary relief. All of the additional relief given on remand was of that character, and it is now unchallenged. The Union does not appear to press its contention that the notices — now required to be mailed as well as posted — also be read by the company officers; and we do not, in any event, disturb this exercise of the Board’s discretion. The union does complain of the failure to give it access to the employees on company property. The Board was of the view that this privilege was not demonstrably necessary to the effectiveness of the Union’s organizing efforts, especially in the train of the Board’s action in requiring that the Union be furnished with the list of employees’ names and addresses. Until this latter expedient had been tried and found wanting, the Board thought that the problems inevitably attendant upon Union activity on company property need not be anticipated. This is an exercise of judgment which we are not disposed to overturn.

The Union also persists in its assertion that the bargaining order, which presently embraces only the unit at the Clarksburg location, should be made company-wide. The Board, emphasizing that the Union’s organizing campaign has been, as in the case of Clarksburg, conducted on a store-by-store basis, and that there is no claim that the Union represents a majority of all the employees or a majority in any location other than those presently covered by bargaining orders, alludes to the novelty of this kind of relief, especially in the light of Section 7’s explicit guarantee of the right of employees to refrain from representational bargaining.

Despite the unrelieved history of the omission of this device from the Board’s remedial arsenal, the Board has purported to consider the proposal on its merits. Its conclusion was that the Union’s very success in gaining majorities in a number of single locations indicates that its potential for successful organization elsewhere is substantial — a potential which, indeed, has been presumably increased by the enlarged relief currently being given. Under these circumstances, the Board thought it both unnecessary and unwise to risk trenching upon the policies of Section 7 in the absence of proof that the Union would be helpless without this extraordinary relief. These considerations seem to us rational in nature and well within the range of respect traditionally to be accorded by us to the Board’s determinations.

Ill

The remaining components of the Un-. ion’s prayer for additional relief involve monetary compensation. They are four in number.

1. Legal Fees and Litigation Expenses.

It is the Union’s submission that, where it is necessary to exhaust legal procedures in order to attain rights accorded it by the Act, it should be reimbursed for its counsel fees and other litigation expenses, at least in respect of an employer who, like Heck’s, has been found by the Board to have engaged in a deliberate “pattern of unlawful anti-union conduct.” The Board, however, stressed the fact that the Act assigns the laboring oar to the General Counsel in the prosecution of an unfair labor practice charge, and that the participation of the charging party is not central to the public purposes of the statute but, rather, incidental to that party’s efforts to assure protection of its own private interests. With this statutory framework, said the Board, “the public interest in allowing the Charging Party to recover the costs of its participation in this litigation does not override the general and well-established principle that litigation expenses are ordinarily not recoverable.”

There are, it seems to us, obvious difficulties with this approach, certainly in the case of an employer who appears to look upon litigation as a convenient means of delaying — and thereby perhaps avoiding — the fatal day of union recognition and collective bargaining. We need not pursue those difficulties in detail, however, for the reason that the Board itself has subsequently departed from the rationale upon which its refusal of litigation expenses in this case is based. In its Supplemental Decision and Order, 194 NLRB No. 198, issued after remand by this court in International Union of Electrical, Radio & Machine Workers, AFL-CIO v. NLRB (Tiidee Products, Inc.), 138 U.S.App.D.C. 249, 426 F.2d 1243 (1970), cert. denied, 400 U.S. 950, 91 S.Ct. 239, 27 L.Ed.2d 256 (1970), the Board ordered the additional relief of payment to both the labor organization and the Board of their litigation expenses in both the Board and court proceedings.

In doing so the Board reasoned that the Congressional objective of achieving industrial peace through collective bargaining “can only be effectuated when speedy access to uncrowded Board and court dockets is available.” It went on to conclude that, “in order to discourage future frivolous litigation, to effectuate the policies of the Act, and to serve the public interest we find that it would be just and proper” to order reimbursement of both the Board and the Union for their expenses incurred in the investigation, preparation, presentation, and conduct of the cases before it and in this court.

We think the considerations which motivated the Board to give this enlarged relief in Tiidee are also operative here. Although the Board in its Supplemental Decision in this case has nowhere characterized the litigation as frivolous, it has used the language of “clearly aggravated and pervasive” misconduct; and in its original opinion it questioned Heck’s good faith because of its “flagrant repetition of conduct previously found unlawful” at other Heck’s stores. It would appear that the Board has now recognized that employers who follow a pattern of resisting union organization, and who to that end unduly burden the processes of the Board and the courts, should be obliged, at the very least, to respond in terms of .making good the legal expenses to which they have put the charging parties and the Board. We hold that the case before us is an appropriate one for according such relief.

2. . Organizing Costs.

In its Supplemental Decision after remand, the Board lumped litigation expenses and excess organizational costs together in its discussion. It prefaced that discussion by saying that “ . we are not unmindful of the probability that the Charging Party has spent more money on organizational costs and attorneys’ fees than it would have spent had [ Heck’s] not refused to bargain.” It concluded, however, not to make any allowances in this regard for the reasons articulated by it in denying litigation expenses. This rationale, as we have seen, generally turned upon what the Board considered to be the subordinate role of a charging party in the scheme of the Act.

As in the case of litigation expenses, the Board, upon remand in Tiidee, has shifted its ground with respect to organizational costs. In its Supplemental Decision in Tiidee, the Board did not allow the claim for excess organizational expenses, but it justified that action solely on the ground that “ . . . the Union was selected by the employees after a 2-month campaign at the first election held;” and, because of this circumstance, the Board found “ . . .no nexus between Respondent’s unlawful conduct here under examination and the Union’s preelection organizational expenses . ” Thus, in Tiidee the Board appears to have denied organizational costs because it believed that, on the facts of that case, no unusual organizational costs had been incurred.

This obviously is quite a different thing from saying that the policies of the Act forbid the allowance of such costs in cases like the one before us, where the Board has in terms indicated its awareness of “the probability” that such costs were experienced by reason of Heck’s intransigence. Under these circumstances we find nothing in the Board’s Supplemental Decision which constitutes an adequate justification for the denial of extraordinary organizational costs to which the Union was exposed by reason of Heck’s policy of resisting organizational efforts and refusing to bargain; and we think that provision for such costs should have been included in the remedies fashioned by the Board on remand.

3. Union Dues and Fees.

In its Supplemental Decision dealing with the Union’s claim that it should be reimbursed for union dues and fees lost by it during the period when Heck’s was refusing to bargain, the Board asserts that the only predicate for such relief would be a finding by it that, had there been bargaining, it would have resulted in the inclusion of a union security clause which would have required payment of dues and fees as a condition of continued employment. The Board concludes that “[W]hile the execution of such an agreement is of course a possibility, we cannot conclude that it is so strong a probability that any loss of dues or fees must be deemed to have resulted from [Heck's] unlawful refusal to bargain.”

The Union, in challenging this conclusion, argues alternatively that (1) the likelihood of the successful negotiation of a union security clause is substantial in the light of the prevalence of such clauses in collective bargaining agreements, or (2) even if it be assumed that no such contract would have ensued, the willingness of Heck’s to bargain at all would have resulted in the voluntary payment of union fees and dues by at least some of the 26 employees who signed the authorization cards.

We have difficulty with each of these hypotheses. It is undoubtedly true that union security clauses have attained a wide degree of use, but it also remains true that an employer may bargain to impasse with respect to such a demand, and that the Board may not impose that obligation upon the employer. H. K. Porter Co. v. NLRB, 397 U.S. 99, 90 S. Ct. 821, 25 L.Ed.2d 146 (1970). We also think it speculative in the extreme to suppose that employees would voluntarily begin paying initiation fees and dues to a union which has been denied recognition and failed to produce a contract. There is nothing in the record to show —and the Union does not represent to us — that it made any effort to assess dues and fees during the period of its travail with Heck’s. In the absence of such evidence, there is some reason to suppose that union policy, generally and in the case of the Union here involved, is not to make any effort to collect dues and fees, at least in the case of newly organized employees, until the fruits of union membership are brought home in the form of a signed agreement.

It would, in any event, present formidable problems of proof to try to determine at this late date which employees would, if they had ^been asked, have paid fees and dues during the period in question. Short of assuming that all would have done so — an assumption for which there seems little foundation in the realities of human nature — the inquiry would be an exercise in futility. In any event, the loss, if any, of such dues and fees will, we think, be offset to some extent by the relief we have directed in respect of extraordinary organizational costs.

4'. Compensation for Lost Benefits.

The additional remedy of making its •members whole for the wage and other fringe benefits which might have accrued from the bargaining process is the matter principally pressed by the Union. In its Supplemental Decision, the Board initially reiterated its position, stated in Ex-Cell-0 Corporation, 185 NLRB No. 20, that it was wholly lacking in statutory authority to give relief of this nature. However, it went on to conclude that, even if it had the power' to act, this would not be an appropriate case in which to do so. It pointed to the opinions of this court subsequent to Tiidee, in which we have held the make-whole remedy inapplicable where the refusals to bargain rested on “debatable” issues, as contrasted with those which we, as in Tiidee, have characterized as “patently frivolous.” Referring to the precise circumstances of this ease, the Board concluded that the latter category did not embrace a defense which failed solely by reason of the credibility determinations of the Trial Examiner.

The union, although harassed from the beginning of its organizing campaign at the Clarksburg store, within a few days represented to Heck’s that it had in hand the signed authorization cards of a majority of the employees; and it requested recognition and bargaining. The response of Heck’s was to file a petition for an election. When the election was held some six weeks later, the Union lost by a vote of 16 to 19, although this result was subsequently nullified by reason of the employer’s unfair labor practices. The Trial Examiner found that the General Counsel had failed to prove that Heck’s lacked a good faith doubt of the Union’s majority status and that, accordingly, there was no 8(a)(5) violation.

In making this determination, the Trial Examiner focused first on the substance of Heck’s refusal to recognize the Union on the basis of the cards. The administrative hearing record shows that Heck’s introduced testimony by certain employees as to intimidation and other circumstances which, if it had been believed, would have eliminated enough cards to vitiate the majority status claimed by the Union. Although the Trial Examiner ultimately found each of the cards to have been validly obtained, he noted that the determination turned upon some close questions concerning the credibility of witnesses. The Trial Examiner also emphasized the fact that Heck’s had promptly filed an election petition after the demand was made, and that Heck’s had had some prior experience with card-based bargaining demands from the Union which later proved unwarranted.

The Board took its stand principally upon what it termed to be the long history of disregard by Heck’s generally of its obligations under the Act. Thus the Board’s finding of bad faith was based not on a determination that Heck’s objections to this particular demand for recognition were insubstantial, but rather on Heck’s repetition in the period preceding the election of conduct found in prior proceedings to have been illegal. We agree with the Board’s conclusion that an employer’s good faith must be judged in the entire context of its behavior, and indeed our determination that some additional remedies are required in this case is based on Heck’s consistent and repeated demonstration of antiunion animus. However, the factors which influenced the Trial Examiner on the issue of good faith remain undisturbed by the Board’s decision and are relevant to the appropriateness of the make-whole remedy.

In the light of these circumstances, we are not inclined to say that the Board’s treatment of this issue on remand is beyond the wide range of latitude traditionally accorded the Board in the matter of remedies. The Supreme Court, although ultimately accepting the signed card approach in Gissel as a basis for creating the recognition and bargaining obligation, did at the same time refer to cards as “admittedly inferior to the election process.” The employer here appears to have had some basis for questioning the result of the card approach, and it exhibited its readiness to invoke the election process. We do not, accordingly, revise the Board’s failure to provide an additional remedy in the form of a make-whole provision.

We grant enforcement of the Board’s Amended Order, as the same shall be further enlarged upon remand by the inclusion of the additional remedies of litigation costs and organizational expenses discussed hereinabove.

It is so ordered.

      . The long history of this struggle is as follows: Heck’s Discount Store, 150 NLRB 1565 (1965), enforced per curiam, 369 F.2d 370 (6th Cir. 1966); Heck’s Inc., 156 NLRB 760 (1966), enforced as modified, 386 F.2d 317 (4th Cir. 1968); Heck’s Inc., 158 NLRB 121, enforced per curiam, 387 F.2d 65 (4th Cir. 1967); Heck’s Inc., 159 NLRB 1151 and 159 NLRB 1331 (1966), consent decree entered (4th Cir. No. 11,390 June 13, 1967); Heck’s Inc., 166 NLRB 186 and 166. NLRB 674 (1967), enforced as modified 390 F.2d 655 (4th Cir. 1968) and 398 F.2d 337 (4th Cir. 1968), modified and remanded sub nom. NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969); Heck’s Inc., 170 NLRB 178 (1968), enforced in part, re-mantled in part in light of NLRB v. Gissel Packing Co., supra, 135 U.S.App.D.C. 341, 418 F.2d 1177 (1969); Heck’s Inc., 171 NLRB 777 (1969); Heck’s Inc., 172 NLRB No. 255 (1969), enforced in part, remanded in part, 139 U.S.App.D.C. 383, 433 F.2d 541 (1970); Heck’s Inc., 174 NLRB 951 (1971).

      . The Fourth Circuit refused to enforce an 8(a)(5) order to bargain in NLRB v. Heck’s Inc., 386 F.2d 317 (4th Cir. 1967), on the ground that the card majority had been obtained through improper participation of supervisory personnel. In N.L.R.B. v. Heck’s Inc., 398 F.2d 337 (4th Cir. 1968), the court declined enforcement of an order to bargain, but that decision was reversed by the Supreme Court sub nom. N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). This court, while enforcing the Board’s order in part in Food Store Emp. U., Loc. 347, Amal. Meat Cut. v. NLRB, 135 U.S.App.D.C. 341, 418 F.2d 1177 (1969), remanded, in light of Gissel, for further findings as to whether the employer’s refusal to bargain was accompanied by independent unfair labor practices which precluded a fair election.

      . In its Supplemental Decision, the Board at the outset noted that the Union requested this particular relief and the General Counsel opposed it, and thereafter made no further reference to the matter. Similarly, there was no discussion of this item by either the Union or the Board in their briefs and arguments before us. In these circumstances we do not pursue the matter, except to remark that the General Counsel’s statement on remand emphasizes his continuing sensitivity to the obligations imposed upon him by Section 10(j). He also pointed out that the final order to be entered by the Board in this case runs against Heck’s, and cannot operate to impose obligations on the General Counsel. It may be that the matter was not pressed upon the Board in the light of these representations.

      . Neither do we disturb the Board’s rejection of a related Union proposal, which was' supported by the General Counsel, that the Board enter now a bargaining-order with respect to any single-store unit as 'to which the Union hereafter secures a card majority or otherwise achieves bargaining rights. The Board, in addition to believing that this was not essential to the employees’ ability in the future freely to choose their bargaining representatives, pointed out that disputes over representation issues would, under this approach, presumably have to be decided by the courts of appeals acting with the aid of special masters — a circumstance that promises neither greater expedition in handling nor more expert resolution in result. We have no warrant to fault the Board for taking these considerations into decisive account.

      . N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 612 n. 32, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969); Fibreboard Paper Products Corp. v. N.L.R.B., 379 U.S. 203, 216, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964); International Union of Electrical, etc., Workers v. N.L.R.B., 138 U.S.App.D.C. 249, 426 F.2d 1243, 1250 (1970), cert. denied, 400 U.S. 950, 91 S.Ct. 239, 27 L. Ed.2d 256.

      . These reimbursable expenses were described by the Board as “reasonable counsel fees, salaries, witness fees, transcript and record costs, printing costs, travel expenses and per diem, and other reasonable costs and expenses.”

      . In his statement of position on remand, the General Counsel supported the Union’s entitlement to extraordinary organizational costs. His comment was that where the Union was required by Heck’s unfair labor practices “to expend additional funds in organizational activity over and above those normally required . . . [Heck’s] should be ordered to reimburse the Union for these additional expenditures.”

      . Counsel for the Board in their brief in this court attempt to supply a number of reasons why excess organizational costs should not be taken into account, such as their assertedly speculative nature and their invitation of collateral litigation which burdens the Board’s administration of the Act. These are counsel’s reasons, not the Board’s; and, under familiar principles of judicial review of administrative agencies, we appraise the Board’s actions only in terms of the latter.

      . The Board raised, although it pretermitted, a question as to its power to provide a remedy in respect of union dues and fees, because of the restrictions on payments by employers to employee representatives imposed by Section 302 of the Act. Because of the disposition we make of this claim we need not pursue this issue of authority, although it would appear that Section 302 is addressed to other circumstances than those involved here.

      . In its rejection of a claim of this kind on remand in Tiidee, the Board noted that the labor organization involved in that case had asserted that “ . . . because it is union policy not to collect initiation fees and dues until a contract is executed, it has received nothing from the unit employees throughout the course of this proceeding . . . ” The Board purported first to view this claim as “partaking of a request for a make-whole remedy, which wo have declined to order, since presumably the dues and fees sought would have come from lost wages . ” Although it may be that the Board here is confusing the substantive merits of a make-whole remedy with the wholly manageable problem of preventing a double recovery, the Board went on to conclude that, since the union as a matter of policy did not seek initiation fees and dues prior to negotiation of a contract, it saw no reason to cause the employer to assume the risk of that passivity.

      . In Bangor & Aroostock R. Co. v. BLFE, 143 U.S.App.D.C. 90, 442 F.2d 812 (1971), this court held that (lues and fees could be recovered by a union as damages in respect of improper job abolitions. A uni on shop clause in the collective bargaining agreement there involved made it plain that, but for the employer’s action, dues and fees would have been paid. The uncertainty claimed was whether men hired to fill the positions would have joined the plaintiff union .rather than its competitor. The court there thought that the evidence supported a reasonable inference that they would, thereby justifying the placing of the burden of proof as to the uncertainty on the employer. In the case before us, union policy would have resulted in no re- • ceipt of dues and fees even during' an unduly prolonged bargaining period.

      . International Union, UAW v. NLRB (Ex-Cell-O Corporation) 145 U.S.App. D.C. 384, 449 F.2d 1046; Id., 145 U.S. App.D.C. 390, 449 F.2d 1058 (1971); Steelworkers v. NLRB (Quality Rubber Mfg. Co.), 139 U.S.App.D.C. 140, 430 F.2d 519 (1970); Amalgamated Clothing Workers v. NLRB (Levi Strauss & Co.), 142 U.S.App.D.C. 337, 441 F.2d 1027 (1970).
      In Ex-Cell-O, the union requested and won the election, but the employer refused recognition on the basis of union activity which allegedly precluded a fair election. In Quality Rubber, the employer refused recognition on the basis of cards, but did not seek an election. The result turned on issues of credibility which, although resolved against the employer, were found to be consistent with good faith. In Levi Strauss & Co., the union requested an election after the employer refused recognition on the basis of cards. The union lost, but the employer was ordered to bargain because it was found to have engaged in unfair labor practices during the period preceding the election. Again the resolution turned on conflicting testimony.

      . Heck’s Inc., 159 NLRB 1151, 159 NLRB 1331, consent decree entered (No. 11,390, 4th Cir. June 13, 1967); N.L.R.B. v. Heck’s Inc., 386 F.2d 317 (4th Cir. 1968).

      . The Board is equipped with a broad arsenal of remedies which it may employ in the case of a persistent violator. Rather than require application of such remedies on an all-or-nothing basis, it seems to us preferable to preserve sufficient flexibility to adjust the relief granted to the particular facts of each case. There are, as in everything else, degrees of flagrancy — and variations in its pattern.


text:
    UNITED STATES of America v. Robert MILLER, Appellant.
    No. 72-1393.
    United States Court of Appeals, District' of Columbia Circuit.
    Argued March 1, 1973.
    Decided March 21, 1973.
    Rehearing Denied April 18, 1973.
    Robert A. Cantor, with whom Gerald B. Greenwald (both appointed by this court) and John G. Manning, Washington, D. C., were on the brief, for appellant.
    David M. Bullock, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty. and John A. Terry, Asst. U. S. Atty., were on the brief for appellee. Roger M. Adelman, Asst. U. S. Atty., also entered an appearance for appellee.
    Before McGOWAN and WILKEY, Circuit Judges, and ROBERT VAN PELT. Senior United States District Judge for the District of Nebraska.

       Sitting by designation pursuant to Title 28, U.S.Code, Section 294(d).

   PER CURIAM:

This appeal is from a denial by the District Court of a motion to vacate sentence under 28 U.S.C. § 2255. Convicted by a jury of federal narcotics offenses, 26 U.S.C. § 4704(a) and 21 U.S.C. § 174, appellant received the mandatory minimum sentence of ten years. This court remanded for reconsideration of sentence in the light of our holding in Watson v. United States, 141 U.S.App. D.C. 335, 439 F.2d 442 (1970) (en banc), with respect to eligibility under the Nan cotic Addict Rehabilitation Act, 18 U.S. C. §§ 4251-55 (1970).

The District Judge thereupon committed appellant for observation and report under Title II of NARA.

The NARA staff at Danbury found that appellant was an addict, but concluded that he was not likely to respond affirmatively to the treatment program in use at Danbury. The report urged, however, that appellant should be in a program involving methadone maintenance and individual therapy.

The District Court, without (so far as appears from the record) giving appellant or his counsel notice of the report or an opportunity to be heard with respect to it, ordered appellant recommitted to the Attorney General to continue serving his ten-year sentence. Appellant asserts that this improperly cut off his right to allocution. Without finding it necessary to deal with the matter solely in terms of allocution, we do not view this as a satisfactory way of proceeding when the report came back from Dan-bury. Had appellant or his counsel been apprised of the contents of the report and been afforded a chance to make representations based upon it, it may be that the court would, at the least, have coupled with its sentence a recommendation or request that appellant be afforded treatment. As it is, appellant spent some 15 months in the D.C. jail after his recommitment and has since been at Lorton, in neither case, insofar as we can tell from the record and the representations at oral argument, with opportunity for treatment of his narcotics problem.

We remand for reconsideration of the sentence after notice and hearing with respect to the Danbury report. In so doing, we intimate no views with respect to precisely what other alternatives, if any, are available to the court by way of response to the Danbury suggestions. At oral argument before us, for example, counsel suggested that the nature of the particular program in being at Danbury may perhaps not be taken as defining the range of treatment available under a NARA commitment. In any event, counsel may make such representations upon remand as he believes to be warranted.

It is so ordered.

      . Appellant’s other contentions in the appeal presently before us are grounded upon our opinion in Watson. They are without merit because of the clear evidence of record that appellant was trafficking in narcotics.

      . The concluding paragraph of the Dan-bury report is as follows :
      Our staff finds that Mr. Miller is an addict. Because of his needs as he expresses them and his reluctance to participate in the NARA Program, we do not recommend that he be committed for treatment under the Narcotic Addict Rehabilitation Act. Hopefully, some other resource may be found through which Mr. Miller can attempt methadone maintenance and individual therapy. He would appear to be a good candidate for this form of treatment provided fairly close supervision could be established.


author: PELL, Circuit Judge. FAIRCHILD, Circuit Judge

text:
    Peter KOCHLACS et al., Plaintiffs-Appellants, v. LOCAL BOARD NO. 92 et al., Defendants-Appellees.
    No. 72-1274.
    United States Court of Appeals, Seventh Circuit.
    Argued Oct. 27, 1972.
    Decided Feb. 23, 1973.
    Donald S. Frey, Evanston, Ill., for plaintiffs-appellants.
    James R. Thompson, U. S. Atty., and William T. Huyck, and Ann P. Sheldon, Asst. U. S. Attys., Chicago, Ill., for defendants-appellees.
    Before HASTINGS, Senior Circuit Judge, and FAIRCHILD and PELL, Circuit Judges.
   PELL, Circuit Judge.

Plaintiffs appeal from the dismissal of their amended complaint. Typified as a class action, the suit named as defendants four specified selective service boards and the “National Selective Service System Office, Washington, D.C.” and purportedly sought relief on behalf of theological students and ministers who have refused their 4-D classifications and registration cards, “all of whom made such refusal not to participate in the War Selective Service System (even by holding 4-D classifications) because of their commitment to their Christian religious beliefs.” Injunctive and declaratory judgment relief was sought.

The four named plaintiffs were allegedly entitled to 4-D exemptions, 32 C. F.R. § 1622.43. Plaintiffs Kochlacs and Bates were students at Garrett Theological Seminary and plaintiffs White and Heuerman were ministers of the United Methodist Church. All had turned in their 4-D classification cards to their respective boards and all but Heuerman their registration cards, “in protest of the continuance of the War Selective Service System.”

Kochlacs had received an order from his board to report for induction and he had refused to comply with the order “for the reason that his religious beliefs call him to a higher obedience above that obedience demanded of him by the laws of the United States Selective Service System.” There is no indication that he had been prosecuted for his refusal. The other three named plaintiffs allegedly expected similar orders of induction. There is no allegation, however, that any of them had been reclassified from 4-D. A violation of First Amendment rights was claimed by the four as well as for the members of the class.

It is the plaintiffs’ view that there is an unconstitutional violation of their freedom of religion for them to have to participate in the Selective Service System in any way. They thus seek to be exempted from all requirements, including, apparently, the registration requirements. We find this contention without merit. Title 50 U.S.C. App. § 456(g), in setting out the exemption for ministers and students preparing for the ministry, specifically states that they are exempted from training and service, but not from the registration provisions of the section. Thus ministers are entitled to no extraordinary treatment as to the registration requirement. In United States v. Henderson, 180 F.2d 711 (7th Cir. 1950), cert. denied, 339 U. S. 963, 70 S.Ct. 997, 94 L.Ed. 1372, this court had before it a similar challenge to the registration requirements. That challenge was rejected by the court and plaintiffs have given us no reason to reconsider that well-reasoned opinion. Moreover, we note that the Selective Service System does provide administratively for the handling of those who are conscientiously opposed to war. The congressionally ordained administrative structure has been repeatedly upheld by ■the Supreme Court on a balancing of the broad power of Congress to raise armies as against primary First Amendment rights. See United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).

Although their underlying contention must be rejected, plaintiffs contend that the dismissal of their complaint was still incorrect when considered in the light of Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 89 S. Ct. 414, 21 L.Ed.2d 402 (1968), which allowed preinduction review in spite of § 10(b)(3) of the Military Selective Service Act of 1967, and held that a divinity student could not be punitively reclassified for returning his classification card. Plaintiffs contend that they live in constant fear of a retaliatory reclassification as occurred in Oestereich and that such a fear is not unrealistic since such a reclassification was visited upon Kochlacs. Further, they contend that all members of their class are similarly concerned.

We have no difficulty in affirming the district court’s dismissal as to all plaintiffs except Kochlacs. An examination of the contentions of the other three named, plaintiffs shows that none has even been threatened by his board with reclassification. In essence, these plaintiffs can only point to isolated actions by local boards (e. g., Kochlacs’s board) for their expressed fear that they will be reclassified in violation of the thrust of Oestereich. We, in effect, are asked to assume that local boards will disregard the Oestereich clear mandate against punitive reclassifications. We do not conceive that mere suspicion without some reasonable basis entitles a person to sue an agency of the Government to prevent that agency taking action which is in violation of the law. There must be some substance to the fear and we can find none for the three plaintiffs. We also note that the regulation under which the local board declared the registrant in Oestereich to be a delinquent, 32 C.F.R. § 1642.4(a), has been omitted from the most recent edition of the regulations. Plaintiffs cite Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), to support their position that fear is enough. We do not so read Dombrowski where the chilling or fear certainly did not border on the chimerical. In sum, we will not assume that local boards and the operative apparatus of the Selective Service System will act in blatant violation of the law as set out in Oestereich.

What we have said with regard to the specific cases of the three plaintiffs would a fortiori be applicable to those unnamed but theoretically fearing students and ministers who had supposedly repudiated jurisdiction over themselves by the Selective Service System. We find no basis for a class action in this instance.

As we have indicated, Kochlacs presents a more troublesome case as he allegedly suffered exactly the deprivation visited on Oestereich, i. e., a punitive reclassification because of returning cards to his board. There are, however, significant factual distinctions between the cases. First, Kochlaes’s local board acted after the decision in Oestereich. Arguably this might make the action of the board more reprehensible and unsupportable because of being in violation of the holding of the Supreme Court. But upon further analysis it would be reasonably predictable that upon appeal within the administrative framework of the System there would be a reversal. In Oestereich, the board was operating under a properly adopted regulation. This would not now be true. Even if a particular local board was not aware of the elimination of the regulation, we would not assume that the higher echelons of Selective Service would be unaware thereof.

We note that Kochlacs, consistent with his view that he should be exempt from any contact with the Selective Service System on grounds of freedom of religion, never appeared before his local board, never requested a personal appearance, and never took an administrative appeal from his reclassification as I-A. Thus, he is in the situation of the defendants in McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969), and McGee v. United States, 402 U.S. 479, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971). In McKart, the Court held that the defendant in a criminal prosecution for refusing induction was not barred from defending on the ground that he was entitled to a deferment as a sole surviving son, IV-A, even though he had not taken an administrative appeal. The Court emphasized that the question was solely one of law and that the record was sufficient. In contrast, the Court in McGee held that the defendant could not raise his claim to a deferment as a student studying for the ministry (or a conscientious objector) because he had failed to ask for a personal appearance or appeal his classification.

On the surface, the present case is close to McGee since both deal with divinity students, but the distinction does exist in that in McGee the local board had no real evidence in its files that the registrant was entitled to a 4-D. Here, Kochlacs’s file had evidence of his status since the board had previously granted him a 4-D exemption, and, allegedly, the only reason the board reclassified him was that he returned his cards. We do not have to resolve this difficult question, however, since both McGee and McKart were cases involving defense to criminal prosecutions. Kochlacs, although he has refused to report for induction, has never been indicted.

It is our view that the exception to the bar on preinduction review (not habeas corpus or defense to a criminal charge) set out in Oestereich should not be applied in a case such as the present one where there is no reason to think an appeal would be fruitless and where there has been no exhaustion of the administrative remedies within the Selective Service System. Kochlacs contends that his case is exactly like Oestereich’s and therefore there was blatantly lawless misconduct. But as Mr. Justice Harlan in his concurrence emphasized, Oestereich also had the element that a regulation of the Selective Service System was being challenged. Such “a challenge to the validity of the administrative procedure itself not only renders irrelevant the presumption of regularity, but also presents an issue beyond the competence of the Selective Service Boards to hear and determine. . To withhold pre-induction review in this case would thus deprive petitioner of his liberty without the prior opportunity to present to any competent forum — agency or court — his substantial claim that he was ordered inducted pursuant to an unlawful procedure. Such an interpretation of § 10(b)(3) would raise seriohs constitutional problems, and is. not indicated by the statute’s history, language or purpose.” 393 U.S. at 242-244, 89 S. Ct. at 419-420. (Footnotes omitted.)

We recognize that the Court did not draw the line in this way in Oestereich, see Fein v. Selective Service System Local Board No. 7, 405 U.S. 365, 375, 92 S.Ct. 1062, 31 L.Ed.2d 298 (1972). However, in deciding whether the rationale of McKart or of McGee controls on the issue of exhaustion, it is our opinion that it is crucial to the integrity . of the System to require in cases of allegedly aberrant behavior by a local board in improperly classifying a registrant, when not based on the uniform application of a duly adopted controlling regulation as in Oestereich, that the Selective Service System itself be given a chance to deal with the mistake and rectify it through its appellate procedures. As the Court said in McGee v. United States, supra, 402 U.S. at 484, 91 S.Ct. at 1568, “After McKart the task for the courts, in deciding the applicability of the exhaustion doctrine to the circumstances of a particular case, is to ask ‘whether allowing all similarly situated registrants to bypass [the administrative avenue in question] would seriously impair the Selective Service System’s ability to perform its functions.’ 395 U.S., at 197.”

In the present ease, we think that that question must be answered in favor of requiring exhaustion. This does not mean that such exhaustion would have to be required in a case involving habeas corpus or criminal defense. The balance is different and we do not pass on this question other than to note that the balance may lead to a different result since the threat to the integrity of the System is substantially less in that type of case as noted by Congress when it passed § 10(b)(3) barring most preinduction review.

We rest our decision on one further basis. As the Court noted in McKart, “[c]ertain very practical notions of judicial efficiency come into play as well. A complaining party may be successful in vindicating his rights in the administrative process. If he is required to pursue his administrative remedies, the courts may never have to intervene.” 395 U.S. at 195, 89 S.Ct. at 1663. Here, we find no reason for thinking that the Appeals Board would have let this allegedly improper reclassification stand if Kochlacs had shown that his case was actually identical to Oestereich. Thus, when we read the considerations of efficiency in pari materia with those of exhaustion and the congressional disfavor of preinduction review, we believe that exhaustion is also mandated in the present ease. Once again, the balance is substantially different in a case where § 10(b)(3) is not concerned. Further, the balance might be different if the case were like Oestereich’s, where the local board and the appeals board were operating under a presumably valid regulation and thus the challenge was not to aberrant board behavior but to the process itself.

Finally, we sense no compelling interest in granting access to the courts in situations where the relief sought is .readily available through more expeditious and less expensive administrative procedures, particularly where there is a basis for the thought that the courts are being used, inter alia, because of their greater exposure to the news media as a vehicle to publicize views, no matter how sincerely those views may be held.

For the reasons set forth hereinbefore, the judgment of dismissal is affirmed.

Affirmed.

FAIRCHILD, Circuit Judge

(concurring in part, dissenting in part).

Respectfully, I would reverse the dismissal as to Kochlacs, and affirm in all other respects.

      . The Government's motion to dismiss asserted that the court lacked civil jurisdiction over the subject matter pursuant to 50 U.S.C. App. § 460(b)(3), § 10(b) (3) of the Selective Service Act, and that the complaint failed to state a claim upon which relief can be granted. Rule 12(b) (1) and (6), Fed.R.Civ.P., was the basis of the respective points. In its ruling sustaining the motion, the district court indicated that the plaintiffs lack standing, thereby apparently finding § 10(b) (3) applicable. Subsequently, the court also indicated that the comidaint had been dismissed because it did not state a cause of action. While a motion to dismiss is ordinarily directed to the allegations of the complaint and if a claim for relief could conceivably be proved thereunder the motion should not be granted, here the district court in its order of dismissal did refer to the “pleadings, briefs, and affidavits” spread of record before the court. Affidavits were filed in support of plaintiffs’ motion for a temporary injunction. In our review, we have considered not only the allegations of the complaint but matters advanced by plaintiffs in the affidavits and brief. These matters, of course, reflect upon the aspect of whether a claim for relief could conceivably have been proved.

      . Subsequent to the filing of the suit a change of Selective Service Regulations placed theology students in a deferred 2-D classification while ministers would remain in a 4-D exemption status. For the purposes of this appeal we do not consider the distinction of significance, Breen v. Selective Service Local Board No. 16, 396 U.S. 460, 463, 90 S.Ct. 661, 24 L.Ed. 2d 653 (1970), and therefore shall collectively refer to the plaintiffs, as they have in their complaint, as being entitled to a 4 — D classification.

      . This provision was in the Act prior to the 1971 amendments and was carried over by those amendments into the present law.

      . The companion case to Oestereich, Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968), upheld the constitutionality of § 10(b) (3) as a bar to preinduction judicial review in cases in which the draft board had exercised its statutory discretion in evaluating the evidence of the registrant’s conscientious objector claim.

      . In Breen v. Selective Service Local Board No. 16, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970), the registrant sought preinduction review of his local board’s punitive reclassification of him from a student deferment. Breen appealed his reclassification but, while that appeal was pending, sought an injunction in the district court against any possible induction. The district court dismissed for want of jurisdiction, not mentioning failure to exhaust the administrative appeals remedies. However, during the pendency of Breen’s appeal to the Court of Appeals, the Selective Service Appeal Board ruled against him and upheld his reclassification. We believe that this action mooted any possible claim by the Government that Breen was barred from preinduction review for failure to exhaust his administrative remedies. In Breen, it was arguable until the decision of the Supreme Court whether or not Oestereich controlled.

      . In Fein v. Selective Service System Local Board No. 7, 405 U.S. 365, 92 S.Ct. 1062, 31 L.Ed.2d 298 (1972), the Government virtually conceded that Fein had a valid defense if he refused induction, yet it opposed vigorously allowing that defense to be raised by preinduction review. The Court accepted this distinction and denied such review. 405 U.S. at 380, 92 S.Ct. 1062.


author: PHILLIPS, Chief Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Roy Ernest DAY, Defendant-Appellant.
    No. 72-1898.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 6, 1973.
    Decided April 5, 1973.

      George I. Cline, Morehead, Ky., for defendant-appellant; George I. Cline, Diederich, Cline & Wilhoit, Morehead, Ky., on brief.
    Kenneth P. Glover, Office of Regional Counsel, Bureau of Alcohol, Tobacco and Firearms, Cincinnati, Ohio, for plaintiff-appellee; Eugene E. Siler, Jr., U. S. Atty., E. D. Kentucky, James Cook, Asst. U. S. Atty., E. D. Kentucky, Lexington, Ky., on brief.
    Before PHILLIPS, Chief Judge, LIVELY, Circuit Judge, and YOUNG, District Judge.

       Honorable Don J. Young, United States District Judge for the Northern District of Ohio, sitting by designation.

   PHILLIPS, Chief Judge.

Appellant, Roy Ernest Day, was convicted in May 1972, after a jury trial, of dealing in firearms without a license. 18 U.S.C. § 922(a)(1). At the same trial, he was also convicted of five counts of receiving and possessing firearms in interstate commerce. 18 U.S.C. App. § 1202(a)(2). Day was sentenced to a total of five years imprisonment and fines totalling $10,000.

The evidence elicited at trial showed that, on four separate occasions in early 1970, Day sold a total of seven handguns to Special Investigator Charles H. Stone of the Alcohol, Tobacco and Firearms Division of the Treasury Department. All of the sales took place in Day’s home in Morehead, Kentucky. A search warrant, obtained by Treasury agents after relating the above mentioned four sales in an affidavit to a United States Commissioner, was executed on March 20, 1970, at which time a total of 96 firearms, worth about $12,000, were seized from Day’s home and adjacent house trailer. Sixty of the guns were new hand guns still in the manufacturer’s original packages. There also was testimony from Day himself on cross-examination that he had sold at least one other gun to at least one other person.

During the trial, the Government called as one of its witnesses Special Investigator Sylvester Yockey of the Alcohol, Tobacco and Firearms Division. The apparent purpose of Yockey’s testimony was to show that the guns possessed by Day had been manfactured outside the state of Kentucky and had moved in interstate commerce before Day possessed and received them.

Two separate and distinguishable types of testimony were offered by Yockey. First, he testified where the guns were manufactured and gave testimony, based on a document prepared by the historian of the Smith & Wesson gun manufacturing firm, as to the approximate dates of manufacture of the guns bought by the agents in the sales and seized in the search of Day’s house. The document from which Yockey was testifying listed the various models produced by Smith and Wesson and the serial numbers of the models and the periods during which they had been produced.

For example, at one point in his testimony Yockey was asked the approximate date of manufacture of a .38 Smith & Wesson model 12, serial number C951878. He replied as follows:

“The .38 Smith and Wesson model 12 was produced by Smith and Wesson from 1948 through 1968. The serial number range started at C-l and ended at C-l,000,000. At the serial number range C-951,878 would appear to be about the first of 1968.”

The defense objected to this evidence as hearsay. The objection was overruled.

After a trial recess, Yockey testified as to the exact dates of manufacture and shipment of the guns in evidence. Apparently this information was obtained by telephone during the recess from an agent in Yockey’s office and was the result of the investigation conducted under Yockey’s supervision. The report itself was never introduced as evidence by the Government, nor was its introduction or presence ever sought by the defense.

On appeal, Day asserts error in his conviction under 18 U.S.C. § 922(a)(1), his conviction under 18 U.S.C. App. § 1202(a)(2), and in the admissibility of certain testimony of Yockey. We examine these contentions separately.

I. 18 U.S.C. § 922(a)(1) Conviction.

Three contentions are urged upon this court regarding Day’s conviction under § 922(a)(1) for engaging in the business of dealing in firearms without a license.

First, Day claims that Congress, in enacting the statute, intended to punish only those who deal in firearms in interstate commerce.

His reliance on United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), to support this interpretation of the statute is misplaced. Bass was a decision interpreting § 1202(a) (1) of the Omnibus Crime Control and Safe Streets Act of 1968. Although convictions under one statute often accompany conviction under the other, as in this case, the statutes are not identical and, actually, are quite different.

The statute interpreted by Bass makes it a crime for a person in any one of five categories to “receive[s], possesses], or transport[s] in commerce or affecting commerce, . . . any firearm . ” The Supreme Court, in its majority opinion announced by Mr. Justice Marshall, ruled that the phrase “in commerce or affecting commerce” modifies “receive” as well as “possess” and “transport.” The Court held this as a matter of statutory construction on the basis of a reading of the statute and the accompanying legislative history. It is important to note that Bass was based on statutory construction grounds, .not constitutional grounds.

The Bass decision and its analysis of § 1202(a)(1) are totally inapposite to the question before this court — the proper interpretation of § 922(a)(1). The statute at issue here provides:

“922. Unlawful acts. — (a) It shall be unlawful—
(1) for any person, except a licensed importer, licensed manufacturer, or licensed dealer, to engage in the business of importing, manufacturing, or dealing in firearms or ammunition, or in the course of such business to ship, transport, or receive any firearm or ammunition in interstate or foreign commerce.”

The indictment below made no reference to any interstate nexus and Day claims this was fatal error. He asserts that Congress intended to bar only interstate unlicensed dealing in firearms. He apparently contends that the phrase “in interstate or foreign commerce” modifies “importing, manufacturing or dealing in firearms.” This statute, unlike the section construed in Bass, is not ambiguous. The statutory language is unmistakably clear. Two separate classes of offenses are outlined. One type is the engaging in “the business of importing, manufacturing, or dealing in firearms or ammunition.” The other type of proscribed activity is shipping, transporting or receiving any firearm “in interstate or foreign commerce.” A license is required for both types of activity.

Section 922(a)(1) was first enacted as part of Title IV of the Omnibus Crime Control & Safe Streets Act of 1968. P.L. 90-351. It was later re-enacted as part of Title I of the Gun Control Act of 1968. P.L. 90-618. The section is the same in both Acts. Unlike the Bass statute, there is available in the case of § 922(a)(1) clear and convincing legislative history:

“Section 922(a)(1). — This paragraph proscribes any person from engaging in the business of importing, manufacturing, or dealing in firearms or ammunition (destructive device) without a license. The prohibition goes to both an unlicensed person engaging in a firearms business and such a person who, in the course of that business, ships, transports, or receives, a firearm or ammunition in interstate or foreign commerce. Thus, the paragraph makes it clear that a license is required for an intrastate business as well as an interstate business. The present Federal Firearms Act (15 U.S.C. 902(a)) merely prohibits the interstate or foreign shipment or receipt of firearms by a manufacturer or dealer unless he has a license.” S.Rep. No. 1097, 90th Cong., 2d Sess., 1968 U.S.Code Cong. & Admin.News, pp. 2114, 2202 (emphasis added).

The House report on the same section when it was later passed as part of the Gun Control Act of 1968 reflects the identical Congressional intention:

“Section 922(a)(1). — This paragraph proscribes any person from engaging in the business of importing, manufacturing, or dealing in firearms or ammunition without a license. The prohibition goes to both an unlicensed person engaging in a firearms business and such a person who, in the course of that business, ships, transports, or receives, a firearm or ammunition in interstate or foreign commerce. Thus, the paragraph makes it clear that a license is required for an intrastate business as well as an interstate business. . . . ” H.R.Rep. No. 1577, 90th Cong., 2d Sess., 1968 U.S.Code Cong. & Admin.News, pp. 4410, 4418 (emphasis added).

There can be no doubt that the Congress intended, and through its words accomplished, the regulation of unlicensed intrastate sales of firearms. Three other circuits have been asked to impose the language of Bass to § 922(a)(1) and have found, as we do, that it is inapplicable. Mandina v. United States, 472 F.2d 1110 (8th Cir. 1973); United States v. Redus, 469 F.2d 185 (9th Cir. 1972); United States v. Ruisi, 460 F.2d 153 (2d Cir.), cert. denied, 409 U.S. 914, 93 S.Ct. 234, 34 L.Ed.2d 176 (1972).

The second argument advanced by Day regarding his § 922(a)(1) conviction is that even if Congress intended to punish unlicensed intrastate firearms sales, it was powerless to do so and was acting unconstitutionally.

In Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971), the Supreme Court analyzed anew the scope of Congressional power to regulate purely intrastate activities under the Commerce Clause. As the Court stated:

“The Commerce Clause reaches, in the main, three categories of problems. First, the use of channels of interstate or foreign commerce which Congress deems are being misused, Second, protection of the instrumentalities of interstate commerce, Third, those activities affecting commerce.” 402 U.S. at 150, 91 S.Ct. at 1359.

The Perez Court reaffirmed, under the third category of Congressional power, that Congress can constitutionally regulate a class of activities if that class has an effect on interstate commerce.

“Where the class of-activities is regulated and that class is within the reach of federal power, the courts have no power ‘to excise, as trivial, individual instances’ of the class.” 402 U.S. at 154, 91 S.Ct. at 1361. See also Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964); United States v. Darby, 312 U.S. 100, 120-121, 61 S.Ct. 451, 85 L.Ed. 609 (1941). At issue in the Perez case was a federal act banning intrastate extortionate credit transactions. 18 U.S.C. § 891 et seq. The Supreme Court, it should be noted, repeatedly has upheld Congressional regulation of purely intrastate activity. United States v. Wrightwood Dairy Co., 315 U.S. 110, 62 S.Ct. 523, 86 L.Ed. 726 (1942) (intrastate milk prices); Mulford v. Smith, 307 U.S. 38, 59 S.Ct. 648, 83 L.Ed. 1092 (1938) (intrastate tobacco markets); Simpson v. Shepard, 230 U.S. 352, 33 S.Ct. 729, 57 L.Ed. 1511 (1913) (intrastate rail rates). As the Supreme Court wrote in the Heart of Atlanta case, supra: “If it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze.” 379 U.S. at 258, 85 S.Ct. at 358.

Just as Congress made findings that intrastate credit transactions were part of a class of activities amenable to federal regulation, the Act before this court reveals detailed findings of the interrelationship between the business of selling guns and interstate crime and interstate trafficking in guns. Congress found specifically that:

“[0]nly through adequate Federal control over interstate and foreign commerce in these weapons, and over all persons engaging in the business of importing, manufacturing, or dealing in them, can this grave problem (interstate trafficking in firearms) be properly dealt with . ” P.L. 90-351, § 901(a)(3), 82 Stat. 225 (emphasis added).

See S.Rep. No. 1097, swpra, at pp. 2163-66. This court is unwilling to strike down these findings. Congress need not make specific findings that there is an effect on interstate commerce by a specific activity. 402 U.S. at 156, 91 S.Ct. 1357.

There has been federal legislation regulating interstate commerce in firearms since the Federal Firearms Act, 52 Stat. 1250, was enacted in 1938. This regulation has been upheld by the courts. Cases v. United States, 131 F.2d 916 (1st Cir. 1942), cert. denied sub nom., Velazquez v. United States, 319 U.S. 770, 63 S.Ct. 1431, 87 L.Ed. 1718 (1943), rehearing denied, 324 U.S. 889, 65 S.Ct. 1010, 89 L.Ed. 1437 (1945). Congress certainly had the power to regulate intrastate gun sales which have an effect on interstate commerce in firearms. We hold § 922(a)(1) to be constitutional. Accord, Mandina, supra, 472 F.2d at 1114.

Day’s final assertion of error regarding his § 922(a)(1) conviction is that there was insufficient evidence presented to the jury that he was “engaged in the business ... of dealing in firearms.” The District Judge in this case instructed the jury that:

“Dealer . . . means one that is engaged in any business of selling, repairing or pawning firearms and that business is that which occupies the time, attention and labor of the man for the purpose of livelihood or profit.”

This definition of what “engaged in the business” means apparently was borrowed by the District Judge from the decision in United States v. Gross, 313 F.Supp. 1330, 1333 (S.D.Ind.1970), aff’d, 451 F.2d 1355 (7th Cir. 1971). See also Stone v. District of Columbia, 91 U.S.App.D.C. 140, 198 F.2d 601, 603 (1952); cf. Kaneshiro v. United States, 445 F.2d 1266 (9th Cir.), cert. denied, 404 U.S. 992, 92 S.Ct. 537, 30 L.Ed.2d 543 (1971). There is no statutory standard defining “engaged in business.” We hold that this judicial definition is an adequate reflection of the plain meaning of the phrase and approve it.

The evidence shows that four separate sales over two months were made by Day to the Government agent. Day admitted on cross-examination to at least one other sale. Ninety-six guns, including 60 in their original packages, were found in the search of the house. It should also be pointed out that the Government agent testified that each time he made one of the purchases, Day told him that he could get him any kind of gun he wanted. This evidence, we hold, was sufficient to show that Day was engaged in the business of selling guns. II. 18 U.S.C.App. § 1202(a)(2) Conviction

Day attacks his conviction for possessing guns in violation of § 1202(a)(2). It was established at trial by uncontroverted evidence that Day was dishonorably discharged from the United States Army on April 13, 1945. His objection is not specific but apparently he contends that the punishment of one who was dishonorably discharged from the service over 25 years before possession and receipt of the firearms in question is unreasonable and violative of the concept of equal protection. He also claims that the right to bear arms is somehow fundamental and protected by the Constitution. Day also claims that Congress, in enacting § 1202(a)(2), as part of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968, acted without hearings or a committee report. Lacking this, he contends there is no support for legislative findings in § 1201(1) of the Act, 18 U.S.C.App. § 1201 (1), that the possession of firearms by those who have been dishonorably discharged constitutes “a burden on commerce” or the finding in § 1201(3), 18 U.S.C.App. § 1201(3) that it is “an impediment or a threat to the exercise of free speech.”

As to the alleged right to bear arms, Day’s claim is meritless. There is no absolute constitutional right of an individual to possess a firearm. United States v. Miller, 307 U.S. 174, 178, 59 S. Ct. 816, 83 L.Ed. 1206 (1939).

In Katzenbach v. McClung, 379 U.S. 294, 303-304, 85 S.Ct. 377, 383, 13 L.Ed.2d 290 (1964), the Supreme Court set out the applicable standard under which the Congressional classification here presented must be tested:

“[W]here we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.”

This court, in Stevens v. United States, 440 F.2d 144, 151 (6th Cir. 1971), examined the validity of the statute forbidding convicted felons from possession of firearms. 18 U.S.C.App. § 1202(a)(1). We upheld this classification. Although Stevens is no longer good law on the statutory interpretation of § 1202(a), in light of Bass, its viability on the constitutional question of whether the Congress can forbid certain classes of people from possessing firearms is hereby reaffirmed. Other courts have also upheld the statute’s bar of possession of a firearm by a convicted felon in the face of equal protection attack. United States v. Synnes, 438 F.2d 764, 771 (8th Cir. 1971), vacated on other grounds, 404 U.S. 1009, 92 S.Ct. 687, 30 L.Ed.2d 657 (1972); United States v. Rubino, 320 F.Supp. 613 (M.D.Pa.1970); United States v. Wiley, 309 F.Supp. 141 (D.Minn.1970), aff’d, 438 F.2d 773 (8th Cir. 1971), vacated on other grounds, 404 U.S. 1009, 92 S.Ct. 686, 30 L.Ed.2d 657 (1972).

Possession of a firearm by a person dishonorably discharged from the Armed Services, while not as dangerous, perhaps, as possession by a convicted felon, is sufficiently risky to justify Congressional regulation. As Senator Russell Long stated in the debate on the bill on the floor of the Senate:

“[T]his is a matter of saying that if he cannot be trusted to carry arms for Uncle Sam, he cannot be trusted to carry arms on the streets. This kind of person is part of the criminal element in many instances, the kind of person who does not know how to behave properly, and is a hazard to others when he possesses firearms.” Stevens, supra, 440 F.2d at 155.

Although it is true, as Day contends, that there were no committee reports on § 1202(a), there was considerable debate on the floor of the Senate. This is set out at 440 F.2d 152 as an appendix to this court’s Stevens opinion. We hold that the finding by Congress that possession of guns by those dishonorably discharged from the armed services is hazardous was rational. We decline to overturn it.

Day voices concern that although he was convicted under § 1202(a) for possession of these guns in 1970, his discharge under less than honorable circumstances took place 23 years before the enactment of the statute. Viewing this concern as an allegation that the statute was an ex post facto law, we reject it. United States v. McCreary, 455 F.2d 647, 648 (6th Cir. 1972). Day’s assertion that the statute is somehow fatally tainted by lack of hearings or committee reports is meritless.

III. Yockey’s testimony

Day objects to the admission of Special Investigator Yockey’s testimony regarding the approximate dates of manufacture and then the exact dates of manufacture and of shipment in interstate commerce. It is asserted that this testimony was inadmissible hearsay. The Government seeks to justify the Yockey testimony concerning the approximate dates of manufacture of the guns by claiming that, as an expert witness, Yoekey had a right to testify from hearsay documents in the expression of his opinions. Jenkins v. United States, 113 U.S.App.D.C. 300, 307 F.2d 637 (1962) (in banc); but see McCormick, Law of Evidence, § 15. The Government seeks to justify the admission of the testimony as to the precise dates of manufacture and shipment by reference to 28 U.S.C. § 1732, which is a codification of the business records exception to the hearsay rule. The Government claims that the investigative report was part of the business of the Alcohol, Tobacco and Firearms Division of the Treasury Department.

This court finds it unnecessary to decide the hearsay question, however, because we find the testimony objected to irrelevant and its admission not prejudicial. The apparent purpose of the testimony was to show that the guns found in the possession of Day and sold by him to the agent had moved in interstate commerce and had moved after the effective date of § 1202(a)(2), which was June 19, 1968. This was apparently thought necessary to satisfy the requirement of Bass, supra, that there be shown in a § 1202(a) prosecution for possession and receipt of firearms a “nexus” with interstate commerce. As the Bass Court stated: “. . . the Government meets its burden here if it demonstrates that the firearm received has previously traveled in interstate commerce.” 404 U.S. at 350, 92 S.Ct. at 524. If there is competent evidence to show that the guns possessed and received by the defendant were manufactured in a state outside of Kentucky, the state of possession in the present case, the conclusion is inescapable and the inference is permissible that the gun has traveled in interstate commerce before reaching the defendant. It should be noted that there is no requirement that the interstate commerce be shown to have been directly to Day. United States v. Brown, 472 F.2d 1181 (6th Cir. 1973). In this case, there was competent evidence before the jury to indicate that the guns found in appellant’s possession were manufactured in Hartford, Connecticut, and Springfield, Massachusetts. Thus, the interstate nexus requirement of Bass was satisfied.

It should be pointed out that the testimony placing the date of manufacture and interstate commerce movement of the guns after the effective date of the statute was similarly unnecessary. There is no requirement that the guns move in interstate commerce after the effective date of the Act. United States v. Oclit, 343 F.Supp. 447 (D.Hawaii, 1972). The statute punishes the possession, which obviously took place after the Act was passed, not the interstate commerce.

Affirmed.

      . 18 U.S.C. § 922(a) (1) reads:

        “922. Unlawful acts. — (a) It shall ' be unlawful—
      (1) for any person, except a licensed importer, licensed manufacturer, or licensed dealer, to engage in the business of importing, manufacturing, or dealing in firearms or ammunition, or in the course of such business to ship, transport, or receive any firearm or ammunition in interstate or foreign commerce.”

      . 18 U.S.C.App. § 1202(a)(2) reads:

        “1202. Receiving, possession, or transportation of firearms by certain persons — Definitions.— (a) Any person who—
      $ $ $ >H
      (2) has been discharged from the Armed Forces under dishonorable conditions, or
      $ * * * $
      and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act [June 19, 1968], any firearm ■ shall be fined not more than $10,000 or imprisoned for not more than two years, or both.”

      . Although we find it unnecessary to rule on the question of whether the special investigator was actually qualified as an expert at the trial, it should be pointed out that there was no declaration ■ of the witness as an expert and when the District Judge overruled the defense objection to Yockey’s testifying from the Smith & Wesson document, he did not do so on the basis of Yockey’s alleged status as an expert witness. In fact, the Government made no request at the trial to qualify Yoekey as an expert witness. It is extremely doubtful whether the subject matter of Yockey’s testimony, the dates of manufacture of the guns, was amenable to -expert testimony.

      . The Government does not explain how § 1732, which permits introduction of a “writing or record” into evidence, would permit an oral statement of a telephoned report as evidence.