author: OAKES, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. James KAYLOR and Willie Glen Hopkins, Appellants.
    No. 1048, Docket 73-1530.
    United States Court of Appeals, Second Circuit.
    Argued July 17, 1973.
    Decided Oct. 15, 1973.

      Michael J. Gillen, Brooklyn, N. Y., for appellant Kaylor.
    Mark A. Landsman, Brooklyn, N. Y. (Lawrence Stern, New York City, of counsel), for appellant Hopkins.
    Kenneth J. Kaplan, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty. E. D. N. Y., L. Kevin Sheridan, Asst. U. S. Atty.), for appellee.
    Before MOORE and OAKES, Circuit Judges; GURFEIN, District Judge.

      Hon. Murray I. Gurfein, United States District Judge for the Southern District of New York, sitting by designation.

   OAKES, Circuit Judge:

This appeal arises out of convictions for the theft of a tractor-trailer containing a shipment of 49 head of hung beef valued on July 20, 1972, the time of the theft, at $22,000. The convictions were on a substantive count of stealing, with intent to convert to appellants’ own use (18 U.S.C. § 659), the tractor-trailer, which was traveling in interstate commerce from Dakota City, Nebraska, to the Jamaica Wholesalers in Jamaica, Queens. Appellant Kaylor was sentenced to a term of imprisonment of ten years and appellant Hopkins to one of seven years.

Appellant Kaylor claims that the trial court’s conduct deprived him of a fair trial, that there was not competent evidence before the grand jury identifying him so as to support an indictment, that the trial court erred in not suppressing the testimony of two witnesses who refused to identify him in court and that the trial court improperly received in evidence certain admissions by appellant. Appellant Hopkins argues that an in-court identification of him by the driver of the tractor-trailer was tainted by the fact that it had occurred after the witness had testified and when he was recalled after having seen appellant at the counsel table, and that the court erred in refusing to sentence appellant pursuant to the Youth Corrections Act and in refusing to consider possible recommendations of the sentencing panel which is operative in the Eastern District of New York.

Carl Wolverton, an over-the-road tractor-trailer driver, was the lucky fellow who arrived in Jamaica with the 49 beef carcasses all the way from Dakota City, Nebraska. He parked his truck, and at about 11 o’clock that night went for a few minutes to get a sandwich. When he returned to the truck, as he was about to “pick a little” at his guitar and lock the door to the cab, someone opened it, pointed a gun at his head and told him to get in the bunk at the back of the cab. One man held a gun in his ear and a second tied his arms and legs with rope and subsequently put white tape over his eyes and over the top of the rope. One of them roughed him up by hitting him “a few good clips” with the gun on his head, and after being driven around for a couple of hours and stripped to his underwear, Wolverton was thrown out of the cab of his tractor like a “sack of taters” into a Dodge van, and then hit, kicked and urinated upon. He was abandoned in the van and worked himself free during the following morning.

The Dodge van had been stolen in Brooklyn the morning of the hijacking, and when found, the inside,of the left front door bore the fingerprints of the appellant Hopkins. About 7:00 a.m. an alert New York City detective, John Flynn, saw a tractor-trailer at Hegeman and Logan Streets in Brooklyn and began to follow it, his suspicions aroused. He stopped it and asked for and received identification from the driver, but still was suspicious, so he followed the truck to a meat market. There five men in butcher’s jackets were directing the vehicle into an alleyway. At this point Flynn called for assistance and proceeded toward the vehicle when the two people in the tractor-trailer broke and ran. Sure enough, the tractor-trailer turned out to be Wolverton’s with the Dakota City load of beef. At trial Flynn identified appellant Hopkins as the helper he had observed in the truck. The other individual, the driver of the truck, has, however, never been apprehended.

The proprietors of the meat market to which the truck was being delivered were Charles Simonian and Nicholas Stolfi. While the tractor-trailer was approaching the entrance of the meat market, Simonian was standing at the back with an individual he knew as “Shorty,” which also happens to be a nickname for appellant Kaylor. This individual was black and described by Simonian as about 5' 5" to 5' 8" with a stocky build and short cropped hair, 30 to 35 years old, and having no beard or moustache. “Shorty” had been around before to see if these butchers wanted to buy some meat. On that very morning “Shorty” had telephoned Simonian and told him that he had some meat for him, and the two had met in a luncheonette a few doors down the street and gone to the meat market when Simonian opened it. Simonian did not want the whole trailer load of meat because it was “too much.”

Before the grand jury both Simonian and his partner, Stolfi, identified a picture of James Kaylor as the man they knew as “Shorty” when they were shown a spread of photographs. This picture of Kaylor, like their description of “Shorty,” was of a man without a moustache or a beard. At the time of trial, however, while both of the butchers thought James Kaylor “looked like” or “resembled” “Shorty,” they stated that Kaylor was not “Shorty.” At the time of trial Kaylor had grown a moustache and beard, had longer hair and puffier cheeks and was somewhat heavier than the “Shorty” that he “looked like” or “resembled.”

On December 15, 1972, after a special FBI agent had warned Kaylor of his constitutional rights, Kaylor told him that “If I get uptight enough about this case I can tell you about it,” and that “I know about those two guys in the meat market and they should never have paid the police the $500.”

At the trial, the tractor-trailer driver, Wolverton, appeared but during his original testimony was not asked whether he could identify either of the two defendants. When he left the stand, however, he went back to the witness room and told Detective Flynn that he could identify the hijackers. Before permitting him to testify, the court held a hearing on suggestiveness out of the presence of the jury and found that no impropriety or suggestiveness had occurred. The witness was permitted to retake the stand in the presence of the jury and he then identified the two defendants as the hijackers.

We have examined the record with some care in the light of United States v. Friedgoog, 69 Crim. 102 (E.D. N.Y., Dec. 1, 1972) (Rosling, J.), remanded, No. 73-1122 (2d Cir., Apr. 25, 1973) (mem.) and United States v. Nazzaro, 472 F.2d 302 (2d Cir. 1973). We do not find that the trial judge overstepped his duty “as more than a moderator to clarify ambiguous questions and testimony for the jury and to insure that the trial was fairly conducted.” See United States v. Pellegrino, 470 F.2d 1205, 1206 (2d Cir. 1972), cert. denied,, 411 U.S. 918, 93 S.Ct. 1556, 36 L.Ed.2d 310 (1937). See also United States v. Boatner, 478 F.2d 737, 740-741 (2d Cir. 1973). Appellant Kaylor’s principal complaint is directed toward the interrogation by the court of the witnesses Simonian and Stolfi after their testimony that Kaylor resembled or looked like the “Shorty” they talked to, but was in fact not him. The court, quite correctly, we think inquired of the witnesses to determine in what respects their memories of the appearance of the “Shorty” they did see differed from that of the defendant Kaylor in court, especially since the photographic identification they had made was of a photograph of the appellant himself. True, the court referred to “the Shorty in the courtroom” but there was subsequent testimony by a New York City police officer that he had asked appellant Kaylor if his name was “Shorty” and Kaylor had replied that he was known by that name. The court did remark about the witness Stolfi’s obvious nervousness after he had told the prosecutor he was “very, very nervous” and defense counsel had accused the prosecution of trying to inject “something of fear” into the case. All that the court did was to say that it was obvious that the witness was nervous or afraid, since he was stuttering, repeating himself and hesitating to answer, without in any way indicating any belief as to why the witness was afraid. Lastly, the court’s inquiry of Stolfi whether his butcher shop was still in the neighborhood and whether his number was in the phone book would give some explanation for the witness’s nervousness, perhaps, but would not necessarily point toward appellant; as any trial judge knows, many witnesses are nervous especially when testifying in a case involving violence. It does not have to be the defendant who frightens the witness; indeed, if in fact there were another “Shorty” as appellant Kaylor claims, then the witness might have been fearful because he did not identify the appellant as “Shorty.” In any case, the witness’s fear was relevant.

Suffice it to say that the evidence of Simonian and Stolfi identifying Kaylor as “Shorty” from photographs was sufficient to warrant Kaylor’s indictment in light of the testimony before the grand jury that “Shorty” had offered to sell the meat in the hijacked trailer. This evidence indicated a “reasonable probability” that the crime of hijacking had been committed by Kaylor, and that is enough to warrant an indictment. See Carrado v. United States, 93 U.S.App.D.C. 183, 210 F.2d 712, 717, cert. denied sub nom. Atkins v. United States, 347 U.S. 1018, 74 S.Ct. 874, 90 L.Ed. 1140 (1954); Shusan v. United States, 117 F.2d 110, 113 (5th Cir.), cert. denied, 313 U.S. 574, 61 S.Ct. 1085, 85 L.Ed. 1531 (1941). Participation in a theft may be inferred from the possession of recently stolen goods. United States v. DeSisto, 329 F.2d 929, 935 (2d Cir.), cert. denied, 377 U.S. 979, 84 S.Ct. 1885, 12 L.Ed.2d 747 (1964). See Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed. 380 (June 18, 1973).

The trial court properly allowed the testimony of Simonian and Stolfi at trial. The fact that they refused to make an identification then did not take away from their prior photographic identification. Simonian had selected Kaylor’s photograph from a book of some 100-150 photos the very day he had seen “Shorty.” Subsequently two photos (including the one previously selected) were included in a spread of nine from which both Simonian and Stolfi selected one, a front and side photo. There is no indication that there was impermissible suggestiveness despite the presence of two photos in the spread since the appearance of the photographed individual was apparently sufficiently different as to cause each of the two witnesses to select only the one photo. Cf. United States ex rel. Johnson v. Department of Correction, 461 F.2d 956 (2d Cir. 1972) ; United States v. Magnotti, 454 F.2d 1140 (2d Cir. 1972). Their testimony was guarded, to be sure, for reasons previously stated, but it cannot be said, as appellant claims, that the witnesses never really identified even the picture of Kaylor as the “Shorty” with the meat.

Appellant Kaylor complains that the court should not have admitted his statements to the FBI Special Agent made after Miranda warnings but in the absence of the attorney requested by Kaylor. But the statements or admissions were volunteered—one that “If I get uptight enough I can tell all about this case” and the other “I know about those two guys in the meat market and they should never have paid the police the $500.” The first was made before Kaylor asked for an attorney and the second was volunteered after the Special Agent had concluded his background information interview. As such, neither Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), nor Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) is applicable. United States v. Gaynor, 472 F.2d 899 (2d Cir. 1973); United States v. Garcia, 377 F.2d 321, 324 (2d Cir.), cert. denied, 389 U.S. 991, 88 S.Ct 489, 19 L.Ed.2d 484 (1967).

Appellant Hopkins complains that the court permitted the trucker, Wolverton, to return to the stand and make an identification which he had not made in the first instance; the objection is based upon the suggestiveness of the situation since—had the defendant known there was going to be identification testimony—he would have moved (and the court stated that it would have granted such a motion) to have the defendant seated away from the counsel table. As it was, the identification of Hopkins amounted to a “show-up,” but a “show-up” is not per se inadmissible or violative of due process, depending rather upon the totality of the circumstances, Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). It is quite apparent that the omission to adduce identification testimony from the witness on his first trip to the stand was a result of lack of preparation on the part of the prosecution (“we felt he could [not] identify them in court”), rather than to any bad faith, or an attempt to produce a show-up. United States v. Famulari, 447 F.2d 1377 (2d Cir. 1971). Here the witness, after he left the stand, volunteered to Detective Flynn that he had recognized the appellants as the hijackers. The court quite properly conducted a hearing in the jury’s absence to determine whether there were taint by virtue of the viewing of the defendants for the first time in the courtroom, and satisfied itself that the witness was “forthright” and his testimony positive. He had had, he had previously testified, a minute and a half to see the hijackers at the time of the robbery, and his description of the appellants was accurate. The prosecution could have been forewarned, since the witness himself apparently thought he could make an identification, but its omission to ask the key questions, we believe as did the court below, was inadvertent.

We emphasize, in holding that there was not reversible error here, that there is not the slightest suggestion that the prosecution was in any way attempting to bring the confrontation about in the fashion that it occurred.

Appellant Hopkins seeks to have his conviction remanded for resentencing however, because the trial court made no affirmative explicit finding that appellant would “not derive benefit from treatment” under the Youth Corrections Act, 18 U.S.C. § 5010(d). This issue, unresolved in this circuit, see United States v. Guzman, 478 F.2d 759, 762 (2d Cir. 1973), has recently received en bane consideration in two other circuits. In Cox v. United States, 473 F.2d 334, 337 (4th Cir. 1973) (en banc), the Fourth Circuit stated that the “Youth Corrections Act must be used unless the sentencing judge finds that treatment under the Act would not be beneficial. That finding should be based upon reason . . . .” The Fourth Circuit, although remanding Cox to the district court for an explicit finding under § 5010(d) indicated that such a finding could be implied from a sufficient record. 473 F.2d at 337. A panel of the Ninth Circuit held that an implicit finding under § 5010(d) was sufficient; it nevertheless ordered the trial court to make a more explicit finding under that section upon remand. United States v. Jarratt, 471 F.2d 226, 230 (9th Cir. 1972). In United States v. Coefield, 476 F.2d 1152 (D.C.Cir. 1973) (9-1 decision, en banc), however, the District of Columbia Circuit held, inter alia, that “the finding required to be made under section 5010(d) as a condition to an adult sentence is to be explicit . . . .” Id. at 1158-1159.

My brethren go with Cox and Jarratt essentially in holding that an implicit finding is all that is required. They view—quite properly I think—that this record contains such an implicit finding in Judge Rosling’s stating before verdict that he “always take[s]” youth offender eligibility “into consideration when sentence is to be imposed” and in the sentencing minutes in the course of which appellant Hopkins’ counsel referred to the Youth Corrections Act and the court said, “In imposing sentence, which is not a light one, I have taken into account the fact that you were quite young at the time you committed the crime.”

I disagree with this view and would as did the District of Columbia Circuit in Coefield, require an explicit finding. See 476 F.2d at 1158-1159. It is true that an omission to make an explicit finding is one more threshold to proper sentencing over which a district judge might trip. On the other hand, under the majority holding there may be quite a bit of appellate litigation over what is “implicit.” The purpose to be served by the Youth Corrections Act, moreover, seems to me to require not only that there be an explicit finding in so many words that “the youth offender will not derive benefit from treatment,” but also, as the District of Columbia court held, that the finding “must be supported by reasons from which it can be determined that it [the finding] is consistent with the purposes of the Act.” 476 F.2d at 1159 (footnote omitted). It is my view that the judge here sentenced on the basis of the aggravated nature of the crime, a matter which does not go at all to the question of benefit from treatment under the Act.

The majority necessarily is of the view that there was no error in the trial court’s failure to consult with the sentencing panel in the Eastern District on the basis that the function of the non-sentencing judges on the panel is purely advisory, however helpful it might be. United States v. Brown, 470 F.2d 285, 289 (2d Cir. 1972). I would not reach that question since I would remand for an explicit finding under the Youth Corrections Act.

Judgments affirmed; OAKES, J., dissents from the affirmance as to appellant Hopkins and would reverse and remand for resentencing.


source: Caselaw Access Project

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. James KAYLOR, Defendant, Willie Glen Hopkins, Defendant-Appellant.
    No. 1048, Docket 73-1530.
    United States Court of Appeals, Second Circuit.
    Submitted to the en banc Court Nov. 12, 1973.
    Decided Feb. 11, 1974.

      Mark A. Landsman, Brooklyn, N. Y. (Lawrence Stern, New York City, of counsel), for appellant Hopkins.
    Kenneth J. Kaplan, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty., E. D. N. Y., L. Kevin Sheridan, Asst. U. S. Atty.), for appellee.
    Before KAUFMAN, Chief Judge, and MOORE, FRIENDLY, HAYS, FEINBERG, MANSFIELD, MULLIGAN, OAKES and TIMBERS, Circuit Judges (en banc).
   OAKES, Circuit Judge:

Following a divided panel opinion in this case filed October 15, 1973, rehearing en banc was ordered. The principal question presented is whether the trial court must make an affirmative explicit finding that a youth offender will not “derive benefit from treatment” under the Federal Youth Corrections Act (Act), 18 U.S.C. § 5010(d). A majority of the panel which decided this case held, in reference to appellant Hopkins, that an implicit finding was sufficient, the majority relying primarily upon Cox v. United States, 473 F.2d 334, 337 (4th Cir. 1973) (en banc), and United States v. Jarratt, 471 F.2d 226, 230 (9th Cir. 1972). The dissenting member of the panel agreed with the Court of Appeals for the District of Columbia, which held in United States v. Coefield, 155 U.S.App.D.C. 205, 476 F.2d 1152 (1973) (9-1 decision, en banc), inter alia, that “the finding required to be made under § 5010(d) as a condition to an adult sentence is to be explicit . . . .’’Id. at 1158-1159.

Cases from other circuits bearing on the question have also taken different views. It is not without significance that in two eases holding that an implicit finding is sufficient, there were remands to the district courts for resentencing. In Cox v. United States, 473 F.2d at 337, there was a remand because the district judge had stated explicitly that he had not made a “no benefit” finding since he believed that § 5010(d) provided merely another alternative for sentencing rather than stated a preferred sentencing policy. In United States v. Jarratt, supra, the ground for remand was a difference between the sentence imposed orally and that in the written judgment of conviction; while the court stated that the “no benefit” finding was implicit, the court nevertheless instructed the district court to “clarify” its position “by making an express finding.” Thus both the Fourth and Ninth Circuits, while holding that an implicit .finding is sufficient, remanded for explicit findings.

I.

Congress had long had separate treatment for juveniles, that is to say, those who have not attained their 18th birthdays, in connection with juvenile delinquency, defined as a violation of federal law committed by a juvenile and not punishable by death or life imprisonment. 18 U.S.C. § 5031. However, in 1950 a corrections program was specifically developed for youths committing federal crimes during the age between adolescence and maturity. See H.R. Rep.No.2979, 81st Cong., 2d Sess. 1 (1950) (hereinafter cited as H.R.Rep.), U.S.Code Cong. Serv. p. 3983. Irrespective of its sociological or criminological validity today, Congress adopted in specific terms the concept of rehabilitation as opposed to retribution, in the handling of youth offenders. As has been pointed out, “Congress was responding in part to the findings by psychologists and sociologists that there were ‘special causations’ of antisocial tendencies in adolescents . . . ,” Note, supra note 4, at 1077, supposedly disappearing when the youth reaches the age of maturity. Thus the Act constitutes recognition that incarceration of young offenders in adult prisons may indeed encourage criminality rather than work to prevent it. See H.R.Rep. at 2-3, U.S.Code Cong. Serv. p. 3985.

The Act, as pointed out by Judge Fahy in Coefield, 476 F.2d at 1156, was undoubtedly the most comprehensive federal statute involving sentencing. It established the Youth Correction Division within the United States Board of Parole to administer the Act. 18 U.S.C. § 5005. It authorized the construction of “institutions of maximum security, medium security, or minimum security types, including training schools, hospitals, farms, forestry and other camps, and other agencies that will provide the essential varieties of treatment.” 18 U.S.C. § 5011. The Act requires the use of such institutions and, agencies as far as practicable “only for treatment of committed youth offenders” and calls for segregation of them from other offenders and segregation of committed youth offenders into classes according to their needs for treatment. Id. The underlying premise of the Act —even though the concept is being subjected to question in the present era by some psychologists and sociologists—is that a system of rehabilitative treatment may permit youth offenders to become “useful citizens.” H.R.Rep. at 1, U.S. Code Cong. Serv. p. 3983.

While the Youth Corrections Act gives a judge the opportunity to sentence a youth offender other than to prison or to place him on probation, it clearly áppears that Congress, while carefully preserving judicial discretion, nevertheless favored treatment of youth offenders under the Act, i. e., by way of rehabilitation. United States v. Coefield, 476 F.2d at 1157; Cox v. United States, 473 F.2d at 337. See United States v. Waters, 141 U.S.App.D.C. 289, 437 F.2d 722, 724-725 (1970). As the Fifth Circuit said in Cunningham v. United States, 256 F.2d 467, 472 (1958), the provisions of the Act “are designed, enacted and enforced with that end in view.”

The language of the Act itself supports this basic proposition. Paragraph (d) of § 5010 says, “If the court shall find that the youth offender will not derive benefit from treatment [under the Act] then the court may sentence the youth offender under any other applicable penalty provision.” Congress was very careful not to say that “if the court shall find that the youth offender will derive benefit from treatment [under the Act] then the court may sentence him thereunder.” Congress specifically provided in § 5010(e) for temporary commitment for observation and study at an appropriate classification center or agency, which would tend to indicate that treatment under the Act was favored. Indeed, subsection (c) treatment, providing for longer confinement and supervision than subsection (b) treatment is, in and of itself, a recognition that some youthful offenders would need more intense rehabilitative treatment than others. See United States v. Coefield, 476 F.2d at 1160. And of course, all levels of security were provided for as mentioned above, § 5011, and various types of institutions and agencies were established or to be utilized for services under the Act. Nowhere is there any indication that the type of crime committed, elements of immorality or violence involved therein, or related factors are to be considered per se to require denial of treatment under the Act, even though Congress knew exactly how to do this both in the Juvenile Delinquency Act, 18 U.S.C. § 5032, and in the Narcotics Addiction Rehabilitation Act, 18 U.S.C. § 4251(f), recently upheld in Marshall v. United States, 414 U.S. 417, 94 S.Ct. 700, 38 L.Ed.2d 618 (1974).

Further developing the congressional scheme, it is readily apparent that there is a direct contrast between youth offenders under the Youth Corrections Act —such as appellant Hopkins—and “young adult offenders” under 18 U.S.C. § 4209, where Congress, after specifically requiring consideration of the previous record of the defendant, his social background, capabilities, mental and physical health and the like, permits the court to impose sentence under the Youth Corrections Act only “if . the court finds that there is reasonable grounds to believe that the defendant will benefit from [that] treatment. .” Quite evidently Congress intended to prefer treatment under the Youth Corrections Act for youth offenders, while it meant to permit such treatment only after affirmative findings in the case of young adult offenders. See United States v. Waters, 437 F.2d at 724. The overall congressional purpose, to provide treatment under the Act for youth offenders, as expressed in the language of the Act as well as its legislative history, guides our answer to the basic question whether a “no benefit” finding may be implicit or explicit.

II.

It is true, as the majority of the panel in this case considered, that the sentencing process is a complicated one and that the requirement of an explicit finding adds one more burden to the overall awesome task of the trial judge, particularly if coupled with a requirement that the reasons underlying its conclusion be set forth. At the same time, there is obviously considerable difficulty in ascertaining what is an implicit finding, a difficulty that in a day and age of a burgeoning appellate case load, see H. Friendly, Federal Jurisdiction: A General View 15-54 (1973), will lead to considerable appellate litigation. This cuts both ways because appeals of little or no merit will be filed while, as the Boston University Law Review note points out, meritorious claims may not be appealed. Indeed if one were to accept implicit findings at all, it is difficult to escape Judge MacKinnon’s logic, expressed in his dissent in United States v. Coefield, 476 F.2d at 1162, that the imposition of an adult sentence “necessarily involves a finding of no benefit under the Act.” Short of such a position, which would render the requirement of a finding by virtue of § 5010(d) nugatory, there will be the greatest of room for difference of opinion as to whether such a finding is to be implied. Indeed, Judge Rosling, in sentencing appellant Hopkins, stated before verdict that he “always take[s]” youth offender eligibility “into eonsideration when sentence is to be imposed,” and in the sentencing minutes in the course of which appellant Hopkins’ counsel referred to the Youth Corrections Act, the judge said, “In imposing sentence, which is not a light one, I have taken into account the fact that you were quite young at the time you committed the crime.” It is the very proposition that an adult sentence is in and of itself an implicit finding of no benefit that we suspect prompted the Cox and Jarratt courts to remand for explicit findings; while holding that an implicit finding was enough, these courts were not sure whether the findings below were sufficiently implicit.

We are unanimously of the view, then, that the language of the Act, its intent and purpose, coupled with the practical consequences of any decision otherwise, require a construction that a finding of no benefit under § 5010(d), whether requested or not, be made explicit in the record, preferably at the time of imposing sentence.

III.

Before reaching the question of whether reasons must be stated, and to what extent, so as to make the explicit finding of no benefit subject to some measure of judicial review, we note an important qualification on our finding above.

This is as to its prospective application. While, as will be seen, we reverse in Hopkins’ case and remand for resentencing, we are aware that doubtless a great many sentences have been imposed on youthful offenders without explicit findings of no benefit. To be sure, these are not based upon any court of appeals decision, but absent one the rule of law has been thought by some of the district judges not to require explicit findings. There is a long line of constitutional law cases applying decisions changing a previous rule of law prospectively only, extending from Linkletter v. Walker, 381 U.S. 618, 622-629, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) (applying Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) prospectively), to Gosa v. Mayden, 413 U.S. 665, 672-678, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973) (four Justices applying O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969) prospectively).

In determining the issue of retroactivity the Court has referred to a three-prong test,, inquiring into (1) the purpose of the new rule of law enunciated, (2) reliance by the courts or authorities on the old rule, and (3) the effect of retroactive application on the system of administration of justice. The very same analytical elements have also been utilized in a non-constitutional law context and indeed in sentencing matters, particularly in reference to decisions enunciating new interpretations of Fed.R.Crim.P. 11, both by the Supreme Court, e. g., Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969) (applying McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969) prospectively), and by your own court, e. g., Korenfeld v. United States, 451 F.2d 770 (2d Cir. 1971) (2-1 decision) (applying Bye v. United States, 435 F.2d 177 (2d Cir., 1970) prospectively). The purpose of the rule we enunciate today is clear enough: to make certain that in sentencing a trial judge has considered and rejected the preferred alternative of treatment under the Act as to the individual youthful offender. We accomplish this purpose by requiring explicit findings in every case. We have no doubt, however, that in case after case this alternative has been considered, and rejected, by our conscientious district judges even though their findings of no benefit have been implicit only, as here. And we have great concern lest our burdened federal court system be flooded with new motions to vacate sentences or, indeed, to reopen judgments in which the sentences have long since been served, were we to apply this decision . retroactively. Weighing the three considerations together, we decline to make our ruling retroactive and enunciate this decision as prospective only.

IV.

The question whether the trial court must state reasons in connection with its findings of no benefit, while arguably somewhat more difficult, is nevertheless answered largely by the legislative history and on essentially the same basis that the explicit-implicit question was resolved. The District of Columbia Court of Appeals in United States v. Coefield, 476 F.2d at 1157-1158, held that, if the special provisions of the Act are not being utilized and the youth offender is sentenced as an adult, a statement of reasons by the sentencing judge is “essential to a knowledgable administration of the Act as intended by Congress.” We would join the District of Columbia court in saying that when a judge has availed himself of the assistance afforded by § 5010(e), that is to say, where he has ordered the youth offender committed to the custody of the Attorney General for observation and study at an appropriate classification center or agency and the Division has made its report to the court, and after considering the report has followed its findings or recommendation in imposing sentence, additional reasáhs are not required to be stated, although, of course, the judge is not prevented from stating his own reasons. On the other hand, where § 5010(e) is not invoked, or where the recommendation in the report of the Division thereunder is not followed, the need for a more detailed statement of reasons is obvious. We hold also that, while no prescribed formula or litany for such a statement is called for, the district judge should mention not only his own awareness that the Act is applicable to the case; he should indicate that he has been informed of the pertinent facts relating to the individual defendant, either by way of evidence at the trial, a presentence report or otherwise; and he should indicate that he has “given consideration and related the facts of the individual case to the applicable law.” United States v. Coefield, supra. We think that this basic result is called for by the Act for reasons that we will indicate below. We would add a further caution, however, that by this we by no means intend to suggest that in sentencing other types of offenders a statement of reasons is required, however helpful it may be.

It may be said that in general a criminal sentence may call for eonsidei’ation of a number of different objectives, including deterrence, retribution, rehabilitation and protection of the public, to mention only a few. Each sentence is based to a greater or lesser extent on one or more of these factors, and the mix is ultimately to be based upon an examination of the individual’s case rather than a “fixed sentencing policy based on the category of crime,” for example, or some other uniform or mechanical sentencing policy. See generally United States v. Baker, 487 F.2d 360 (2d Cir. 1973). In sentencing under the Youth Corrections Act, however, a court necessarily must face up to the proposition above set forth that Congress has indicated a clear preference for the objective of rehabilitation both in the legislative history of the Act and in the statutory language that is utilized. Indeed, sentencing under § 5010(d) is conditioned on a prerequisite finding of fact and absent such a finding—that of “no benefit”—sentencing thereunder is improper. There is no rational way in which we can determine whether such a finding is adequately supported in the absence of a statement of the reasons underlying it as an ultimate finding. See K. Davis, supra, §§ 16.03-.04, 16.-09-.10.

We are talking, therefore, in only one very limited but nevertheless congressionally significant area of sentencing, and we do not hereby propose even in this field unlimited appellate review. Rather, as the District of Columbia Circuit also held in a companion case to Coefield, United States v. Reed, 155 U.S.App.D.C. 198, 476 F.2d 1145, 1150 (1973), “An appellate court can only be concerned with the rationality of [the] factors [which informed and shaped the particular exercise of the trial court’s discretion] in relation to the congressional objectives.” We take the view, as did the Reed court, that “where that rationality is present and visible” the appellate court function is at an end. Certainly this decision is not inconsistent with, even though it is more limited than, the views of the ABA Project on Standards for Criminal Justices, Standards Relating to Appellate Review of Sentences at 2-3 (Approved Draft 1968):

It is hardly commanding of public respect for our system on the one hand to increase the alternatives of the sentencing judge so that he can shape his sentence to fit each case, and on the other hand to take the position that he need not explain why he selects a particular sentence.

Beyond this, a statement of reasons has direct beneficial effects at the district court level in terms of—in and of itself —contributing to rational decision making and focusing consideration on the question of benefit of treatment under the Act. Note, supra note 4, at 1083. There are those, Judge MacKinnon of the District of Columbia Circuit is one, who fear that the requirement of a statement of reasons would put the district court “in an administrative straitjacket.” See United States v. Coefield, 476 F.2d at 1163 (MacKinnon, J., dissenting). But we are not saying that by being required to make such a statement the district judge thereby in any way loses his overall discretion and responsibility for making the required determination, which may well be negative, under the Act. For a district judge’s determination ,vto be overturned would require detection of some error of law or some plainly arbitrary, irrational or unsound determination. As to our power to require such a statement, the weight of the Fourth Circuit in Cox v. United States, 473 F.2d at 337, is with the District of Columbia Circuit, 476 F.2d at 1157, and ourselves on this point. Cf. SEC v. Chenery Corp., 318 U.S. 80, 94, 63 S.Ct. 454, 87 L.Ed. 626 (1943).

In the past we have made it very clear that even in non-youth offender cases a district court must reconsider its sentence when it appears that the court may have considered improper factors. McGee v. United States, 462 F.2d 243 (2d Cir. 1972). We have also made it clear that a failure to exercise discretion with respect to disclosure of presentence reports on the part of the district court is reviewable. See United States v. Brown, 470 F.2d 285 (2d Cir. 1973). Any number of other circuits have similarly vacated sentences when imposed for arbitrary reasons or where discretion has either not been exercised, United States v. Wilson, 450 F.2d 495 (4th Cir. 1971); United States v. Daniels, 446 F.2d 967, 971-972 (6th Cir. 1971), or where it has been improperly exercised. E. g., Woosley v. United States, 478 F.2d 139, 147 (8th Cir. 1973) (en banc). To do less in the context of the sentencing of youth offenders or to require anything less than a statement of the underpinning beneath the explicit finding would be neglecting our solemn obligation to carry out the congressional mandate expressed in the Act itself and in its legislative history above recounted.

Judgment reversed and cause remanded for resentencing of Willie Glen Hopkins.

      . “Youth offender” is defined by 18 U.S.C. § 5006(e) as a person under the age of 22 years at the time of conviction.

      . The treatment referred to is, under 18 U.S.C. § 5010(b), sentence “to the custody of the Attorney General for treatment and supervision” pursuant to the Act until discharged by the Youth Correction Division of the Board of Parole, or, under 18 U.S.C. § 5010(c), if the court finds that the youth offender may not be able to derive maximum benefit from treatment by the Youth Correction Division prior to the expiration of six years from the date of conviction, sentence may be to the custody of the Attorney General for treatment and supervision for any further period that may be authorized by law for the offense or offenses committed, or until discharge by the Youth Correction Division of the Board of Parole.

      . In United States v. Dorszynski, 484 F.2d 849 (7th Cir.), cert. granted, 414 U.S. 1091, 94 S.Ct. 721, 38 L.Ed.2d 548 (1973), a pane) of the Seventh Circuit rather summarily rejected the appellant’s claim that § 5010(d) required both an explicit finding of “no benefit” and a statement of reasons for that decision. Id. at 851. The Dorszynski panel made no reference to United States v. Coefield, 155 U.S.App.D.C. 205, 476 F.2d 1152 (1973), decided more than five months prior to its decision, or to Cox v. United States, 473 F.2d 334 (4th Cir. 1973), decided almost five months prior to its decision. The Dorszynski panel’s cryptic reference to the legislative history of § 5010(d) and its treatment of that history gives no consideration to whether, as concluded by both the Coefield and Cox en banc decisions, § 5010(d) created a preferred sentencing alternative. In United States v. Walker, 469 F.2d 1377 (1st Cir. 1972), the First Circuit rejected an argument that an express finding of “no benefit” was necessary because the defendant, having been convicted of failure to register for the draft, demonstrated no “antisocial tendency” for which the treatment provided under 18 U.S. C. § 5006 was designed. Id. at 1381 n. 4. In United States v. Bamberger, 456 F.2d 1119 (3d Cir. 1973), a Third Circuit panel rejected an argument that the district court had erred in not making an affirmative finding of “no benefit” under § 5010(d), id. at 1128-1129 n. 7, stating: “We hold that the court did not err in imposing a sentence in excess of six years on [appellant] who fired into the windshield of a pursuing police cruiser . . . .’’Id. (emphasis added). See also Williams v. United States, 476 F.2d 970 (3d Cir. 1973). Of course, whether the district court erred as to the § 5010(d) finding is not the same question as whether the sentence finally imposed was correct in a given case, see part IV infra. On the other hand, in Rogers v. United States, 326 F.2d 56 (10th Cir. 1963), the Tenth Circuit remanded for resentencing on the basis that either the judgment of commitment or the record of the proceedings below must show affirmatively that the sentencing judge found that the defendant’s crime was punishable by imprisonment under § 5010(b). Cf. DeWitt v. United States, 383 F.2d 542 (5th Cir. 1967).

      . The various cases, other than Dorszynshi, supra, have been the subject of a recent note, Sentencing Under the Federal Youth Corrections Act: The Need for an Explicit Finding and a Statement of Reasons, 53 B. U.L.Rev. 1071 (1973).

      . But see United States v. Bamberger, 456 F.2d at 1128-1129 n. 7.

      . Discussed in part IV infra.

      . Note, supra note 4, at 1082-83.

      . This decision is inapplicable to any cases in which judgment has become final and no appeal is presently pending.

      . As an appellate court, our responsibility for the “administration” of the Toutl) Corrections Act is limited to our supervision of the district court judges in this circuit who are primarily tasked with implementing that Act. Our tendency is to agree, based on our reading of the legislative history of the Act, with the District of Columbia Circuit’s observation, United States v. Waters, 437 F.2d at 724, later reaffirmed by that court en banc, United States v. Coefield, 476 F.2d at 1157, that cases where the district court should decide not to sentence under the Act will most probably be the exception rather than the rule. While statistics can be of dubious value, figures complied in this circuit for fiscal year 1973 indicate that only 62.7 per cent of those eligible for sentencing under § 5010 were in fact sentenced under that section. We need not discern whether the states within our circuit tend to produce youthful offenders of the “incorrigible” type that concerned Congress, S.Rep.Xo.1180, 81st Cong., 1st Sess. 5 (1949), in greater numbers than Congress might have anticipated. Our function is, rather, to ensure that the statistics do not reflect a failure by district judges in this circuit to consider the full range of options open to them, e. g., United States v. Matusewitch, 481 F.2d 174, 175 (2d Cir. 1973), as well as to ensure that the congressional preference for sentencing under § 5010 is honored.

      . ABA Project on Standards for Criminal Justice, Standards Relating to Appellate Review of Sentences 2 (Approved Draft 1968). See, e. g., United States v. Brown, 479 F.2d 1170, 1172-1173 (2d Cir. 1973).

      . See also United States v. Forrest, 157 U.S.App.D.C. 188, 482 F.2d 777 (1973) ; United States v. Toy, 157 U.S.App.D.C. 152, 482 F.2d 741 (1973) ; United States v. Riley, 157 U.S.App.D.C. 27, 481 F.2d 1127 (1973) ; United States v. Butler, 156 U.S.App.D.C. 356, 481 F.2d 531 (1973).


author: FRIENDLY, Circuit Judge:

text:
    NATIONAL NUTRITIONAL FOODS ASSOCIATION and Solgar Co., Inc., Petitioners, v. FOOD AND DRUG ADMINISTRATION, UNITED STATES DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, Respondent.
    No. 73-2129.
    United States Court of Appeals, Second Circuit.
    Submitted Jan 15, 1974.
    Decided Feb. 1, 1974.

      Bass & Ullman, New York City, for petitioners.
    Howard S. Epstein, Asst. Chief, Consumer Affairs Section, Dept. of Justice, Washington, D. C. (Stephen H. McNamara, Howard M. Holstein, Food and Drug Div., Dept. of Health, Education, and Welfare, Rockville, Md., of counsel), for respondent.
    Before MOORE, FRIENDLY and ANDERSON, Circuit Judges.
   FRIENDLY, Circuit Judge:

This motion is made in one of fifteen petitions to review two orders of the Food and Drug Administration (FDA) signed by Alexander M. Schmidt, Commissioner of Food and Drugs, on July 25, 1973, and published in the Federal Register on August 2, 1973. These orders added to 21 C.F.R. Part 80—Defi-nitions and Standards of Identity for Food for Special Dietary Uses, 38 F.R. 20730-40, and revised Part 125—Label Statements Concerning Dietary Properties of Food Purporting to Be or Represented for Special Dietary Uses, 38 F.R. 20708-18. These voluminous regulations, fully effective Dectmber 31, 1974, are the end-product of a Notice of Proposal To Revise Regulations published in 1962, 27 F.R. 5815. The final phase began with a notice of public hearing in 1968, 33 F.R. 8679; the hearings lasted for almost two years and produced over 32,000 pages of testimony and thousands of pages of exhibits. Each set of regulations is preceded by several pages of comment (hereafter the preamble) in which the exceptions are summarized and reasons are given for their rejection or adoption. The petitions to review, filed in this Circuit and in the Ninth and District of Columbia Circuits, have all found their way to this court under 28 U.S.C. § 2112(a) and have been consolidated.

The basis for the instant motion to take the deposition of Commissioner Schmidt and for related relief or to appoint a special master to achieve similar ends is as follows: Tentative final orders signed by Charles C. Edwards, then Commissioner of Food and Drugs, were published in January, 1973, 38 F.R. 2143-50, 2152-62; the time for filing exceptions expired on April 20, 1973. Meanwhile Commissioner Edwards had resigned. The formal exceptions spread over 1,000 pages; there were 20,000 additional letters. Commissioner Schmidt took office on July 12, 1973. During the 13-day period ending with the signing of the orders here under review, he signed and caused to be published 14 final regulations, 13 proposed regulations and 6 notices stretching over many pages of the Federal Register, many of which deal with the composition or label-ling of food products. The final regulations here at issue contain a recital that the Commissioner had “considered the evidence received at the hearing, the hearing examiner’s report, and all the exceptions and written arguments which were filed . . .”38 F.R. at 20712; see id. at 20734. The relevant statute, 21 U.S.C. § 371(e)(3), directs that after the prescribed procedures for hearing and objections, the Secretary of Health, Education and Welfare, whose powers have been delegated to the Commissioner of Food and Drugs, 21 C.F.R. §§ 2.68-2.-98, “shall by order act upon such objections and make such order public.”

In an effort to develop that it was physically impossible for the new Commissioner to have reviewed and considered the objections prior to signing the orders here at issue, the petitioners instituted an action against him in the District Court for the Southern District of New York. Judge Gurfein dismissed this for lack of jurisdiction. He noted that, as the parties agreed, under 21 U.S.C. § 371(f) jurisdiction to review the orders lay in the courts of appeals. Plaintiffs contended, however, that a court of appeals could not take additional evidence before itself both because § 371(f)(2) empowers the court of appeals, when a petitioner applies for leave to adduce additional evidence and makes a proper showing, only to “order such additional evidence . . . to be taken before the Secretary” which would be manifestly inappropriate here, and because its collegial nature makes a court of appeals institutionally ill-adapted to take evidence itself. From the premise thus thought to be established, plaintiffs reasoned that, under § 9(b) of the Administrative Procedure Act, now 5 U.S.C. § 703, “the special statutory review proceeding” was inadequate for their immediate needs and an action lay in the district court. Judge Gurfein rejected both branches of plaintiffs’ premise largely on the authority of Braniff Airways, Inc. v. C.A.B., 126 U.S.App.D.C. 399, 379 F.2d 453 (1967), where the court of appeals had obtained, apparently without objection, extra-record material relating to the internal processes of the Civil Aeronautics Board relevant to the claims of procedural irregularity raised before it. He further noted, with respect to the claim of institutional inadequacy on the part of the court of appeals, that this court could appoint a special master, citing a number of contempt proceedings for violations of orders of the Labor Board.

The Braniff case may not be quite so authoritative as the district judge thought, since the Federal Aviation Act, 49 U.S.C. § 1486, contains no express provision for the taking of additional evidence, although it probably would be construed to require this to be taken before the Civil Aeronautics Board if taken at all. We nevertheless are in complete agreement with the court's rejection of petitioners’ premise. The provision in 21 U.S.C. § 371(f)(2) that additional evidence shall be taken before the Secretary refers to evidence that might alter his determination on the merits and for that reason should be taken before him—not to evidence that, because of procedural irregularity, his determination was a nullity) A reviewing court has inherent power to obtain evidence needed to enable it to decide a contention of this sort. The difficulties in a court of appeals’ informing itself with respect to such a matter are imaginary. There is nothing to prevent the hearing of evidence by three judges, as sometimes occurs in courts convoked under 28 U.S.C. §§ 2281 and 2282, cumbersome though it be. Apart from the possibility of appointing a special master, an alternate form of relief sought here by petitioners, the evidence desired could doubtless be obtained by deposition, as petitioners primarily propose. We thus entertain no doubt of our power to grant petitioners’ motion.

Conceding that it is not the function of this court “to probe the mental processes” of the Commissioner, Morgan v. United States, 304 U.S. 1, 18, 58 S.Ct. 773, 82 L.Ed. 1129 (1938) (.Morgan II), petitioners insist they are entitled to probe whether he exercised his own mental processes at all. More particularly, they claim they are entitled to do this in a situation where two unusual and indisputable facts, namely, the short time between Commissioner Schmidt’s assumption of office and his signing of the regulations here at issue, and the large number of other rules promulgated by him in the interval, create more than ordinary basis for doubt as to the extent of his personal reading and consideration.

It is plain enough that if this motion had come before us in the period between the first Morgan case, Morgan v. United States, 298 U.S. 468, 481, 56 S.Ct. 906, 912, 80 L.Ed. 1288 (1936), holding that in administrative proceedings “The one who decides must hear” and that a court seized of a review proceeding must inquire whether he had, and the fourth and last appearance of the Morgan case in the Supreme Court, United States v. Morgan, 313 U.S. 409, 61 S.Ct. 999, 85 L.Ed. 1429 (1941), we would have been obliged to grant it. But the life of this aspect of Morgan I was extremely brief. In Morgan IV Mr. Justice Frankfurter, writing for a Court unanimous on this point, took back most or all of what the first decision had given, 313 U.S. at 421-422, 61 S.Ct. 999. Morgan IV dealt with a proceeding wherein the Secretary of Agriculture had fixed rates for the Kansas City stockyards that would govern distribution of funds impounded during the long pendency of the litigation. Upon a challenge to the extent of the Secretary’s participation in the making of these rates similar to that which had been made in Morgan I, the district court had taken his testimony as the Court had directed in Morgan I. After strongly suggesting that it would reject on the merits a challenge with respect to the degree of the Secretary’s personal consideration, the Court went on to hold: “But the short of the business is that the Secretary should never have been subjected to this examination.” 313 U.S. at 422, 61 S.Ct. at 1004. Professor Kenneth Culp Davis has correctly characterized this, 2 Administrative Law Treatise § 11.05, at 59 (1958), as a return to the law declared in De Cambra v. Rogers, 189 U.S. 119, 122, 23 S.Ct. 519, 521, 47 L.Ed. 734 (1903):

It is hardly necessary to say that when a decision has been made by the Secretary of the Interior, courts wilh not entertain an inquiry as to the extent of his investigation and knowledge of the points decided, or as to the methods by which he reached his determination.

Subsequent Supreme Court decisions have not detracted from the force of Morgan IV. Petitioners rely on United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954), see also Shaughnessy v. United States ex rel. Accardi, 349 U.S. 280, 75 S.Ct. 746, 99 L.Ed. 1074 (1955), but the charge there thought to require the taking of evidence was that the agency to which discretion had been given, the Board of Immigration Appeals, had acted at the dictation of the Attorney General; indeed, the case is questionable authority for the taking of testimony even on its own facts. See 2 Davis, supra, § 11.05, at 61 n. 10. They press even more strongly a portion of Mr. Justice Marshall’s opinion in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971), stating that on remand the district court “may require the administrative officials who participated in the decision to give testimony explaining their action.” But Overton Park was a case where the Secretary of Transportation had made no formal findings; the taking of testimony, suggested as being within the range of proper action for the district court on remand, was for the purpose of ascertaining why the highway construction had been authorized, a function performed by the extensive preambles to the regulations here at issue. The Court reaffirmed Morgan IV, saying that where findings accompany the decision, “there must be a strong showing of bad faith or improper behavior” before -testimony with regard to reasons can be taken. Id. Indeed, the opinion went on to say that testimony might not be required even in Overton Park if the Secretary could prepare post hoc findings sufficient to withstand scrutiny. Id. at 420-421, 91 S.Ct. 814. Nothing in the opinion suggests that the Court intended to allow inquiry into the relative participation of the Secretary and his subordinates. Similarly, strong preliminary showings of bad faith have been required in the court of appeals eases cited by petitioners before the taking of testimony has been permitted with regard to internal agency deliberations. See, e. g., Singer Sewing Machine Co. v. NLRB, 329 F.2d 200, 206-208 (4th Cir. 1964).

The facts of this case do not constitute nearly the showing of bad faith necessary to justify further inquiry; indeed they vividly illustrate the necessity of adhering to the presumption of regularity with respect to the participation of the officer authorized to sign administrative orders, especially in the context of the promulgation of legislative rules as distinguished from adjudication. As stated, the regulations here at issue are the end-product of more than a decade of work by the FDA. Petitioners do not contest that predecessors of Commissioner Schmidt, notably Commissioner Edwards, took an active part in the development of the regulations. All would have been well, apparently, if Commissioner Edwards had continued to serve. But because he resigned in April 1973 and Commissioner Schmidt did not take office until mid-July, promulgation must wait until the new Commissioner could personally familiarize himself with 1,000 pages of formal exceptions, 20,000 letters, and the staff’s views about them, and read the relevant portions of the record (or summaries of them). And the same must be true of all the other regulations awaiting the new Commissioner’s signature. With the enormous increase in delegation of lawmaking power which Congress has been obliged to make to agencies, both independent and in the executive branch, and in the complexity of life, government would become impossible if courts were to insist on anything of the sort. It would suffice under the circumstances that Commissioner Schmidt considered the summaries of the objections and of the answers contained in the elaborate preambles and conferred with his staff about them. There is no reason why he could not have done this even in the limited time available, cf. Twin City Milk Producers Ass’n v. McNutt, 122 F.2d 564, 568-569 (8 Cir. 1941); Florida Economic Advisory Council v. F.P.C., 102 U.S.App.D.C. 152, 251 F.2d 643, 648 (1957) (Burger, J.), cert. denied, 356 U.S. 959, 78 S.Ct. 996, 2 L.Ed.2d 1066 (1958), although we do not envy him the task. In any! event, absent the most powerful preliminary showing to the contrary, effective government requires us to presume that he did. It was his special insight into the workings of the administrative process, as it was and might become, that enabled Mr. Justice Frankfurter in Morgan IV to persuade the Court to retreat from Morgan I. This is no time for an attempt to regain territory so wisely yielded.

The motion to take the testimony of the Commissioner and to have other discovery, or for the appointment of a master, is denied.

      . Examples are Amino Acids in Food for Human Consumption, dated July 19, 1973, 38 F.R. 20036-39, and Standards of Quality for Foods for Which There Are No Standards of Identity, dated July 25, 1973, 38 F.R. 20726-30. Others deal with unrelated problems, e. g., Ch. 1, Part 273, Additional Standards for Source Plasma (Human) Used in Preparation of Blood Derivatives Intended for Injection, dated July 17, 1973, 38 F. R. 19362-68.

      . The district judge stated that the only thing which gave him pause was a remark by the writer in Toilet Goods Ass’n v. Gardner, 360 F.2d 677, 684, n. 8 (2 Cir. 1966), aff’d, 387 U.S. 158, 167, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967), that in the review of rules “a district court may be in a better position than a court of appeals to carry out fact finding . . .” We agree that this afforded no ground for a different decision. The comment was made with respect to rules not protected by the usual provisions making findings supported by substantial evidence conclusive and limiting the production of new evidence. Both sides in the Toilet Goods ease contemplated a trial if the Government’s motion to dismiss were not granted.

      . Indeed evidence was taken before a court of three judges in Morgan v. United States, 23 F.Supp. 380 (W.D.Mo.1937), after the remand in 298 U.S. 468 (1936), on which petitioners so heavily rely. It was done so again in the proceeding leading to Morgan IV, see 32 F.Supp. 546 (W.D.Mo.1940).

      . Mr. Justice Roberts dissented on another issue. Chief Justice Hughes, the author of Morgan I, concurred in Mr. Justice Frankfurter’s opinion.

      . The difficulties of such an inquiry are illustrated by Mr. Justice Blackmun’s concurrence, 401 U.S. at 422—423, 91 S.Ct. at 827, pointing out that the case was “the end product of more than a decade of endeavor to solve the interstate highway problem at Memphis” and that the “administrative decisions under attack here are not those of a single Secretary; some were made by the present Secretary’s predecessor and, before him, by the Department of Commerce’s Bureau of Public Roads.”
      The statement in Overton Park that the district court could take testimony as to reasons was extended by Camp v. Pitts, 411 U.S. 138, 142-143, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) (per curiam), arising under the National Bank Act, from eases in which the agency has made no findings to those where its “stated justification for informal action does not provide an adequate basis for judicial review.” Id. at 138, 93 S.Ct. at 1242. But Pitts no more than Overton Park suggests that inquiry will be permitted into relative participation in the decision by various agency personnel.

      . It should be noted that the demands on the Commissioner’s time during the 13 days preceding the signing of these orders are somewhat exaggerated by the observation, stressed by petitioners and mentioned above, that in that period he signed and caused to be published 14 final regulations, 13 proposed regulations, and 6 notices. Although 21 U.S.C. § 371, for example, speaks in terms of action by the Secretary (and by delegation the Commissioner, 21 C.F.R. §§ 2.68-2.98) throughout the process of proposal and promulgation of many types of regulations with respect to food and drugs, nevertheless whatever remains of the Morgan I requirement that “The one who decides must hear” surely applies to the one who ultimately decides. Compare Opp Cotton Mills, Inc. v. Administrator, 312 U.S. 126, 152-153, 61 S.Ct. 524, 85 L.Ed. 624, modified, 312 U.S. 657, 61 S.Ct. 524, 85 L.Ed. 624 (1941). A spot check of the published items other than final regulations signed by Commissioner Schmidt between July 12 and July 25, 1973 reveals only the most limited assertions of a personal role. See, e. g., Filled Milk Products : Proposed Common or Usual Name, dated July 25, 1973, 38 F.R. 20748-49; Ophthalmic Drugs Advisory Committee: Notice of Meeting, dated July 18, 1973, 38 F.R. 19850-51.

      . Very shortly after Morgan I, a perceptive commentator had pointed out that, despite its seeming “so eminently reasonable on its face,” the decision probably would require the Secretary of Agriculture “to devote all his time to the conduct of matters which must be considered petty from a national viewpoint.” A. H. Feller, Prospectus for the Further Study of Federal Administrative Law, 47 Yale L.J. 647, 662 (1938).


author: JAMESON, District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. ALASKA STEAMSHIP COMPANY, Defendant-Appellant.
    No. 71-2934.
    United States Court of Appeals, Ninth Circuit.
    Jan. 28, 1974.

      M. Bayard Crutcher (Argued) Edward S. Franklin of Bogle, Gates, Dobrin, Wakefield & Long, Seattle, Wash., for defendant-appellant.
    Theodore A. LeGros (Argued) of Howard, LeGros, Buchanan & Paul, Stan Pitkin, U. S. Atty., Seattle, Wash., Lawrence F. Ledebur, Chief Admiralty & Shipping Section U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellee.
    Before KOELSCH and TRASK, Circuit Judges, and JAMESON, District Judge.

       Honorable W. J. Jameson, United States Senior District Judge for the District of Montana, sitting by designation.

   JAMESON, District Judge:

Defendant-appellant, Alaska Steamship Company, has appealed from a judgment awarding plaintiff-appellee, United States of America, indemnity for a payment made in settlement of a longshoreman’s personal injury claim.

Statement of the Case

On February 24, 1966 James D. Harris, a longshoreman in the employ of Alaska Steamship, was injured while loading stores aboard the Creighton Victory, a public vessel owned by the United States. The Creighton Victory, on August 15, 1965, had been assigned for its operation to Alaska Steamship under a Service Agreement executed in 1956 whereby the United States appointed Alaska Steamship as a General Agent to manage public vessels assigned to it.

Harris sued the United States, but prior to trial counsel for the Government’s private insurance carrier, Commerce & Industry Insurance Company, settled the claim for $17,500. Alaska Steamship paid this amount, and also paid its counsel $304.73 for their services in investigating the accident. Commerce & Industry reimbursed Alaska Steamship in the amount of $16,804.-73, and the Government paid the remaining $1,000, the amount of the deductible under the insurance policy.

The Government brought this action to recover from Alaska Steamship the amount of the settlement, plus costs and expenses. Alaska Steamship asserted a counterclaim for the cost of defending the action, alleging breach by the Government of its promise in the Service Agreement to insure and indemnify Alaska Steamship. Following trial the court in its findings of fact and conclusions of law accepted the Government’s theory of the case, entered judgment for the Government, and dismissed the counterclaim.

Findings of District Court

Findings of fact questioned by appellant and critical to a determination of this appeal include:

“IX. Alaska Steamship Company, on February 24, 1966, was engaged in business as a stevedore contractor acting by and through its Terminal and Stevedoring Division, which Terminal and Stevedoring Division submitted statement of account to the United States Department of Commerce, Maritime Administration, for charges assessed by that Division in rendering stevedoring services to the SS CREIGHTON VICTORY, including services rendered on February 24, 1966.
“X. The services rendered by Alaska Steamship Company, acting by and through its Terminal and Stevedoring Division, were performed pursuant to an independent oral agreement whereby Alaska Steamship Company, as General Agent, employed Alaska Steamship Company Terminal and Stevedoring Division to stevedore the SS CREIGHTON VICTORY on February 24, 1966. To do this the General Agent transferred employees of its Terminal and Stevedoring Division from its privately owned vessel to the SS CREIGHTON VICTORY where work was assigned by the Alaska Steamship Company Terminal and Stevedoring Division foreman Lee Martin.
“XI. It was the regularly established business practice of Alaska Steamship Company as General Agent, to employ Alaska Steamship Company Terminal and Stevedoring Division to provide stevedoring services for public vessels for which Alaska Steamship Company was appointed General Agent. This method of operation was approved by the United States acting through its duly constituted officials and statements of accounts as submitted by Alaska Steamship Company Terminal and Stevedoring Division for such stevedoring services were duly approved and paid by the United States.
“XII. Alaska Steamship Company, as General Agent was under a duty to procure or provide stevedoring services to the vessels for which it was appointed General Agent, including the SS CREIGHTON VICTORY on February 24, 1966. Alaska Steamship Company, as General Agent, was empowered by the provisions of the General Agency Agreement, being contract MA-1224-GAA, Article 9 thereof, to employ its own stevedoring department, being its Terminal and Stevedoring Division, to stevedore the SS CREIGHTON VICTORY. Under the oral contract of employment as a provision thereof was the obligation on the part of Alaska Steamship Company Terminal and Stevedoring Division to perform its work of loading stores in a workmanlike manner so as not to breach the warranty of workmanlike service owed by the stevedore to the shipowner.
“XIII. Alaska Steamship Company acting as an independent stevedore contractor through its Terminal and Stevedoring Division breached its warranty of workmanlike service owed to plaintiff as shipowner, which breach of warranty was the proximate cause of the accident to longshoreman James D. Harris. * * * ”

Contentions of Appellant

Appellant contends that (1) neither the United States nor Commerce & Industry had a right to claim indemnity from Alaska Steamship; (2) there was no “oral contract”; (3) this is an improper subrogation suit, brought for the benefit of an insurance company against one of its assureds; and (4) Alaska Steamship is entitled to judgment against the Government for the expense of defending this action.

Right of Indemnity

Appellant contends that the district court should have dismissed the Government’s action summarily on the ground that it is “wholly at odds with the long established policy of the Government to protects its general agents from liability for personal injuries suffered aboard public vessels.”

Article 6(a) of the Service Agreement requires that the Government provide insurance covering both the United States and the General Agent against all insurable risks relating to public vessels assigned to Alaska Steamship as General Agent. It provides that “Neither the United States nor the ..insurance underwriters shall have any right of subrogation against the General Agent with respect to any of the foregoing risks.” It is argued that the injury to Harris was an “insurable risk” and that the Government and Commerce & Industry therefore have no right of indemnity against Alaska Steamship.

It is clear that no right of indemnity would exist with respect to the acts of Alaska Steamship as a General Agent. Appellee contends, however, and the district court found, that the services rendered by Alaska Steamship resulting in the injury to Harris were performed pursuant to an “independent oral agreement” and that Alaska Steamship was acting “as an independent stevedore contractor through its Terminal and Stevedoring Division”. The question of whether the Government and its insurer have a right of indemnity depends in large part upon a resolution of the second issue, i. e., whether there was a valid independent oral contract between the Government, through Alaska Steamship as its General Agent, and the Terminal and , Stevedoring Division of Alaska Steamship.

Independent Oral Contract

Alaska Steamship first argues that the finding of an independent oral contract has “no basis in law” because in effect it constitutes a holding that a corporation may contract with itself—a legal impossibility. The Government contends, however, that in making the contract with its Stevedoring Division Alaska Steamship was acting in its capacity as a General Agent for the Government, so that the oral contract was in effect between the United States and Alaska Steamship’s Stevedoring Division. Alaska Steamship next argues that it did not have authority under the Service Agreement to make contracts binding upon the Government. The Government replies that in any event it became a party to the contract through ratification of the General Agent’s actions by paying Alaska Steamship for the stevedoring services.

The initial question for determination is whether the district court’s finding of an independent oral contract is supported by substantial evidence. “In reviewing a judgment of a trial court, sitting without a jury in admiralty, the Court of Appeals may not set aside the judgment below unless it is clearly erroneous. * * * A finding is clearly erroneous when, ‘although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed’ * * McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 8, 99 L.Ed. 20 (1954). In determining whether a finding is clearly erroneous we “must view the evidence in the light most favorable to the party who prevailed below; such a party must be given the benefit of all inferences that may reasonably be drawn from the evidence.” Pacific Queen Fisheries v. Symes, 307 F.2d 700, 706 (9 Cir. 1962). This is true even where the finding rests on an inference drawn from undisputed facts or documentary evidence and is not based on the trial court’s opportunity to judge the credibility of witnesses. Lundgren v. Freeman, 307 F.2d 104, 113-115 (9 Cir. 1962); Wright & Miller, Federal Practice and Procedure: Civil § 2587 (1971), quoting with approval from Lundgren v. Freeman.

It is clear that the Service Agreement permitted a separate contract for stevedoring. There is no direct evidence that the parties entered into any formal separate agreement. In support of the district court’s finding of an independent oral contract the Government relies primarily, as apparently did the district court, upon five exhibits.

Exhibit 1, an accident report of Harris’ injury, shows Alaska Steamship Company as employer, its business as “Shipping”, and is signed by the “Chief Clerk, Stevedore Division”. Exhibit 2, a time sheet for the longshore gang on February 24, 1966, bears the stamped heading “ALASKA STEAMSHIP COMPANY, TERMINAL & STEVE. DIV.”. These exhibits merely show that Harris was an employee of Alaska Steamship’s Stevedoring Division^which is not disputed by Alaska Steamship.

Exhibit 3, described by the Government as “the most meaningful exhibit” and “the crucial evidence most graphically demonstrating the validity of the position of the United States”, is an invoice from “Alaska Steamship Company, Terminal & Stevedoring Division” to “U. S. Department of Commerce, Maritime Administration, National Shipping Authority, c/o Alaska Steamship Company, Agents”, for “labor used to load ship stores to the SS Creighton Victory” on February 21 and 24, 1966. The invoice bears an approval stamp of the purchasing agent of the Maritime Administration.

Article 5 of the Service Agreement provides that “The United States shall advance funds to the General Agent to provide for, and the General Agent shall receive credit for all expenditures of every kind made by it in performing, procuring or supplying the services, facilities, stores, supplies or equipment as required hereunder * * In compliance with this Article, Alaska Steamship established a General Agency account to which the Government’s advanced funds were credited and from which Alaska Steamship paid its expenses incurred in the performance of the Service Agreement. The Government contends that the “special handling” of the stevedoring expenses for the Creighton Victory on the date of Harris’ accident, that is, the fact that they were billed directly to the Government without going through the General Agency account, indicates that the stevedoring services were a “special service performed by Alaska Steamship Company outside of the General Agency Agreement”. This was a permissible inference to be drawn from Exhibit 3, especially in view of the fact that Alaska Steamship did not produce a witness to explain the “special handling” indicated by Exhibit 3.

Exhibit 4 is a letter to E. A. Breitkreutz, a marine underwriter, from the attorneys for Alaska Steamship, dated March 11, 1968 and written upon receipt of the complaint in the personal injury action filed by Harris. The letter states in pertinent part:

“Alaska Steamship Company, as general agent, employed its own stevedoring department to stevedore the CREIGHTON VICTORY.” * * *
“The question presented in this case is whether Alaska Steamship Company as general agent, which hires its private stevedore employees to stevedore a general agency vessel, may be classified as a YAKA situation, which would immunize Alaska Steamship Company from any indemnity action.”

We agree with the Government that the trial court could reasonably infer from this letter of Alaska Steamship’s counsel (in conjunction with the other evidence) that Alaska’s Stevedoring Division had been employed as an independent stevedoring contractor to stevedore the Creighton Victory. Alaska Steamship urges that the terms “employed” and “hires” simply meant “made use of” and not “contracted with”. The terms are susceptible of either interpretation. We cannot say that the trial court’s interpretation was “clearly erroneous”, giving to the prevailing party the “benefit of all inferences that may reasonably be drawn from the evidence”. Pacific Queen, supra at 706.

Exhibit 5 is a letter from the president of Alaska Steamship to the Maritime Administrator, dated June 24, 1970, seeking dismissal of this action and the recovery of attorney fees. In itself the letter is of little value except as a statement of the position of the parties. It recognizes that the Government contends that Alaska Steamship was acting in a dual capacity—as General Agent and as a stevedore contractor. It states that it is the position of Alaska Steamship that all services were rendered as General Agent and relies upon Articles 6(a), (b) and 9(a), (b) of the Service Agreement.

Article 9, dealing with “Related Services”, provides in 9(a) that “Agreements or arrangements with any interested or related company to render any service or to furnish any stores * * * or facilities * * * shall be submitted to the United States for approval” and unless so approved “compensation paid to any interested or related company shall be subject to review and readjustment by the United States”. Article 9(b) provides that “The United States shall, when it may legally do so, have the advantage of any existing, or future, contracts of the General Agent for the purchase or rental of * * * services * * * provided that any financial loss or disadvantage to the General Agent shall be compensated for in such amount as may be determined by the United States”. As noted supra, Article 9(c) authorizes a separate agreement with Alaska Steamship Company for stevedoring and similar services.

Construing Articles 3 and 9 together there were three alternative methods of providing stevedoring services: (a) Alaska Steamship could provide the services as a part of its duties as General Agent under Article 3; (b) it could procure the services from someone else under Articles 3 and 9(a) and (b); or (c) there could be a separate agreement whereby Alaska Steamship would provide the services pursuant to Article 9(c). While the letter from the president of Alaska Steamship states that it was the position of the company that all services rendered were in its capacity as General Agent, the reliance on Articles 9(a) and (b) would indicate that the stevedore services were performed by an “interested” or “related” company pursuant to 9(a) or a separate contract with someone else under 9(b). The district court obviously relied on Article 9(c) in finding a separate oral agreement.

Viewing all of the exhibits and oral testimony as a whole we conclude that there was sufficient evidence to sustain the finding of the district court that the “services * * * were performed pursuant to an independent oral agreement whereby Alaska Steamship Company, as General Agent, employed Alaska Steamship Company Terminal and Stevedoring Division to stevedore the SS CREIGHTON VICTORY on February 24, 1966”. Two related questions remain: (1) could Alaska Steamship Company as General Agent bind its disclosed principal, the United States, to an oral contract with Alaska’s Terminal and Stevedoring Division under the authority granted in Article 9(c); and (2) if not, did the United States create a valid oral contract by ratification ?

Alaska Steamship argues that the finding of an independent oral contract constitutes a holding that a corporation may contract with itself, and that in any event Alaska Steamship had no authority under the Service Agreement to make contracts binding the United States.

It is of course true that one may not contract with himself. Restatement of the Law, Contracts (1932) § 15 states the general rule that “There must be at least two parties in a contract”, and Comment a reads:

“It is not possible under existing law for a man to make a contract with himself. This rule is one of substance and independent of mere procedural requirements. Even though a man has different capacities, as for instance as trustee, as executor, as partner, as an individual, it is impossible as [a] matter of substantive law for him by his own individual will or expression to contract with himself.”

Neither the rule nor the supporting cases cover the situation here presented. Counsel have not cited, nor have we found, a case precisely in point. The Government argues that in making the contract with its Stevedoring Division Alaska Steamship was acting as agent for the United States, its principal, and that the contract was between two separate entities, the United States and Alaska’s Terminal and Stevedoring Division. The district court found that Alaska Steamship was empowered by Article 9 of the Service Agreement to employ its own stevedoring department and concluded that Alaska Steamship, as General Agent, under an oral contract employed its Terminal and Stevedoring Division as an independent stevedore contractor. We incline to the view that by reason of the contractual provisions, and particularly Article 9(e), the district court was correct in concluding that there was a valid independent oral contract. We base our affirmance, however, primarily on our conclusion that the United States in any event made the contract binding by ratification.

Restatement, Second, Agency (1958) § 82 defines “Ratification” as follows:

“Ratification is the affirmance by a person of a prior act which did not bind him but which was done or professedly done on his account, whereby the act, as to some or all persons, is given effect as if originally authorized by him.”

The district court found (Finding XI) that “It was the regularly established business practice of Alaska Steamship Company as General Agent, to employ Alaska Steamship Company Terminal and Stevedoring Division to provide stevedoring services for public vessels for which Alaska Steamship Company was appointed General Agent”, that this method of operation “was approved by the United States”, and that “statements of accounts as submitted by Alaska Steamship Company Terminal and Stevedoring Division for such stevedoring services were duly approved and paid by the United States”. The district court’s finding that the invoices for stevedoring required and received the approval of the United States through its Maritime Administration was proper, based upon Exhibit 3 and the testimony of Alaska’s witness Jones. Accordingly, we hold that the action of the United States in approving and paying for the stevedoring services rendered for the Creighton Victory on February 24, 1966 constituted a ratification of the oral contract for stevedoring services, entered into between Alaska Steamship, as General Agent and its Terminal and Stevedoring Division.

Liability of Alaska Steamship as Stevedoring Contractor

It is well settled that a shipowner may recover indemnity from a stevedore contractor for breach of the stevedore’s implied warranty of workmanlike service. Ryan Co. v. Pan-Atlantic Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956); Italia Soc. v. Ore. Stevedoring Co., 376 U.S. 315, 84 S.Ct. 748, 11 L.Ed.2d 732 (1964); Ryan v. Pacific Coast Shipping Co., Liberia, 448 F.2d 525 (9 Cir. 1971). There is ample evidence to support the finding of the district court that Alaska’s breach of its implied warranty of workmanlike service was the proximate cause of the injury to longshoreman Harris.

Is this an Improper Subrogation Suit?

Alaska Steamship alternatively argues that even if there was an independent oral contract the Government’s case must nevertheless fail since it is in effect a subrogation suit brought for the benefit of Commerce & Industry Insurance Company against one of its own assureds.

Commerce and Industry Insurance Company issued a policy insuring “ALASKA STEAMSHIP COMPANY, Policyholder and General Agent under Service Agreement with the United States of America and the United States of America”, agreeing to indemnify the assured against loss resulting from liability for “ * * * personal injury to * * * any person”, not including “liability to an employee (other than hereafter excepted) of the assured •x- -x- -x- un(jer any compensation act’.

Clause 22 of the policy provides that “The Underwriter shall be subrogated to all the rights which the Assured may have against any other person or entity, in respect of any payment made under this policy, to the extent of such payment, * *

Article 6(a) of the Service Agreement reads in pertinent part:

“Neither the United States nor the insurance underwriters shall have any right of subrogation against the General Agent with respect to any of the foregoing risks. All insurance hereunder shall cover both the United States and the General Agent when acting hereunder or as sub-agent of another General Agent of the United States with respect to vessels assigned by the United States to such other General Agent.”

The district court found (Finding XIV) that the United States brought this action against Alaska Steamship “in its capacity as an independent stevedore contractor * * * and not in its capacity as General Agent”. It concluded that the “action is not a subrogation suit against the General Agent as prohibited by article 6(a)” but “an action by a shipowner against an independent stevedore contractor for indemnity for damages occasioned by the breach on the part of the independent stevedore contractor of its warranty of workmanlike service”. (Conclusion of Law IV).

We agree. Alaska Steamship was insured by Commerce & Industry against Alaska Steamship’s liability as General Agent. The recovery here is based upon the independent oral contract between the United States and Alaska Steamship as an independent stevedore contractor.

Affirmed.

      . The Creighton Victory was one of a number of Victory ships brought out of the reserve fleet during the Vietnam war and assigned to Alaska Steamship as General Agent for the Government. The Service Agreement is a standard form agreement, the terms of which are prescribed by 32A C.F.R. Chap. XVIII, Order AGE-1 (1973).

      . It appears from appellee’s Exhibit 4, discussed infra, that counsel investigated the accident for Alaska Steamship Company’s longshore insurance carrier.

      . The judgment was for $19,750.35 (the settlement of $17,500 and expenses of $2,250.-35), “together with plaintiff’s costs >and disbursements * * * taxed in the sum of $118.90”.

      . Article 9 of the Service Agreement reads in pertinent part:
      “(c) Notwithstanding any other provision of this Agreement, the United States, by separate agreement, may contract with the General Agent to perform stevedoring, * * * or similar services for the vessels assigned hereunder, in which event the General Agent shall have the rights, benefits and the obligations and responsibilities provided in such agreement.”

      . On this basis Chalonec v. Prudential Lines, Inc., 474 F.2d 1336 (2 Cir. 1973), cert. denied, 414 U.S. 1002, 94 S.Ct. 357, 38 L.Ed.2d 238 (1973), cited by Alaska Steamship, is distinguishable. There a seaman brought suit against the General Agent. The district court granted a motion for summary judgment, holding that a General Agent cannot be sued for injuries sustained aboard a vessel owned by the Government and that the seaman’s sole remedy was to sue the Government. The court of appeals affirmed without opinion. We are not concerned in this case with a claim by a crew member against Alaska Steamship as a General Agent in tlie operation of the vessel. It is the Government’s contention that this is an action against Alaska Steamship as an independent stevedoring contractor, rather than as a General Agent for the Government. Harris and the other longshoremen were not regularly employed on the Creighton Victory, but, as found by the district court, were transferred on the day of the accident from their work on one of Alaska Steamship’s private vessels to the Creighton Victory, where work was assigned by the foreman of Alaska’s Terminal and Stevedoring Division.

      . See 1 Fletcher, Corporations § 29 (1963).

      . As noted supra, Note 3, Article 9(c) of the Service Agreement provides that the United States, by separate agreement, may contract with the General Agent to provide stevedoring services, “in which event the General Agent shall have the rights, benefits and the obligations and responsibilities provided in such agreement”.

      . Alaska Steamship does not dispute that the clearly erroneous rule applies here, but argues that because the trial court signed without change the findings of fact, conclusions of law, and judgment prepared and filed by counsel for the Government, the decision “amounted to no more than a general verdict”, and the findings of fact and conclusions of law “had no significance except as they coincided with the evidence”. Although the Supreme Court, as well as most appellate courts, have been severely critical of the practice of having findings prepared by counsel and mechanically adopted by the court, they “are formally his; they are not to be rejected out-of-hand, and they will stand if supported by evidence”. United States v. El Paso Gas Co., 376 U.S. 651, 656, 84 S.Ct. 1044, 1047, 12 L.Ed.2d 12 (1964).

      . When the Service Agreement was signed in 1956 Alaska Steamship had no stevedoring services, and the stevedoring was done by a separate corporation. Thereafter, and prior to 1966, this corporation became a division of Alaska Steamship. Sometime before the Harris accident the Terminal and Stevedoring Division was discontinued, and its functions were taken over by a Marine Terminal Operations Division. The term “Terminal and Stevedoring Division” was used by the district court and at the time of the Harris accident was still used by Alaska Steamship on time sheets and payrolls for Pacific Maritime Association accounting.

      . The “Teletype Message” from the Government confirming the assignment of the Creighton Victory to Alaska Steamship states “You are requested to pay any authorized cost out of your corporate funds subject to reimbursement under” the Service Agreement.

      . Alaska Steamship called as witnesses J. E. Zumdieck, one of its vice-presidents, and John J. Jones, its executive assistant for the General Agency operated vessels who testified that Alaska stored and operated “the General Agency ships just as though they were operating as our own particular vessels, and in the same manner”. Neither witness, was familiar with the accounting and billing procedures for stevedoring services. Zumdieck testified this was handled by the company’s Comptroller, although he stated further that those services were billed in the same manner as the Company billed for other General Agency expenses. Jones suggested that the Government might have been billed separately for accounting purposes, but admitted that he was not familiar with the accounting or billing—that this was the responsibility of a Mr. Reem. Neither Reem nor anyone from the Comptroller’s office was called to explain the billing.

      . Alaska Steamship argues that Exhibit 4 was improperly admitted. When the exhibit was offered counsel for Alaska Steamship objected on relevancy grounds, but he later withdrew the objection, stating “we have no further objection to this letter”.

      . The reference is apparently to Reed v. The Yaka, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448 (1963), which involved a libel in rem by a longshoreman against a ship for injuries sustained while loading the ship as an employee of a corporation which was operating it under a bareboat charter. The ship’s owner brought in the longshoreman’s employer as an additional defendant. The Court held that the longshoreman could recover against the ship, but that the ship’s liability would be shifted to the longshoreman’s employer, as owner pro hao vice, for the ship’s unseaworthiness. The crux of the decision was the holding that recovery against the employer was not barred by the Longshoremen’s and Harbor Workers’ Compensation Act, which provides that compensation liability of an employer under the Act is exclusive.

      . The letter stated that counsel had “investigated this matter for the Alaska Steamship Company’s long shore carrier” and were concerned with the question of whether Mr. Breitkreutz wished them to handle “the defense of this case on behalf of the United States” by reason of their previous employment in the investigation.

      . Zumdieck, who prepared the letter, testified that the original draft of the letter included a reference to Article 3 of the Service Agreement, which was omitted by error in the final draft. Article 3 prescribes in detail the “Duties of the General Agent”, including the duty to “Conduct the business of the vessels * * * and procure or provide all services incident thereto, including * * * stevedoring * * *

      . Appellant has one further contention: that by reason of appellee’s failure to call as a witness Captain Huxtable, “the local officer of the Maritime Administration who dealt with Alaska Steamship regarding its conduct of business as General Agent”, it is a “fair assumption” that Captain Huxtable’s testimony would have been adverse to the Government. The only reference to Captain Huxtable in the transcript is the testimony of the witness Jones that “we were advised [by Huxtable] that we were to store and operate the General Agency ships just as though they were operating as our own particular vessels, and in the same manner”. He did not have “any discussions with Captain Huxtable as to the way in which the stores were loaded properly or provided to the ships” because “they had no concern, it was * * * our responsibility as a General Agent to see that the ship was properly planned and stored and ready for the Navy or whenever they required the ship to be at a loading berth”. This testimony is not inconsistent with appellee’s position that there was a separate oral contract for the stevedoring services. Moreover, Huxtable could have been called as a witness by appellant.

      . As illustrations of this principle Alaska Steamship cites Forest Investment Corp. v. Chaplin, 55 Ill.App.2d 429, 205 N.E.2d 451 (1965), which holds that a sole proprietor of a business may not contract with the business ; Yosemite Portland C. Corp. v. State Board of E. of Cal., 59 Cal.App.2d 39, 138 P.2d 39 (1943), which holds that a city may not contract with one of its own departments ; and Sinclair Refining Co. v. Long, 139 Kan. 632, 32 P.2d 464 (1934), which held that there could be no contract between an individual and a corporation where it was alleged that the contract had been made by the individual, in his personal capacity, with himself as general manager and president of the corporation.

      . Jones testified in part:
      “Q And with the exception of getting prior approval of the Maritime Administration on the invoices, was there anything different about the way in which the CREIGHTON VICTORY was provisioned on this occasion? And your own ships?
      “A No, it was identical, the same procedure.”

      . Clause 1(a) provides coverage under any Compensation Act
      “in respect to an employee (i) who is a member of the crew of the insured vessel, or (ii) who is on board the insured vessel with the intention of becoming a member of her crew, or (iii) who, in the event of the vessel being laid up and out of commission, is engaged in the upkeep, maintenance or watching of the insured vessel, or (iv) who is engaged by the insured vessel or its Master to perform stevedoring work in connection with the vessel’s cargo at ports in Alaska and ports outside the Continental United States where contract stevedores are not readily available.”

      . Apparently Alaska Steamship carried a longshore policy with another company. See Note 14.