author: WYZANSKI, Senior District Judge.

text:
    AURORA EDUCATION ASSOCIATION EAST et al., Plaintiffs-Appellants, v. BOARD OF EDUCATION OF AURORA PUBLIC SCHOOL DISTRICT NO. 131 OF KANE COUNTY, ILLINOIS, et al., Defendants-Appellees.
    No. 73-1085.
    United States Court of Appeals, Seventh Circuit.
    Argued Oct. 17, 1973.
    Decided Dec. 20, 1973.
    As Amended Jan. 4, 1974.

      Stephen J. Poliak, Washington, D. C., R. W. Deffenbaugh, Springfield, 111., for plaintiffs-appellants.
    Lambert M. Ochsenschlager, Aurora, Ill., for defendants-appellees.
    Before SWYGERT, Chief Judge, CUMMINGS, Circuit Judge, and WYZANSKI, Senior District Judge.

       Senior District Judge Charles Edward Wysanski, Jr., of the District of Massachusetts, is sitting by designation.

   WYZANSKI, Senior District Judge.

Seven public school teachers in Aurora, Kane County, Illinois and the Aurora Education Association East, of which they are members, are plaintiffs. The Board of Education of Aurora Public School District No. 131 of Kane County, the members of that Board, and the Superintendent of Aurora’s school system are defendants.

June 9, 1971, during collective bargaining and wage disputes between the teachers represented by the Association and the Board, the Association at one of its meetings adopted this resolution:

“Be it resolved that the teachers of District # 131 will not return to the classroom in the fall if there is at [that] time no satisfactory settlement of the contract between the Board of Education and the AEAE and further that an open meeting be held on September 2 for all teachers to assess the position of the AEAE at that time.”

Thereupon the Board, dropping its negotiations for a collective bargain with the Association, wrote to each teacher a letter offering him or her an individual contract for the 1971-1972 school year. Each proposed contract provided that the contracting teacher expressly agreed that

“(1) By urging, advocating, recommending, and asserting the right to strike by its members prior to the vote, and at the meeting held on June 9, 1971, the AEAE no longer qualifies as the organization that, under the established School Board Policy (1.30 Article II) [is] a bargaining representative of the teachers of the school system, and accordingly will not be recognized by the School Board as such agent for the teachers.
“Nothing in this paragraph is intended to prevent the Teacher from belonging to the AEAE, but relates only to AEAE’s lack of qualification to act as the bargaining agent for the Teacher in negotiations with the School Board.”

In the foregoing, the citation of School Board Policy 1.30 Article II is a reference to a provision permitting a labor organization to negotiate, on behalf of teachers, with the Board, but excluding from all bargaining rights “any organization (1) which asserts the right to strike against any . . . agency of the government, or to assist or to participate in any such strike, or which imposes a duty or obligation to conduct, assist or participate in any such strike. . ” This emphasized exclusory language is the focal point on which this case at bar turns.

Many teachers executed the proposed contract, and thus became entitled to advantages not offered in the 1970-1971 contracts. To the seven individual plaintiffs, none of whom executed the proffered contracts, the Board offered continued employment for the new year on the old terms. Faute de mieux, the seven continued at work under the disadvantageous 1970-1971 terms, and then brought this suit in the District Court.

Relying on the United States Constitution’s Fourteenth Amendment’s due process clause and its alleged incorporation of the principles of the First Amendment, and also invoking Section 1 of the Civil Rights Act of 1871, 42 U.S. C. § 1983, plaintiffs sought (1) a declaration that, as here applied, School Board Policy 1.30 was invalid, and that plaintiff teachers were entitled to be placed on the same salary schedule and like terms as those teachers who had executed the proposed 1971-1972 contract, (2) an injunction protecting for the future the rights so declared, (3) back pay based on the 1971-1972 schedule, (4) $25,000 actual damages, (5) $25,000 exemplary damages, and (6) an attorney’s fees and costs.

Defendants moved to dismiss the complaint on the grounds that (1) the complaint failed to state a valid claim, (2) plaintiffs’ purported claims under 42 U. S.C. § 1983 did not lie against the Board or its members, and (3) the Association was not a proper plaintiff to assert the alleged claim under 42 U.S.C. § 1983.

On the ground that it failed to state a valid claim, the District Court dismissed the complaint. Relying upon Hanover Township Federation of Teachers v. Hanover Community School Corp., 457 F.2d 456 (7th Cir. 1972), the Court’s opinion held that the Board’s proposed contracts for 1971-1972 and the Board's refusal to continue collective bargaining with the Association had not violated 42 U.S.C. § 1983 or plaintiffs’ claimed rights under the due process clause of the Fourteenth Amendment.

Plaintiffs appeal from the District Court’s dismissal of their complaint.

We address ourselves to the already quoted exclusory provision in School Board Policy 1.30.

National Ass’n of Letter Carriers v. Blount, 305 F.Supp. 546 (D.D. C.1969), appeal dismissed by stipulation, 400 U.S. 801, 91 S.Ct. 7, 27 L.Ed.2d 33 (1970) and United Federation of Postal Clerks v. Blount, 325 F.Supp. 879 (D.D. C.), aff’d mem. as to issues not here involved, 404 U.S. 802, 92 S.Ct. 80, 30 L.Ed.2d 38 (1971), invalidated virtually identical provisions in a federal statute and a federal administrative provision. The cited cases pointed out that the language is ambiguous, leaving it unclear whether it encompasses the mere philosophical or political assertion of the declarant’s belief that he has a right to strike. A governmental inhibition against the declaration of such a purely theoretical position is a plain case of an unconstitutional official interference with freedom of speech and is unconstitutional. Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L. Ed.2d 1356 (1957). Where a governmental body seeks by an over broad regulation to preclude both lawful and unlawful speech, the regulation because of its overbreadth is a violation of guarantees of free speech and is unconstitutional. Keyishan v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967).

We wholly agree with the analysis of the three-judge district courts in the opinions already mentioned. The Board’s Policy 1.30 as here applied precludes a teacher from receiving a full salary and perquisites if, as a mere matter of dogma, he holds to the belief that teachers should be free to | strike against governmental agencies. I Such throttling of freedom of belief and of speech is contrary to that part of the First Amendment which is incorporated in the Fourteenth Amendment. We need no recital of literary authorities from John Milton to Harold J. Laski or of judicial luminaries from Justices Holmes, Brandéis, and Cardozo to Black, Frankfurter, and Harlan (to mention /only the dead) to buttress the principle that the teacher, like any other citizen, is free to think as he likes, and to express those views academically provided action is not advocated but merely ad-i umbrated. 42 U.S.C. § 1983 gives a per- ' son protection against interference by state officials with that fundamental civil liberty.

Since the Board’s Policy 1.30 seeks, inter alia, to prohibit constitutionally permissible free speech, it is because of its overbreadth, violative of the due process clause of the Fourteenth Amendment. Keyishan v. Board of Regents, supra.

Defendants and the District Court misconceive Hanover Township Federation of Teachers v. Hanover Community School Corp., 457 F.2d 456 (7th Cir. 1972). Whatever else may be said about that case, it dealt with the question whether a public body is under a constitutional duty, apart from statute, to bargain collectively with the labor representative of its employees. There was no occasion to consider in that case, and the court did not consider, the problem of this case, that is, whether a public body may interfere with its employees’ freedoms to think and to speak — which from the beginning of time have been recognized as wholly different from the freedom to associate and to seek to use the strength which comes from union in assembly and action. See Wyzanski, “The Open Window and the Open Door,” 35 Cal.L.Rev. 336 (1947).

Defendants suggest miscellaneous grounds, not relied upon by the District Court, which they argue could have supported its dismissal of the complaint.

We note that at least one of the points pressed by defendants is unsound. The Board is not a municipal corporation and in that capacity outside the coverage of 42 U.S.C. § 1983, as construed in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).

There are other points, such as whether plaintiffs could recover the types of damage they claim, which do not go to the only issue before this court: that is, whether the complaint states a valid cause of action. We shall leave such points without comment until, if ever, they become the basis of a judgment entered by the District Court. It is not our function to issue the sort of declaratory judgment which would tell a District Judge how he should decide a hypothetical case which may or may not ultimately be supported by properly presented evidence and which may or may not be pressed to a conclusion by the litigants before that judge.

After the case was argued before us, and in accordance with discussions at our bar, the parties sought to settle this case. But no agreement was reached. Instead, unilaterally, defendants revised Subsection (1) of Article II of School Board Policy 1.30 to eliminate the language “asserts the right to strike against any local, state or federal agency of the government.” This unilateral action is not the equivalent of a promise made to an adversary as part of a settlement. Nor is it a stipulation made in court binding the declarant forever to adhere to a new policy based on a public confession of earlier unconstitutional action. Nor does it offer financial recompense to those plaintiffs who may have suffered damage caused by defendant’s unlawful acts. Under these circumstances, plaintiffs have not lost their standing to invoke at least equitable relief, Hecht Co. v. Bowles, 321 U.S. 321, 64 S.Ct. 587, 88 L.Ed. 754 (1944), not to mention the continued vitality of their claim for monetary compensation, remedial and punitive.

The judgment of the District Court, dismissing the complaint, is reversed.


source: Caselaw Access Project

author: LAY, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Oliver WEBSTER, Appellant.
    No. 73-1268.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 15, 1973.
    Decided Jan. 22, 1974.

      Fred A. Eppenberger, St. Louis, Mo., for appellant.
    Jerome Murphy, Asst. U. S. Atty., St. Louis, Mo., for appellee.
    Before LAY and BRIGHT, Circuit Judges, and EISELE, District Judge

       G. THOMAS EISELE, United States District Judge for the Eastern District of Arkansas, sitting by designation.

   LAY, Circuit Judge.

This is an appeal from a judgment of conviction under 21 U.S.C. § 841(a)(1) for knowingly and intentionally distributing heroin. The defendant raises two grounds of error: (1) the insufficiency of the evidence and (2) the failure of the government to disclose the whereabouts ox the informant. We affirm.

On August 15, 1972, Charles Bullock, a government informant, was strip-searched by narcotics officers and then given $40.00 in prerecorded government funds. Bullock was driven to an intersection in St. Louis and there let out of the car. Officers in two police cars kept Bullock under surveillance. The officers eventually observed what appeared to be an exchange of objects between Bullock and a man later identified as the defendant. Subsequently, Bullock turned over four capsules, later found to contain heroin, to the narcotics officers. Bullock was again searched for money or other objects and none were found. A similar transaction occurred on September 10, 1972. At trial, the government’s witnesses consisted of the police officers involved and a chemist. Charles Bullock did not appear or testify.

Objection is raised as to the officers’ identification of Webster since their total observation of the alleged sales was through binoculars at a great distance. The means of proof used is similar to that approved in United States v. Martin, 482 F.2d 202 (8th Cir. 1973) and United States v. Williams, 481 F.2d 735 (8th Cir. 1973). Credibility of the witnesses is for the jury to resolve. The circumstances here testified to are also sufficient to demonstrate Webster’s intent to distribute the heroin.

We come then to the informant issue. Prior to trial defendant moved in a bill of particulars for the name and address of the informant. The trial court granted the motion for disclosure of the informant's name but not his whereabouts. Prior to and during trial defendant alleges he informed the government of his desire to subpoena Bullock and have him testify at trial. Although the record does not disclose these facts, the parties all agree that the government assured defense counsel that the government had issued a subpoena and intended to use Bullock as a witness. It is argued and not disputed by the government that midway through the two-day trial defendant’s counsel asked the prosecutor why Bullock had not appeared. Again it was stated that a subpoena was “on the street.” It is urged by defense counsel that it was not until the prosecutor rested his case that the defendant realized Bullock was not going to appear. No reason is offered as to why the informant did not appear.

The government has no duty to call the informant as its own witness. See, e. g., United States v. Martin, 482 F.2d 202 (8th Cir. 1973); United States v. Williams, 481 F.2d 735 (8th Cir. 1973); United States v. Mosby, 422 F. 2d 72 (8th Cir.), cert, denied, 399 U.S. 914, 90 S.Ct. 2217, 26 L.Ed.2d 571 (1970). However, where a proper request to produce the informant is made and the government claims that his whereabouts are unknown, we have held that the government has the additional burden of demonstrating that it has made every reasonable effort to have the informant made available to the defendant to interview or to use as a witness. United States v. Kitchen, 480 F.2d 1222 (8th Cir. 1973); United States v. Pollard, 479 F.2d 310 (8th Cir. 1973). Here a proper request for the informant’s whereabouts was directed to the government. Defendant was entitled to this information to enable his counsel to interview Bullock to learn of any possible exculpatory information or to prepare for possible cross-examination. Roviaro v. United States, 353 U.S. 53, 65 n. 15, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).

In the past, we have held that where the government does not call the witness and the defendant proceeds with his ease, without further request of the court that the informant be produced, or without a motion for continuance to interview the informant, the defendant has waived his right to have the informant produced. United States v. Williams, 481 F.2d 735 (8th Cir. 1973). These are the facts here. There are too many uncertainties involved to allow the defendant to now assert that he should have a new trial because the government failed to produce the informant. Defendant may have desired to interview the informant before the government called him as a witness. Once the government failed to do this, it may well have been defendant’s strategy to let well enough alone and proceed without him. Under the circumstances we hold that defendant waived his right to have the informant produced.

In this regard, we find this case factually distinguishable from our recent decision in United States v. Barnes, 486 F.2d 776 (8th Cir. 1973). There the defendant moved the court to require the government to produce the informant for interview prior to trial since the informant’s whereabouts were unknown. There the government did not intend to call the witness at trial. We remanded the case for an evidentiary hearing to determine if the informant possessed exculpatory information. Here the record discloses that defendant moved the court only for the name and address of the informant. The defendant may have been lulled into not seeking production of the witness before trial on the government’s assurance that he would be called. Nevertheless, once the defendant knew that Bullock was not to be called, he failed to file a motion before the court requesting the government to produce the informant, or to seek a continuance or to attempt to subpoena him for trial. Under these circumstances we find that the defendant waived his right to have the informant produced at trial. United States v. Williams, 481 F.2d 735 (8th Cir. 1973).

Often counsel have private understandings with one another on the use of witnesses or the use of evidence during a trial. When an alleged breach of such an understanding arises, counsel cannot complain on appeal of something the trial judge may well have corrected but did not because it was never called to his attention. Cf. McNeely v. United States, 353 F.2d 913 (8th Cir. 1965).

Judgment affirmed.

      . This court earlier remanded this cause on the motion of the government to the district court for the limited purpose of conducting an evidentiary hearing of the witness, Charles Bullock, during the week beginning December 3, 1973. The district court was requested to certify its findings on the completion of that evidentiary hearing to this court; as of the date of filing of this opinion we have not received the district court’s findings; however, since our remand was made at the government’s request and was granted solely to allow the government to make a record, and the basis of our opinion does not depend on the evidence the informant possessed [cf. United States v. Barnes, No. 73-1227 (8th Cir. Unpublished Order, Jan. 15, 1974)], the direction to the district court to certify its findings is now hereby vacated.


author: WEBSTER, Circuit Judge.

text:
    Wendell O. ANDERSON et al., Appellants, v. CIBA-GEIGY CORPORATION, Appellee.
    No. 73-1266.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 18, 1973.
    Decided Jan. 9, 1974.

      Stephen F. Avery, Spencer, Iowa, for appellants.
    David J. Blair, Sioux City, Iowa, for appellee.
    Before LAY, BRIGHT and WEBSTER, Circuit Judges.
   WEBSTER, Circuit Judge.

Plaintiff-appellant Wendell O. Anderson, his wife, his brother, and his brother’s wife filed a petition in an Iowa district court seeking $10,228.00 consequential damages from the Ciba-Geigy Corporation after Preforan 15G, a granular preemergence weed control agent produced by Ciba-Geigy, failed in fact to control the growth of weeds on the An-dersons’ soybean farm. Ciba-Geigy thereafter removed the action to the United States District Court for the Northern District of Iowa, as one over which that court had original jurisdiction under 28 U.S.C. § 1332. It was undisputed that the federal court would apply Iowa law.

The Andersons invoked three theories of liability: strict products liability, express warranty, and implied warranty of merchantability. Ciba-Geigy asserted as an affirmative defense the release or settlement agreement which it had entered into with Wendell Anderson on September 10,1971. By stipulation, the issue of the validity of this release was separately tried without a jury to the District Court, Honorable Edward J. McManus, Chief Judge. See Fed.R.Civ.P. 39(a), 42(b). Judge McManus upheld federal jurisdiction under 28 U.S.C. § 1332, decided that the release was both valid and binding, and ordered the damages action dismissed on its merits.

The Andersons appeal, asking this court to hold that the release was invalid because unsupported by consideration or, alternatively, because negotiated by parties mutually mistaken with respect to a material fact. We affirm the District Court’s disposition of the case. In so doing, we first briefly restate the factual setting within which the release was executed.

In May, 1971, Wendell Anderson and his brother, Deane, who helped Wendell farm 480 acres of land in Iowa, shared the cost of 1450 pounds of Preforan 15G which they purchased from the Farmers Co-operative Association of Marathon, Iowa, and applied approximately 1150 or 1200 pounds of the herbicide to 100 acres of the farm. Wendell provided his own application of the product and did so according to the directions on the label. During the 1971 growing season, Wendell and Deane became aware of a weed control problem in their soybeans. Wendell contacted Mr. Lester (Lars) Petty, agricultural representative of the Farmers Co-operative Association, who advised Anderson that he would contact the Ciba-Geigy Corporation.

Soon thereafter, Petty visited the Anderson farm with a Mr. Waldo from the Ciba-Geigy Corporation, who acknowledged a weed control problem. On August 11, 1971, a Mr. Billy Lee Harrison of Ciba-Geigy brought a report form to the Anderson farm. Harrison refused to inspect the soybean crop, but orally informed Wendell Anderson that he might provide a substitute herbicide for the Preforan 15G. When Anderson said that he was not interested in another herbicide, Harrison advised him that a company official had said that this was the best that the corporation could offer. Anderson testified that Harrison had advised him that company officials had said there would be no money settlements. On the basis of this information, Harrison had Wendell Anderson complete the report form.

On August 27, 1971, Ciba-Geigy sent Anderson a written offer to settle his claim by providing an amount of liquid Preforan 3EC equal to the value of Pre-foran 15G previously furnished, plus a cash allowance for its application in 1972. Anderson consulted Petty, who informed him that the Farmers Co-operative had not yet successfully negotiated a money settlement with Ciba-Geigy. Petty recommended that Anderson sign the release and that he include a statement thereon to the effect that he was dissatisfied with the nature of the settlement. Anderson so completed the release form, adding that he was “not happy with this settlement,” but misplaced it in his desk. Anderson later found the form in his desk and returned it, after having been assured once more by Mr. Petty that the company’s proposal was the only settlement available. Ciba-Gei-gy thereafter performed its obligation under the settlement agreement.

For the 1971 growing season approximately 2700 complaints were made concerning the product Preforan 15G. While approximately 1800 of these were handled in a manner similar to the settlement offered to Anderson, about 300 resulted in negotiations for cash settlements. At the time of the trial, the corporation had recieved no response to its offer to settle approximately 500 of the complaints.

I. Consideration

Appellants construe the release as a promise to perform a pre-existing legal duty and, therefore, as invalid for want of valuable consideration. They argue that upon their initial purchase of Pre-foran 15G they were promised weed control and that Ciba-Geigy’s subsequent agreement to give them another herbicide plus an allowance for its application placed the corporation under no additional legal obligation. We disagree.

Under applicable principles of common law, it is well settled that “an agreement which compromises a bona fide dispute concerning duties and obligations under a subsisting contract, is supported by valid consideration and is enforceable.” Pittsburg Testing Laboratory v. Farnsworth and Chambers Co., 251 F.2d 77, 79 (10th Cir. 1958). See also White v. Flood, 258 Iowa 402, 138 N.W.2d 863 (1965); Blunk v. Kuyper, 241 Iowa 1138, 44 N.W.2d 651 (1950); Kellogg v. Iowa State Traveling Men’s Ass’n., 239 Iowa 196, 29 N.W.2d 559 (1947); Messer v. Washington National Insurance Co., 233 Iowa 1372, 11 N.W.2d 727 (1943); Munn v. Town of Drakesville, 226 Iowa 1040, 285 N.W. 644 (1939); Vande Stouwe v. Bankers’ Life Co., 218 Iowa 1182, 254 N.W. 790 (1934); Love v. City of Des Moines, 210 Iowa 90, 230 N.W. 373 (1930); Sheley v. Engle, 204 Iowa 1283, 213 N.W. 617 (1927); Partello v. White, 197 Iowa 24, 196 N.W.719 (1924).

In this case, the parties disputed Ciba-Geigy’s liability for consequential damages under the warranty which accompanied the initial purchase of the Preforan 15G. Anderson repeatedly informed Ciba-Geigy representatives that he was dissatisfied with the herbicide’s performance and that he wished to negotiate a cash settlement therefor. At no time prior to the execution of the release, did Ciba-Geigy admit any liability. In its letter of August 27, 1971, Ciba-Geigy offered the product replacement and cash allowance only as “goodwill consideration”; the release form which the corporation provided and which Anderson signed expressly stated that it was “a compromise of a disputed claim and that the making of this settlement [was] not an admission of liability on the part of CIBA Corporation or its successor, CIBA-GEIGY Corporation.” Under these circumstances, we sustain the factual findings of Judge McManus as not clearly erroneous, and we hold that there was sufficient consideration to support his legal conclusion that the release was valid.

II. Mutual Mistake

Appellants seek to have the release set aside as a contract premised upon a mutual mistake of material fact, i. e., that neither Anderson nor the corporate representatives with whom he negotiated the release knew that approximately 300 complaints concerning the performance of Preforan 15G would lead to negotiations for cash settlements.

Seller warrants that the product conforms to its chemical description and is reasonably fit for the purpose stated on the label when used in accordance with directions under normal conditions of use . . . in no case shall CIBA-GEIGY [or] the seller be liable for consequential, special, or indirect damages resulting from the use or handling of this product. . . .

The rule is that, in order to vitiate a settlement, a mistake must be mutual, material, and concerned with a present or past fact. Stetzel v. Dickenson, 174 N.W.2d 438 (Iowa 1970). The record in this ease indicates that if any mistake characterized Anderson’s settlement negotiations, it concerned a future fact. Anderson signed the release on September 10, 1971. The first cash settlement executed by Ciba-Geigy for a Preforan 15G complaint was paid on November 16 or 17, 1971. The testimony of Don Ward, currently the technical marketing advisor for Ciba-Geigy and formerly the technical service manager for its predecessor, Ciba Agro Chemical Company, indicates that neither he nor Mr. Harrison (the corporate representative who visited Anderson’s farm with the report form) nor William Gurnee (Division Counsel for Ciba-Geigy) knew in August that cash settlements would be offered at a later date. As the Iowa Supreme Court has observed,

Practically every settlement . . . involves the element of chance as to future consequences and developments. There are usually unknown and unknowable conditions . . . that may affect the ultimate recovery or failure of recovery. Mutual ignorance of their existence cannot constitute ‘mutual mistake’.
Stetzel v. Dickenson, supra, 174 N.W. 2d at 442.

Moreover, where the facts as found by the District Court and as stated by the parties in their appellate briefs simply show that one of the parties took a hard line in negotiation, there is no basis for inferring a mistake. We sustain the District Court’s findings of fact and its legal conclusion that the release was binding as well as valid.

Affirmed.

      . The recovery sought included damages for loss of yield in the Andersons’ soybean harvest, the expense of cleaning the weeds from the beans, damage to the Andersons’ weed program for future years, and wear and tear on their combine, plus gasoline and labor costs.

      . The Andersons were all citizens and residents of Iowa; Ciba-Geigy was a New York corporation with its principal place of business in New York. The matter in controversy exceeded the sum of $10,000, exclusive of interests and costs.

      . During oral argument before this court on October 18, 1973, counsel for the appellants noted that there are 61 similar cases pending in which Ciba-Geigy has affirmatively pleaded the execution of a release. Only four were removed to federal court because the remainder did not meet the jurisdictional amount requirement. 28 U.S.C. § 1332. The appellants see this appeal as a “test ease” for challenging such releases, which have heretofore prevented any of these plaintiffs from litigating the merits of their damages claims.

      . Ciba-Geigy, on the other hand, contends that the warranty on the Preforan 15G merely promised conformity with the herbicide’s chemical description, flee note 6 infra.

      . Iowa lias adopted the Uniform Commercial Code, which would ordinarily control the issue appellants have raised here, flee Iowa Stat.Ann. § 554.1107;
      Any claim or right arising out of an alleged breach can be discharged in whole or in part without consideration by a written waiver or renunciation signed and delivered by the aggrieved party.
      During the oral argument before this court, however, appellants asserted that the District Court did not decide the case on the basis of the Uniform Commercial Code because it had before it only the issues stipulated by the parties and neither party had stipulated relevant sections of the Code, See Fed.R.Civ.P. 42(b). Appellee explained in its oral argument that it saw this case as one involving a third party beneficiary on a warranty agreement; it had not invoked the Uniform Commercial Code because it was doubtful whether, under Iowa law, Code warranties extend to third parties. Further, because the Code imposes the obligation of “good faith” on all parties to a bargain, ap-pellee appears to have been reluctant to rely on Code provisions alone, fearing a finding of overreaching by the trial court might deprive it of the Code’s protection.

      . The District Court found that the label on the Preforan 15G read as follows ;


author: CLARK, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Michael Flynn TAYLOR, Defendant-Appellant.
    No. 73-2258.
    United States Court of Appeals, Fifth Circuit.
    Feb. 27, 1974.

      M. C. Mykel, Atlanta, Ga., for defendant-appellant.
    John W. Stokes, U. S. Atty., Stanley M. Baum, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
    Before BELL, DYER and CLARK, Circuit Judges.
   CLARK, Circuit Judge:

In this cause, which was tried to the district court without a jury upon a stipulated written record, Michael Flynn Taylor was convicted of failing to report for and to submit to induction into the Armed Forces of the United States, a duty imposed upon him by the Military Selective Service Act of 1967, 50 U.S.C. App. § 451 et seq., specifically in violation of 50 U.S.C. App. § 462. On appeal he levels a broad-based attack against the judgment of the district court. We pretermit the resolution of all but two procedurally interrelated issues that necessitate reversal. Taylor contends that his Local Board (1) failed to accord him the right to a personal appearance after reopening and reconsidering his classification and (2) prejudiced his Selective Service System appeal rights by advising the Appeal Board ex parte of its view of the facts Taylor had submitted in support of his application for a III-A (parent-extreme hardship) deferment.

Taylor registered with Local Board No. 62 in Atlanta, Georgia on October 29, 1963. He continuously maintained a II-S (student) deferment until August 13, 1968, at which time he was reclassified I-A (available for military service). On September 13, 1968 Taylor notified his Local Board by letter that he would like to “appeal’' his I-A classification “on the basis of extreme hardship.” In addition he advised the Board that he was married, that his wife was expecting a child, and that he intended to become a permanent resident of New York City, where he was then employed and domiciled. He stated that the distance and expense involved would operate to make a personal appearance before the Board in Atlanta “a great' burden if not an impossibility.” Finally, he requested that his Selective Service records be transferred to a local board in New York City, or if this were not possible, that he be permitted to submit full information in support of his request for reclassification. In reply the Board advised Taylor that he would always be registered with Local Board No. 62, and forwarded to him a standard dependency questionnaire form.

Taylor completed and returned the questionnaire on October 11. It set out that he was then the sole support of his wife and six-day old daughter, that his wife had been ill during her pregnancy and her present condition did not permit her to work, and that his earnings from a clerical job amounted to 130 dollars per week. The Local Board deferred consideration of Taylor’s claim for reclassification pending the results of his armed forces physical examination, which was not completed until July, 1969. The examination demonstrated Taylor’s physical acceptability for military service. Shortly thereafter, on August 13, 1969, Local Board No. 62 dispatched a letter to Taylor in New York City, which requested that he appear personally before it in Atlanta on August 19 with regard to his hardship claim and that he complete and return a current dependency questionnaire, or, if unable to attend, that he notify the Board at once. Taylor failed to appear at the appointed time. The Local Board refused to grant his application for a III-A deferment and renewed his I-A classification. The following day, August 20, 1969, the Board wrote Taylor as follows:

RE: HARDSHIP CLAIM
This is to advise you that the Board Members reviewed your file on August 19, 1969 and denied you a hardship deferment.
Since you have, already placed an appeal in your file, the board is forwarding your file on to the Appeal Board this date.
You will be mailed an SSS Form 110, Notice of Classification, when your file is returned to this office advising you of their action.

At this time the Board also forwarded Taylor’s file to the state headquarters of the Selective Service System, which in turn transmitted it to the Appeal Board serving the New York City area. Without notifying or advising Taylor of its action, Local Board No. 62 also included the following statement in his file:

TO: APPEAL BOARD
RE: TAYLOR, Michael Flynn
Registrant is appealing due to hardship in family.
He is married with one child, employed with Housing and Development Administration in New York — makes $130.00 per week.
It is the opinion of the Board Members that registrant’s child is now nine months old, and wife could seek employment. They feel that an extreme hardship does not exist in family.

The New York City Appeal Board retained him in Class I-A, and Taylor was subsequently ordered to report for induction on September 10, 1970.

I.

Under the regulations of the Selective Service System, every registrant must upon timely request be afforded the opportunity to appear personally before his local board after it has determined his classification. Similarly, the identical procedural right accrues to the registrant whenever the local board reopens and “considers anew” his classification, even though he is subsequently retained in the same classification to which he was previously assigned. In the past this court has specifically acknowledged the significance of the registrant’s right to appear before the members of his local board, a right that allows him to “discuss his classification, point out the class or classes in which he thinks he should have been placed, direct attention to any information in his file which he believes the local board has overlooked or to which it has not given sufficient weight, and . present such further information as he believes will assist the board in determining his proper classification.” Magaro v. Cassidy, 426 F.2d 137, 142 (5th Cir. 1970) (citatipns omitted). See also United States v. Bagley, 436 F.2d 55 (5th Cir. 1970). The appearance thus permits the registrant to submit additional, potentially crucial information, either orally or in writing. Under the regulations, however, this right to a personal appearance does not extend to cases in which the local board determines that the registrant has failed to present any facts which establish a pri-ma facie case for reclassification and refuses to reopen.

The court below held that the Local Board’s action in failing to accord Taylor the right to appear personally before them was proper because, in its judgment, the Board’s decision not to reclassify Taylor at the August 19 meeting amounted to a refusal to reopen and consider his classification anew. We must disagree with this conclusion. If Local Board No. 62 had determined that the new facts submitted in Taylor’s dependency questionnaire, which declared that the registrant was the sole support for his wife and infant daughter and that his wife was yet ill, failed to sustain even a prima facie showing of extreme hardship, its ex parte tender to the Appeal Board of written reasons for its August 19 action would certainly have been, in its view, entirely unnecessary. In any event, if the operative decision had been a refusal to reopen, the Board presumably would have followed its governing Selective Service Regulations, which expressly required it to advise Taylor “that the information submitted does not warrant the reopening of the registrant’s classification.” • Instead, Taylor was advised that his hardship deferment claim had been denied.

Where a registrant makes non-frivolous allegations of facts that have not been previously considered by his board, and that, if true, would be sufficient under regulation or statute to warrant granting the requested reclassification, the board must reopen the registrant’s classification unless the truth of these new allegations is conclusively refuted by other reliable information in the registrant’s file. See United States v. Burlich, D.C., 257 F. Supp. 906, 911. For in the absence of such refutation there can be no basis for the board’s refusal to reopen except an evaluative determination adverse to the registrant’s claim on the merits. And it is just this sort of determination that cannot be made without affording the registrant a chance to be heard and an opportunity for an administrative appeal.

Mulloy v. United States, 398 U.S. 410, 417, 90 S.Ct. 1766, 1771, 26 L.Ed.2d 362 (1970). In determining that Taylor’s new classification was not, as claimed by the government, the result of a refusal to reopen, the regulations themselves clearly preclude us from attaching any significance to the fact that he was again placed in Class I-A. Indeed, the Board’s instruction to Taylor that a notice of classification on SSS Form No. 110 would be sent to him after the Appeal Board had rendered its decision is inconsistent with a refusal to reopen, but is completely compatible with the provisions of the regulations that govern a reopening and consideration anew of a registrant’s classification.

The Local Board effectively foreclosed Taylor's right to request a personal appearance after he had been reclassified when it summarily forwarded his file to the Appeal Board. The Board’s preclassifieation offer to Taylor of a personal appearance at its August 19 meeting cannot displace Taylor’s right under the regulations to discuss his classification and present additional information after the Board had reopened his case and rejected his application for a III-A deferment.

The Supreme Court has aptly summarized the controlling rule; “whether or not a reopening is granted is a matter of substance, for with a reopening comes a right to be heard personally and to appeal”; therefore “[t]he [local] board could not deprive the petitioner of the procedural protections attending reopening by making an evaluative determination of his claim while purportedly declining to reopen his classification.” Mulloy v. United States, supra, 398 U.S. at 416, 418-419, 90 S.Ct. at 1770, 1772.

II.

The Board did not advise Taylor that the October 1968 information, which he had furnished in the dependency questionnaire, had been supplemented with the Board’s own unsupported supposition that his wife was now recovered from the disabling illness he had there described. There is no need for this court to consider whether the Board erred in failing to communicate this information to Taylor in the way of a statement of written reasons for its classification action. Neither do, or must, we decide whether he submitted to the Board sufficient facts to establish prima facie his entitlement to a III-A deferment. See Mulloy v. United States, supra; United States v. Steiner, supra. However, the Board’s action in transmitting its supposition to the Appeal Board without advising Taylor that it had done so, clearly compounded its previous deprivation of his right to a personal appearance, by secretly freighting his appeal with adverse information. By even the most minimal standard of fairness, he was entitled to know the content of the record being transmitted in connection with his appeal.

Thus, Taylor was not only deprived of an opportunity for a personal appearance before the Local Board at which he could possibly have rebutted this supposition and supplied any other information relevant to his proper classification on the local level, but he was also denied knowledge that this additional factor which so vitally affected his appeal had been supplied to the Board that would review the unfavorable action.

This combination of procedural deficits rendered the order to report for induction invalid. Therefore the present conviction cannot be maintained. The judgment of conviction appealed from is

Reversed.

      . Taylor’s other contentions include the assertion that he was entitled ab initio to a III-A (paternity or extreme hardship) deferment based upon the reasoning of Plotner v. Resor, 446 F.2d 1066 (5th Cir. 1971), appeal dismissed as moot, 463 F.2d 422 (5th Cir. 1972) (en banc), see also United States v. Steiner, 469 F.2d 760 (5th Cir. 1972) ; that the district court’s finding that Taylor knowingly rejected the notices of induction which liad been mailed to him was based at least in part on the defendant’s failure to testify; that the Local Board erred in failing to proffer written reasons for its decision to deny him a III-A deferment, see, e. g., United States v. Windsor, 488 F.2d 1364 (5th Cir. 1973) [No. 72-3426, December 19, 1973] ; Eleey v. Volatile, 478 F.2d 333 (3d Cir. 1973) (en banc) ; Cale v. Volatile, 465 F.2d 1110 (3d Cir. 1972) ; United States ex rel. Bent v. Laird, 453 F.2d 625 (3d Cir. 1971) ; United States v. Stetter, 445 F.2d 472 (5th Cir. 1971) ; and that he is entitled to an order of call defense, see, e. g., United States v. Hoffman, 488 F.2d 923 (5th Cir. 1974) ; United States v. Johnson, 476 F.2d 1251 (5th Cir. 1973) ; United States v. Burnett, 476 F.2d 726 (5th Cir. 1973), because the Board improperly postponed the induction of other registrants, a defense which was considered on the merits and rejected by the district court. Because there is no evidence in the record that Taylor ever reported to the induction center on the date specified in his induction order, it was not proper for that court to reach the substantial question raised in this latter contention. Our circuit is unique in its requirement that such a defense is unavailable to an inductee who refuses to report for induction. Compare Schutz v. United States, 422 F.2d 991 (5th Cir. 1970), with United States v. Strayhorn, 471 F.2d 661 (2d Cir. 1972) ; United States v. Dudley, 451 F.2d 1300 (6th Cir. 1971). See Weintraub v. United States, 400 U.S. 1014, 91 S.Ct. 572, 27 L.Ed.2d 627 (1971) (Douglas, J., dissenting), denying cert, to 429 F.2d 658 (2d Cir. 1970) ; United States v. Hoffman, supra; United States v. Burnett, supra.

      . 32 C.F.R. § 1622.30 (1970).

      . 32 C.F.R. § 1622.25 (1970). The fifth year of Taylor’s II-S deferment was granted for the post-baccalaureate study of law, pursuant to 32 C.F.R. § 1622.26(b) (1970).

      . 32 C.F.R. § 1622.10 (1970).

      . This notice, as most others sent to Taylor in New York City, contained a minor error in his address. His correct apartment number was 6AA, but the address used by the Board specified Apartment AA6. The record does not reflect whether Taylor ever received this notification. He did, however, file a copy of his daughter’s birth certificate with the Selective Service Transfer Board in New York City on August 20,1969.

      . (a) Every registrant after his classification is determined by the local board, except a classification which is determined upon an appearance before the local board under the provisions of this part, shall have an opportunity to appear in person before the member or members of the local board designated for the purpose if he files a written request therefor within 30 days after the local board has mailed a Notice of Classification (SSS Form 110) to him. Such 30-day period may not be extended. 32 C.F.R. § 1624.1(a) (1970).

      . 32 C.F.R. §§ 1625.11, 1625.13 (1970).

      . 32 C.F.R. § 1624.2(b) (1970).

      . When a registrant, any person who claims to be a dependent of a registrant, any person who has on file a written request for the current deferment of the registrant in a case involving occupational deferment, or the government appeal agent files with the local board a written request to reopen and consider anew the registrant’s classification and the local board is of the opinion that the information accompanying such request fails to present any facts in addition to those considered when the registrant was classified or, even if new facts are presented, the local board is of the opinion that such facts, if true, would not justify a change in such registrant’s classification, it shall not reopen the registrant’s classification. In such a case, the local board, by letter, shall advise the person filing the request that the information submitted does not warrant the reopening of the registrant’s classification and shall place a copy of the letter in the registrant’s file. No other record of the receipt of such a request and the action taken thereon is required.
      32 C.F.R. § 1625.4 (1970). See. note 7, supra.

      . The district court concluded that Taylor had failed to establish a “prima facie case of extreme hardship to family.”

      . 32 C.F.R. § 1625.4 (1970); see note 9, supra.

      . See 32 C.F.R. § 1625.11, supra, note 7.

      . See 32 C.F.R. §§ 1625.11, .12 (1970).

      . See note 1, supra; of. United States v. Windsor, supra; United States v. Stetter, supra.

      . See McGarva v. United States, 406 U.S. 953, 92 S.Ct. 2067, 32 L.Ed.2d 341 (1972), on remand, 464 F.2d 1388 (5th Cir. 1972).


author: BELL, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Albert RIVERA, Jr., Defendant-Appellant.
    No. 73-2480.
    United States Court of Appeals, Fifth Circuit.
    March 6, 1974.

      Oscar J. Pena, Laredo, Tex. (Court-appointed), for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., Robert Darden, Asst. U. S. Atty., Houston, Tex., Daniel Y. Alfaro, Asst. U. S. Atty., Laredo, Tex., for plaintiff-appel-lee.
    Before BELL, THORNBERRY and DYER, Circuit Judges.
   BELL, Circuit Judge:

Appellant Rivera and James Ray Prince were charged in a two-count indictment with possessing 105 pounds of marijuana with intent to distribute the same in violation of 21 U.S.C.A. § 841(a) (1), and with importing the marijuana into the United States from Mexico in violation of 21 U.S.C.A. §§ 952(a) and 960(a)(1). The court granted Prince’s motion to sever and he testified for the government. Appellant was convicted on both counts and this appeal followed.

Appellant contends that the evidence was insufficient to convict, and that he was denied a fair trial through the introduction of evidence as to his prior criminal record, that he was traveling in a stolen vehicle, and that he was a marijuana smoker. We find that the evidence was sufficient but ttíat appellant is entitled to a new trial on the basis of the cumulative effect of two of the evi-dentiary assignments of error.

Appellant and James Ray Prince resided in Austin, Texas. Prince was 18 years of age at the time in question. Appellant stated to Prince that he did not have a driver’s license and that he needed someone to drive an automobile for him to Nuevo Laredo, Mexico, where it was to be delivered, and to drive another vehicle on the return trip. Prince testified that he wished to have a trip to Mexico and thus agreed to drive for appellant. They left Austin in a 1967 Cadillac automobile, arriving in Laredo, Texas at about 2:00 A.M. on the morning of October 31, 1972. They were unable to produce proof of ownership of the vehicle when they attempted to cross the border at Laredo into Mexico and the vehicle was impounded by the City of Laredo Police Department.

Appellant and Prince then walked across the border to Nuevo Laredo where appellant telephoned a man named “Rudy” from a restaurant at approximately 4:00 A.M. Rudy met them at .the restaurant shortly thereafter and appellant reported the occurrence of the impounding of the Cadillac to Rudy. Rudy inquired as to why “Oscar” had not sent the papers with the Cadillac and appellant responded that he did not know. It developed that “Oscar” was Oscar Mendoza of Austin, appellant’s cousin. Appellant paid for meals and drinks for Prince at the restaurant and at a bar which they visited with Rudy.

Appellant and Prince remained in Nuevo Laredo during that day and at about 5:00 P.M. Rudy delivered a 1961 pickup truck to them.

Prince testified that appellant asked him to drive the truck across the border into the United States. They set out together but en route to the border crossing appellant asked to get out, stating that he wanted to buy some liquor. He directed Prince to cross the border alone. He had previously insisted that Price cut his hair, stating that it was too long and that it would be easier for him to get the truck into the United States if he would shorten his hair.

The customs inspectors were on the lookout for the truck and Prince was arrested as he crossed the border. The marijuana was found in compartments under the truck’s rear fenders. Appellant showed up in a taxicab as Prince was being arrested and was thereupon interrogated. He at first denied that he knew Prince but later acknowledged that he did know him. Prince stated to appellant in the presence of a customs officer that appellant had caused him to get into trouble.

On cross-examination Prince stated that the truck belonged to Rudy and that he did not see appellant put the marijuana in it. He stated that he was to meet appellant in Laredo in front of the courthouse once he had crossed the border with the truck.

The first of the evidentiary problems arose during the examination of one of the customs officers who accosted appellant when he arrived at the international bridge just after Prince had been stopped. The officers suspected that appellant and Prince were together since they both claimed to be from Austin and they had arrived at the same time. Counsel for the government inquired as to whether this officer had asked appellant to identify himself. Receiving an affirmative response, counsel then inquired if the officer asked him for his driver’s license. The officer responded that he did not have a driver’s license. Counsel then directed the officer to tell the jury of any type of identification that appellant might have had. The officer immediately responded, “He had a certificate of release from the penitentiary.” Defense counsel moved for a mistrial. His motion was overruled and defense counsel then asked for a cautionary instruction which was given.

The second evidentiary question arose during the cross-examination of Prince. He was asked by defense counsel whether he had ever smoked marijuana and he stated that he had. Government counsel then took Prince on re-direct. He developed from him that he was assisting appellant in driving the car to Mexico for delivery to “somebody” and that appellant was to exchange the automobile for the truck. Then, after alluding to the fact that he had testified on cross-examination that he had smoked marijuana, government counsel inquired whether Prince had smoked marijuana on the way from Austin to Laredo. He responded, “I didn’t, no, sir.” He was then asked whether he had an opportunity to smoke it. He replied, “Yes, sir.” Government counsel asked, “Why?” and Prince answered, “Cause Albert [appellant] was offering it to me.” Defense counsel then moved for a mistrial and his motion was overruled. There was no request for a cautionary instruction and no such instruction was given.

The other claim of error based on the admission of prejudicial testimony has to do with the impoundment of the Cadillac by Laredo police officers. Appellant contends that the testimony gave the jury the impression that he was in a stolen vehicle. There is no merit whatever in this contention. It was made clear by the testimony that the vehicle was simply being held pending receipt of the papers on it from Oscar Mendoza, who had been notified by teletype to forward them.

The sufficiency of the evidence against appellant goes to the question of possession. He relies heavily on Montoya v. United States, 5 Cir., 1968, 402 F.2d 847, where we held that there must be a showing of dominion and control over the vehicle in which drugs were found in order for one to have possession of the drugs. We recognized that possession might be constructive rather than actual but that mere close proximity to the drug or association with someone in possession was not sufficient to constitute possession. We pointed to the rule that to sustain a conviction in a circumstantial evidence case, the inferences to be drawn from the evidence must not only be consistent with guilt but also inconsistent with every reasonable hypothesis of innocence. 402 F.2d at 850. It must be noted that the evidence connected Montoya only as an occupant of the vehicle. The driver admitted guilt.

Here appellant was not in the truck when it was stopped by customs and there is no evidence that he put the marijuana in the compartments under the fenders of the truck. Thus we have a question of constructive possession. The evidence was that Prince was on the trip at the instance of appellant and was driving the truck at his express direction. Prince’s expenses were being paid by appellant and all arrangements to obtain possession of the truck were made by appellant. In addition to denying that he knew Prince after Prince was arrested, appellant was accused on the scene by Prince of having caused Prince to get into trouble. Moreover, Prince testified that he knew that there was “something” in the truck at the time he was driving it across the bridge, that the “something” was wrong, and that appellant had “gotten” him into the “wrong.” The inferences to be drawn from this evidence, together with the inference from the evidence that appellant insisted that Prince cut his hair to make it easier to cross the border, are consistent with guilt. Further, they are inconsistent with the only reasonable hypothesis of innocence, i. e., that appellant was simply delivering the truck for Rudy or some other person from Nuevo Laredo to Austin. The evidence was sufficient to warrant the conviction.

We next address the evidentiary problems having to do with the testimony, later stricken, that appellant had a release from the penitentiary, and the testimony, which was not stricken, that he offered marijuana to Prince.

The evidence that appellant was identified with a prison release certificate was completely immaterial and irrelevant. It would have been proper to show that appellant had no driver’s license in an effort to bolster the position of the government that this explained why appellant had obtained Prince to serve as driver. However, government counsel did not stop at this point, but went on to bring out the fact that appellant had been in the penitentiary. This prejudicial testimony was inadmissible and the court properly sustained an objection to it. The jury was told not to take any other offense into account in deciding the case, and there was no objection to the form of the cautionary instruction, but the motion for mistrial was overruled.

A little later in the case, government counsel elicited testimony that appellant was offering marijuana to Prince en route from Austin to Laredo. This testimony was irrelevant to any issue on trial, or at best relevant only in a highly attenuated manner. The charges involved 105 pounds of marijuana being brought across the border, and had little or no connection with the smoking or possession of marijuana prior to crossing into Mexico. Further, we do not think that this evidence was probative of motive, intent, design or knowledge, nor could it be justified as an effort to impeach Prince’s credibility. Cf. United States v. Williamson, 5 Cir., 1973, 482 F.2d 508, 514, in which mildly prejudicial testimony was admissible because it served a valid evidentiary purpose.

We need not decide whether either of these two evidentiary problems standing alone would warrant a new trial, for it is clear that the combination “was prejudicial to the extent that it may have had some substantial influence on the jury,” and that the “defendant therefore was denied the fair trial to which he was entitled.” United States v. Haynes, 5 Cir., 1972, 466 F.2d 1260, 1267. Especially are we satisfied of this in light of the circumstantial nature of the case against appellant. See United States v. Ratner, 5 Cir., 1972, 464 F.2d 169, 172-173; cf. Russell v. United States, 5 Cir., 1870, 429 F.2d 237, 239 (strong government case resting on confessions and testimony of co-conspirator) . We thus conclude that even if the trial court correctly denied the first motion for mistrial, it erred by denying the second, for at that point the trial had been twice marred by evidence of prejudicial, inadmissible facts about appellant’s character. We therefore reverse for a new trial.

Reversed and remanded for further proceedings not inconsistent herewith.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert Alexander HAMILTON, Defendant-Appellant.
    No. 73-3335
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 6, 1974.
    R. Jerome Sanford, Miami, Fla. (court-appointed), for defendant-appellant.

      Robert W. Rust, U. S. Atty., Kerry J. Nahoom, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before WISDOM, GOLDBERG and GEE, Circuit Judges.

       Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty, Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Robert A. Hamilton, the defendant-appellant, was convicted of knowingly and intentionally importing into the United States 98 grams of marijuana, in violation of 21 U.S.C. § 952(a). He assigns two errors on appeal. First, he argues that he was denied his right to trial by an impartial jury, because the trial judge failed to question the jurors thoroughly and extensively enough about a letter some of the jurors had received. The letter was a circular addressed to “Dear Taxpayer and Citizen of the United States”, signed by a group identifying itself as “The President’s Drug Abuse Advisory Council”, and giving as its mailing address a post office box on a rural route in Alabama. The letter urged its readers, “[I]f you have the opportunity to serve on a jury, concerning people who deal with drugs . . . find them guilty”. Second, Hamilton argues that the trial judge erred in admitting certain statements he had made to customs officials about plans he had to import large quantities of marijuana beyond those the indictment charged him with importing.

We find both contentions without merit. As far as the first is concerned, the record reveals that the trial judge did all that was necessary to assure that the jury was impartial and that the jurors had not been influenced by the letter. The judge excused three of the jurors who had seen the letter, and questioned the others at sufficient length to ensure that their approach to the case would not be affected by the letter. As far as the second is concerned, it is clear that the statements to the customs official were admissible. The appellant attacks their admission on grounds that they constituted evidence of crimes other than those charged in the indictment. While such evidence is as a rule inadmissible, the statements involved here fall under the well established exception for evidence of other crimes relevant to prove intent or knowledge. See, e. g., Weiss v. United States, 5 Cir. 1941, 122 F.2d 675.

Affirmed.


author: GOLDBERG, Circuit Judge:

text:
    In the Matter of Charles Armand JONES, Bankrupt. FRIENDLY FINANCE DISCOUNT CORPORATION, Appellant, v. Charles Armand JONES, Appellee.
    No. 73-2496
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 25, 1974.

      John G. Loftin, Monroe, La., for appellant.
    Sam 0. Henry, III, West Monroe, La., for appellee.
    Appeal from the United States District Court for the Western District of Louisiana.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

       Rule 18, 5 Cir., see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York, 5 Cir. 1970, 431 F.2d 409, Part I.

   GOLDBERG, Circuit Judge:

In this bankruptcy case appellant Friendly Finance Discount Corporation asks us to approve its none too amicable attempts to ensnare Charles Armand Jones in the statutory intricacies of the Bankruptcy Act. Believing that appellant’s objections were properly discounted below, we affirm the district court’s order upholding the decision of the bankruptcy judge to grant an unrestricted discharge.

Jones filed a voluntary petition in bankruptcy in the United States District Court for the Western District of Louisiana on March 31, 1971, and was adjudicated a bankrupt. On April 27, 1971, appellant filed a motion for completion of schedules, based on Jones’ failure to include on the Schedule A-3 Statement of debts owed to unsecured creditors the dates on which certain debts were contracted. The same day the bankruptcy judge ordered Jones to complete the Schedule A-3 within ten days of service of the order.

On June 21, 1971, appellant filed a Specification of Objections to Discharge and an application to have the debt owed to it declared nondischargeable. Appellant charged that Jones knowingly and fraudulently made various oaths; that in an effort to defraud his creditors, he knowingly concealed or transferred various assets, including an automobile, an insurance policy, a savings account, and a rifle; that he fraudulently disposed of mortgaged assets by pawning and not redeeming a rifle and by destroying a citizens band radio in order to hinder or defraud his creditors; that he had received credit based on a financial statement that did not list all of his debts; and that he had disobeyed a lawful order of the court by failing to file a timely amendment to his Schedule A-3.

On August 27, 1971, a hearing was held before the bankruptcy judge on the objections to discharge, and on March 2, 1972, the judge rendered his decision that bankrupt was entitled to discharge. Friendly Finance petitioned for review of the order, repeating its list of objections to discharge and urging the district court to reverse the bankruptcy judge’s decision. Instead the court affirmed the bankruptcy judge’s findings and rulings in all respects. On this appeal Friendly Finance has dropped all but one of its objections to discharge— that bankrupt never complied with a lawful order of the court.

Section 14(c)(6) of the Bankruptcy Act, 11 U.S.C. § 32(c)(6) (1970), provides that discharge shall be granted unless the court is satisfied that the bankrupt “in the course of a proceeding under this title refused to obey any lawful order of . the court. . . . ” See 1A Collier, supra note 1, at |J 14.57. In this case the order of the court was that Jones “complete Schedule A-3 stating the dates the debts were contracted within ten days of the date this order is served.” It is undisputed that the order was lawful, see 11 U.S.C. § 67(a)(3); 1A Collier, supra note 1, at ¶ 7.12; 2 id. at ¶ 39.05. It is also undisputed that Jones did not comply with the literal terms of the order. At the August 27, 1971, hearing on objections to discharge, the bankruptcy judge sought the reasons for the failure to comply. The attorney for the bankrupt explained that although he was unable to get any more specific information about the dates of the debts, he had prepared a timely amendment that essentially restated the information in the original petition. Unfortunately, through mistake or inadvertence the amendment was left in the attorney’s files instead of being filed with the court. Over objection by Friendly Finance, the bankruptcy judge accepted the tendered ámendment, then completed the schedule in open court in colloquy with Jones’ attorney.

Citing various provisions of the Bankruptcy Act, General Orders, and Official Forms, appellant argues that Jones should not have been allowed to amend his schedule at the time of the hearing, nearly four months after the deadline imposed in the initial order. . To allow him to do so would be to hold creditors to the letter of the law while permitting bankrupts’ “sloppy and illegal compliance.” Furthermore, even if the late date of the amendment was not objectionable, the oral method of the amendment rendered it nugatory, because amendments to petitions and schedules must be printed or written, signed, veri-' fied, and filed in triplicate. Since the attempted amendment was legally insufficient, the bankrupt never did comply with the lawful order, and discharge should not have been granted.

Reliance on the Bankruptcy Act, chapter and verse, is to be applauded, but statutory detail should never obscure the relatively simple standards by which a Court of Appeals must evaluate this type of bankruptcy case. The right to a discharge in bankruptcy is addressed to the sound discretion of the bankruptcy court, and appellate courts should interfere only for the most cogent, compelling reasons in situations of gross abuse. In the Matter of Moran, 3 Cir. 1972, 456 F.2d 1030, cert, denied, 409 U.S. 872, 93 S.Ct. 201, 34 L.Ed.2d 123; In the Matter of Barbato, 3 Cir. 1970, 421 F.2d 1324, 1327; Jayne Meadows Travel Agency v. Dashiell, 9 Cir. 1969, 416 F.2d 1253; Spach v. Strauss, 5 Cir. 1967, 373 F.2d 641, citing, Minella v. Phillips, 5 Cir. 1957, 245 F.2d 687, 690; Kansas Federal Credit Union v. Niemeir, 10 Cir. 1955, 227 F.2d 287, 291. Thus, as we said in Spach v. Strauss, supra, 373 F.2d at 644, and repeated in Martin v. Mercantile Financial Corporation, 5 Cir. 1968, 404 F.2d 886, “The sole inquiry here ... is whether the factual issues were resolved erroneously, and clearly so, and whether the discharge in this case amounted to an abuse of discretion.” Accord, Morehead v. Greenville Supply Co., 6 Cir. 1971, 439 F.2d 962, 963, 964.

Friendly Finance apparently believes that under the Act, the failure of a bankrupt to obey a lawful order of the court is an “automatic bar that obviates the need to exercise any discretion,” see In re Boudreau, D.Conn.1972, 350 F. Supp. 644, 646. Since the order to complete the schedules was concededly lawful and the bankrupt could point to no impossibility of performance, the failure to comply required the bankruptcy court to deny discharge. To answer this argument we need go no further than the Act itself, which does not say that a discharge must be denied for failure to obey an order. Our conclusion is reinforced by the case law, especially a recent decision by the Second Circuit, based on similar reasoning, holding that “the referee must exercise his discretion whether or not to grant a discharge, even when an order has not been followed.” In re Kokoszka, 2 Cir. 1973, 479 F.2d 990, 997. Accord, Jayne Meadows Travel Agency v. Dashiell, 9 Cir. 1969, 416 F.2d 1253, 1254; In re Bou-dreau, D.Conn.1972, 350 F.Supp. 644; In re Van Meter, S.D.Cal.1962, 208 F. Supp. 835; In re Edwards, S.D.Cal.1947, 73 F.Supp. 312; In re Setzler, S.D.Cal. 1947, 73 F.Supp. 314. As the Kokoszka court noted,

The denial of a discharge can work a serious deprivation upon a debtor, and there are many circumstances where a bankrupt’s disobedience may have been inadvertent or otherwise excusable. Moreover the denial of a discharge is not the only weapon available to the referee in order to enforce his order as a recalcitrant petitioner can also be held in contempt

479 F.2d at 997.

Appellant makes no challenge in this appeal to the resolution of factual issues below, and our own examination of the record has revealed no plain error. We are thus now limited to a search for abuse of discretion, mindful of two important principles. First, the right to discharge is statutory, and the provisions of section 14 of the Act relating to discharge should be construed liberally in favor of the bankrupt and strictly against the objecting creditor. Spach v. Strauss, supra, 373 F.2d at 642-643; In re Pioch, 3 Cir. 1956, 235 F.2d 903, 905. Secondly, the reasons for denying discharge to a bankrupt must be real and substantial, not merely technical or conjectural. In re Pioch, supra; Dilworth v. Bootle, 5 Cir. 1934, 69 F.2d 621, 624.

We do not, of course, mean to denigrate the importance of complying with the lawful orders of the court throughout the course of a bankruptcy proceeding. Certainly there are situations in which failure to obey such orders can have seriously deleterious consequences for creditors or on the authority of the court. The bankruptcy judge, however, is in the best position to make this evaluation, and we should be reluctant to challenge his conclusions. In Kokoszka, supra, 479 F.2d at 997-998, the Second Circuit outlined some of the factors to be considered by the bankruptcy judge in deciding whether failure to obey an order justifies denying discharge :

[He] should weigh the detriment to the proceedings and the dignity of the court against the potential harm to the debtor if the discharge is denied. He should consider such factors as the intent behind the bankrupt’s acts— were they wilful or was there a justifiable excuse; was there injury to the creditors; and is there some way the bankrupt could make amends for his conduct.

In the case at bar the bankruptcy judge found that the failure to comply with the order to supply the dates was not due to wilful, intentional disobedience or dereliction, but rather to inadvertence and mistake. There was no evidence of any intent to harm creditors or insult the authority of the court. More important, the court obviously could perceive no real injury to the creditors, and in fact remedied the omission in a short oral exchange at the hearing.

Appellant argues that a bankrupt cannot be allowed to hide behind his attorney’s carelessness, that advice of counsel is no excuse for intentional disobedience of a lawful order. Of course, we have already noted that the courts below found there to have been no intentional disobedience. Moreover, we agree with both the bankruptcy judge and the district court that appellant’s reliance on the hoary principle that a client is bound by his attorney’s mistakes is inappropriate in the context of this ease. Bankruptcy schedules are prepared by counsel, and a bankrupt will understandably rely on his attorney to guide him safely through the proceedings. Cf. In re Topper, 3 Cir. 1956, 229 F.2d 691. To deny discharge to one seeking shelter in the safe harbor of the Bankruptcy Act merely because of this type of mistake of counsel, especially where no prejudice or harm results to the creditors, would impose a kind of strict liability Congress could never have intended. It is one thing to run aground on hazardous but legitimate reefs; it is quite another to be lost in pettifoggery. The orders of a bankruptcy court must be given full respect and obedience, and we certainly do not condone carelessness. We do not believe, however, that the bankruptcy court in any way abused its discretion by refusing to penalize the bankrupt for this inadvertence.

Nor do we agree with appellant that allowing the oral amendment was illegal or improper. Amendments to bankruptcy petitions and schedules are specifically authorized by General Order 11. It is well settled that amendments must be liberally granted and will be reviewed only for an abuse of discretion. Blankenship v. Citizens National Bank, 5 Cir. 1970, 431 F.2d 569; 2 Collier, supra, note 1, at ¶¶ 18.19, 18.21. It is also settled that the bankruptcy judge has a duty to cause defective schedules to be amended. 11 U.S.C. § 67(a)(3); 2 Collier, supra note 1, at ¶ 39.05. We recognize that amendments must normally meet certain requirements of formality, such as being signed and verified, and we affirm that compliance with these requirements is of great importance. See General Order in Bankruptcy 11, set out in 28 U.S.C.A. (1970); 2 Collier, supra note 1, at ¶ 18.20. Nevertheless, the oral, informal amendment procedure employed by the bankruptcy court was, in the context of his case, well within the sound exercise of the court’s discretion.

Very similar to the instant case was In re Seely Tube and Box Company, 3 Cir., 219 F.2d 389, cert, denied, 1955, 350 U.S. 821, 76 S.Ct. 46, 100 L.Ed. 734. There the Third Circuit expressly approved the action of a referee in bankruptcy in accepting an oral, in-court statement of the existence and amount of a government claim as an informal amendment of the debtor’s schedule of creditors. The court’s reasoning is simple and instructive: “Certainly the informal scheduling of the claim disclosed by the record served all the purposes in this case which a more formal procedure would have accomplished.” Id. at 391.

The Bankruptcy Act was intended to be a sturdy bridge over financially troubled waters by means of which “the honest but unfortunate debtor” may reach “a new opportunity in life and a clear, field for future effort, unhampered by the pressure and discouragement of pre-existing debt.” Local Loan Co. v. Hunt, 1934, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 L.Ed. 1230, 1235. We refuse to make it a treacherous tightrope on which the slightest misstep spells disaster and over which only the most accomplished acrobat can successfully pass.

Affirmed.

      . See 2 Collier on Bankruptcy ¶ 18.08 (14th ed. 1971) ; 5 id. at 2635.

      . Appellant claimed the amount of $968.44, plus interest at 8% per annum and attorneys’ fees and costs.

      . The bankruptcy judge concluded that no fraudulent concealment of assets had occurred because (a) Jones did not own the car; (b) the savings account contained only $1.00, which Jones might reasonably consider no asset ; (c) the life insurance was a group policy owned by Jones’ employer; and (d) the rifle was clearly exempt. He also held that though the so-called mortgage was invalid, in any event no fraudulent disposition had occurred because (a) the pawning of the rifle was only a second mortgage with no intended final disposition; (b) Jones still owned the radio and other listed assets; and (c) a listed black and white television set did not work. In addition, the judge found that there was a total lack of evidence that Jones had knowingly made false financial statements with an intent to defraud creditors.

      . Ex parte Certo, W.D.N.Y.1934, 8 F.Supp. 685, cited by Friendly Finance as authority for its position that no amendment should have been allowed, is, we think, inapposite. There the court held that amendments of schedules should not be allowed where the original omission was fraudulent,


author: GODBOLD, Circuit Judge:

text:
    Anthony T. LEE et al., Plaintiffs, Mrs. James O’Neal et al., Plaintiffs-Appellants, United States of America, Plaintifí-Inter-venor and Amicus Curiae, National Education Association, Inc., Plaintiff-Intervenor, v. MACON COUNTY BOARD OF EDUCATION et al., Defendants, (Randolph County Board of Education) et al., Defendants-Appellees.
    No. 73-3088
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 6, 1974.
    Demetrius C. Newton, Birmingham, Ala., Jack Greenberg, Norman Chachkin, Charles E. Williams, III, New York City, for plaintiffs.
    John S. Casey, Heflin, Ala., for defendants.
    Ira DeMent, U. S. Atty., Montgomery, Ala., J. Stanley Pottinger, Asst. Atty. Gen., Civ. Rights Div., U. S. D. of Washington, D. C., Solomon S. Seay, Jr., Montgomery, Ala., for other interested parties.
    Before BELL, GODBOLD and GEE, Circuit Judges.

       Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409.

   GODBOLD, Circuit Judge:

Appellant, Inez Knight, brought this suit on behalf of her daughters, Lillie Mae, 17, and Rose Ella, 14. The two children were pupils in Randolph County High School, located in a largely rural Alabama county. The high school principal, Hulond Humphries, sent the children home from school February 2, 1973. He did not tell them when they would be allowed to return. The same date he wrote two letters to the Randolph County Board of Education listing his various disciplinary contacts with each child and requesting that each be “dismissed” from school. Appellant and her children were not sent copies of the letters or otherwise informed of their existence or content.

February 7 appellant filed a motion for emergency relief in the United States District Court for the Middle District of Alabama. She sought the childrens’ reinstatement in school, in essence claiming that they had been excluded without due process. Action on the motion was deferred on agreement pending an administrative hearing before the Board of Education. Lillie Mae and Rose Ella remained out of school in the interim.

At the hearing before the Board on March 8, 1973, Principal Humphries testified to having disciplined the children for several infractions. Both girls had fought with other children in the school halls. On one occasion Rose Ella struck Coach Johnson, the football coach, as he was attempting to break up a fight between her and another student. Both girls used abusive language on several occasions when their teachers reprimanded them. Lillie Mae was absent from school without permission for at least one day. She also counseled her younger sister to flout a teacher’s orders. Both children disobeyed teachers’ directions and resisted corporal and other forms of punishment.

The appellant and the children were present with their lawyer at the Board hearing. Only two witnesses appeared against them, Principal Humphries and School Superintendent Simpson. The latter had no personal knowledge of the children’s misbehavior. The former had personal knowledge of their resistence to punishment and their abusive language, but had not observed the fights and other transgressions that had initial-caused teachers to recommend punishment. The children and their mother were permitted to testify before the Board. Lillie Mae and Rose Ella denied being at fault in the fights and claimed that they had made good faith efforts to complete home work assigned by the principal as punishment but which he had found unacceptable. Mrs. Knight testified that the girls had been the targets of taunts from their fellow students because their uncles, her brothers, had been indicted for murder. ly

The Board of Education acquiesced in Humphries’ request by permanently expelling both children. On July 20, 1973, the District Court denied the motion for emergency relief, holding that there had been no deprivation of due process and that the evidence before the Board of Education was sufficient to support the determination that the children were guilty of the infractions charged. The District Court also held that, although harsh, the penalty assessed — permanent exclusion from school — was not arbitrary in view of the school’s interest in avoiding disruption and in view of the principal’s assiduous but frustrated efforts to work out the problem by conference with the children and their mother. It appears from the record and briefs that Lillie Mae and Rose Ella have received no schooling at all from February, 1973 to the date of this appeal.

In our view the Board employed an erroneous legal standard in considering the children’s cases. During the disciplinary hearing the Superintendent, who is also Secretary of the Board, was interrogated about Board response to a request from the principal for expulsion of a student. He described the Board’s policy in this way:

A: . . . Our policy is that the principal exhausts every effort; and once he recommends it, we usually grant it.
Q: And do you know of any exceptions to that rule?
A: I don’t; white or black.

Thus it appears that rather than bringing to bear its independent judgment on the question of what penalty to assess, the Board made a practice of confirming the principal’s judgment. When a serious penalty is at stake a school board must provide a higher degree of due process than when the student is threatened only with a minor sanction. See, e. g., Williams v. Dade County School Board, 441 F.2d 299 (CA5 1971). Here permanent exclusion from the county educational system was the potential penalty. Formalistic acceptance or ratification of the principal’s request or recommendation as to the scope of punishment, without independent Board consideration of what, under all the circumstances, the penalty should be, is less than full due process. Appropriate punishment is for the Board to determine, in the exercise of its independent judgment. The case must, therefore, be remanded to the Board with directions that it reconsider the question of appropriate penalty, under correct legal standards. Hopefully, now that the children have undergone the sobering consequence of a year out of school, the controversy can be brought to an end without further litigation, and discussion by us may be helpful to that end. This court has expressed and reiterated its view that school disciplinary matters are best resolved in the local community and within the institutional framework of the school system. Stevenson v. Board of Education of Wheeler County, 426 F. 2d 1154 (CA5), cert, denied, 400 U.S. 957, 91 S.Ct. 355, 27 L.Ed.2d 265 (1970); Lucas v. Chapman, 430 F.2d 945 (CA5, 1970); Ferguson v. Thomas, 430 F.2d 852 (CA5, 1970); Wood v. Alamo Heights Indep. School Dist., 433 F. 2d 355 (CA5, 1970). With the cooperation of the mother (if forthcoming) this case may now be ripe for institutional disposition, without the necessity of the parties repairing again to the federal courthouse for a judicial decision of whether there is such disparity between the offenses and the penalty that the commands of the fourteenth amendment have not been met.

We do not minimize the children’s misbehavior. They were undisciplined, defiant, and abusive, and their mother was uncooperative with school officials in attempting to deal with them. Nor are we insensitive to the difficulties faced by school officials in attempting to curb disorderly interferences with the primary task of the school, which is education. But a sentence of banishment from the local educational system is, insofar as the institution has power to act, the extreme penalty, the ultimate punishment. In our increasingly technological society getting at least a high school education is almost necessary for survival. Stripping a child of access to educational opportunity is a life sentence to second-rate citizenship, unless the child has the financial ability to migrate to another school system or enter private school.

Private citizens, law making bodies, and the media all bend their efforts toward encouraging children to complete their high school educations and to avoid becoming dropouts and burdens to society. In the twenty years since Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L.Ed. 873 (1954), this country has committed itself to a policy against state-imposed public school segregation. It is not lesser but more stringent state action to bar a child forever from public school, with the result that he secures no education at all.

The judgment of the District Court is vacated and the cause is remanded with directions to remand the case to the defendant Board for reconsideration under correct legal standards.

      . We reject the argument of appellant that hearsay testimony was constitutionally prohibited.

      . It appears from the record that the Board did not consider the possibility that the system’s interests might be vindicated by a sanction less than exclusion forever from the school system, such as suspension or transfer to another school. The record discloses that one of the children in a disciplinary conference with the principal, expressed a desire to transfer.

      . Such a case can, of course, arise. Clearly, for example, a school board could not constitutionally expel forever a pupil who had committed no offense other than being five minutes tardy one time.
      In the landmark case of Dixon v. Alabama State Board of Education, 294 F.2d 150, 157 (CA5, 1961), this court wrote the following :
      “Turning then to the nature of the governmental power to expel the plaintiffs, it must be conceded . . . that that power is not unlimited and cannot be arbitrarily exercised. Admittedly, there must be some reasonable and constitutional grounds for expulsion or the courts would have a duty to require reinstatement.”
      This passage and the constitutional provision it elaborates do not license federal judges to review and revise school board disciplinary actions at will. Application is limited to the rare case where there is shocking disparity between offense and penalty.


text:
    Earl VAN BLARICOM, Petitioner-Appellant, v. Donald FORSCHT, as United States Marshal, Respondent-Appellee.
    No. 72-1374.
    United States Court of Appeals, Fifth Circuit.
    March 6, 1974.
    J. V. Eskenazi, Federal Public Defender, Theodore J. Sakowitz, Asst. Federal Public Defender, Miami, Fla., for petitioner-appellant.
    Robert W. Rust, U. S. Atty., Carol M. Anderson, Asst. U. S. Atty., Miami, Fla., for respondent-appellee.
    Before BROWN, Chief Judge, RIVES, Senior Circuit Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINS-WORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.
   PER CURIAM:

Appellant Earl Van Blaricom filed for habeas corpus relief in United States District Court on November 9, 1971 contesting the validity of the revocation of his parole as a federal prisoner. The district court denied Van Blaricom’s petition by an order entered December 20, 1971. On February 21, 1973, a panel of this Court reversed and remanded to the district court to grant either appellant’s petition for habeas corpus or to allow respondents a reasonable time to afford appellant a new revocation hearing meeting applicable federal statutory and administrative requirements discussed in the panel opinion. Van Blaricom v. Forscht, 5 Cir., 1973, 473 F.2d 1323 (1973); petition for rehearing denied and opinion modified per curiam, 5 Cir., 1973, 489 F.2d 1034; opinion denying petition for rehearing amended, (January 15, 1974). The court voted to consider the case en banc and it was so considered on January 15, 1974, after the panel had amended its opinion denying the petition for rehearing.

Appellant was released on bond pending appeal pursuant to an order of this court dated July 13, 1972. It has now been made to appear that prior to our February 21 panel decision, an order was entered by the United States district court revoking appellant’s bond for cause. (The district court order was dated January 10, 1973). An evidentiary hearing was held by the district court prior to entering the order revoking bond. At that hearing, appellant’s counsel, who has represented Van Blaricom from the time of the parole revocation hearing, conceded that Van Blaricom had violated the conditions of his appeal bond, and that he, as well as parole board officials, have been unable to contact Van Blaricom at his last given address. The district court directed the issuance of a warrant for Van Blaricom’s arrest, and as of the time of our en banc consideration on January 16, 1974, appellant’s whereabouts were still unknown to the authorities.

It is within the discretion of this Court not to reach the merits of an appeal where the petitioner is not available and subject to any judgment which might be entered in the case. United States ex rel. Bottoms v. Eberhardt, 5 Cir., 1972, 467 F.2d 578; United States v. Shelton, 5 Cir., 1973, 482 F.2d 848; Brinlee v. United States, 8 Cir., 1973, 483 F.2d 925; United States v. O’Neal, 10 Cir., 1972, 453 F.2d 344; Johnson v. Laird, 9 Cir., 1970, 432 F.2d 77. See Molinaro v. New Jersey, 1970, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586. Since Van Blaricom was a fugitive prior to the panel’s decision, the opinion of this court February 21, 1973, as modified, supra, is vacated and the appeal is removed from the docket without prejudice to appellant’s right to have the appeal reinstated on appropriate motion if, within thirty (30) days from the date hereof, it should be made known to this Court that. Van Blaricom is available and subject to any judgment which might be entered in this case. If thirty (30) days elapses without such' a representation his appeal is ordered dismissed.

Panel opinion vacated; appeal removed from docket on condition.

RIVES, Senior Circuit Judge, with whom WISDOM, Circuit Judge, joins, dissenting;

I respectfully dissent because I think that the only just determination of this appeal is by a decision on the merits. Otherwise stated, the en banc court should answer the question: Could two members of the eight member Board of Parole validly revoke Van Blaricom’s parole and require him to serve his full tentí remaining at the beginning of his parole. To this date, there has been no denial of the panel’s finding that the precise terms of the order of revocation was a one-sentence order, “Parole revoked continued for term, 542 days.” Van Blaricom v. Forscht, 5 Cir. 1973, 473 F.2d 1323, 1326, bottom of first column.

The original panel (Rives, Wisdom and Roney) answered that question forthrightly. In deference to the holding of the Tenth Circuit in Earnest v. Moseley, 1970, 426 F.2d 466, 469, the panel limited its holding to the narrow ground that, “As best we can determine, the procedure employed in revoking Blaricom’s parole did not conform with the then applicable administrative procedure of the Board itself.” 473 F.2d 1328. The panel did express its difficulty in squaring the holding of the Tenth Circuit with the more doctrinaire logic of Cudahy Packing Company v. Holland, 1942, 315 U.S. 357, 363, 364, 62 S.Ct. 651, 86 L.Ed. 895, and its progeny (473 F.2d at 1328, first column). In denying the Board’s petition for rehearing on December 14, 1973, the panel adhered to the narrow ground of its original holding but in a footnote added on January 15, 1974, the panel called attention to Federal Trade Commission v. Flotill Products, 1967, 389 U.S. 179, 183, 184, 88 S.Ct. 401, 19 L.Ed.2d 398 and concluded that, “Under that decision, it would seem that five members would constitute a quorum of the eight member Board and that the discretion vested in the Board could, in no event, be exercised by less than three members constituting a majority of that quorum.”

Now the en banc court avoids any discussion of the merits by holding that Van Blaricom was a fugitive prior to the panel’s decision and opinion of February 21, 1973, vacating that opinion as modified, and removing the case from the docket without prejudice to its reinstatement, if Van Blaricom returns and so moves within thirty (30) days, and with the final provision that “If thirty (30) days elapses without such a representation his appeal is ordered dismissed.”

That order is entered by the en banc court sua sponte, without suggestion by either party. Both parties have consistently pressed for an en banc decision on the merits. Such a decision is obviously important to the Board, to courts, parolees and others for jurisprudential reasons. As to Van Blaricom, the failure to render a decision on the merits may well result in a future unjust and unlawful deprivation of his liberty.

With deference, I submit that the en banc court’s conclusion that Van Blari-com was a fugitive prior to the panel’s decision and opinion of February 21, 1973, is not justified. The basis of that conclusion is the fact now known to this Court that the district court revoked Van Blaricom’s bail bond by order dated January 10, 1973. The first notice to the Court of Appeals of that order was a comment in footnote 1 at page 2 of ap-pellee’s brief filed March 27, 1973, more than a month after the panel’s decision and opinion of February 21, 1973. Apparently neither of the parties considered the district court’s order of January 10, 1973, to be relevant to this Court’s disposition of Van Blaricom’s appeal.

The “3rd Supplemental Record on Appeal” filed January 25, 1974, contains the proceedings in the district court hearing of January 10, 1973, at the conclusion of which the district court revoked Van Blaricom’s bail bond and ordered his arrest. A few quotations from those proceedings show that counsel on both sides and the district judge himself were all under the erroneous impression that Van Blaricom had only a few more days to serve before completing his sentence. First, on page 2 of the brief proceedings, Mrs. Carol Anderson, Assistant United States Attorney, states: “That case was appealed to the Fifth Circuit and the Fifth Circuit ordered that the Petitioner be released on bond pending appeal because he only had a few days to serve. We have had no decision from the Fifth Circuit.” (Emphasis supplied.)

Next, on pages 5 and 6, appears a colloquy between the Court and Mr. Sako-witz, the public defender, appearing for Van Blaricom:

“THE COURT: His obligation is to keep you -advised and it is not for you to have to find him.
“MR. SAKOWITZ: He had kept me advised of two moves which I reported to Probation, but I might suggest to your Honor that there is no question he should have complied with the Order and was aware of the fact that he is to notify us of any change of address.
“But my recollection is that the period left on his sentence is either three days or five days, and it would just seem to be, as a matter of practical expedience, impractical to have a warrant out for the violation of this Order at this time.” (Emphasis added.)

Lastly, on page 7, appears the following remark of the district judge:

“To me it isn’t a question of the short time remaining of the sentence but the fact that he was wilfully violating the Order. And in the interest of justice I think it would be well to try to locate him and apprehend him.” (Emphasis added.)

Actually, under the order of revocation, Van Blaricom has a much longer time remaining to serve on his sentence.

It may well be that Van Blaricom was no better informed than were the counsel on both sides and the judge. Van Blaricom may well be not a “fugitive” at all, but, instead, blissfully unaware that he has not completed service of his sentence, and hence is under a continuing duty to report. When his appeal is dismissed and he is ultimately arrested and imprisoned, there will indeed be a rude awakening, and, in my opinion, an unjust deprivation of his liberty.

With deference, I submit that the disposition of this appeal by the en banc court does not meet the first test of our Federal Rules of Criminal Procedure for “the just determination of every criminal proceeding.” (Rule 2.) See also 28 U.S.C. § 2106. I therefore respectfully dissent.

      . The record in this court has been supplemented by a transcript of the evidentiary hearing and a certified copy of the order revoking bond.

      . The bond itself contains a provision which requires Van Blaricom to keep his counsel advised of his whereabouts at all times.

      . After the Court of Appeals ordered the appellant Johnson to submit to the jurisdiction of the Court within thirty (30) days or have his appeal dismissed, Johnson surrendered to military authorities within the requisite time span and the Court proceeded to render a decision on the merits. Johnson v. Laird, 9 Cir., 1970, 435 F.2d 493.