text:
    Thomas DWEN, as President of the Suffolk County Patrolmen’s Benevolent Association and Thomas Dwen, Individually, Plaintiff-Appellant, v. John L. BARRY, Commissioner of the Suffolk County Police Department, Defendant-Respondent.
    No. 862, Docket 72-1037.
    United States Court of Appeals, Second Circuit.
    Argued June 14, 1973.
    Decided Aug 22, 1973.
    Leonard Wexler, Smithtown, N.Y. (Richard T. Haefeli, Smithtown, N.Y., of counsel), for plaintiff-appellant.

      Patrick A. Sweeney, Northport, N.Y. (George W. Percy, Suffolk County Atty., Riverhead, N.Y., of counsel), for defendant-respondent. ■ -
    Before KAUFMAN, Chief Judge, SMITH, Circuit Judge, and BRYAN, District Judge.

       Of the United States District Court for the Southern District of New York, sitting by designation.

   J. JOSEPH SMITH, Circuit Judge:

This is an appeal from denial of preliminary injunction and summary dismissal by the United States District Court for the Eastern District of New York, Jacob Mishler, Chief Judge, 336 F.Supp. 487, of a civil rights action brought by Dwen, individually and as president of the Suffolk County Patrolmen’s Benevolent Association, seeking to invalidate hair grooming regulations of the Suffolk County Police Department as in violation of the patrolmen’s rights under the First and Fourteenth Amendments. We conclude that summary dismissal based on the pleadings and an affidavit submitted by Deputy Commissioner Eugene Kelley was improper. Accordingly, we reverse and remand for trial.

The court correctly recognized that the regulation might well raise constitutional issues of the right to free expression, due process and equal protection if applied to other than uniformed personnel, but analogized the uniformed force to the military and sustained the regulations. A number of courts have upheld such regulations on similar grounds, terming police organizations as para-military or quasi-military requiring strict discipline and uniformity of appearance, see, e.g., Greenwald v. Frank, 40 A.D.2d 717, 337 N.Y.S.2d 225 (1972), aff’d without opinion, 32 N.Y. 2d 862, 346 N.Y.S.2d 529, 299 N.E.2d 895 (May 30, 1973). See also Stradley v. Anderson, 349 F.Supp. 1120 (D.Neb. 1972), aff’d 478 F.2d 188 (8th Cir., May 17, 1973); Doyle v. Kammeraad, 310 Mich. 233, 17 N.W.2d 165 (1943); Fraternal Order of Police v. Harris, 306 Mich. 68, 10 N.W.2d 310 (1943); People ex rel. Masterson v. French, 110 N.Y. 494, 499, 18 N.E. 133 (1888).

Central to each of the “para-military” cases is the singular position afforded the military, Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed.2d 842 (1953); see Hagopian v. Knowlton, 470 F.2d 201, 204 (2d Cir. 1972), and the concept that those in the armed forces are deemed to surrender many important rights. “[T]he armed services, their officers and their manner of discipline do serve an essential function in safeguarding the county. The need for discipline, with the attendant impairment of certain rights, is an important factor in fully discharging that duty.” Raderman v. Kaine, 411 F.2d 1102, 1104 (2d Cir.), cert. dismissed, 396 U.S. 976, 90 S.Ct. 467, 24 L.Ed.2d 447 (1969).

Extension to the uniformed civilian services of the police and fire departments of the unique judicial deference accorded to the military, however, seems to us not warranted. While these services have been characterized as para-military organizations, see Doyle v. Kammeraad, supra; Fraternal Order of Police v. Harris, supra; Greenwald v. Frank, supra; People ex rel. Masterson v. French, supra, the characterization is hardly justified either historically or functionally.

The civilian police force is a relatively recent development. It arose out of the need to supplement the private citizen’s role in keeping the peace. Any “para-militarism” of the force stems not from its origin nor from the nature of its duty but from the adoption of an organization with a centralized administration and a disciplined rank and file for efficient conduct of its affairs. The use of such organization evolved as a practical administrative solution and not out of any desire to create a military force. See R. Fosdick, American Police Systems ch. 2 (1920); W. Lee, A History of Police in England (1901) (1971 ed.). The police force remains significantly different in character from thé military. It is still locally controlled and organized, see N.Y. Unconsol. Laws § 5721, and subject to more direct control of the electorate, N.Y. Unconsol. Laws § 5722, Suffolk County Constitution art. XII § 1202(a), (b)(4), (b)(5) and § 1211. Appointment of members of the force is-made under Civil Service Regulation. While police officials are given broad discretion in running a department, dismissal of patrolmen is subject to court review. N.Y. Village Law § 8-806 (McKinney N.Y. Unconsol. Laws § 5732); see People ex rel. Hart v. Board of Fire Commissioners, 82 N.Y. 358, 360-61 (1880).

Discipline although essential to an effective police force as itf is to the military is clearly of a different type. Instant unquestioning obedience has been, found essential to a soldier in action and', his training and its attendant discipline is designed to develop such obedience. The same type of instant unquestioning obedience is not necessary for an effective police force. See Greenwald v. Frank, supra, 40 A.D.2d 717, 337 N.Y.S. 2d at 231-232 (Shapiro, J. dissenting); cf. Orloff v. Willoughby, supra, 394 U.S. at 94, 73 S.Ct. 534, 97 L.Ed.2d 842. Rather it has been suggested that the military model of organization and discipline must not be followed too closely as a policeman unlike a soldier frequently acts individually on his own initiative and not subject to the immediate supervision of his superiors. See W. Lee, A History of Police in England at 401-402.

This is not to say, however, that the special nature of the police officer’s duties and the recognized need to maintain a singular degree of discipline are immaterial. These factors are relevant to the determination of the validity of the General Order bearing not on the nature of plaintiff’s rights, but on the existence of a legitimate state interest to be reasonably advanced. by the regulation. A policeman does not, however, waive his right to be free from arbitrary and unjustifiable infringement of his personal liberty when he elects to join the force. See Garrity v. New Jersey, 385 U.S. 493, 499-500, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967); Muller v. Con-lisk, 429 F.2d 901, 904 (7th Cir. 1970).

While it has been argued that hair length controversies are much ado about nothing, we think there is a substantial constitutional issue raised by regulation of the plaintiff’s hair length. The question is whether the government may interfere with the physical integrity of the individual and require compliance with its standard of personal appearance without demonstrating some legitimate state interest reasonably requiring such restriction on the individual. The first, third, fourth, seventh and eighth circuits have held that the Constitution limits the state’s right to regulate the personal appearance -of its citizens. We agree. See Olff v. East Side Union High School District, 404 U.S. 1042, 92 S.Ct. 703, 30 L.Ed.2d 736 (Douglas, J., dissenting from denial of certiorari).

An increasing number of courts have recognized the right of the individual to style his own appearance, but there has been little consensus on the source of constitutional protection. The right has been found in the First Amendment, Arnold v. Carpenter, 459 F.2d 939 (7th Cir. 1972); the Ninth Amendment, Bishop v. Colaw, 450 F.2d 1069 (8th Cir. 1971); the Equal Protection Clause of the Fourteenth Amendment, Massie v. Henry, 455 F.2d 779 (4th Cir. 1972), and the due process guarantees of the Fifth and Fourteenth Amendments, Stull v. School Board of the Western Beaver Junior-Senior High School, 459 F.2d 339 (3rd Cir. 1972); Richards v. Thurston, 424 F.2d 1281 (1st Cir. 1970); Massie v. Henry, supra.

We may well base the right on the guarantee under the Due Process Clause of personal liberty of “a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints. . . .” Poe v. Ullman, 367 U.S. 497, 543, 81 S.Ct. 1752, 1777, 6 L.E.2d 989 (1961) (Harlan, J., dissenting). Cf. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973); Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). Personal liberty is not composed simply and only of freedoms held to be fundamental but includes the freedom to make and act on less significant personal decisions without arbitrary government interference. Limitation of such a right requires some showing of public need.

We hold only that choice of personal appearance is an ingredient of an individual’s personal liberty, and that any restriction on that right must be justified by a legitimate state interest reasonably related to the regulation. Here the department has failed to make the slightest showing of the relationship between its regulation and the legitimate interest it sought to promote. The sole presentation by the department was the affidavit submitted by Deputy Commissioner Kelley. That affidavit commented only that the regulation was directed at both uniformed and non-uniformed officers, it was silent on the question of the necessity for the regulation in maintaining discipline. In the absence of the requisite justification by the department, dismissal of the complaint under Rule 12(b) (6) was in error. Nor would summary judgment on the affidavit submitted be justified since a genuine issue was presented for trial. We imply no views on the merits. We indicate simply that, at trial the Commissioner has the burden of establishing a genuine public need for the regulation.

Reversed and remanded.

      . ORDER NUMBER 71-1 AMENDING
      RULES AND PROCEDURES POLICE DEPARTMENT, COUNTY OF SUFFOLK, N.Y.
      3 GENERAL
      □ SPECIAL
      □ PERSONNEL
      ORDER NUMBER 71-1
      DATE 19 July 1971
      AUTHORITY Police Commissioner SIGNATURE OF AUTHORITY John L. Barky
      Effective 0001 hrs. 1 August, 1971 Chapter 2 of the Rules & Procedures is amended by the addition of the following section:
      2/75.0 Members of the Force and Department shall be neat and clean at all times while on duty. Male personnel shall comply with the following grooming standards unless excluded by the Police Commissioner due to special assignment:
      2/75.1 HAIR: Hair shall be neat, clean, trimmed, and present a groomed appearance. Hair will not touch the ears or the collar except the closely cut hair on the back of the neck. Hair in front will be groomed so that it does not fall below the band of properly worn headgear. In no case will the bulk or length of the hair interfere with the proper wear of any authorized headgear. The acceptability of a member’s hair style will be based upon the criteria in this paragraph and not upon the style in which he chooses to wear his hair.
      ' 2/75.2 SIDEBURNS: If an individual chooses to wear sideburns, they will be neatly trimmed and tapered in the same manner as his haircut. Sideburns will not extend below the lowest part of the exterior ear opening, will be of even width (not flared), and will end with a clean-shaven horizontal line.'
      2/75.3 MUSTACHES: A short and neatly trimmed mustache may be worn, but shall not extend over the top of the upper lip or beyond the corners of the mouth.
      2/75.4 BEARDS &, GOATEES: The face will be clean-shaven other than the wear of the acceptable mustache or sideburns. Beards and goatees are prohibited, except that a Police Surgeon may grant a waiver for the wearing of a beard for medical reasons with the approval of the Police Commissioner. When a Surgeon prescribes that a member not shave, the beard will be kept trimmed symmetrically and all beard hairs will be kept trimmed so that they do not protrude more than one-half inch from the skin surface of the face.
      2/75.5 WIGS: Wigs or hair pieces will not be worn on duty in uniform except for cosmetic reasoná to cover natural baldness or physical disfiguration. If under these conditions, a wig or hair piece is worn, it will conform to department standards.

      . “The government of a police force assimilates to that required in the control of a military body. . . . ” People ex rel. Masterson v. French, supra 110 N.Y. 494, 500, 18 N.E. 133, 135 (1888).

      . “The Anglo-Saxon police tradition . . . springs from a configuration of attitudes which were profoundly suspicious of central authority and hostile to the idea of guarding the local peace with militia.” Taft & England, Criminology, 317, 318 (4th ed. 1964) ; see also Hall, Legal and Social Aspects of Arrest Without Warrant, 49 Harv.L.Rev. 566, 579 (1936) ; Hall, Police and Law in a Democratic Society, 28 Ind.L.Rev. 133, 135-37 (1953).

      . Clearly distinct from the continental tradition of a police system which was part of the military establishment under the control of the central state, the Anglo-Saxon police system in England, followed in the United States, developed from a system of local property owners responsible for keeping the peace in their own towns or villages. Statute of Winchester, 13 Edw. 1, § 2 (1285). See 49 Harv.L.Rev. 580-83; 28 Ind.L.Rev. at 135. Creation of a separate police force in London in 1829 was accomplished only after fear of an armed militia to be used against the liberty of citizens was overcome. See 49 Harv.L.Rev., supra, n. 3 at 587-90. W. Lee, A History of Police in England at 248.
      New York the first to follow the English, example, replaced its separately organized systems of night and day watchmen which were comprised generally of otherwise employed men, with a force of 800 men under a police chief. The force was un-uniformed, undisciplined and essentially political. Members were appointed for one year by local aldermen. The history of the force throughout the nineteenth century makes clear that there was no intention to create a civilian military. See R. Fosdick, American Police Systems at 109-10 (1920). The discipline as it exists today was a late development in the force.

      . Police are given the powers of a constable. N.Y. Village Law § 8-802 (McKinney’s Con-sol.Laws, c. 64) used under reference from N.Y. Unconsol.Laws § 5732; Suffolk Constitution art. XII § 1208. See N.Y. Town Law McKinney’s Consol.Laws, c. 62, § 39.

      . At issue in Masterson, see n. 2, and similar New York cases was the propriety of the dismissal of the patrolmen from the force for such malfeasance as negligent homicide or appearing on duty while intoxicated. There is little similarity between the disciplinary questions in these cases and Order No. 71-1 which the district court apparently found designed to inculcate discipline.

      . See, e. g., Linquist v. City of Coral Gables, 323 F.Supp. 1161 (S.D.Fla.1971).

      . However, with the exception of Hunt v. Board of Fire Commissioners of Massapequa Fire District, 68 Misc.2d 261, 327 N.Y. S.2d 36 (1971), the New York courts have sustained the validity of grooming regulations for firemen and policemen. See Olszewski v. Council of Hempstead Fire Department, 70 Misc. 603, 334 N.Y.S.2d 504, 506 (Sup.Ct.1972) (based on a showing of safety needs) ; Austin v. Howard, 39 A.D.2d 76, 332 N.Y.S.2d 434 (1972) (upheld suspension of fireman for failure to wear proper boots).
      The Court of Appeals affirmed without opinion an order upholding the regulations at issue here, in a ,ease brought by a Nassau County policeman. Greenwald v. Frank, 32 N.Y.2d 862, 346 N.Y.S.2d 529, 299 N.E. 2d 895 (May 30, 1973). The New York Supreme Court had recognized that a policeman has a constitutional interest in determining his own appearance but found that interest outweighed by the “powerful countervailing interest” of the police department and the general public. 70 Misc.2d 632, 639, 334 N.Y.S.2d 680, 688 (Sup.Ct.1972). The Appellate Division while affirming the order held that the appeal failed to raise substantial constitutional issues. Its affirmance was based on a finding that “there should be neatness and discipline in a large quasi-military organization such as the Nassau County Police Department. . . . ” 40 A.D.2d 717, 337 N.Y.S.2d at 225.

      . Several district courts in this circuit have so ruled. In Seale v. Manson, 326 F.Supp. 1375 (D.Conn.1971) the court held that a prisoner’s choice of hair length and facial hair is a personal liberty protected by due process and that without evidence supporting the prison’s rationale for prohibiting beards and goatees a prisoner could not be forced to shave.
      A school’s regulation of hair style was held to be violative of a substantial right of the student where no compelling state interest was shown for the regulation. See Dunham v. Pulsifer, 312 F.Supp. 411 (D.Vt.1970) ; but see Crossen v. Fatsi, 309 F. Supp. 114, 118 (D.Conn.1970).
      A military prohibition on the wearing of short-haired wigs, admittedly neat and conforming to Army appearance requirements and not interfering with the proper execution of a reservist’s duty was held an abuse of discretion and an unjustifiable interference with the right of the reservist to wear long hair in off-duty hours. Harris v. Kaine, 352 F.Supp. 769 (S.D.N.Y.1972).
      While these cases and many of those in the other circuits have not concerned uniformed police and fire departments, the basic issue remains the same — the right of the state to impose standards of hair styling. The different status of the individual raising the claim bears on the question of whether the right is outweighed by a legitimate state interest.


source: Caselaw Access Project

author: WEICK, Circuit Judge.

license: Public Domain

text:
    Carl James WEDDING, Petitioner-Appellant, v. John W. WINGO, Respondent-Appellee.
    No. 72-2160.
    United States Court of Appeals, Sixth Circuit.
    Argued June 11, 1973.
    Decided Aug. 31, 1973.

      Joseph G. Glass, court-appointed, Louisville, Ky., on brief, for petitioner-appellant.
    Ed W. Hancock, Atty. Gen., James M. Ringo, Asst. Atty. Gen., Commonwealth of Kentucky, Frankfort, Ky., on brief, for respondent-appellee.
    Before PHILLIPS, Chief Judge, WEICK, Circuit Judge, and CECIL, Senior Circuit Judge.
   WEICK, Circuit Judge.

Wedding appeals from the denial by the District Court of his petition for a writ of habeas corpus after an eviden-tiary hearing conducted by a United States Magistrate. Wedding is presently serving a life sentence imposed in 1949 by the Webster Circuit Court of Kentucky after a plea of guilty to a charge of murder. He had filed his petition for the writ in the District Court in 1971, alleging among other things that his counsel was not appointed until the day of the trial; that he was not advised of his right of trial by jury; and that his guilty plea was coerced by threat of a possible death sentence.

Wedding’s petition was denied without a hearing. He appealed to this Court and we reversed and remanded with instructions to conduct an evidentiary hearing on the petitioner’s claims of constitutional violation. 456 F.2d 245 (6th Cir. 1972).

Upon remand, a United States Magistrate, acting pursuant to a rule adopted by the District Court, issued an order assigning the evidentiary hearing to himself. Prior to this hearing, however, the petitioner moved to disqualify the Magistrate from holding such hearing on the ground that a Magistrate was not authorized and empowered under authority of the Federal Magistrates Act of 1968 (28 U.S.C. §§ 631 to 639 (1973 supp.)) to hold evidentiary hearings. That motion was overruled by the District Court.

The evidentiary hearing was then conducted by the Magistrate on June 26, 1972, at which time an electronic recording was made of the testimony of the witnesses. Thereafter the Magistrate adopted findings of fact and conclusions of law, in writing, ruling that no constitutional right of petitioner had been violated, and recommending that the petition be dismissed. The Magistrate submitted to the Court his findings and conclusions, together with a recording (a plastic phonograph record) of the proceedings.

The petitioner moved to have the Court give the matter de novo consideration. The Court listened to the recording and adopted the findings of fact and conclusions of law of the Magistrate as his own, and dismissed the petition as without merit.

The petitioner has again appealed to this Court, contending that the proceedings of the District Court were invalid because the United States Magistrate had no authority under the Act to conduct an evidentiary hearing on his habeas corpus petition. We agree.

The Federal Magistrates Act of 1968, 28 U.S.C. §§ 631 to 639 (1973 Supp.) provides in relevant part:

-(b) Any district court of the Unit-' ed States, by the concurrence of a majority of all the judges of such district court, may establish rules pursuant to which any full-time United States magistrate, or, where there is no full-time magistrate reasonably available, any' part-time magistrate specially designated by the court, may be assigned within the territorial jurisdiction of such court such additional duties as are not inconsistent with the Constitution and laws of the United States. The additional duties authorized by rule may include, but are not restricted to—
(1) service as a special master in an appropriate civil action, pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States district courts;
(2) assistance to a district judge in the conduct of pretrial or discovery proceedings in civil or criminal actions; and
(3) preliminary review of applications for post-trial relief made by individuals convicted of criminal offenses, and submission of a report and recommendations to facilitate the decision of the district judge having jurisdiction over the case as to whether there should be a hearing.” (28 U.S.C. § 636 (1973 Supp.))

Pursuant to this statute, the Judges of the United States District Court for the Western District of Kentucky signed an Order which amended Rule 16, Rules of that District, by adding to paragraph (c)(3) the following:

“In addition to submitting such other reports and recommendations as may be required concerning petitions for writs of habeas corpus from state prisoners, the full-time Magistrate is directed to schedule and hear eviden-tiary matters deemed by the Magistrate to be necessary and proper in the determination of each such petition, and to report thereon with an appropriate recommendation for the disposition thereof to the District Judge having jurisdiction of the case. The Magistrate shall cause the testimony of such hearing to be recorded on suitable electronic sound recording equipment. He shall submit his proposed findings of fact and conclusions of law to the proper Judge for his consideration, copies of which shall be provided at that time to the petitioner and respondent, and the Magistrate shall expeditiously transmit the proceedings, including the recording of the testimony, to the proper District Judge. Upon written request of either party, filed within ten days from the date such is so transmitted to the District Judge having jurisdiction thereof, the District Judge shall proceed to hear the recording of the testimony given at the evidentiary hearing and give it de novo consideration.”

The interpretation by the rule which the Western District of Kentucky has placed upon the congressional grant of power to United States Magistrates is, in our opinion, incorrect. The Act granted authority to the Magistrate to conduct only a preliminary review of applications for post-trial relief in order to facilitate the decision of the District Court as to whether there should be a hearing. This Court, in its mandate, had already directed that an evidentiary hearing be conducted. This rule of the District Court, quoted above, attempts to expand the jurisdiction of the Magistrate and, as will be pointed out, conflicts with the Act, and is therefore invalid.

Our analysis begins with Holiday v. Johnston, 313 U.S. 342, 61 S.Ct. 1015, 85 L.Ed. 1392 (1941), wherein the Court assessed the respondent’s claim that a United States Commissioner (the predecessor of the United States Magistrate) could conduct evidentiary hearings for habeas corpus by virtue of Rule 53(a) and (b) of the Rules of Civil Procedure. The Court stated:

“It is plain, as the respondent concedes, that a commissioner is not a judge and that the command of the court’s writ that the petitioner appear before that officer was not a literal compliance with the statute. The respondent argues, however, that the writ in effect referred the cause to the commissioner as a master whose function was to take the testimony and submit it, together with his findings and conclusions, for such action as the court might take upon such submission. The argument runs that this practice is in substance equivalent to a hearing before the judge in his proper person, has long been followed in the district courts in California, has not incurred the criticism of this Court in cases brought here where it was followed, is a convenient procedure, tends to expedite the disposition of such cases, is in accordance with long standing equity practice and is countenanced by Rule 53(a) (b) of the Rules of Civil Procedure.
“We cannot sanction a departure from the plain mandate of the statute on any of the grounds advanced. We have recently emphasized the broad and liberal policy adopted by Congress respecting the office and use of the writ of habeas corpus in the interest of the protection of individual freedom to the end that the very truth and substance of the cause of a person’s detention may be disclosed and justice be done. The Congress has seen fit to lodge in the judge the duty of investigation. One of the essential elements of the determination of the crucial facts is the weighing and appraising of the testimony. Plainly it was intended that the prisoner might invoke the exercise of this appraisal by the judge himself. We cannot say that an appraisal of the truth of the prisoner’s oral testimony by a master or commissioner is, in the light of the purpose and object of the proceeding, the equivalent of the judge’s own exercise of the function of the trier of the facts.” (313 U.S. at 351-352, 61 S.Ct. at 1018).

By virtue of Holiday, the conduct of habeas corpus hearings by United States Commissioners became a dead issue.

Subsequently, however, Congress modified the habeas corpus statute so to provide that “[t]he court shall summarily hear and determine the facts, and dispose of the matter as law and justice require”, rather than “[t]he court, or justice or judge, shall proceed in a summary way to determine the facts of the case . . . ” as was formerly provided. 28 U.S.C. § 2243 (1971). (Emphasis added.) The same judicial district involved in this case, the Western District of Kentucky, interpreted this modification of the habeas corpus statute as a new authorization by Congress to have officers other than United States Judges, hold habeas corpus evidentiary hearings.

In Payne v. Wingo, 442 F.2d 1192 (6th Cir. 1971), we squarely rejected this interpretation. We stated therein:

“When Congress retained the reference to the ‘court’ in the new statute, it must have meant to retain the meaning that the Supreme Court gave that word in the preceding statute. Assuming, without deciding that Congress could have constitutionally changed the result of Holiday by a specific provision in Section 2243, it is evident that Congress chose not to do so. We are not at liberty to disturb that decision.
* -X- -X- * -X- *
“We realize that our decision in this case does not help alleviate the tremendous and increasing burden which the expanding number of habeas corpus petitions places on United States District Judges. Nevertheless, we must be ever mindful of the fundamental role that habeas corpus plays in our judicial system. Without a clear mandate from Congress, we cannot presume, that that body would entrust a vital and often conclusive part of habeas corpus to an official, like a Special Master, who lacks the independence and authority of the federal judiciary.” (Footnotes omitted) (442 F.2d at 1194-1195).

It is within this context that the interpretation placed upon 28 U.S.C. § 636(b) (1973 Supp.) by the Western Disti’ict of Kentucky must be analyzed.

The respondent implicitly concedes that authorization for Magistrates to hold evidentiary hearings on habeas corpus petitions is not found in subpart (3) of 28 U.S.C. § 636(b) (1973 Supp.) That section clearly limits the duties of a Magistrate to a review of habeas corpus applications “to facilitate the decision of the district judge having jurisdiction over the case as to whether there should be a hearing.” (Emphasis added.) 28 U.S.C. § 636(b)(3) (1973 Supp.) Respondent’s construction actually conflicts with the plain language of this subsection.

However, respondent relies upon language immediately preceding subpart (3) of Section 636(b) for authorization of evidentiary hearings by Magistrates. In introducing the explicitly granted powers of United States Magistrates, Congress stated:

“The additional duties authorized by rule [of a judicial district] include, but are not limited to— . . . . ” (Emphasis added) 28 U.S.C. § 636(b) (1973 Supp.).

From this language respondent deduces that Congress invested in extra-judicial officials trial powers which it had for so many years withheld. The inaccuracy of this deduction is manifest.

If Congress intended such a sweeping and far-reaching result certainly it would have indicated this clearly and positively within the body of the Magistrates Act of 1968. Cf., Buckeye Power, Inc. v. Environmental Protection Agency, 481 F.2d 162 at 168 (6th Cir. 1973).

More important, such an interpretation runs directly counter to the well-established doctrine of statutory construction denominated ejusdem generis. This doctrine directs that a general provision of a statute will be controlled and limited by subsequent statutory language more specific in scope. The Supreme Court in Foureo Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 228-229, 77 S.Ct. 787, 791-792, 1 L.Ed.2d 786 (1957), articulated the rule as follows:

“[T]he law is settled that ‘However inclusive may be the general language of a statute, it “will not be held to apply to a matter specifically dealt with in another part of the same enactment. * * * Specific terms prevail over the general in the same or another statute which otherwise might be controlling.” Ginsberg & Sons v. Popkin, 285 U.S. 204, 208, [52 S.Ct. 322, 323, 76 L.Ed. 704].’ MacEvoy Co. v. United States, 322 U.S. 102, 107 [64 S.Ct. 890, 894, 88 L.Ed. 1163].”

Therefore, although the Magistrates Act of 1968 provides that Magistrates are “not restricted to” the three powers explicitly outlined in the Act, by virtue of ejusdem generis those three powers are exclusive on the topics which they cover. Accordingly, insofar as habeas corpus is concerned, Magistrates have only the power to assist the District Judge in determining “whether there should be a hearing.” 28 U.S.C. § 636(b)(3) (1973 Supp.).

The legislative history of Section 636(b) of 28 U.S.C. supports this proposition. The original draft of the subsection in the Senate Bill provided that the Magistrate could give:

U
(3) preliminary consideration of applications for post-trial relief made by individuals convicted of criminal offenses.”

The Judicial Conference of the United States in September, 1966, sent to the Senate a report of its Committee on Criminal Law, which report it had adopted, and which stated as to Section 636(b):’

“The Committee is of the opinion that the enumeration of duties in Section 636(b) as now worded presents a delegation which is so broad in scope and so general as to make this subsection vulnerable to possible constitutional attack . . . .” (Hearings on S.3475 before the Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the Judiciary. 89th Cong., 2d Sess. (1966) at 241 n.)

In order to foreclose a broad interpretation of Section 636(b)(3) which would make it vulnerable to constitutional attack, the original Bill was amended and the phrase, “preliminary consideration of applications for post-trial relief” in the Bill was narrowed to “preliminary review” of the applications and the power and authority of the Magistrate was restricted to “submission of a report and recommendations to facilitate the decision of the district judge” only as to “whether there should be a hearing.” It was in this amended and narrowed form that the Act was passed by Congress.

Contemplating the possibility that this Court might reject its argument that a Magistrate has the power to conduct evi-dentiary hearings for habeas corpus, the respondent advances a second, alternative argument in support of the proceedings below. In its brief, respondent states:

“In the instant case, the testimony of the evidentiary hearing was electronically sound recorded. This enabled the Federal Judge to hear the testimony and give it de novo consideration as the petitioner, in this case, requested.
“The Federal Judge in this ease made an independent determination and accepted the proposed findings of fact and conclusions of law of the • magistrate as his own. The critical factor is this, the ultimate decision was made by the District Judge, not by the magistrate.”

To the extent that the respondent argues that the petitioner was given an evidentiary hearing “before a district judge” because he (the Judge) thereafter listened to a sound recording of the hearing before the Magistrate, we are not persuaded. With equal propriety it could be argued that any civil case could be heard by a Magistrate and the Judge could later decide the case by listening to the sound recording. The Magistrate would indeed become an Assistant Judge.

Rule 52(a) of the Federal Rules of Civil Procedure provides that a District Judge, sitting without a jury, is to make findings of fact and that these findings are not to be set aside by an appellate court unless they are clearly erroneous. The principle which underlies this rule was expressed by the Supreme Court in United States v. Yellow Cab Co., 338 U.S. 338, 341, 70 S.Ct. 177, 179, 94 L.Ed. 150 (1949), as follows:

“Findings as to the design, motive and intent with which men act depend peculiarly upon the credit given to witnesses by those who see and hear them.” (Emphasis added).

Deference is given to the factual findings of a trial judge because he has seen and observed the demeanor of the witnesses and their “[ojutward manner or comportment.” Webster’s New International Dictionary (2d ed. 1956). Listening to a sound recording of the testimony of a witness does not permit a Judge to see and observe the demeanor of witnesses and make credibility determinations therefrom.

Furthermore, it must be noted that an essential ingredient of a hearing before a Judge without a jury is the opportunity afforded to the Judge for questioning of witnesses. By his questioning of witnesses the Judge can clarify matters of evidence which are unclear; he can rule on objections made by the parties; and in the interest of justice he can make sure that both parties have had a fair hearing. By seeing and hearing the witnesses he will be in a much better position to make credibility determinations. Needless to say, the District Judge in this case could not ask questions of the sound recording. In our opinion, Wedding had the right to have his case heard by an Article III Judge.

In sum, petitioner did not have a hearing before a District Judge, either in form or in substance, as we ordered in our mandate.

In regard to the entire posture of this case, a recent admonition of this Court should be borne in mind. In Ingram v. Richardson, 471 F.2d 1268 (6th Cir. 1972), we stated:

“Crowded court calendars may be a problem in the United States District Court for the Eastern District of Kentucky. Reference of cases to Magistrates, however, is not the proper solution of the problem. . . . [T]he problem of a crowded docket must not be allowed to close the door to a litigant who has a statutory right of review by a court.” (Emphasis added). (471 F.2d at 1271).

We vacate the judgment of dismissal and remand the case with instructions that the Court itself hold an evidentiary hearing on petitioner’s constitutional claims.

In so doing, we are impelled to note that the phonographic record of the evidentiary hearing was made a part of the record to this Court, apparently in lieu of a transcript. Such procedure was unauthorized. It renders impossible a review by this Court of the record without listening to the sound recording, and it contravenes Rule 10 of the Federal Rules of Appellate Procedure and Rule 10 of this Court.

Vacated and remanded.

      . Because the Magistrates Act of 1968 cannot be interpreted to permit the adopted by the Western District of Kentucky, we need not decide whether it would be permissible constitutionally for Congress to invest power to hold habeas corpus hearings — 4n an official who is outside the pale of Article III of the Constitution. See, however, TPO, Inc. v. McMillen, 460 F.2d 348, 352-354 (7th Cir. 1972).

      . It would appear to us that it would take about the same amount of time for the District Judge to listen to the recording as it would require for him to preside at the evi-dentiary hearing.

      . In the Fifth, Second and First Circuits, habeas corpus cases have been referred to Magistrates for an evidentiary hearing, or the practice suggested in a remand of a Selective Service case. Gonzalez v. Zelker, 477 F.2d 797 (2d Cir. 1973) ; Johnson v. Wainwright, 456 F.2d 1200 (5th Cir. 1972) ; Parnell v. Wainwright, 464 F.2d 735 (5th Cir. 1972) ; United States v. King, 455 F.2d 345 (1st Cir. 1972). It appears from a reading of the opinions in these cases that no question as to the legality of reference was raised or passed upon by the Courts.


author: INGRAHAM, Circuit Judge:

text:
    James H. HEMPHILL, Plaintiff-Appellant, v. Caspar W. WEINBERGER, Secretary, Department of Health, Education and Welfare, Defendant-Appellee.
    No. 72-2584.
    United States Court of Appeals, Fifth Circuit.
    Sept. 14, 1973.
    Rehearing Denied Oct. 10, 1973.

      David W. Palmer, Crestview, Fla., for plaintiff-appellant.
    William H. Stafford, Jr., U. S. Atty., J. Worth Owen, Asst. U. S. Atty., Pensacola, Fla., for defendant-appellee.
    Before GOLDBERG, AINSWORTH and INGRAHAM, Circuit Judges.
   INGRAHAM, Circuit Judge:

James H. Hemphill appeals from the district court’s judgment which affirmed the final decision of the Secretary of Health, Education and Welfare denying him disability insurance benefits. Hem-phill filed his claim with the Social Security Administration in May 1968, asserting that he was totally and permanently disabled as of December 15, 1967. After the initial administrative determination that he was not disabled a de novo hearing was held before a hearing examiner. The hearing examiner likewise found that appellant was not disabled within the meaning of the Social Security Act, 42 U.S.C. § 423(d), as amended, and his decision became the final decision of the Secretary. Hemphill appealed to the district court, which subsequently remanded the case to the Secretary for clarification testimony as to appellant’s disability from Dr. Herman Schrieber, Jr. After receiving this testimony the hearing examiner again denied the claim. That decision became the final decision of the Secretary, and on appeal the district court upheld this conclusion by granting the Secretary’s motion for summary judgment.

The issue here is whether there is substantial evidence in the record as a whole to support the conclusion that Hemphill is not disabled as that term has been statutorily defined. Finding that there is such evidence in this record, we affirm.

In order to be eligible for disability insurance benefits a claimant must establish that he or she is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. . . .” 42 U. S.C. § 423(d)(1). Moreover, “an individual . . . shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.” 42 U.S.C. § 423 (d)(2)(A).

This Court’s role in the administration of Social Security disability benefits has been recently summarized in Rivas v. Weinberger, 475 F.2d 255, 257 (5th Cir., 1972), as follows:

“Our function in reviewing fact findings of the Secretary is limited to determining whether there is substantial evidence in the record, considered as a whole, to support them. 42 U.S.C.A. § 405(g); see Ward v. Celebrezze, 5th Cir. 1963, 311 F.2d 115, 116. Substantial evidence is ‘more than a scintilla, and must do more than create a suspicion of the existence of the fact to be established. “It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” and it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.’ Breaux v. Finch, 5th Cir. 1970, 421 F.2d 687; see 4 K. Davis, Administrative Law Treatise § 29.02 (1953).”

It is unnecessary to undertake a detailed summary of the evidence in this record in order to perform this function. Mr. Hemphill testified that if it were not for gout and arthritis he would still be working. Although the record establishes that he also suffers from hypertension, it is clear that his hypertension, standing alone, does not furnish a basis for concluding that he cannot engage in substantial gainful activity. The crucial issue is whether appellant suffers from gout or arthritis, or both, to a degree rendering him disabled under the statute. On this point there is conflicting evidence; the Secretary must resolve such conflicts. Payne v. Weinberger, 480 F.2d 1006 (5th Cir., 1973); Grant v. Richardson, 445 F.2d 656 (5th Cir., 1971).

Dr. Herman .Schrieber, Jr. a Board-certified orthopedist, found that Mr. Hemphill did suffer from “a bona fide case of gouty arthritis” and noted that “during attacks of acute gouty arthritis involving any joint, one can expect a patient to become completely disabled.” He continued, however, with the following statement: “There is good reason to state that in this case between the attacks the patient from the musculo-ske-letal point of view should be capable of a moderate amount of activity. I believe this patient is capable, therefore, of the usual amount of walking required of a man in his late 50’s and 60’s, including climbing stairs, ascending and descending steps and busses and driving his own motor vehicle. I think on a working basis, he is capable of a moderate amount of activity and on occasions even strenuous activities. I would expect that periodically this patient might indeed have an acute flare-up of gouty arthritis and that this should only temporarily prevent his gainful employment.” Dr. Schrieber also concluded that appellant did not suffer from a significant degree of arthritis apart from the gout. His conclusions were based on a physical examination of Mr. Hemphill, as well as, an examination of x-rays taken by a radiologist.

On remand, pursuant to the district court’s order, Dr. Schrieber testified in person and was subject to cross-examination by appellant’s attorney. In addition to reaffirming the statements made in his initial report, the doctor stated that he believed Mr. Hemphill “could do most things in a filling station with the exception perhaps of the most difficult, like changing a great truck tire without any mechanical aids.” This testimony is particularly damaging to appellant because he was working at a filling station prior to the alleged onset of his disability. And, in response to a question from appellant’s attorney concerning the type of work within Mr. Hemphill’s physical capabilities, Dr. Schrieber said that he could engage in “almost all sales activities such as working in clothing stores, hardware stores, and , grocery stores. For instance, if this man were required to work in a grocery store, I think he would be capable of stacking shelves. I think he could do .most activities at a service station. I think he’s capable of standing on his feet for a number of hours a day without severe pain on those days. I think he could drive a truck, a pick-up vehicle.”

Appellant argues that Dr. Schrieber’s testimony should be ignored because he only examined appellant from a muscu-lo-skeletal standpoint. The purpose of Dr. Schrieber’s examination was solely to determine whether appellant was disabled by his gout or arthritis. The hearing examiner did not rely on his testimony for any other purpose. As the district court recognized by its decision to remand the case for a more explicit statement of Dr. Schrieber’s views as to appellant’s disability, this case turns, as we have previously stated, on whether Mr. Hemphill is disabled because of the condition of his musculo-skeletal system.

Appellant relies on Williams v. Finch, 440 F.2d 613 (5th Cir., 1971), as authority for reversing the district court here. We held in Williams that there was not substantial evidence to support the Secretary’s denial of benefits, pointing out that “the salient feature of this case, which sets it apart from the usual Social Security disability case, is that there is no statement of record by any medical expert that claimant is not physically disabled.” Id. at 616 (emphasis in original). The Williams court also relied on the fact that the Division of Disability Operations of the Social Security Administration had rejected the claimant for vocational rehabilitation because of the severity of his disabling impairment. It is apparent that Williams is inappo-site to the facts here.

In conclusion there is evidence in this record from which a reasonable man could conclude that James H. Hemphill is not disabled within contemplation of the Social Security Act. We are therefore bound to affirm the district court’s judgment- upholding the Secretary’s decision to deny disability benefits to him.

Affirmed.

      . Mr. Hemphill’s testimony revealed that he had only quit driving a short period prior to the hearing because of an accident and not for physical reasons.

      . Appellant vigorously attacks the Secretary for failing to make certain factual findings. A review of the record leaves us convinced, however, that the hearing examiner made the necessary factual findings to support his conclusions and did not ignore or give insufficient weight to appellant’s evidence.


author: BELL, Circuit Judge: JOHN R. BROWN, Chief Judge SIMPSON, Circuit Judge, with whom JOHN R. BROWN, Chief Judge, WISDOM, GODBOLD and LEWIS R. MORGAN, Circuit Judges, CLARK, Circuit Judge, with whom GEWIN, THORNBERRY and INGRA-HAM, Circuit Judges,

text:
    Ralph H. LITTLEJOHN, Jr., Plaintiff-Appellant, v. SHELL OIL COMPANY et al., Defendants-Appellees.
    No. 71-2090.
    United States Court of Appeals, Fifth Circuit.
    Aug. 10, 1973.
    Certiorari Denied Dec. 17, 1973.
    See 94 S.Ct. 849.

      Jay M. Vogelson, Dallas, Tex., Thomas R. Hartnett, III, Irving, Tex., for plaintiff-appellant.
    William Simon, John S. Kingdon, Washington, D. C., Donald L. Case, Dallas, Tex., for Shell Oil Co.
    Khent H. Rowton, Dallas, Tex., for American Oil Co.
    Charles H. Gullett, Denison, Tex., for Sooner Oil Co.
    Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOD-BOLD, SIMPSON, MORGAN, CLARK, INGRAHAM and RONEY, Circuit J udges.

       Judges Goldberg, Ainsworth, and Dyer did not participate in the consideration of this case.

   BELL, Circuit Judge:

The judgment of the district court dismissing the claim asserted by plaintiff Littlejohn under § 2(a) of the Clayton Act as amended by the Robinson-Patman Act, 15 U.S.C.A. § 13(a), was reversed by a panel decision of this court. Littlejohn v. Shell Oil Company, 5 Cir., 1972, 456 F.2d 225. Upon consideration of the cause en banc, we vacate the panel decision for reasons to be hereinafter stated.

In sum, we affirm the ruling of the district court that it was without subject matter jurisdiction under the Act absent proof that at least one of each of defendants challenged sales transactions occurred in commerce. We disagree with the panel majority that the interstate sale requirement of the Act may be satisfied by showing the use of profits derived from interstate commerce to underwrite the local price cutting activity. To this extent, we are in agreement with the views of the dissenting members of the panel. We do agree, however, with the majority of the panel that the discovery proceedings were truncated, albeit inadvertently. We thus vacate the judgments of dismissal and remand with direction that plaintiff be allowed a reasonable period of time within which to complete his discovery but on conditions to be stated in Part III, infra.

Plaintiff alleged that he operated an independent gas station in Garland, Texas which is in the northern portion of Dallas County. He also alleged that defendants, through two other stations within one half mile of his station, one selling the products of Shell Oil Company and the other selling the products of American Oil Company, began to sell gasoline to the general public in June 1970 at prices reduced below his selling price although defendants were selling, respectively, Shell and American gasoline, to other dealers in the general Dallas area at normal prices. He alleged that the purpose of defendants in so doing was to drive him out of business and that he was, in fact, forced to close his station because he could not meet the competition engendered by the low prices being charged at the two stations.

The original complaint alleged that Shell and American were marketing gasoline in interstate commerce. There was no allegation, however, that the gasoline delivered to the Shell and American stations in the Dallas area had moved in interstate commerce, or that, with respect to each defendant, at least one sale in interstate commerce was involved. Some months later plaintiff amended his complaint to amplify on his original allegation that profits of defendants Shell and American, derived from their interstate operations, were used by each of them to support their acts of selling gasoline to plaintiff’s competitors at the two stations in question at lower prices than were being charged by them to other Shell and American stations in the Dallas area. The amended complaint alleged that Sooner, a Texas corporation with its principal place of business in Oklahoma, was engaged in interstate commerce and was also using its interstate profits to support the price cutting in question.

As distilled, we conclude that at this point, plaintiff had alleged a classic case of violation of § 2(a) by discrimination in sales at wholesale by sellers to their purchasers who competed with plaintiff, and with resulting injury to his business within the contemplation of § 4 of the Clayton Act. 15 U.S.C.A. § 15. See Fn. 3, infra.

Defendants duly answered. Meanwhile the district court conducted a pre-trial conference and became aware of the possible lack of subject matter jurisdiction in view of the absence of an allegation that, as to each defendant, at least one of the contended discriminatory sales was in interstate commerce. All parties filed briefs on the question. Plaintiff did not allege such interstate sales but relied instead, in the main, on “the use of interstate profits to underwrite” theory expressed in Moore v. Mead’s Fine Bread, 1954, 348 U.S. 115, 75 S.Ct. 148, 99 L.Ed. 145. Each defendant filed an affirmative defense on the ground that none of the sales were in interstate commerce and thus the issue was clearly drawn. The district court then granted summary judgment for each of the defendants on the basis of the absence of subject matter jurisdiction.

I.

In reaching decision on the Robinson-Patman Act coverage question which is presented, we must have in mind the difference between the reach of the Sherman Act, 15 U.S.C.A. §§ 1-4, and the reach of § 2(a) of the Robinson-Patman Act, 15 U.S.C.A. § 13(a). We pointed out the difference in Lehrman v. Gulf Oil Company, 5 Cir., 1972, 464 F.2d 26, 36-37, as modified on rehearing. There we quoted from Cliff Food Stores, Inc. v. Kroger, Inc., 5 Cir., 1969, 417 F.2d 203, 208-209, in saying:

“To maintain an action under Section 13(a) the plaintiff must allege and prove, inter alia: (1) That the defendant is engaged in commerce; (2) that, in the course of such commerce, the defendant has discriminated in price between different purchasers of commodities of like grade and quality; (3) that ‘either or any of the purchases involved in such discrimina tion are in commerce’; and (4) that there is likely to be a severe, adverse effect on competition. (Emphasis added.) 15 U.S.C. § 18(a). The language of Act — requiring discriminatory, sales to be ‘in commerce’ — is far narrower in scope than the ‘effect on commerce’ test applicable under the Sherman Antitrust Act. See, e. g., Foremost Dairies, Inc. v. FTC, 5th Cir. 1965, 348 F.2d 674; Jones v. Metzger Dairies, Inc., 5th Cir. 1964, 334 F.2d 919. In appropriate cases, the Sherman Act may be applied to intra-state activities, including retail sales, if they affect interstate commerce. See, e. g., United States v. Greater Kansas City Retail Coal Merchants’ Ass’n, W.D.Mo.1949, 85 F. Supp. 503. Under the terms of section 13(a), however, at least one of the sales alleged to be discriminatory must actually be in interstate commerce. Walker Oil Co. v. Hudson Oil Co., 5th Cir. 1969, 414 F.2d 588 [Dated July 8, 1969]. In Hiram Walker, Inc. v. A & S Tropical, Inc., 5th Cir. 1969, 407 F.2d 4 [Dated January 31, 1969], this Court stated:
“[I]n order to come within the provisions of the Robinson-Patman Act, the [plaintiff] must demonstrate that the discriminatory sales were ‘in commerce.’ * * *
Thus, the Robinson-Patman Act, is applicable only where the allegedly discriminatory transactions took place in interstate commerce. That is, <•* x- ieast one of the two transactions which, when compared, generate a discrimination must cross a state line.’
See also Borden Company v. FTC, 7th Cir. 1964, 339 F.2d 953;, Willard Dairy Corp. v. National Dairy Products Corp., 6th Cir. 1962, 309 F.2d 943.”

Taking the Lehrman opinion and the Cliff Food Stores language as a text, it. is plain that plaintiff failed to allege the sine qua non of subject matter jurisdiction, that at least one of the sales involved in the alleged discrimination by the defendants, i. e., between the defendants and their respective Dallas gasoline dealers, was in interstate commerce. This much is conceded by plaintiff.

II.

The question remains whether the holding of the Supreme Court in Moore v. Mead’s Fine Bread Company, supra, creates an exception to the statutory requirement that there be at least one discriminatory interstate sale.

It is here that we disagree with plaintiff and with the panel decision. The exception would purportedly rest on the theory of the discriminator using profits from interstate activities to underwrite the losses sustained in driving a competitor out of business through local price-cutting. There is a statement to this effect in Moore v. Mead’s Fine Bread, 348 U.S. at 119-120, 75 S.Ct. at 150. The statement has, however, generally been treated as dictum. See e. g., Cliff Food Stores, Inc. v. Kroger, Inc., supra, 417 F.2d at 209; Willard Dairy Corp. v. National Dairy Products Corp., 6 Cir., 1962, 309 F.2d 943; Central Ice Cream Co. v. Golden Rod Ice Cream Co., 7 Cir., 1961, 287 F.2d 265; Food Basket, Inc. v. Albertson’s, Inc., 10 Cir., 1967, 383 F.2d 785; Belliston v. Texaco, Inc., 10 Cir., 1972, 455 F.2d 175.

This view of the Moore v. Mead’s Fine Bread case follows from the facts of that case which demonstrate that the commerce requirements necessary to establish § 2(a) jurisdiction were satisfied, i. e., (1) the defendant was engaged in commerce; (2) the defendant had discriminated in price between different purchasers of commodities of like grade and quantity; and (3), that one of the purchases involved in such discrimination was in commerce. It is to be noted that proposition numbered (3) was not lacking. This much appears from a statement in the opinion. The price cutting against the competitor was in New Mexico but the discriminator was selling at a higher price in Texas out of its same New Mexico bakery. Moore v. Mead’s Fine Bread is a landmark case in that it explicated the coverage of § 2(a) to protect the competitor of a purchaser who purchased from one seeking to destory the competitor by price cutting. The case did not, however, alter or extend the specific jurisdictional requirements of § 2(a).

III.

Lastly, we come to the question whether plaintiff is precluded from further opportunity to allege and prove that at least one of the sales to be compared to show discrimination by one or more of the defendants was in interstate commerce. Ordinarily, summary disposition of antitrust cases is fraught with danger. Cliff Food Stores, Inc., supra, 417 F.2d at 205. But, as there, summary judgment may be appropriate where the facts involved in a determinative issue of law are clear, undisputed or unrefut-ed.

As was pointed out in the panel opinion, majority and dissenting opinions, 456 F.2d at 229, 231-232, plaintiff failed to counter the affidavits of defendants filed in support of their motions so as to make out a fact issue on the interstate sales question. See Rule 56(e), F.R. Civ.P., on the requirement to make a counter showing.

The problem is procedural. This case was handled procedurally in the latter-day trial concept of notice pleading, discovery, pre-trial conference or conferences, and motions, with a trial to follow only if all else fails. The fatality rate in summarily disposing of- litigation in this manner is high indeed, and largely the result of prematurity through inordinate attention to theories of law at a time when the facts have not been fully developed.

Here the legal theories going to jurisdiction were clear. The problem, known to all once issue was joined, was whether there had been interstate sales. The defendants were insistent that there had not been. Somehow, in addition to the usual prolix non-trial proceedings, here the case was bifurcated or at least disjointed to the extent that the court intended throughout to pass on the motions for summary judgment without regard to the ongoing discovery proceedings. Plaintiff’s position was that he could not show interstate sales without discovering the facts from defendants to show such sales. He filed requests for documents to this end. He requested that the court forego ruling on the motions pending the completion of discovery. The court did not rule on the request but granted the motions.

The matter is clouded by an out of court agreement recorded in a letter from counsel for American to the other counsel in the ease. Under the agreement, discovery was to be postponed pending the ruling on the motions for summary judgment.

There had been a previous letter agreement between the parties as to the order of discovery and this agreement was the result of a pre-trial conference in January. Defendants were to complete their discovery during March and April. Plaintiff was not to commence his discovery until March 1 and his request for documents was filed on March 1. On March 19 counsel for Sooner asked for a thirty day extension within which to comply with the request for production of documents on the ground that he was in the hospital. On March 23, counsel for American wrote the joint letter in question to plaintiff’s counsel, counsel for Shell, and counsel for Sooner, stating that they had discussed the matter of producing the documents a,nd, in substance, that the court would proceed to rule on the motions for summary judgment prior to compliance with the request for production. The difficulty for plaintiff is that the last paragraph of the letter stated that no production would be required as to any defendant who was dismissed on motion for summary judgment. Not a single document had been produced. The court granted summary judgment on April 28, 1971.

The question of foreclosing plaintiff by this letter addressed to his counsel is close. Out of an abundance of caution and to prevent a possible injustice, we conclude that Rule 56(f), F.R.Civ.P., is applicable in view of plaintiffs definite position, stated in writing by his counsel to the court, that he could not show interstate sales so as to support subject matter jurisdiction without being able to discover facts from the defendants, and his request to postpone adjudication until he could discover. Rule 56(f) provides :

“Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present bv affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.”

It is true that this representation was not in affidavit form by plaintiff in person but we think that the written representation by his lawyer, an officer of the court, is in the spirit of Rule 56(f) under the circumstances. Form is not to be exalted over fair procedures.

We thus vacate the summary judgments in favor of defendants but with the following caveat. Shell has contended by affidavit that its gasoline sold in the Dallas area came from Texas refineries. American states that it acquired the gas which it sold to Sooner in Dallas, and in turn sold to Sooner in Texas as jobber. Without more it would appear from these statements that plaintiff will be hard put to show interstate sales but we think that he should be given the opportunity to discover in an effort to make such proof. We hold however that his discovery must be limited in scope as follows: Plaintiff must first amend his complaint to specifically allege that at least one of the sales in question with respect to each defendant was in commerce, and his discovery must then be directed and limited to seeking proof in support of that jurisdictional allegation.

In addition to the alternative holding by the district court that plaintiff had no standing, discussed supra, there was another holding that plaintiff had failed to demonstrate injury. This holding was entirely premature and is vacated. The motions for summary judgment were limited to the subject matter jurisdiction question and, as has been stated, even these motions came on for disposition before plaintiff could have his day in discovery.

Affirmed in part; vacated in part; remanded for further proceedings not inconsistent herewith.

JOHN R. BROWN, Chief Judge

(concurring in part and dissenting in part):

I join in Judge Simpson’s opinion and thereby Part III of Judge Bell’s opinion.

I would add only that whether the panel could have reversed the case in view of the prior Fifth Circuit decisions, those decisions are wrong and, ought to be specifically overruled on the basis of Moore.

SIMPSON, Circuit Judge, with whom JOHN R. BROWN, Chief Judge, WISDOM, GODBOLD and LEWIS R. MORGAN, Circuit Judges,

join (concurring in part and dissenting in part):

I adhere to the views and holdings of my opinion for Judge Wisdom and myself, the majority of the panel by which this ease was originally decided. Little-john v. Shell Oil Company et al., 5 Cir. 1972, 456 F.2d 225.

On that basis, I concur in Part III of Judge Bell’s opinion for the en bane court, remanding this case to the district court to permit amendment to the plaintiff-appellant’s complaint and to allow him additional discovery from the defendants-appellees for the purpose of developing proof of one or more discriminatory sales in interstate commerce.

On the same basis, viz: the views expressed in my original panel opinion, I respectfully dissent from Parts I and II of the en banc court’s opinion by Judge Bell. I would continue to hold that Robinson-Patman subject matter jurisdiction was present by virtue of the allegations of the amended complaint that Shell Oil Company, American Oil Company and Sooner Oil Company used profits from interstate gasoline sales to underwrite discriminatory intrastate price-cutting tactics employed against Littlejohn, the plaintiff-appellant, without requiring any allegations that one or more discriminatory sales were in interstate commerce. As stated in the panel majority opinion, I construe this to be the teaching of Moore v. Mead’s Fine Bread Company, 1954, 348 U.S. 115, 75 S.Ct. 148, 99 L.Ed. 145.

CLARK, Circuit Judge, with whom GEWIN, THORNBERRY and INGRA-HAM, Circuit Judges,

join concurring in part and dissenting in part:

I concur without reservation in parts I and II of the majority opinion prepared by Judge Bell for the en banc court. I respectfully dissent from part III both because I believe it faults the district judge for what was a mistake in trial tactics which plaintiff now wants to second guess and because it undercuts Fed.R.Civ.P. 56.

Since Judge Coleman’s dissent to the panel opinion deals in detail with the actions of counsel and the chronological context into which the procedural question is cast, it is unnecessary to do more here than touch the high spots. Plaintiff’s only indication to the court that he needed to pursue discovery to defend against the motions for summary judgment was couched in the vaguest possible terms. It was contained in his initial responsive pleading to the motions and was in this language:

Plaintiff would suggest that consideration by the Court of summary judgment motions at this early stage of the litigation is premature. The facts related to subject matter jurisdiction are certainly not before the Court in any complete fashion. Plaintiff has just recently initiated discovery with respect to jurisdictional facts by service on the Defendants of Requests for Production of Documents Related to Subject Matter Jurisdiction pursuant to F.R.C.P. 34. (Emphasis added)

Following this pleading all counsel reached an agreement which was cast into the form of a letter, a copy of which was delivered to the court. This letter agreement unqualifiedly provided that no discovery would proceed until after the court’s rulings on the then pending motions for summary judgment had been resolved. A copy of this letter is set out in the margin. Suffice it to say that at least the trial court could reasonably have thought all counsel were then requesting that he proceed to rule on the summary judgment motions without awaiting the results of discovery.

Rule 56(f) is precise and unequivocal. A party who opposes a motion for summary judgment but cannot supply the factual basis for his opposition without the aid of discovery must make his problem known to the court by an affidavit. It is unnecessary here to reach the issue as to whether 56(f) mandates that the showing be under oath, since the substance of what was initially disclosed was so equivocal, and since even this equivocation was wholly destroyed by the later agreement to forgo discovery.

The plaintiff simply failed to comply with the spirit or the letter of this part of the Rule.

It well may be that a trial court might choose to overlook such a serious procedural shortcoming or a tactical agreement which hindsight has shown to be bad. Clearly, that court could determine that a just presentation of the issues of a particular case required further pursuit of discovery processes notwithstanding the fact that all counsel may agree not to follow such a course. However, no such broad prerogative properly appertains to an appellate court. Subject to rare exceptions calling for supervisory intervention (which does not extend to adjudging that a trial court has abused its discretion when it does no more than honor an agreement of counsel to postpone discovery), this court’s function is to correct the errors of judges not lawyers.

I would affirm every aspect of this case.

      . Title 15 U.S.C. § 13(a) in pertinent part provides:
      “It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them. ...” (Emphasis added)

      . Sooner Oil Company was joined as American’s jobber in the Dallas area.

      . We put aside the alternative theory of the district court that the plaintiff was not possessed of standing under § 2(a) to sue. The reasoning was that the purpose of § 2(a) was to prevent injury to purchasers from the discriminatory pricing policies of the same seller. This is only one purpose of the Act. It is set-ted that the Act also grants protection to a competitor whose business is injured by the discriminatory pricing policies. Utah Pie Company v. Continental Baking Company et al., 1967, 386 U.S. 685, 87 S.Ct. 1326, 18 L.Ed.2d 406; Moore v. Mead’s Fine Bread, supra. See history of Act in Federal Trade Commission v. Anheuser-Busch, Inc., 1960, 363 U.S. 536, 80 S.Ct. 1267, 4 L.Ed.2d 1385.

      . It is not conceded that facts which might be discovered would not be sufficient to prove one or more interstate sales and thus support an amendment to the pleadings, or that it was necessary, under notice pleading concepts to allege more than jurisdiction generally under § 2(a) as was done.

      . The panel opinion in Littlejohn has attracted the attention of the case note writers. See in support of the panel opinion, 41 Cincinnati L.Rev. 689. Contra, 86 Harv.L.Rev. 765. Dubitante, 26 Vand. L.Rev. 146, 4 St. Mary’s L.J. 204.

      . “The intent of the Parties to said suit is that a Defendant with respect to which Plaintiff’s suit is dismissed upon the Motions now before Judge Hill shall be required to produce nothing and object to nothing. Defendants with respect to which the Plaintiff’s suit is not so dismissed shall comply with Plaintiff’s Requests for Production of Documents and/or objects to all or part thereof in the manner stated above.”

      . § 2(a) of the Clayton Aet as amended by the Robinson-Patman Act, 15 U.S.C. § 13(a).

      . Re: Agreement as to Time for Objecting to or Complying with Plaintiff’s Requests for Production of Documents in CA-3-4195-B Littlejohn v. Shell Oil Company et al.
      Gentlemen:
      I am writing to set forth our agreement with respect to the Requests for Production of Documents (“Requests”) pursuant to Fed.R.Civ.P. 34 served by the Plaintiff in the above styled and numbered cause upon Defendants Shell Oil Company, The American Oil Company and Sooner Oil Company in the latter part of February, 1971. As you know, all three Defendants in said Cause filed Motions for Summary Judgment and oral motions under Fed.R.Civ.P. 12(b) which are now pending before Judge Hill.
      I have discussed the matters hereinafter set forth with each of you with the exception of James C. Hamill, Esq., attorney for Sooner. I have talked to Kenneth Mayfield, Esq., an attorney in Mr. Hamill’s firm who is in contact with Mr. Hamill and who has confirmed that Mr. Hamill approves the terms of our agreement and that Sooner will comply therewith. Each of you and I agree to the following procedure as to the timing for objecting to and/or complying with the Requests of the Plaintiff:
      1. If the Court overrules any of the three Defendants’ Motions for Summary Judgment or motions under Fed. R.Civ.P. 12(b), thus leaving one or more Defendants before the Court in said Cause, then, each of such Defendants still before the Court after such ruling shall:
      (a) File in writing any objections such Defendant may have to Plaintiff’s Request for Production of Documents served upon it within seven (7) days after the entry of the Court’s Order so overruling such Defendant’s Motions; and
      (b) Within thirty (30) days after the entry of the Order so overruling such Defendant’s motions, comply with Plaintiff’s Request for Production of Documents with respect to all of the items enumerated in such Request which the Defendant does not object to within seven (7) days (as set forth above) in accordance with the Federal Rules of Civil Procedure.
      2. If the Court sustains any of the Defendants’ motions, thus dismissing Plaintiff’s claims against the same so that such Defendant is no longer before the Court after such ruling, then the Defendant or Defendants so situated shall be under no obligation or duty to comply with Plaintiff’s Requests for Production of Documents in any manner.
      The intent of the Parties to said suit is that a Defendant with respect to which Plaintiff’s suit is dismissed upon the Motions now before Judge Hill shall be required to produce nothing and object to nothing. Defendants with respect to which the Plaintiff’s suit is not so dismissed shall comply with Plaintiff’s Requests for Production of Documents and/or object to all or part thereof in the manner stated above.


author: TRASK, Circuit Judge: KOELSCH, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Paul EWBANK, aka “Pablo”, Defendant-Appellant.
    No. 73-1331.
    United States Court of Appeals, Ninth Circuit.
    Aug. 16, 1973.
    Rehearing Denied Oet. 3,1973.
    John A. Hoskins (argued), Honolulu, Hawaii, for defendant-appellant.
    Thomas P. Young, Asst. U. S. Atty. (argued), Robert K. Kukuda, U. S. Atty., Honolulu, Hawaii, for the plaintiff-ap-pellee.
    Before KOELSCH, WRIGHT and TRASK, Circuit Judges.
   TRASK, Circuit Judge:

Paul Ewbank, also known as “Pablo”, appeals from his conviction by the court, sitting without a jury, of the charge of distributing hashish oil, a controlled substance, in violation of 21 U.S.C. § 841(a)(1). Appellant admitted that he sold two vials of hashish oil on Feburary 16, 1972, to Special Agent Robert Aiu in the presence of an informer, Kerry R. Lee, for $400. He relied upon the defense of entrapment.

In support of his theory, appellant testified concerning his association with Kerry Lee, the informer. This testimony was not disputed. Appellant met the informer in June 1971, when the informer rented a room for a short time in appellant’s house. Then, as appellant testified, Lee attempted through a series of acts to involve appellant, an admitted user, in a sale. Beginning in August 1971 Lee made efforts to purchase marijuana and hashish from’ appellant. He was unsuccessful. On several occasions Lee took appellant and his wife to dinner and gave marijuana and hashish to appellant. He made proposals to appellant to engage in business ventures involving the acquisition and sale of heroin, marijuana and hashish. Appellant refused. He offered appellant a chance to smuggle cocaine from South America which appellant declined. Lee then began to pressure the appellant to obtain drugs from appellant’s sources for him, as a personal favor. Again, the appellant refused. The informer then asked appellant again as a personal favor, if he could obtain any kind of drug for informer’s friend. Appellant stated that he could not. However, after about a week, appellant located a source and told him about Lee’s efforts to obtain drugs. The source was a person named Ray Clark who had two vials of hashish oil for sale. Clark was a friend of appellant and needed some money in order to return to the mainland. Appellant testified that Clark left the hashish with him to complete the sale. This was done.

After hearing all of the testimony, the court in announcing its decision said:

“Ewbank, from his testimony, indicated that he wasn’t going to be taken in by this Kerry Lee, the informant. I think it is clear from his testimony that the only reason he made this sale to Kerry Lee was because he was trying to do a turn to Clark, who had come to him to get rid of this oil. Of course, that wouldn’t bring him within the protection of the doctrine of entrapment, giving him all the benefit of the doubt that this was the reason he sold. He was selling it to help Clark out. This was not a case where Kerry Lee was on his knees saying, T need this stuff. You want to get it for me.’ Here was a case in which Clark said, T need money. I have got this oil. I want to see if you can get rid of it for me.’ ”

The law of entrapment in the Ninth Circuit has most recently been discussed by Judge Hamley in United States v. Granger, 475 F.2d 1022 (9th Cir. 1973). There he noted that with two exceptions this circuit has consistently applied the “Predisposition Theory” of entrapment as adopted in Sorrells v. United States, 287 U.S. 435, 453, 53 S.Ct. 210, 77 L.Ed. 413 (1932), and in Sherman v. United States, 356 U.S. 369, 378, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958). Of the exceptions commented upon, United States v. Russell, 459 F.2d 671 (9th Cir. 1972), has been further limited by the discussion in its reversal by the Supreme Court, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (April 24, 1973).

We agree with appellant here that this is not a predisposition case in the sense of Russell where the evidence clearly disclosed that appellant had actually been engaged in the criminal activity for which he was convicted prior to the time the government came upon the scene.

The fact that appellant here was involved in the drug culture, according to his own admission to being a user, does not establish that he was also a predisposed seller or distributor within the meaning of the crime of which he was convicted. But to establish that there was entrapment he must be able to convince the trier of fact that governmental activity in fact occui’red which lured him as an otherwise innocent victim to the commission of crime by repeated and persistent solicitation. In Sorrells, supra, the trial court refused to submit this question to a trier of fact (a jury) in the face of evidence of such solicitation. This was error. In Sherman, supra, the Court found entrapment as a matter of law where the defendant, an addict, succumbed to entreaties of a fellow addict to sell drugs to him to relieve his craving.

The difficulty with the case of the appellant here is that he has not, by his own self-serving testimony, though it is undisputed, convinced the trier of fact that the requisite government intervention by persuasion, entreaty or blandishment was the reason for the sale which admittedly occurred.

The appellant related all of the occasions when the informer had importuned him and heaped favors upon him. Despite these numerous efforts by the informer, appellant had consistently refused to make or arrange sales to the informer or his friends. Appellant then went on to testify that it was only when appellant’s own friend, Clark, who was not connected with the government, desired to make a sale that he loaned his services to the extent of making the sale himself. Not surprisingly, Clark was never produced nor was any other corroboration for the story involving him. The trial court which heard this rather strange tale was convinced “that the only reason he made this sale to Kerry Lee was because he was trying to do a turn to Clark who had come to him to get rid of this oil.”

The dissent characterizes the decision of this experienced district judge and the majority’s affirmance as a “hairsplitting” rejection of that part of the testimony describing what had transpired over previous months. On the contrary, the court did consider it and pointed out that it proved that “Ew-bank, from his testimony, indicated that he wasn’t going to be taken in by this Kerry Lee, the informant.” The inducing cause of the sale was the request that came from Clark, not from Lee. Clark needed money and it could as well have come from anyone else as from Lee. The trial court from Ewbank’s own testimony could have found that Clark, or Ewbank on Clark’s behalf, was just as willing to sell to anyone. Lee furnished the market but not the inducing cause of the sale. As an inducing or motivating cause of sale, Lee had consistently failed.

As the dissent points out, there is testimony from appellant (under some rather leading questioning) that he made the sale only to help the government informer by a sale to the informer’s “friend.” But what the dissent fails to consider in this case is that it is for the trial judge who has seen the witness and heard him testify, to assess his credibility and resolve questions of fact. United States v. Hodas, 467 F.2d 211 (9th Cir. 1972). Apparently the trial court did not believe this self-serving testimony. Although the burden is upon the government to prove absence of entrapment beyond a reasonable doubt, on a trial to the court we may presume that the court applied the proper standard in evaluating the rather bizarre tale of the appellant. Hodas, supra. As required by Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), we must support the court’s judgment if the evidence justifiably leads to that conclusion. It is not our function to reverse because we might have decided differently had we been required to do the hairsplitting, or evidence evaluation or decision making. We must affirm unless the trial court’s fact determination is “clearly erroneous.” Fed.R.Civ.P. 52. We cannot say that it was.

Judgment affirmed.

KOELSCH, Circuit Judge

(dissenting) :

The court’s decision is a sorry one. To set out the evidence verbatim would, I suppose, unduly lengthen this dissent. So I will content myself, for the most part, with a long résumé of the highlights, giving due regard to the teachings of Glasser. But if I understand correctly the teachings of Sorrells, Sherman and, most recently, Russell, this record affirmatively establishes a complete absence of criminal predisposition on the part of Ewbank — it fairly shrieks of entrapment.

Lee was not simply an “informer”; he was paid by the government to ferret out crime, but here by his unconscionable and unlawful methods he created one.

In this instance his efforts were not immediately capped with success. To the contrary, because Ewbank proved to be a most reluctant subject, they were pursued practically continuously over a period in excess of six months. Nor did they consist merely of repeated requests to sell Lee marihuana or drugs — -but they included incidental behavior cleverly calculated to wear down Ewbank and hence “to trap the unwary innocent.”

Lee first appeared on the scene in June, 1971, when he went to Ewbank’s home and rented a room. He represented himself as a dealer in narcotics and shortly left for Honolulu ostensibly to transact some such business. Upon returning in August he approached Ew-bank with the first of a series of requests to purchase marihuana or hashish.

During the ensuing weeks Lee was a frequent visitor at the Ewbank home and sometimes was an overnight guest. On several occasions he not only entertained Ewbank and his wife at dinner but also gave to them hashish and marihuana. However, Ewbank invariably rejected all Lee’s requests to sell. But Lee persisted.

In November he again rented a room and himself offered to sell Ewbank hashish. Meeting with no success he resumed his practice of entertaining the Ewbanks and giving them marihuana. In addition he proposed to Ewbank that the two join forces and using his connections secure and smuggle illicit drugs into the United States from South America. Ewbank again stood firm. However, in February of 1972 Lee renewed his attempts. He called Ewbank nearly every day, the last several times giving a story about his need of any drug “for a friend.” Un February 16 Ewbank finally succumbed and made the sale for which he stands convicted. It is little wonder that he eventually did so: “The ring on the finger becomes thin by wearing, the fall of dripping water hollows the stone.”

We are told on the highest authority that “artifice and stratagem may be employed to catch those engaged in criminal enterprises” and that merely “to afford such persons opportunities or facilities for the commission of the offense does not defeat the prosecution,” (Sor-rells v. United States, 287 U.S. 435, 441, 53 S.Ct. 210, 77 L.Ed. 413 (1932)); however, as aptly stated in the leading case of Butts v. United States, 273 F. 35, 38 (CCA 1921) a decision quoted and approved in Sorrells,

“(t)he first duties of the officers of the law are to prevent, not to pupish crime. It is not their duty to incite to and create crime for the sole purpose of prosecuting and punishing it. Here the evidence strongly tends to prove, if it does not conclusively do so, that their first and chief endeavor was to cause, to create, crime in order to punish it, and it is unconscionable, contrary to public policy, and to the established law of the land to punish a man for the commission of an offense the like of which he had never been guilty in thought or in deed and evidently never would have been guilty of if the officers of the law had not inspired, incited, persuaded, and lured him to attempt to commit it.”

The judgment ought to be reversed.

      . United States v. Tatar, 439 F.2d 1300, 1302-1303 (9th Cir. 1971) ; United States v. Walton, 411 F.2d 283, 288 (9th Cir. 1969).

      . United States v. Russell, 459 F.2d 671 (9th Cir. 1972), reversed, 411 U.S. 423, 93 S.Ct. 1637, 36 U.Ed.2d 366 (April 24, 1973) ; Greene v. United States, 454 F.2d 783 (9th Cir. 1971).

      . He testified that the price for the amount of hashish sold was $400. He passed on $400 to Clark. Clark gave him back $22 and a small portion of oil.

      . This court accepts as correct the district judge’s appraisal of Ewbank’s testimony concerning Clark and apparently the conclusion that “I think it is clear from his [Ewbank’s] testimony that the only reason he made this sale to Kerry Lee [Agent Aiu?] was because he was trying to do a turn to Clark who had come to him to get rid of this oil.”
      1 must confess to a lack of the trial judge’s ability — apparently shared by my brothers — to split hairs and reject as wholly immaterial all that had transpired over the months that had preceded this single sale. But more important, as I read the record it is completely barren of any proof to support the trial judge’s factual determination that Ewbank’s sole motivation was that “he was trying to do a turn to Clark. . . . ” If it shows anything it shows that Ewbank was doing “a turn” for Lee. Here is the entire record on the subject:
      “Q. Do you know someone named Ray Clark?
      A. Ray Clark is a man I met at Baldwin Beach approximately February 13th. He was camping on the beach. He said he needed a place to stay for approximately a few days until he could get back to the Mainland. He came up to my house and had two ten millimeter vials of hashish oil. He said he needed to sell them to get him and his wife back to the Mainland.
      Q. AVhat did you say to Mr. Clark?
      A. I told him about Kerry’s call and his friends coming from Kauai and if Kerry called, I would put them in touch with each other.
      Q. AVere you going to buy the hashish oil from Ray Clark and sell it to Kerry Lee?
      A. No. I was just trying to put them both together so they could take care of it.
      Q. Did Kerry Lee contact you again subsequently to your meeting with Mr. Clark?
      A. On approximately February 15th or 14th, he called and asked about any kind of drugs he could get for his friend. I told him about Ray being here. He said his friend from Kauai had not come and he would have to wait; he would call back later. I told him—
      THE COURT: This friend from Kauai did not come?
      THE AVITNESS: No, not on that particular day.
      Q. (By Mr. Hoskins) All right. Following this call from Kerry Lee, 'what did you say next to Ray Clark?
      A. I told Ray that Kerry would be interested in the oil but was not ready to purchase it. Ray said he would leave the oil in the house in case Kerry came by. Kerry called approximately February 15th and said his friend was coming the next day from Kauai.
      Q. All right. AVhat happened on the 16th?
      •A. February 16th, in the late afternoon, Kerry called and said his friend was in. I was alone in the house with Larry Walker and myself. I told him Ray was not at home, but the oil was here. He came up to the house with the agent and purchased the oil.
      Q. Did the agent ask about the possibility of buying further quantities of the substance?
      A. Yes.
      Q. AVhat did you say?
      A. I said it had come from the West Coast and there was not any more.
      Q. Then what happened?
      A. The agents left.
      Q. What did you do with the money?
      A. I put it in Ray’s room where he was staying and waited for him to return.
      Q. And, did you keep any of that money?
      A. I gave all of it to Ray. He in turn, gave me $22 and a small amount of oil.
      Q. Did you ask Ray to pay you for your services?
      A. No.
      Q. Did you expect to be paid for your services?
      A. No, I didn’t.
      Q. Did you keep the $22 that he gave you?
      A. Yes, I did.
      Q. Do you know why he gave you $22?
      A. He said he needed the rest of the money to get back to the Mainland with his wife.
      * * * » *
      Q. Mr. Ewbank, why did you sell the hashish oil to Mr. Aiu on February 16, 1972?
      A. I had known Kerry for approximately eight months. And, in that time he had been asking me to do smuggling and tilings involving big money making, things I was very afraid of; and, I had never dealt in narcotics. At the time I felt obligated to him to do the favor for him. He said it was a personal smoking arrangement with his friend that he had known for a long time. It’s the only reason I would have done it.
      Q. So, prior to February 16, 1972, had you sold narcotics to anyone else?
      A. Never.”