author: BENNETT, Judge.

text:
    NORTHWEST MARINE IRON WORKS v. The UNITED STATES.
    No. 148-73.
    United States Court of Claims.
    Feb. 20, 1974.

      Francis T. Greene, Washington, D.C., for plaintiff. Joseph J. Brigati, Washington, D..C., attorney of record, for plaintiff.
    Alfred H. O. Boudreau, Jr., Washington, D.C., with whom was Acting Asst. Atty. Gen. Irving Jaffe, for defendant.
    Before NICHOLS, KASHIWA and BENNETT, Judges.
   ON DEFENDANT’S MOTION TO DISMISS OR TO TRANSFER

BENNETT, Judge.

This case arises from a Government contract between plaintiff, Northwest Marine Iron Works, Inc., a corporation organized and existing under the laws of the State of Oregon, and the Naval Ship System Command of the Department of the Navy. The contract called for the “activation, repair and conversion” by plaintiff of a Navy vessel from a troop transport to a fleet ballistic missile tracking ship. As such, the contract was one for “repair” and not “construction” and, thus, was essentially maritime in nature. New Bedford Dry Dock Co. v. Purdy, 258 U.S. 96, 99-100, 42 S.Ct. 243, 66 L.Ed. 482 (1922) ; Tucker v. Alexandroff, 183 U.S. 424, 438-439, 22 S.Ct. 195, 46 L.Ed. 264 1902. This court does not have maritime jurisdiction but plaintiff argues upon authority that nonmaritime portions of maritime contracts may in some situations be severed and considered by the Court of Claims. In other words, plaintiff says that it is the nature of the controversy and not the nature of the underlying contract that determines whether admiralty jurisdiction exists. Plaintiff says that its claim is severable from the maritime contract to which it was a party and that we have jurisdiction under the Tucker Act, 28 U.S.C. § 1491.

The actual matter here in controversy arises from an Armed Services Board of Contract Appeals (ASBCA) decision denying plaintiff reimbursement for insurance premiums which, according to plaintiff, the Government was obligated to assume under the “insurance” clause, general provision 9(a) of the • contract.

Following denial of plaintiff’s claim by the ASBCA, plaintiff filed this action under the second section of the Wunderlich Act, 41 U.S.C. § 322. Defendant, thereafter, filed a motion to dismiss the petition on the ground that the court lacks jurisdiction over the subject matter of the suit, or, in the alternative, to transfer the petition under 28 U.S.C. § 1506 to a federal district court having maritime jurisdiction. We transfer since we conclude this court has no jurisdiction of the claim.

General provision 9(a) of the contract provided as follows:

9. INSURANCE — PROPERTY LOSS OR DAMAGE — LIABILITY TO THIRD PERSONS. — (a) The Contractor shall not, unless otherwise directed in writing by the Department, carry or incur the expense of, any insurance against any form of loss or damage to the vessels or to the materials or equipment therefor to which the Government has acquired title or which have been furnished by the Government for installation by the Contractor. The Government assumes the risks of loss of and damage to the vessels and such materials and equipment which would have been assumed by the underwriters if the Contractor had procured and maintained throughout the term of this contract, on behalf of itself and the Government, insurance with respect to the vessels and such materials and equipment for full value against pre-keel and post-keel laying risks (i) under the forms of Marine Builders Risk (Navy Form-Syndicate) policy, including the rider attached to the “Free of Capture and Seizure” clause thereof, and War Damage policy, both as set forth in the pamphlet entitled “Standard Forms of Marine Builders Risk (Navy Form-Syndicate) and War Damage Insurance Policies referred to in Vessel Contracts of the Naval Ship Systems Command,” dated 23 November 1942; or (ii) under any other policy forms which the Insurance Branch, Headquarters, Naval Material [Materiel] Command, of the Department shall determine were customarily carried or would have been customarily carried by the Contractor in the absence of the foregoing requirement that the Contractor not carry or incur the expense of insurance; provided, that the Government does not assume any risk with respect to loss or damage compensated for by insurance or otherwise or resulting from risks with respect to which the Contractor has failed to procure or maintain insurance, if available, as required or approved by the Department. * * *. [Appeal of Northwest Marine Iron Works, Inc., ASBCA No. 16350, 73-1 BCA fl 9902 at 46,347.] -

The parties agree that it is the language of this section which is determinative of the dispute in this case. Plaintiff contended before the Board of Contract Appeals and before this court that general provision 9(a) imposed upon the Government a duty either to provide or to procure the types of insurance customarily carried by plaintiff under similar contracts. Plaintiff had carried Ship Repairer’s Legal Liability (SRLL) insurance on all its commercial and Government ship repair and conversion contracts since January 1, 1967. Plaintiff did not include the cost of such insurance in its bid price since it believed it would be found to have “customarily carried” such insurance for purposes of general provision 9(a). The premiums payable on plaintiff’s SRLL policy were based on a rate-times-gross-receipts formula. Plaintiff normally included in its bids a factor representing this formula in order to cover the cost of the SRLL premium allocable to the contract. Plaintiff contacted the Government shortly after it entered into the contract in order to determine for certain whether defendant would act as a self-insurer or whether it would direct plaintiff to procure SRLL insurance. Plaintiff felt such insurance was essential and intended to continue to carry its SRLL insurance unless the Government informed it of its intention to provide such coverage as a self-insurer. The Government responded to plaintiff’s inquiry on May 14, 1970, more than 5 months after plaintiff’s initial inquiry. In its response, the Government denied responsibility for SRLL coverage. Plaintiff accordingly continued to carry such insurance and later brought action for a constructive change to the Board of Contract Appeals. The board found that plaintiff’s SRLL coverage was “considerably broader than the SRLL coverage usually maintained by ship repairers,” 71-1 BCA at 46,348, and that the Government was not obligated to assume such risk under the insurance clause of the contract. Equitable adjustment was denied. Plaintiff now brings suit in this court alleging that the board made an error of law in its interpretation of general provision 9(a) of the contract and that the decision lacks finality under 41 U.S.C. § 322.

In its argument, plaintiff calls the court’s attention to dicta in D. C. Andrews & Co. v. United States, 124 F.Supp. 362, 363, 129 Ct.Cl. 574, 576 (1954). In that decision, this court noted that “contracts to procure insurance for a vessel are non-maritime and not cognizable in a court of admiralty.” [Emphasis in original.] This distinction, between a contract to procure insurance and a contract of insurance, was first set out in Marquardt v. French, 53 F. 603 (S.D.N.Y.1893). There, the court dismissed an action brought in admiralty on the ground that it concerned a contract to procure insurance and not a contract of insurance. The court drew its distinction as follows:

* * * The contract of insurance, indeed, is a maritime contract, and as such is within the jurisdiction of an admiralty court. But a contract or obligation to procure insurance, such as I find this obligation to have been, is not a contract of insurance, nor is it a maritime contract. * * *. [53 F. at 606.]

Plaintiff makes its argument with full knowledge of the rule set out by the court in Alaska Barge & Transport, Inc. v. United States, 373 F.2d 967, 179 Ct.Cl. 216 (1967). In that case, Chief Judge Cowen, speaking for a unanimous court, detailed the procedure this court must follow in cases similar to the present one. The Chief Judge wrote that:

* * * Whenever presented with a threshold question as to the propriety of our adjudicating a claim having maritime elements, it is our responsibility to view the facts as would a court of admiralty. If admiralty jurisdiction is found to exist, then we must transfer the case to its proper forum. Act of September 13, 1960, 74 Stat. 912, 28 U.S.C. § 1506. It is only where a district court would not assume jurisdiction under the Suits in Admiralty Act that we may justifiably permit the claim to be litigated here [footnote omitted]. [179 Ct.Cl. at 220, 373 F.2d at 970.]

The same rule was expressed a few years earlier by Judge Madden in Skibsaktieselskapet Eiljestad v. United States, 180 F.Supp. 957, 958, 149 Ct.Cl. 141, 143 (1960):

If the claim may be sued upon in a Court of Admiralty, this court does not have jurisdiction to entertain it, even though it is a claim otherwise included within the language of the statutes defining this court’s jurisdiction. * * *

Accordingly, before this court can reach the merits of plaintiff’s Wunderlich Act claim it must first determine whether its jurisdiction extends to cover this controversy. To do this, it is necessary to look closely at the language of general provision 9(a) in order to determine whether that section evidences a contract “to procure or provide” insurance, as plaintiff contends it does, or whether that section merely details, as defendant contends, a contract of insurance. If defendant is correct in its assertion, this case will have to be dismissed or transferred pursuant to 28 U. S.C. § 1506.

For reasons hereafter set out, we reach the following conclusions: first, that general provision 9(a) evinces a contract of insurance in that the Government agreed to act as a self-insurer for purposes of this contract; second, that no contract to procure or provide insurance was ever contemplated or entered into by the parties; third, that this court lacks jurisdiction of the case; and, fourth, that the matter should be transferred to a federal district court having maritime jurisdiction, 28 U.S.C. § 1506; see Buck Kreihs Co. v. United States, 427 F.2d 770, 772, 192 Ct.Cl. 297, 301 (1970), for such resolution on the merits, if any, as that court may deem appropriate in admiralty.

Plaintiff contended in its brief and at oral argument that the Government obligated itself to act as a self-insurer, then refused to do so, forcing plaintiff to purchase SRLL insurance privately. This argument implies that SRLL insurance was necessary for a contract such as the one applicable in this case. This interpretation, however, is incorrect. Nowhere in general provision 9(a) is there any language obligating the Government to provide particular types of insurance to protect plaintiff. Rather, general provision 9(a) clearly and unequivocally evidences the Government’s intention to provide insurance coverage itself by acting as a self-insurer on the contract. The first sentence of general provision 9(a) provides that:

The Contractor shall not, unless otherwise directed in writing by the Department, carry or incur the expense of, any insurance against any form of loss or damage * * [73-1 BCA at 46,347.]

The second sentence is just as explicit. It provides that:

* * * The Government assumes the risks of loss of and damage to the vessels * * * which would have been assumed by underwriters * * * (i) under the forms of Marine Builders Risk * * * policy, * * * or (ii) under any other policy forms which the Insurance Branch, Headquarters, Naval Material [Materiel] Command * * * shall determine were customarily carried or would have been customarily carried by the Contractor in the absence of the * * * requirement that the Contractor not carry or incur the expense of insurance; * * *. [Emphasis added.]

The only possible legal conclusion which can be drawn from the above-quoted language is that the Government, acting as a self-insurer, directed its contractor not to incur any insurance obligations without specific written authorization. The Government explicitly covenanted that it would provide insurance coverage necessary under the contract and nothing in the record indicates otherwise. Plaintiff’s argument that the SRLL policy was necessary for complete insurance protection in this case flies in the face of the language of the general provision instruction that plaintiff not incur any insurance obligations “unless otherwise directed in writing * * *.” That clause can only be interpreted as establishing a condition precedent without which plaintiff could not have incurred reimbursable, expense for SRLL coverage under the contract. Plaintiff’s interpretation renders the provision for a Government determination meaningless, as the board decision said:

* * * Under appellant’s interpretation, the Government would be obligated to act as insurer with respect to any risks customarily covered by appellant’s insurance regardless of whether the Government had made any determination that it intended to act as an insurer with respect to those risks, or even had knowledge of the risks. We consider such an interpretation to be unreasonable and inconsistent with the terms of the clause. [73-1 BCA at 46,353.]

Plaintiff’s argument also ignores another condition precedent found in the “customarily carried” language of clause 9(a) (ii). Plaintiff appears oblivious to the requirement that the “Insurance Branch, Headquarters, Naval Material [Materiel] * * * shaU determine * * *” whether particular types of insurance were “customarily carried.” Absent such a determination, plaintiff had no right under the contract to incur the expense of SRLL insurance. Plaintiff’s effort to persuade the court to adopt its reading of general provision 9(a) violates the rule that all language of a contract should be given effect and no terms should be construed as meaningless. Astro-Space Laboratories, Inc. v. United States, 470 F.2d 1003, 1010, 200 Ct.Cl. 282, 295 (1972); Jamsar, Inc. v. United States, 442 F.2d 930, 934, 194 Ct.Cl. 819, 826 (1971). Construction of the terms of a contract, like construction of a statute, should “avoid absurd and whimsical results.” See Anderson v. United States, Ct.Cl. No. 480-569, 490 F.2d 921. “ * * * [A]n interpretation which gives a reasonable meaning to all parts of an instrument will be preferred to one which leaves a portion of it useless, inexplicable, inoperative, void, insignificant, meaningless or superfluous; * * Hol-Gar Mfg. Corp. v. United States, 351 F.2d 972, 979, 169 Ct.Cl. 384, 395 (1965); Ball State Univ. v. United States, Ct.Cl. No. 381-72, 488 F.2d 1014 (Dec.1973).

Defendant’s motion to dismiss or to transfer is granted and denied as follows : it is ordered that the case be and it is transferred, 28 U.S.C. § 1506, to the United States District Court for the District of Oregon, which has maritime jurisdiction under 46 U.S.C. § 742. Further proceedings in the United States Court of Claims are terminated.

      . Contract No. N00024-70-C-0224 (Oct. 29, 1969).

      . Appeal of Northwest Marine Iron Works, Inc., ASBCA No. 16350, 73-1 BCA ¶9902 (Jan. 19, 1973).

      . Plaintiff’s petition to the court contained two counts. At oral argument, plaintiff agreed to rely solely on its first count, herein addressed, and to dismiss its second count, as that count evidenced a claim purely maritime in nature and not within the jurisdiction of this court. Plaintiff filed a motion to dismiss its count II on Dec. 7, 1973. Defendant consented to the motion and it was dismissed by the court on Dec. 10, 1973.

      . 28 U.S.C. § 1506: “If a case within the exclusive jurisdiction of the district courts is filed in the Court of Claims, the Court of Claims shall, if it be in the interest of justice, transfer such case to any district court in which it could have been brought at the time such ease was filed, where the case shall proceed as if it had been filed in the district court on the date it was filed in the Court of Claims.”


source: Caselaw Access Project

author: RICH, Judge.

license: Public Domain

text:
    Application of David R. BOLES et al.
    Patent Appeals No. 9200.
    United States Court of Customs and Patent Appeals.
    March 5, 1974.
    Nathan Cass, Westlake Village, Cal., attorney of record, for appellant.
    Joseph F. Nakamura, Washington, D. C., for the Commissioner of Patents; R. V. Lupo, Washington, D. C., of counsel.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Judges.
   RICH, Judge.

This appeal is from the decision of the Patent Office Board of Appeals affirming the rejection of claims 28-31 of application serial No. 862,597, filed August 27, 1969, entitled “Apparatus for Woven Screen Memory Devices,” on the ground of “new matter” added by amendment, under 35 U.S.C. § 132. The application is for reissue of appellants’ U. S. patent No. 3,377,581, issued April 9, 1968. Claims 1-27 stand allowed. We reverse.

The Invention Described In The Reissue Application As Filed

The invention is a woven screen magnetic memory structure for use in computers and data processing systems. Claim 6 of the original patent, held allowable on reissue, is as follows:

6. A woven screen structure suitable for the deposition of remanent magnetic material thereon to provide a memory device comprising:

a plurality of substrate wires and a plurality of control wires interwoven to define a plurality of individual cells, each comprising at least one mesh of the interwoven substrate wires having selected control wires threaded therethrough; and
a plurality of idle wires interspersed with the control wires between adjacent substrate wires bounding a particular individual cell for determining the relative position of the control wires therein. [Emphasis ours.]

As explained by the introductory portion of the specification, which we designate [A]:

In accordance with the present invention, machine woven planes are provided by simultaneously weaving bare substrate wires and insulated conductors on an automatic or manual loom in a predetermined matrix, after which the resulting planes may be chemically processed to provide the finished magnetic screen memory devices. [Emphasis ours.]

A typical cell configuration of the woven screen memory structure is shown by the following diagrammatic figure, on an enlarged scale, from the present application and original patent:

A grid of substrate wires 32 forms the square storage cell, the wires being coated with a magnetic material. These substrate wires are interwoven with control wires, variously designated as sense wires 34, Y-drive wires 36, X-drive wires 38, and inhibit wires 40, which are shown interwoven to form the depicted portion of the memory matrix. The issue here centers specifically on the “dummy” or “idle” wires 42 which “serve to provide the desired spacing between particular wires of the matrix and also may serve to control the threading of particular cells by the respective control wires.”

The nature of the dummy wires appears from the following explanation, which appellants rely upon, and which we designate [B]:

In the weaving of the desired memory planes on automatic power looms, it has been found that the insulated conductors have a tendency to slip from their initial position in the mesh of the substrate wires. In accordance with an aspect of the present invention, therefore, additional conductors, which may be referred to as “dummy” or “idle” conductors, are inserted at appropriate intervals during the weaving process to increase the packing of the conductors placed between adjacent substrate wires and thus affix the insulated conductors in a predetermined position relative thereto. [Emphasis ours.]

Finally, the nature of the substrate wires and the control wires is explained by the following quotation from the specification, which we designate [C]:

The substrate wires 32 may advantageously be bare copper wires which are ultimately coated with a magnetic layer to define the magnetic flux paths of a given storage cell. However, in the various embodiments of the present invention the substrate wires are not limited to bare copper wires but may be any metallic wires on which a suitable magnetic coating may be deposited. Thus, the substrate wires 32 may, for example, comprise wires of another metal than copper, or they may even be insulated wires or plastic filaments having an outer surface which is suitably treated to permit the deposition of a magnetic coating thereon. The control wires are electrical conductors which serve to carry various currents employed in the operation of devices produced in accordance with the present invention. In general, the control wires are insulated to provide the desired electrical isolation of the various wires. [Emphasis ours.]

The Prosecution

The instant application seeks to reissue entirely the original patent and add thereto eight new claims. Thus, the original patent, which contained claims 1-23, is incorporated without change in the reissue application which, as originally filed, added only claims 24-27, copied from a Bohannon, Jr., patent to provoke an interference. These copied claims described the dummy wires as “non-eonductive fibers” and were rejected by the examiner as lacking support in the original disclosure under 35 U.S.C. § 112 and as containing new matter under 35 U.S.C. § 132, the examiner being of the view that appellants’ dummy wires were described in their specification as being “conductive,” rather than “non-conductive” as claimed. Appellants vigorously traversed the rejection of claims 24-27 and attempted to show how their specification supported the “non-conduc-five” limitation, but, in the alternative, amended their application in accordance with the second sentence of Rule 205(a) to add claims 28-31, which are identical to copied claims 24-27 except that the adjective “non-conductive” is omitted and the dummy wires described merely as “fibers.” Representative of the appealed claims is claim 28:

28. A magnetic memory matrix in the form of a woven fabric comprising:
a plurality of parallel magnetizable conductive strands capable of assuming stable states of remanence;
a first plurality of fibers in-terspaced between the magnetizable strands;
a plurality of parallel control conductors arranged so that the control conductors cross the magnetizable strands; and
a second plurality of fibers inter-spaced between the control conductors and interwoven with the first fibers and the magnetizable strands such that the individual control conductors and magnetizable strands are maintained in predetermined relative positions. [Emphasis ours.]

The examiner, however, rejected amended claims 28-31 as containing new matter under 35 U.S.C. § 132. Appellants appealed the rejection of all eight claims to the Board of Appeals.

The Board Decision and the Issue

The board reversed the rejection of copied claims 24-27, agreeing with appellants that their specification supported the claim limitation to “non-conductive fibers,” giving only the following reasons:

The description teaches that there are two categories of woven elements namely: bare substrate wires, and insulated conductors. See column 2, lines 64 and 65 [portion [A] of the specification, supra]. Among the insulated conductors there are “dummy” or “idle conductors. See column 3, lines 27 through 41 [portion [B] of the specification]. We have considered the examiner’s arguments. However, we find that the original disclosure, taken as a whole, teaches that the dummy wires are insulated and hence “non-conductive” in the sense that they will not short out the control wires.

However, said the board, “the absence of the phrase ‘non-conductive’ in the modified claims does constitute new matter.” It therefore affirmed the rejection of claims 28-31 and the correctness of that decision is the issue before us.

Appellants’ Argument

Appellants argue that there can be no “new matter” in claiming the dummy wires merely as “fibers,” without specifying that they be non-conductive, because the specification of their original patent, which was identically incorporated in their reissue application as filed, never required that the dummy wires be non-conductive. For support, appellants note particularly claim 6, supra, of their patent and reissue application which, among other claims, describes the dummy wires merely as “idle wires” with no “non-conductive” limitation.

Appellants maintain that it is only because they submitted the copied claims which contained the limitation to “non-conductive fibers” that the Patent Office raised any question of support for the naked term “fibers,” and that “if no reference at all were made to the Bohan-non, Jr., patent, it would be most unlikely that in light of applicants’ original disclosure, anyone would expect that claims 28-31 would or should include a recitation requiring that the idle or dummy wires be non-conductive.”

At oral argument appellants admitted that their preferred embodiment includes non-conductive fibers, but represent that their application does not limit the invention to such fibers. They rely upon the emphasized portions of quotation [C], supra, from their specification for this assertion and to answer the board’s statement that “the original disclosure, taken as a whole, teaches that the dummy wires are insulated and hence ‘non-conductive’ in the sense that they will not short out the control wires.” Appellants state that the portions we emphasized show that the substrate wires 32 may be “insulated wires or plastic filaments,” i. e., non-conductive, and that “the control wires are insulated,” thus suggesting that even dummy wires which are conductive, would not “short out” the insulated control wires.

The Solicitor’s Position

The solicitor agrees with the position of the board that the original disclosure “teaches that the dummy wires are insulated and hence ‘non-conductive’ in the sense that they will not short out the control wires.” Answering appellants’ argument based upon the original claims, such as claim 6, the solicitor maintains that the use of the term “idle wires” in the claims finds its definition in passages [A] and [B], relied upon by the board as describing the idle wires as “insulated conductors.” The gist of the solicitor’s argument, however, is summed up in the following paragraph from his brief:

Since the patent disclosure (including claims 5 and 6) neither explicitly nor implicitly supports recitation of a breadth to include bare metallic wire or pure conductors, appellants’ omission of the modifier “non-conductive,” or its equivalent, necessarily results in new matter since “fibers” without any modifier is broad enough to include a pure conductor or bare metallic wire.

OPINION

While claims 28-31 omit the modifier which is present in claims 24-27, the question whether they “introduce new matter into the disclosure of the invention” in contravention of § 132 must be judged by determining whether the alleged “new matter” is new to the whole application as filed. Since the rejection was made under § 132 and not under the reissue statute, § 251, the copied claims 24-27 — being, as they are, part of the reissue application as filed —are part of the whole application for determining whether the amended claims contain new matter, but the copied claims are only part of the whole application. Entitled, we think, to at least equal weight are claims such as claim 6 which was also in the application as filed.

Comparing the appealed claims with claim 6 shows no omission of the modifier “non-conductive,” but rather a description of the dummy wires in the same unqualified terms as in the appealed claims. This being the case, we fail to see how there can be any new matter in defining what is admittedly the same element with the same breadth as it was defined in the application as originally filed.

The solicitor’s statement that the phrase “idle wires” of claim 6 finds its definition in the portions of the specification which supposedly describe the idle wires as only “insulated conductors” is only partially correct; “the original disclosure, taken as a whole” — to use the words of the board — is available, and must be used, to determine whether added matter is or is not “new”. First, as appellants have correctly noted, another portion of their specification, portion [C], has a bearing on the breadth of claim 6. Secondly, when the question is one of the breadth of a term and support therefor, an original claim may serve to show the breadth with which the invention is described.

As appellants have correctly pointed out, portion [C] describes the invention in terms such that electrical shorting out of the control wires by idle wires would not always occur since, in general, the control wires are insulated. This is not in any way inconsistent with the conclusion of the board that claims 24-27 are supported by the specification. The specification can support the genus of all “fibers” as well as the species of “non-conductive fibers.” The specification does not teach that the fibers must be non-conductive.

The rejection of claims 28-31 as containing new matter is reversed.

Reversed.

      . U.S.Patent No. 3,399,389.

      . 205. Interference with a patent; copying claims from patent, (a) Before an interference will be declared with a patent, the applicant must present in his application, copies of all the claims of the patent which also define his invention and such claims must be patentable in the application. However, an interference may be declared after copying the claims excluding an immaterial limitation or variation if such immaterial limitation or variation is not clearly supported in the application or if the applicant otherwise makes a satisfactory showing in justification thereof.

      . The new matter rejection of claims 24-27 would more properly have been based upon 35 U.S.C. § 251 since they were alleged to contain matter which was “new” to, i. e., not supported by, the original patent. The rejection of claims 28-31 on the ground they contain “new matter” was probably made under 35 U.S.C. § 132, rather than § 251, because the claims were added by amendment to the reissue application.

      . There has been no challenge to the use of the term “fibers,” which is apparently the language of the Bohannon, Jr., patent from which claims were copied, in place of the terms “wires” and “conductors” used in appellants’ specification to describe the “dummy” or “idle” elements.


author: LIVELY, Circuit Judge.

text:
    IOWA BEEF PROCESSORS, INC., a Delaware corporation, Plaintiff-Appellee, v. GRAND TRUNK WESTERN RAILROAD COMPANY, a Michigan corporation, Defendant-Appellant.
    No. 73-1914.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 15, 1974.
    Decided March 28, 1974.
    Charles R. Hrdlicka, Detroit, Mich., for appellant; Frank G. Proctor, Detroit, Mich., on brief.
    Irving Harris, Cincinnati, Ohio, Cors, Hair & Hartsock, Cincinnati, Ohio, Jack C. Radcliffe, Jr., Dahlberg, Mallender & Gawne, Detroit, Mich., Eugene D. Anderson, Washington, D. C., on brief.
    Before PHILLIPS, Chief Judge, and EDWARDS and LIVELY, Circuit Judges.
   LIVELY, Circuit Judge.

The district court granted summary judgment in favor of the plantiff for the full amount sought in the complaint. The plaintiff shipped carloads of beef with the defendant Grand Trunk Western Railroad Company on order bills of lading. Delivery was to be made to Great Markwestern Packing Co. upon surrender of the bills of lading, but in each instance defendant delivered the cargo to Great Markwestern without surrender of the bills of lading. The bills of lading were held by Bank of the Commonwealth as agent of the plantiff who would have surrendered the bills of lading to Great Markwestern upon receipt of payment for the goods shipped. Markwestern never paid for the goods which were shipped by the plaintiff under these bills of lading, and the bills of lading were never delivered to it. Two theories were presented in the complaint: (1) That defendant violated the terms of the order bills of lading and plaintiff is entitled to recover under 49 U.S.C. § 20(11), the Carmack Amendment to the Interstate Commerce Act and 49 U.S.C. §§ 81-124, the Uniform Bills of Lading Act; and (2) that defendant breached a common law contract for delivery of goods according to the terms of order bills of lading.

We quote from the conclusions of law contained in the memorandum opinion entered in the district court by District Judge Ralph Freeman:

There is no dispute over the fact that the bills of lading required the defendant to obtain the bills prior to delivery of the shipment to Great Markwestern and that failure to do so subjects defendant to liability. Thus in Pere Marquette Railway Company v. J. F. French & Company, 254 U.S. 538 [41 S.Ct. 195, 65 L.Ed. 391] (1921), the Supreme Court said, “Where the failure to require the presentation and surrender of the bill [of lading] is the cause of the shipper losing his goods, a delivery without requiring it constitutes a conversion.”
In defense defendant asserts that its surrender of the goods without receipt of the bill of lading by Mark-western was customary for more than a year prior to the losses in question. In addition defendant asserts that plaintiffs knew of this custom and did not object and should be estopped from objecting to the application of the custom to the shipments in question. From the case law it appears that conditions in bills of lading can be altered by a course of conduct between the parties in question.

The court then found that the plaintiff had knowledge of defendant’s practice of delivering beef to Great Mark-western without receiving the order bills of lading. It determined, however, that the critical issue was how plaintiff reacted to this knowledge, since the defendant essentially relied upon estoppel. Upon examination of the affidavit submitted by the plaintiff and the counter affidavit of the defendant, the court concluded as follows:

From these affidavits it is clear that plaintiff Iowa Beef knew about defendant’s practice and notified defendant of its objections. Nothing in plaintiff’s actions could be interpreted as approval of defendant’s action. The mere fact that plaintiff continued to deal with defendant does not constitute ratification. Under these circumstances plaintiff is not estopped under defendant’s theory. Thus, Iowa Beef’s motion for summary judgment must be granted since defendant admits that it breached the condition of the bill of lading and since defendant’s estoppel argument is not supported by its own affidavit.

In a motion for reconsideration the defendant brought to the court’s attention the fact that plaintiff had filed a claim in the bankruptcy proceedings of Great Markwestern seeking the same amount of money as a secured creditor of Great Markwestern. It was contended by the defendant that plaintiff would necessarily be required to ratify the delivery of the beef to Great Markwestern in order to have standing as a creditor in bankruptcy. It was further contended plaintiff had made an election to pursue its remedies against Great Markwestern and that this precluded further action against the defendant. The position of the plaintiff was that the filing of a claim in bankruptcy did not create a question of fact in the pending action and that the only issue on the motion for reconsideration was one of law: Does the filing of a claim in bankruptcy preclude proceeding in this action ? The court found no ratification and held that there was no applicable doctrine of election which precluded the plaintiff from proceeding in two different forums to recover for the same claim. We affirm.

The defendant has cited cases for the proposition that a shipper’s conduct may ratify misdeliveries and absolve a carrier from liability under the Carmack Amendment, e. g., City National Bank v. El Paso & N. E. R. R., 262 U.S. 695, 43 S.Ct. 640, 67 L.Ed. 1184 (1923), and Judge Freeman so held. Cases cited by the plaintiff in which the shipper had no knowledge of the carrier’s practice are not in point. See North Pennsylvania R. R. v. Commercial Bank of Chicago, 123 U.S. 727, 8 S.Ct. 266, 31 L.Ed. 287 (1887); Pennsylvania R. R. v. Brown, 111 F.2d 983 (6th Cir. 1940). A shipper may also be precluded from recovery for breach of contract or conversion if its conduct manifests a ratification of past departures from the terms of the agreements for carriage. A. D. Blowers & Co. v. Canadian Pac. Ry. Co., 155 F. 935 (C.C.W.D.Wash.1907). Thus if the defendant could show ratification by the plaintiff of past departures from the terms of bills of lading it would present a valid defense to both theories under which the plaintiff brought this action. However, the question before the court on this appeal is whether the pleadings and affidavits created a genuine issue of material fact as to ratification. Rule 56, Fed.R.Civ.P.

The defendant cites A. W. Burritt Co. v. New York Central & H. R. R. Co., 76 Misc. 520, 135 N.Y.S. 557 (1912), for the proposition that subsequent payment of transportation charges and filing of a claim in bankruptcy against the person who received a shipment constitutes ratification of misdelivery. The case is entirely different from the present one on its facts. Burritt involved a straight bill of lading, not an order bill. Furthermore, when the shipper learned of the misdelivery, it sent an invoice for the shipment to the receiver and dated it prior to the delivery. Since a non-negotiable straight bill of lading was involved, shipment to the owner entitled to possession would have relieved the railroad of liability even without directions from the shipper. Under the circumstances of that case, the shipper indicated that it regarded the receiver as the owner, and this was evidence of ratification of the misdelivery. In the present case a negotiable order bill of lading was used for the very purpose of preventing delivery to anyone without payment and notification. Furthermore, the transportation charges were paid prior to delivery to Great Markwestern, and it was never treated as owner by the plaintiff.

Defendant cites Lipman Refrigerator Co. v. Baltimore & Ohio Warehouse Co., 20 Ohio App. 523, 152 N.E. 686 (1925) for the holding that the question of ratification is for the jury. There the shipper delayed making a claim against the railroad until long after the conversion, and meanwhile sought payment from the receiver of the shipment. A judgment for the railroad was reversed as being against the weight of the evidence. The court held that a mere demand for payment from the receiver of goods “has never been held to amount to ratification. . . .” 152 N.E. at 687. In Schaefer, Inc. v. Minneapolis, N. & S. Ry. Co., 254 Minn. 248, 94 N.W.2d 551 (1959), it was held that ratification of a misdelivery could not be based on the fact that the shipper continued to do business with the receiver of goods wrongfully delivered so long as the shipper continued to assert its right to be paid for the wrongfully delivered shipment.

The claim in bankruptcy in the present case was filed after the present suit and there was no inconsistency in the two actions of the plaintiff. The theory of conversion underlay both. In neither action did the plaintiff treat Great Markwestern as the lawful owner of the shipments. In order to preserve this position in the bankruptcy proceedings it was necessary that a claim be filed. This was nothing more than a continuation of its efforts to be paid for the shipments which were misdelivered. Plaintiff did not, as a matter of law, abandon its right to proceed against the defendant by also taking the precautionary step of filing a claim against Great Markwestern in bankruptcy. Cf. Greyvan Lines, Inc. v. Nesmith, 50 A.2d 434 (Mun.Ct.D.C.1946). Of course, the affirmance of the present action is without prejudice to any remedy which Grand Trunk may have in the event of a recovery by Iowa Beef Processors in the bankruptcy proceedings.

The judgment of the district court is affirmed.


author: POOS, Senior District Judge.

text:
    UNITED STATES of America, Appellant, v. Donald L. COOKS, Appellee.
    No. 73-1484.
    United States Court of Appeals, Seventh Circuit.
    Argued Dec. 4, 1973.
    Decided March 13, 1974.
    Rehearing Denied July 25, 1974.

      Henry A. Schwarz, U. S. Atty., E. St. Louis, 111., Jerry J. Murphy, Asst. U. S. Atty., St. Louis, Mo., for appellant.
    H. Carl Runge, Jr., E. St. Louis, 111., for appellee.
    Before SWYGERT, Chief Judge, KIL-EY, Senior Circuit Judge, and POOS, Senior District Judge.

       Senior District Judge Omer Poos of the Southern District of Illinois is sitting by designation.

   POOS, Senior District Judge.

Detectives Lester Anderson and Lawrence Brewer of the East St. Louis Police Department, detached to the St. Louis Office for Drug Abuse Law Enforcement, initiated surveillance of a house in accord with a request by the East St. Louis Chief of Police. The residence, located at 741 North 31st Street, East St. Louis, Illinois, was surveilled during the hours of 11:30 a. m. to 9:30 p. m. on the date of January 31, 1973. Throughout this prolonged period the detectives observed several individuals arrive by car and then enter and depart the premises within an abbreviated period of time. On one occasion Anderson and Brewer followed an automobile whose passengers had just made such a visit to the residence in question. The automobile was subsequently stopped, the five passengers therein were frisked, but no incriminating evidence was discovered. Thereafter the officers returned to continue their observation of the house. This surveillance was later augmented by detectives and agents of the St. Louis DALE Office, the East St. Louis Police Department,, and the Illinois Bureau of Investigation.

At 9:10 p. m. Detectives Anderson and Brewer, accompanied by two other officers, followed another car whose occupants had just made a brief visit to 741 North 31st Street, East St. Louis, Illinois. After following for some distance the vehicle was stopped for investigatory purposes, there being no evidence or testimony adduced at the hearing indicating a traffic violation or other criminal activity. As one of the passengers alighted from the car Anderson observed an envelope which was found to contain a green vegetable substance resembling marijuana. Upon questioning, the man stated that he had purchased the substance at 741 North 31st Street.

Thereafter Anderson and Brewer returned to the residence ostensibly to make a “buy and bust.” They were accompanied by a number of officers to the front of the house, while other officers encircled and positioned themselves at the rear of the premises. Anderson and Brewer approached the front door and were admitted by an individual later identified as Calvin Cooks. Calvin Cooks was wearing a shoulder holster with the gun in place. Upon entering the detectives noticed one Willie G. Smith who was wearing an empty shoulder holster; Smith appeared to recognize Detective Anderson at which point a scuffle ensued with Anderson relieving Smith of his gun. Contemporaneous therewith three officers entered the front of the premises. One of these officers, James Walker, went throughout the remainder of the house and searched the premises. He proceeded to the kitchen where defendant Donald L. Cooks was seated at a table containing a number of envelopes, some green vegetable material and a .32 calibre pistol. As Walker entered the kitchen and confronted the defendant, Agents Culp and Bloemker of the St. Louis DALE Office entered through the rear door of the house. Donald L. Cooks was arrested, the vegetable material was found to be marijuana.

Defendant, Donald L. Cooks, was subsequently charged in a one count indictment with knowingly and intelligently possessing with intent to distribute approximately 729 grams of marijuana in violation of Title 21 U.S.C. Sec. 841(a) (1). A pre-trial hearing was conducted pursuant to defendant’s Motion To Suppress; the District Court Judge ruled that the evidence in question was seized in violation of the Fourth Amendment to the United States Constitution. The United States Government appeals that decision.

It is evident from the above recital of facts that no search warrant was in existence at or prior to the entry of the premises in issue. The most basic principle in regard to the validity of governmental action of this type is that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L.Ed.2d 576. These exceptions are to be “jealously and carefully drawn,” and there must be a demonstration by those who seek exemption that the exigencies of the situation made that course imperative. Jones v. United States, 357 U.S. 493, 496, 78 S.Ct. 1253, 2 L.Ed.2d 1514; McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153. The burden then is on those seeking exemption to show the need for it, and it is a “heavy” burden that must be met. United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 96 L.Ed. 59; United States v. Gamble, 473 F.2d 1274, 1276 (7 Cir., 1973). As Mr. Justice Frankfurter stated in Wolf v. Colorado, 388 U.S. 25, 27-28, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782:

“The security of one’s privacy against arbitrary intrusion by the police — which is at the core of the Fourth Amendment — -is basic to a free society. It is therefore implicit in ‘the concept of ordered liberty’ and as such enforceable against the States through the Due Process Clause. The knock at the door, whether by day or by night, as a prelude to a search, without authority of law but solely on the authority of the police, did not need the commentary of recent history to be condemned. . . . ”

Hence the present search and seizure is to be condemned, unless it can be justified in some other way.

The theory put forth by the Government is that the evidence seized falls within the “plain view” doctrine as recognized and applied by the Supreme Court. Harris v. United States, 390 U. S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968) and Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). The primary requisite necessary for the application of the plain view doctrine is that the officer has a right to be where he is when he observes the evidence in plain view. In the instant case the Government contends that the admittance of Anderson and Brewer on the pretense of a “buy and bust” satisfies this first requirement. United States v. Welsch, 446 F.2d 220 (10th Cir. 1971). The present factual situation, however, somewhat belies the contention that the purpose was only to purchase evidence of a crime and not to arrest and search the persons and premises involved herein. The officers had first become aware of suspect criminal activity concerning 741 North 31st Street from information gained by the Chief of Police. The house was then surveilled from 11:30 a. m. to 9:30 p. m. during which time the officers gained additional information about the presence of drugs through interrogation of an individual who had just departed the premises. Finally, supplementary manpower from the St. Louis DALE Office, the East St. Louis Police Department, and the Illinois Bureau of Investigation were called in and surrounded the house at the time of the purported “buy and bust”. Never did they seek the protection of a warrant, no proper judicial officer was ever alerted to be available for its issuance. In its entirety the above conduct evinces a disregard for the fundamental requirement of a lawful search, a warrant executed on probable cause. As the Court put it in McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153:

“We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade the privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals.
“And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. We cannot be true to that Constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the Constitutional mandate that the exigencies of the situation made that course imperative.” Id at 455-456, 69 S.Ct. at 193.

It is enough to cite Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 6, 70 L.Ed. 145 (1925) :

“Belief, however well founded, that an article sought is concealed in a dwelling house, furnishes no justification for a search of that place without a warrant. And such searches are held unlawful notwithstanding facts unquestionably showing probable cause.”

If the authenticity of the “buy and bust” is assumed, the Government still has not sufficiently met its burden of bringing the instant search within the realm of the plain view doctrine. The rationale of the plain view exception is evident if the two protections served by the Fourth Amendment warrant requirement are examined. First, the interposition of a. magistrate is intended to eliminate searches not based on probable cause. The premise being that an intrusion in the nature of a search and seizure is an evil to be avoided, unless justified by a prior determination of necessity. See McDonald v. United States, supra, Katz v. United States, supra. The second objective is that those searches deemed necessary should be as limited as possible; this being accomplished by the admonishment of a “particular description” of the things to be seized. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), recognized that the plain view doctrine satisfied these objectives of the Fourth Amendment. The Court, however, also noted the inherent limitations that must be imposed on this exception to the warrant requirement:

“The limits on the doctrine [plain view] are implicit in the statement of its rationale. The first of these is that the plain view alone is never enough to justify the warrantless seizure of evidence. This is simply a corollary of the familiar principle discussed above, that no amount of probable cause can justify a warrantless search or seizure absent ‘exigent circumstances.’ Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure.” Id. at 468, 91 S.Ct. at 2039.

The second limitation imposed on the aforementioned doctrine which was discussed by the Coolidge Court is that the discovery of evidence in plain view must be inadvertent.

“But where the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it, the situation is altogether different. The requirement of a warrant to seize imposes no inconvenience whatever, or at least none which is constitutionally cognizable in a legal system that regards warrantless searches as ‘per se unreasonable’ in the absence of ‘exigent circumstances.’ ” Id. at 470, 91 S.Ct. at 2040.

In light of what has been said, it is apparent that the plain view exception cannot justify the police seizure of the marijuana in this case. The Government has demonstrated no circumstances other than the plain view of the evidence itself upon which to bottom its warrant-less search, nor have they satisfied the requisite limited scope of this doctrine in that the police searched every room in the house before seizing the incriminating substance.

The second Governmental theory propounded to validate the instant search is that under the circumstances the officers and agents had a right to make a “protective sweep” of the area. Apparently with this argument the Government ceases to characterize police conduct as constituting a “buy and bust”, for they do not contend that an individual entering a private residence to purchase goods, albeit contraband, may make a “protective sweep” throughout the entire premises. Although not explicitly argued, it is a fair inference that with the immediate failure of the police to procure the items sought, the subsequent events had the effect of converting their conduct into an arrest with the alleged concomitant right to conduct a protective sweep.

The controlling principles of a search incident to an arrest are set forth in Chimel v. California, 395 U.S. 752, 762, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969):

“When an arrest is made There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence. There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs. ft

It is readily apparent that the instant factual situation falls well without the proper scope of a search incident to an arrest as explicated in Chimel, supra. The Government attempts to obviate this result by setting forth exigent circumstances. The encounter of two men with shoulder holsters and guns coupled with the mere possibility that others might be present in the house are offered as justifying the officers subsequent search of the premises in its entirety. It is sufficient to say that a substantially stronger showing of exigent circumstances was made in United States v. Gamble, 473 F.2d 1274 (7 Cir. 1973), which this Court rejected. In conformity therewith the Government must show considerably more than it has to justify a search beyond Chimel limits.

Therefore, the order of the District Court suppressing the evidence as in violation of the Fourth Amendment to the United States Constitution is hereby affirmed.


author: FEINBERG, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Carlos JOLY, Appellant.
    No. 775, Docket 73-2681.
    United States Court of Appeals, Second Circuit.
    Argued Feb. 15, 1974.
    Decided March 12, 1974.

      John E. Wehrum, Jr., Asst. U. S. Atty. (Edward J. Boyd, V., U. S. Atty., E. D. N. Y., L. Kevin Sheridan, Asst. U. S. Atty., on the brief), for appellee.
    E. Thomas Boyle, New York City, (William J. Gallagher, The Legal Aid Society, Federal Defender Services Unit, New York City, on the brief), for appellant.
    Before FEINBERG and OAKES, Circuit Judges, and TYLER, District Judge.

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

   FEINBERG, Circuit Judge:

Carlos Joly appeals from a conviction after a jury trial in the United States District Court for the Eastern District of New York of three counts of importing cocaine and possessing it illegally. Judge Jack B. Weinstein sentenced Joly as a youth offender, 18 U.S.C. § 1510(b), to an indefinite term of four years on each count, to run concurrently. The only issues on appeal concern the judge’s charge. For reasons set forth below, we affirm.

There is no need to relate the facts of the case in great detail since Joly does not claim that the evidence was insufficient or that the cocaine was found on his person as the result of an improper search. Briefly, Joly was caught in a customs search at John F. Kennedy International Airport after he left a plane, which had just arrived from Panama City, Panama. As Joly approached the inspection belt, his furtive actions and a “bulge” in his waistline aroused the suspicions of an inspector. A search revealed a brown paper bag, containing about 330 grams of cocaine. Appellant’s story at trial was that a man on the plane named Miguel had given him the package and promised him $100 if he took it through customs and returned it “outside the airport.” Joly maintained that he did not know the package contained cocaine and that when he had asked “Miguel” what was in the package, Miguel had told him it was nothing to be concerned about.

The extent of Joly’s knowledge was the only significant factual issue at trial. There was no direct evidence that Joly knew he was carrying cocaine concealed under his belt, although an agent testified that Joly admitted that “he thought he was doing something wrong but he really didn’t know what it was.” “Miguel” did not appear, and Joly insisted that he did not know what was in the package. The Government relied heavily on the concealment of the package that held the cocaine, Joly’s possession of it, and the unbelievability of Joly’s story. By its verdict, the jury rejected Joly’s claim of ignorance. The question before us is whether it did so on proper instructions.

In his charge to the jury, Judge Wein-stein correctly emphasized the issue of appellant’s “guilty knowledge.” The judge said:

It is obvious that as to all three counts, the critical question is whether the defendant, Mr. Joly, knew he had cocaine. And actual knowledge that the defendant was bringing and importing cocaine into the country is an essential element of each of the offenses charged.

You may not find the defendant guilty of any count unless you find beyond a reasonable doubt that he knew he was importing or bringing cocaine into the country. The fact of knowledge may be established by direct or circumstantial evidence just as any other fact in the case. Knowledge may be proven by the defendant’s conduct since we have no way of looking into a person’s mind directly.

The defendant has flatly testified that he had no such knowledge. Now, in this connection bear in mind that one may not willfully and intentionally remain ignorant of a fact, important and material to his conduct, in order to escape the consequences of the criminal law.

If you find from all the evidence beyond a reasonable doubt that the defendant believed that he had cocaine and deliberately and consciously tried to avoid learning that there was cocaine in the package he was carrying in order to be able to say, should he be apprehended, that he did not know, you may treat this deliberate avoidance of positive knowledge as the equivalent of knowledge.

In other words, you may find the defendant acted knowingly if you find that either he actually knew he had cocaine or that he deliberately closed his eyes to what he had every reason to believe was the fact. I should like to emphasize, ladies and gentlemen, that the requisite knowledge cannot be established by demonstrating merely negligence or-even foolishness on the part of the defendant. No objection was taken to these instructions. Appellant claims, nonetheless, that the charge was plain error because “it relieved the jury of the obligation of affirmatively finding knowledge” and allowed it to convict upon a finding of “ignorance” — thus undermining “the deliberative process on an essential element of the crime charged.” As we have upon a number of occasions expressly approved this type of charge, the point would ordinarily require little discussion. However, appellant’s refinement of his argument and the Government’s response to it require further comment.

Appellant concedes that “studied ignorance” of a fact may, under decisions of the Supreme Court and of this court, constitute an awareness of so high a probability of the existence of the fact as to justify the inference of knowledge of it. See, e. g., Turner v. United States, 396 U.S. 398, 416 & n. 29, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970); Leary v. United States, 395 U.S. 6, 46 n. 93, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); United States v. Jacobs, 475 F.2d 270, 287-288 (2d Cir. 1973), cert. denied, sub. nom., Thaler v. United States, 414 U.S. 821, 94 S.Ct. 131, 38 L.Ed.2d 53 and Lavelle v. United States, 414 U.S. 821, 94 S.Ct. 116, 38 L.Ed.2d 53; United States v. Squires, 440 F.2d 859, 863-864 (2d Cir. 1971). But appellant distinguishes these cases because in each there were only two alternative possibilities, whereas in his there are many. Thus, in both Leary and Turner, where an issue was defendant’s knowledge of importation of the drug, the substance which defendant admittedly possessed was either imported or it was not. The Court in Turner reasoned that — given the fact that little or no heroin is made in the United States — one dealing in it is aware of the high probability of its foreign origin. 396 U.S. at 415-416, 90 S.Ct. 642. In this context, says appellant, a reckless ignoring of the source does not undermine the validity of an inference of knowledge of importation because a “studied ignorance,” id. at 417, 90 S.Ct. 642, of the illegal (and only other) alternative does not preclude awareness of the great likelihood that the drug was imported. Appellant applies the same analysis to possession of stolen goods (the goods are either stolen or not), United States v. Jacobs, supra, and to making false statements (the assertions are either true or false). United States v. Squires, supra. But, contends appellant, the inference of knowledge of the crucial fact disappears when the alternatives multiply, as in this case, where appellant could well, in his ignorance, have been carrying gold, watches, jewelry or myriad other items.

Before we examine appellant’s argument, we must consider the Government’s first response to it: that two prior decisions of ours, on all fours with this one, foreclose the issue. The cases relied upon were both affirmances from the bench by different panels of this court. Appellant discounts their precedential value entirely, relying on our recently adopted local rule § 0.23, which provides as follows:

§ 0.23. Dispositions In Open Court Or By Summary Order:

The demands of an expanding caseload require the court to be ever conscious of the need to utilize judicial time effectively. Accordingly, in those cases in which decision is unanimous and each judge of the panel believes that no jurisprudential purpose would be served by a written opinion, disposition will be made in open court or by summary order.
Where a decision is rendered from the bench, the court may deliver a brief oral statement. Where disposition is by summary order, the court may append a brief written statement to that order. Since these statements do not constitute formal opinions of the court and are unreported and not uniformly available to all parties, they shall not be cited or otherwise used in unrelated cases before this or any other court.

We believe that appellant is wholly correct on this point. Although the rule refers to “statements” rather than decisions, its clear intent — contrary to the interpretation urged upon us by the Government — is that the decisions themselves shall also have no effect as stare decisis. The reasons for this new local rule are obvious. Affirmances from the bench occur only when the panel is agreed that the result is clear and that a written opinion would have no real value to the parties, or to others, as a clarification of law or as a precedent. Consequently, use of an oral affirmance as a precedent is inconsistent with the assumption upon which the affirmance was rendered. Moreover, in many instances, it is impossible to be sure of the basis of an affirmance; e. g., was a charge un-objected to below correct or was the error merely not “plain” ? Even more important, any rule that accorded preceden-tial value to the actual decisions, although not to any accompanying statements, would create severe problems of “secret law.” While the Government and, to a lesser extent, Legal Aid would know of these decisions, many other attorneys and their clients would not. This consideration is actually referred to in the rule, which points out that the statements on summary dispositions, whether oral or by written order, “are not uniformly available to all parties.” In addition, even if counsel for both sides are aware of a particular summary affirmance, they will not necessarily have equal access to the briefs and the trial record, which alone would reveal what issues were raised in the absence of a plenary opinion. Because of these compelling considerations, we are not bound by our prior oral affirmances, supra note 5.

Turning now to the merits of appellant’s argument regarding the inference of knowledge, we think it ingenious but incorrect. If a person has cocaine in his possession, a legitimate inference arises that he knows what he possesses is cocaine. The reason is that it is more probable than not that a person knows what he has in his pocket or, as here, hidden under his belt. Of course, other evidence may weaken the inference. A denial of knowledge, a showing that someone else may have surreptitiously planted the cocaine where it was found, proof of lack of motive for possession — all are examples of mitigating evidence. Another example would be the showing made by Joly here that the cocaine was wrapped in a package small enough to contain jewelry or a watch or some other small, yet valuable item. But the legitimacy of the basic inference of knowledge does not automatically disappear because other evidence arguably points the opposite way. And the inference of knowledge certainly does not become invalid when it is buttressed by such additional evidence as a possibly manufactured story about a non-appearing “Miguel,” an admission of awareness of “doing something wrong” and a promise of payment of $100 for taking a small package past customs. In short, we believe that on these facts the jury was properly allowed to infer Joly’s knowledge that he possessed cocaine.

Appellant also attacks another portion of the charge, in which the judge stated:

The law does not require certainty because only those who were present at an event can feel certain, and even they who are present can feel that something may have happened and they may be wrong about it. It is particularly true when the critical issue, as in this case, deals with the state of a person’s mind which is not directly observable by anybody.

Again, trial counsel voiced no objection. Appellant now contends that this instruction left the jurors with the false impression that they could convict on less than certainty, in the face of the Supreme Court’s admonition that “utmost certainty” is required. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1969). While the challenged words might better have been omitted, we feel confident that the charge as a whole correctly conveyed the proper standard of proof to.the jury. Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954). The instruction on reasonable doubt, which closely preceded the comments at issue, was patterned on a charge expressly approved by both the Supreme Court and this circuit. Holland, supra, 348 U.S. at 140, 75 S.Ct. 127; United States v. Hart, 407 F.2d 1087, 1091 (2d Cir.), cert. denied, 395 U.S. 916, 89 S.Ct. 1766, 23 L.Ed.2d 231 (1969). The judge’s afterthought on certainty did not conflict with the basic instruction on reasonable doubt in such a way as to render the overall charge fatally inconsistent. Cf. Squires, supra, 440 F.2d at 864. Moreover, even assuming that the court’s remarks on certainty were improper, they did not constitute plain error. Cf. United States v. Byrd, 352 F.2d 570, 575-576 (2d Cir. 1965). This being the case, we affirm the decision below.

      . The three counts were: importation of cocaine (21 U.S.C. §§ 952(a), 960(a) (1)) ; possession of cocaine not entered in the manifest on board an aircraft (21 U.S.C. §§ 955, 960(a)(2)); and possession of cocaine with intent to distribute (21 U.S.C. § 841(a)(1)).

      . In an effort to check out appellant’s story, a Special Agent of the Drug Enforcement Administration obtained all of the Customs declarations for Joly’s flight. Although one did bear the name “Miguel,” the indicated birth date of the declarant revealed that he was at least 20 years older than the man described by appellant.

      . Brief for appellant at 17, 19.

      . See, e. g., United States v. Sarantos, 455 F.2d 877, 880-881 (2d Cir. 1972) ; United States v. Abrams, 427 F.2d 86, 91 (2d Cir.), cert. denied, 400 U.S. 832, 91 S.Ct. 64, 27 L.Ed.2d 63 (1970).

      . United States v. DeMarin, aff’d in open court, Nov. 28, 1973, 2 Cir., 486 F.2d 1397, and United States v. Garcia, aff’d in open court, Nov. 17, 1972, 2 Cir., 468 F.2d 632.

      . Rules of tlie United States Court of Appeals for the Second Circuit, supplementing Federal Rules of Appellate Procedure § 0.-23, effective Oct. 31, 1973.

      . The Federal Reporter merely lists these bench dispositions without giving any description of the issues raised.

      . Even if they did, as already indicated, that would not necessarily reveal the basis of the affirmance.

      . We note that the D.C.Circuit, confronted with these same problems, adopted the following amendment to its local rules on Apr. 19, 1972: “Unpublished orders including explanatory memoranda of this Court are not to be cited in briefs or memoranda of counsel as precedents.” See 1B Moore’s Federal Practice ¶ 0.402, n. 13 (2d ed. Supp.1973).

      . The court stated:
      A defendant does not have to prove his innocence. A defendant need not submit any evidence at all. On the contrary, he is presumed to be innocent. The burden of proof beyond a reasonable doubt lies with the Government and continues throughout the trial.
      A reasonable doubt means a doubt sufficient to cause a prudent person to hesitate to act in the most important affairs of his or her life. Finding a citizen to be guilty of a crime and subjecting him to criminal penalties is a very serious matter. You will consider this fact in deciding whether or not you have a reasonable doubt.


author: WALLACE, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Willie Dee HOOD, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ella HOOD, Defendant-Appellant.
    Nos. 73-2159, 73-2105.
    United States Court of Appeals, Ninth Circuit.
    Feb. 15, 1974.
    Rehearing Denied April 30, 1974.

      Barry Tarlow, Los Angeles, Cal., for defendant-appellant.
    William D. Keller, U. S. Atty., Eric A. Nobles, Chester L. Brown, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-ap-pellee.
    Before BARNES, WRIGHT and WALLACE, Circuit Judges.
   WALLACE, Circuit Judge:

Willie and Ella Hood appeal from their convictions of possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a) (1). We affirm.

The Hoods were stopped at 2:00 a. m. after state police officers noticed that the rear license plate of the vehicle in which they were slowly proceeding was not illuminated and that, the car was weaving back and forth across the center of the road (at one point narrowly missing a parked vehicle). Before the Hood car stopped, the officers saw Mrs. Hood bending over in the front seat as though she were attempting to conceal something. Mr. Hood got out of the car to talk to the officers but, apparently because the parking brake was not engaged, the Hood car rolled backward almost hitting the patrol ear. ■ After resetting the brake, Mr. Hood was ordered out of the car. One officer pointed a flashlight into the car and saw Mrs. Hood’s open purse, on the console between the two front seats, with several vials of pills in it. The officer removed the pills and upon examining them discovered that there were different types of capsules and tablets in a single prescription bottle and that additional capsules in unmarked vials resembled amphetamine sulfate derivatives. Mrs. Hood was then ordered to get out of the car and after she complied, the officer saw, with the aid of his flashlight, a partially opened briefcase on the passenger side floorboard, which had been obscured from view while Mrs. Hood was sitting in the car. A brown shopping bag was partially visible inside the briefcase and inside the shopping bag was a partially exposed cellophane package containing a brownish-white substance which the officer thought to be, and was ultimately determined to be, heroin.

During a hearing on a motion, to suppress the heroin, the Hoods denied that there was any erratic driving and that there was any “furtive gesture” made. Mrs. Hood claimed that her purse was closed and that it was only after it was opened and searched that the pills were discovered. The Hoods also testified that the heroin was not in an open briefcase and that the officers found it only after searching the car for 20 minutes. The Hoods claim that the testimony of the police officers was fabricated and cite several cases which comment on alleged increasing “boiler plate” testimony by police officers regarding “furtive gestures” and objects seen in “plain view.”

There can be no doubt that any such police conduct is reprehensible. Our freedoms could be eroded by totalitarian police as well as by vandals. But whether or not the alleged improper police conduct actually occurred is a question of fact to be decided by the district court. While the Hoods’ arguments might be persuasive to the trial judge in assessing diametrically opposed testimony from the police and the Hoods, we must view the evidence and all reasonable inferences arising therefrom in the light most favorable to the government as the prevailing party. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). It must constantly be borne in mind that it is the function of the trier of fact “to determine the credibility of witnesses [,] to resolve evidentiary conflicts, and [to] draw reasonable inferences from proven facts.” United States v. Barham, 466 F.2d 1138, 1140 (9th Cir. 1972), cert. denied, 410 U.S. 926, 93 S.Ct. 1356, 35 L.Ed.2d 587 (1973). The trier of fact may disbelieve either the defendants or the police officers and from that disbelief, along with other evidence, draw a conclusion which is contrary to their testimony. See United States v. Cisneros, 448 F.2d 298, 305 (9th Cir. 1971). As we are not the trier of fact, it is not our function to review the evidence de novo and we must reject the suggestion that we engage in conjecture about the police officers’ testimony. The trial judge was in the unique position to observe the demeanor of both the Hoods and the police officers while we have only the cold record, which is sterile in comparison. Glasser, Barham and Cisneros wisely foreclose us from substituting our view of the evidence for that of the trial judge unless his findings are clearly erroneous.

Viewing the evidence as Glasser dictates, the critical issue becomes whether it was lawful to direct Mrs. Hood to exit the vehicle. Once she got out of the car, the heroin was in plain view and the officers could properly seize it.

The Hoods were lawfully stopped for a traffic violation. The fact that the car was stopped at 2:00 a. m., that it was weaving, that it narrowly missed a parked vehicle and that the driver did not engage the parking brake would lead reasonably prudent police officers to believe that something had caused the driver to be intoxicated. An officer shined his flashlight in the car and saw vials of pills in plain view in Mrs. Hood’s open purse. His use of the flashlight did not constitute a search and what he saw was encompassed within the plain view doctrine. United States v. Walling, 486 F.2d 229, 236 (9th Cir. 1973); Williams v. United States, 404 F.2d 493, 494 (5th Cir. 1968).

Under the circumstances the officers could reasonably believe Mr. Hood was driving while under the influence of pills which had come from one or more of the containers in Mrs. Hood’s purse. It was not impermissible to examine the vials. After inspecting the pills and discovering that some of them resembled contraband, and having in mind that they were found in her purse, it was neither unreasonable nor impermissible for the officers to ask Mrs. Hood to get out of the car. When Mrs. Hood exited the car, the officers saw the open briefcase in plain view and lawfully seized it. The lower court refused, and rightfully so, to suppress the heroin found in the briefcase. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968).

The Hoods argue that the officers could not order Mrs. Hood out of the car unless they had probable cause to arrest her. Even if we were to accept that contention, we are not persuaded that probable cause did not exist. The officers reasonably believed she was carrying contraband in her purse. The officers had reasonably concluded she was in possession of amphetamine sulfate derivatives. See 21 U.S.C. § 844.

We reject the Hoods’ claim that the evidence was insufficient to sustain the convictions. They claim that there was insufficient evidence of their knowledge of the contraband. An inference of Mr. Hood’s knowledge can be drawn from the fact that he drove and had control of the vehicle. United States v. Dixon, 460 F.2d 309 (9th Cir.), cert. denied, 409 U.S. 864, 93 S.Ct. 157, 34 L.Ed.2d 112 (1972). That same inference does not apply to passengers. United States v. Thomas, 453 F.2d 141 (9th Cir. 1971), cert. denied, 405 U.S. 1069, 92 S.Ct. 1516, 31 L.Ed.2d 801 (1972). However, where there is a rational basis for attributing an interest in the contraband to the passenger because of his relationship to the driver, his attitude, conduct or other probative circumstances, the trier of fact can infer sufficient knowledge to sustain a conviction for possession. United States v. Irion, 482 F.2d 1240, 1247-48 (9th Cir. 1973); Bettis v. United States, 408 F.2d 563 (9th Cir. 1969). Here, the trier of fact had ample evidence to constitute a rational basis for attributing such an interest to Mrs. Hood. She was the wife of the driver, rather than a temporary passenger, with a reason to know where her husband was going and his intentions. The approximately seven pounds of heroin, with a street value estimated to be |400,000 when finally cut and packaged, was not hidden, but was easily seen and under her legs in an open briefcase. In addition, she made a gesture towards the briefcase as the car was stopping pursuant to the officers’ red light.

This is not like Delgado v. United States, 327 F.2d 641 (9th Cir. 1964), where marijuana was found in a drawer of a nightstand located at the foot of the bed of two unmarried people who lived together. No inference there could be drawn as to which, or if both, possessed the marijuana. Here, the narcotic was in such a place and was found under circumstances from which an inference could be properly drawn that both defendants were aware of its existence and nature and that they were in joint possession.

Further, both Hoods testified, denying any knowledge of the heroin. Disbelief, of their sworn testimony, along with other evidence, can be the basis of a finding that they in fact possessed the requisite knowledge. See United States v. Cisneros, 448 F.2d 298, 305 (9th Cir. 1971).

Mrs. Hood also argues that the government improperly introduced evidence of another crime committed by her. In the prosecutor’s opening statement and in the testimony of one officer, reference was made to the pills, resembling dangerous drugs, found in her purse. The government counters by asserting that the prosecutor’s references were to assist the jurors in understanding the continuity of events on the night in question. We do not think that this was evidence of another crime which would mandate a reversal of Mrs. Hood’s conviction. Nor do we think, after reviewing the record, that the trial court abused its discretion in asking Mrs. Hood certain questions regarding the pills contained in her purse.

In his opening statement, the prosecutor stated that the officers found money on Mrs. Hood in denominations of 28 $5, 14 $10 and 2 $20 bills and that an agent of the Bureau of Narcotics and Dangerous Drugs would testify that these are the denominations in which narcotics are usually bought. That evidence was not produced. ■ Mrs. Hood testified that she received the money from selling raffle tickets. The prosecutor’s comment was not reversible error. The jury was instructed not to consider the statements of counsel as evidence and the effect of the statement is de minimis in relation to the total case.

The Hoods’ final contention is that the trial judge erred in giving or failing to give several instructions. However, when the trial court asked, out of the presence of the jury, if counsel had any objections to the instructions, neither counsel for the Hoods objected to the instructions, or lack of instructions, which they now claim constitute error. Absent plain error, the Hoods may not now complain. Fed.R.Crim.P. 30 and 52(b); White v. United States, 394 F.2d 49 (9th Cir. 1968). We find none.

Affirmed.

      . The Hoods argue that “decisions of the higher courts do not affect police behavior but only police testimony,” and cite a recent California Supreme Court decision quoting a law review article which discusses the problem. People v. Superior Court, 3 Cal.3d 807, 827-28 n. 13, 91 Cal.Rptr. 729, 742-43 n. 13, 478 P.2d 449, 462-63 n. 13 (1970). As an example of what the Hoods allege to be a common misuse of the plain view rule, they cite Thomas v. Superior Court, 22 Cal.App.3d 972, 99 Cal.Rptr. 647 (1972), where officers claimed to have seen a hand-rolled cigarette on the back seat of a car. On the issue of the credibility of the officers’ testimony as opposed to that of the Hoods, they cite People v. Dickerson, 273 Cal.App.2d 645, 650 n. 4, 78 Cal.Rptr. 400 (1969). In addition, the Hoods point to California v. Krivda, 409 U.S. 33, 93 S.Ct. 32, 34 L.Ed.2d 45 (1972), where the state of Illinois, as amicus curiae, asked for the abolition of the exclusionary rule because “it causes their police to perjure themselves in hundreds of cases.” 12 Crim.L.Rptr. 4036 (Oct. 18, 1972).


author: FRIENDLY, Circuit Judge:

text:
    UNITED STATES ex rel. Salvatore TERRACIANO, Petitioner-Appellee, v. Earnest MONTANYE, Superintendent, Attica Correctional Facility, and Carl F. Draxler, Sheriff of Chemung County, Respondents-Appellants.
    No. 509, Docket 73-2382.
    United States Court of Appeals, Second Circuit.
    Argued Feb. 20, 1974.
    Decided March 14, 1974.
    D. Bruce Crew, III, Acting Chemung Co. Dist. Atty. (Ransom P. Reynolds, Jr., Elmira, N. Y., of counsel), for respondents-appellants.
    Michael J. Brown, Buffalo, N. Y. (Herald Price Fahringer, Paul J. Cam-bria, Jr., Lawrence A. Schulz, and Lip-sitz, Green, Fahringer, Roll, Schuller & James, Buffalo, N. Y., of counsel), for petitioner-appellee.
    Before LUMBARD, FRIENDLY and TIMBERS, Circuit Judges.
   FRIENDLY, Circuit Judge:

Petitioner, Salvatore Terraciano, a licensed pharmacist, was the owner and operator of the Windsor Pharmacy in Horseheads, Chemung County, N.Y. On April 10, 1969, one Michael Capozzi, a state police officer, entered the pharmacy during business hours, showed his credentials and stated that he wished to examine Terraeiano’s records. When Terraciano declined to allow this until he had consulted his attorney, Capozzi departed, but returned the next day with four state troopers and a warrant for Terraciano’s arrest on a charge of obstructing governmental administration. Terraciano was promptly arraigned and, apparently, was immediately released. On April 14, Capozzi returned, accompanied on this occasion by Theodore Kow-itt, an investigator with the State Narcotic Control Bureau. Kowitt advised Terraciano that he was conducting an investigation relating to the diversion of controlled drugs in Chemung County and wished to audit the pharmacy’s records of “narcotics, accepted narcotic preparations and depressant and stimulant drugs,” an examination authorized by §§ 3350 and 3390 of the New York Public Health Law, McKinney’s Consol.Laws, c. 45, as they then read, which are reproduced in the margin. Kowitt gave appropriate Miranda warnings, and Ter-raciano proceeded to telephone, apparently to his attorney, who shortly arrived, and neither of them made any protest about Kowitt’s activities. Kow-itt, who had begun inspecting the records, continued the examination for two days and took into his possession eight narcotic prescriptions, nine depressant and stimulant drug prescriptions, and seventeen records pertaining to depressant and stimulant drugs. Presentation of certain of these records to a grand jury resulted in a 29 count indictment.

Terraciano moved to suppress the records on the ground that the search and subsequent seizure violated his rights under the Fourth Amendment. Chemung County Judge Monroe denied the motion on the basis that Terraciano was engaged in a business subject to state regulation. Under § 813-c of the New York Code of Criminal Procedure, McKinney’s Consol.Laws, as it then read, which allowed a defendant to plead guilty but to appeal the denial of a motion to suppress the results of an allegedly unlawful search or seizure, the prosecutor permitted Terraciano to plead guilty to two of the 29 counts, on which he was given concurrent indeterminate sentences not to exceed three years.

On Terraciano’s appeal the Appellate Division affirmed, 39 A.D.2d 1005, 333 N.Y.S.2d 903 (3rd Dept. 1972) (mem.), stressing that the search was limited by the statute to records of narcotic, depressant and stimulant drugs, and citing McKaba v. Board of Regents of University of State of New York, 30 A.D.2d 495, 294 N.Y.S.2d 382 (3d Dept. 1968), which held, although in a rather different context, that in accepting his license a pharmacist had impliedly consented to state inspection. Judge, now Chief Judge, Breitel denied leave to appeal to the Court of Appeals.

Terraciano then filed a petition for habeas corpus in the District Court for the Western District of New York. Noting that in his view the State could not successfully contend that Terraciano had consented to the search, see Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), and being apparently unconvinced by the implied consent theory of McKaba v. Board of Regents, supra, Judge Curtin granted the writ on the ground that the New York statutes authorizing the search were not sufficiently limited to justify the failure to obtain a warrant, 360 F.Supp. 1377 (W.D.N.Y. 1973). Since we disagree with this ruling, we need not consider the State’s arguments based on the alternative theories of consent.

The Supreme Court’s holdings in Ca-mara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), and See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), that administrative searches were subject to the warrant requirement of the Fourth Amendment were rather promptly narrowed, as, indeed, had been foreshadowed by Camara and See themselves, 387 U.S. at 533, 87 S.Ct. 1727, 18 L.Ed.2d 930 and 387 U.S. at 545-546, 87 S.Ct. 1737, 18 L.Ed.2d 943, in Colonnade Catering Corp. v. United States, 397 U. S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970). Although a divided Court reversed our decision, 410 F.2d 197 (2 Cir. 1969), upholding the search there at issue, none of the Justices disagreed with the portion of Judge Mansfield’s thoroughly reasoned opinion which generally sustained warrantless searches under statutes limited to records maintained or products held by regulated industries, in that instance a catering establishment possessed of a liquor license, see 410 F. 2d at 200-204; rather the reversal was based on the view of the majority that the statute there at issue did not confer authority for a forcible entry. Colonnade was followed by United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972), where the Court sustained a warrantless search during business hours of books and a locked storeroom under the authority of the Gun Control Act of 1968, 18 U.S.C. § 923(g).

The district court thought the search and seizure here at issue violated the Fourth Amendment because of a reference in the Biswell opinion to “a regulatory inspection system of business premises that is carefully limited in time, place, and scope.” 406 U.S. at 315, 92 S.Ct. at 1596. This overreads Mr. Justice White’s remark. The important distinction is between what Judge Mansfield described in Colonnade, 410 F.2d at 201, as the “expansive grants of authority” at issue in Camara and See, which “would permit an inspector, unless a warrant was required, to roam at will through any portion of a dwelling house, in one ease, or of commercial property, in the other, without the occupant or owner being able to determine the need for the inspection, its purpose and its lawful limits” and an inspection statutorily limited to the business records and goods of industries that are properly subject to intensive regulation in the public interest. In instances of the former type a warrant serves the valuable office of preventing a “general search”; in the latter, the warrant, which would be issued for the asking, would simply track the statute and would give the person who was the object of the search nothing more than he already had. See 410 F.2d at 201.

The New York statutes which furnished the authority for Kowitt’s search were limited to orders, prescriptions or records relating to narcotic, depressant and stimulant drugs, which other New York statutes required to be kept on the premises, Public Health Law §§ 3333(3) and 3388(3) as they then read, and Kowitt neither searched for nor seized anything else. Contrast Finn’s Liquor Shop, Inc. v. State Liquor Auth., 24 N.Y.2d 647, 301 N.Y.S.2d 584, 249 N.E.2d 440, cert. denied, 396 U.S. 840, 90 S.Ct. 103, 24 L.Ed.2d 91 (1969) (administrative inspection expanded so far as to search coat pocket). Although unlike the federal statutes considered in Colonnade and Biswell, 26 U.S.C. §§ 5146(b) and 7606, and 18 U.S.C. § 923(g), the New York statutes did not then and do not now, Public Health Law § 3385, expressly limit entries for inspection to business hours, they never have conferred authority to make a forcible entry into premises that are closed, and a thoughtful opinion by a New York court, differing in its view of the law and its result from Judge Curtin’s decision here, informs us that “it is the policy of the Health Department to perform inspections only during business hours.” People v. Curco Drugs, 76 Misc.2d 222, -, 350 N.Y.S.2d 74, 84 (Criminal Court of the City of New York, Kings County, 1973) (Benjamin Altman, J.). While the New York Legislature would do well to consider remodeling its regulatory inspection statutes to incorporate the safeguards contained in the federal act which was adopted in the light of Camara and See, 21 U.S.C. § 880, and indeed has already remodeled them to restrict the right of inspection to representatives of the Health Department, Public Health Law § 3385, rather than “all peace officers within the state,” see note 1 supra, we do not find the statutes here at issue so seriously deficient as to render unconstitutional this non-forcible inspection and seizure, during business hours, by a narcotics agent, of records of a licensed pharmacist, maintained on the premises as required, relating to narcotics and stimulant or depressant drugs.

The order granting the writ is reversed, with instructions to dismiss the petition.

      . Section 3350 read as follows:
      1. It is hereby made the duty of the department, its officers, agents, inspectors and representatives, and of all peace officers within the state, and of the judicial and police authorities of the state and of the political subdivisions thereof to enforce all provisions of this article, except those specifically delegated, and to cooperate with all agencies charged with the enforcement of the laws of the United States,! of this state, and of all other states relating to narcotic drugs.
      2. Such authorities and their agents shall have access at all times to all orders, prescriptions or records to be kept under this article.
      3. For the purposes of this article, each representative of the commissioner shall possess all of the powers of a peace officer.
      1 21 U.S.C.A. § 801 et seq.
      Section 3390 read as follows:
      1. It is hereby made the duty of the department, its officers, agents, inspectors and representatives, and of all peace officers within the state, and of the judicial and police authorities of the state and of the political subdivisions thereof to enforce all provisions of this article, except those specifically delegated, and to cooperate with all agencies charged with the enforcement of the laws of the United States, of this state, and of all other states relating to depressant or stimulant drugs.
      2. Such authorities and their agents shall have access at all times to all orders, prescriptions or records to be kept under this article.
      3. For the purposes of this article, each representative of the commissioner shall possess all of the powers of a peace officer.
      These were repealed by L.1972, c. 878, § 1, and replaced, id. § 2, by new § 3385, which reads as follows:
      1. The department and its representatives shall have access at all times to all orders, prescriptions or records required to be kept under this article.
      2. For the purposes of this article, each employee of the department designated by the commissioner shall possess all of the powers of a peace officer.

      . We have held that defendants who availed themselves of the course of pleading guilty but reserving a right to appeal under § 813-c of the New York Code of Criminal Procedure did not forfeit their right to seek federal habeas. United States ex rel. Rogers v. Warden, 381 F.2d 209 (2 Cir. 1967) ; United States ex rel. Molloy v. Follette, 391 F.2d 231 (2 Cir.), cert. denied, 391 U.S. 917, 88 S.Ct. 1812, 20 L.Ed.2d 658 (1968). The Supreme Court left an analogous question open. McMann v. Richardson, 397 U.S. 759, 770 n. 13, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).