author: GURFEIN, District Judge:

text:
    UNITED STATES of America, Appellee, v. Peter SABATINO, Defendant-Appellant.
    No. 1069, Docket 73-1690.
    United States Court of Appeals, Second Circuit.
    Submitted July 18, 1973.
    Decided Oct. 5, 1973.

      Michael C. Eberhardt, Sp. Atty., U. S. Dept. of Justice (Paul J. Curran, U. S. Atty., John W. Nields, Asst. U. S. Atty., on the brief), for appellee.
    Stanley M. Meyer, Preminger, Meyer & Light, Brooklyn, N. Y., for defendant-appellant.
    Before MOORE and OAKES, Circuit Judges, and GURFEIN, District Judge.

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

   GURFEIN, District Judge:

A jury found the appellant, Peter Sabatino, guilty of a violation of 18 U.S.C. § 1014. The specific charge in the one count indictment was that Sabatino unlawfully made false statements of material facts upon an application for a loan for the purpose of influencing the action of the Bankers Trust Company, a bank the deposits of which were insured by the Federal Deposit Insurance Corporation (“F.D.I.C.”), in that the appellant falsely stated that he had been employed for four years as the manager of the Haven Restaurant at a salary of $200 per week and that he had never had any judgments and the like filed against him. Appellant offered no defense. The Government proved the statements were false. Judge Weinfeld sentenced appellant to a term of imprisonment of four months and to a fine of $2,500.

Appellant contends 1) that the statute was not intended to cover auto loans such as this one and that, in so applying it, the appellant was deprived of due process of law; 2) that the court erred in excluding proof of repayment of the loan and holding it irrelevant; and 3) that the evidence was insufficient to establish guilt beyond a reasonable doubt.

I

Appellant contends that Section 1014, by virtue of its history, must be limited to housing and farm loans, to the exclusion of auto loans. He contends it is a violation of due process to hold otherwise.

Appellant, who made a false application in material respects, has no standing to assert the unconstitutionality of the statute under which he was convicted. Dennis v. United States, 384 U.S. 855, 865-866, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966); Kay v. United States, 303 U.S. 1, 6-7, 58 S.Ct. 468, 82 L.Ed. 607 (1938); United States v. Kapp, 302 U.S. 214, 218, 58 S.Ct. 182, 82 L.Ed. 205 (1937). The statute is, in any event, constitutional. See Westfall v. United States, 274 U.S. 256, 47 S.Ct. 629, 71 L.Ed. 1036 (1927); Hiatt v. United States, 4 F.2d 374, 377 (7 Cir. 1924), cert. denied, 268 U.S. 704, 45 S.Ct. 638, 69 L.Ed. 1167 (1925). But the appellant here contends not only that Congress lacked power to enact the statute as applied, but also that Congress did not intend the statute to apply to auto loans.

The question whether Congress intended an extension of federal criminal jurisdiction to this area of personal loans by state banks is not entirely free from doubt. The F.D.I.C. insures 13,669 banks, of which 9,063 are state banks. (Report of F.D.I.C. re Commercial and Mutual Savings Banks as of June 30, 1973, published by F.D.I.C.) The vast number of personal loans made by banks generally throughout the nation may be judged from the fact that a single large New York bank in the year 1972 alone is said to have made more than 28,000 such loans.

We have been told by the Supreme Court that extension of federal criminal jurisdiction will not be presumed, but must be clearly expressed in the statute. Erlenbaugh v. United States, 409 U.S. 239, 247, 93 S.Ct. 477, 34 L.Ed.2d 446 (1972); United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971); Rewis v. United States, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971). See United States v. Archer, 486 F.2d 670 (2 Cir. 1973).

As Mr. Justice Marshall said in Bass, supra,

“ [UJnless Congress conveys its purpose dearly, it will not be deemed to have significantly changed the federal-state balance. ... In traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.” (404 U.S. at 349, 92 S.Ct. at 523, footnote omitted)

In Erlenbaugh, supra, the Court indicated that statutory construction should avoid producing situations in which relatively minor state offenses would be transformed into federal felonies. We can say here, as the court did in Archer, supra, 486 F.2d at 678: “The legislative history affords little indication of Congressional awareness of the enormous reach the statute could have if literally interpreted.”

That may indeed be arguably true with respect to Section 1014. We are, nevertheless, constrained to find that Section 1014 applies to the crime charged for the following reasons :

1. Section 1014 is a code section enacted in the 1948 recodifieation of Title 18 of the United States Code. It is true, as appellant suggests, that the thirteen statutes which were codified into the single code section were, for the most part, statutes dealing with false statements in connection with farming and housing. But two then existing statutes which were also included, were different, penalizing false statements for the purpose of influencing a) Federal Reserve Banks, former 12 U.S.C. § 596 and b) the Reconstruction Finance Corporation, former 15 U.S.C. § 616(a). Neither of these federal agencies was limited to lending for farm or home construction needs. By 1970, the codified section was, accordingly, not devoted exclusively to criminal coverage for false applications in the farming and home construction fields.

2. Although there was no Congressional discussion about the reason for including “any bank insured by the Federal Deposit Insurance Corporation” in Section 1014, a look at existing statutes supports the view that the extension of federal criminal jurisdiction to such offenses against state banks was not a giant step. Embezzlement from banks which were members of the Federal Reserve System has been a federal crime since the Federal Reserve Act of 1913. 38 Stat. 260. The jurisdiction over member banks, which included state banks, was clarified in 1918. 40 Stat. 972. Embezzlement from F.D.I.C. insured banks, which included state banks, was made a federal crime in 1935. Robbery of state banks insured by the F.D.I.C. has been a federal crime since 1935. 49 Stat. 720.

3. Although false statements to F.D. I.C. insured banks was not made a federal crime until the enactment of the Housing and Urban Development Act of 1970, Pub.L. 91-609, attention was called during the Congressional debates to the inclusion of “institutions insured by the Federal Savings and Loan Insurance Corporation,” 116 Cong.Rec. 42630 (1970), which also includes state-chartered institutions. See 12 U.S.C. § 1726. The inclusion of such institutions tends to show a Congressional awareness that state-chartered institutions were being brought within the coverage of the section solely because they are federally insured.

We cannot, therefore, detract from the literal meaning of the statute which, in terms, is applicable to the crime charged. See Ex Parte Collett, 337 U.S. 55, 61, 69 S.Ct. 944, 93 L.Ed. 1207 (1949); Packard Motor Car Co. v. NLRB, 330 U.S. 485, 492, 67 S.Ct. 789, 91 L.Ed. 1040 (1947); United States v. American Trucking Associations, Inc., 310 U.S. 534, 543, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940). We hold that the statute applies to all false statements made to influence the action of state banks insured by the F.D.I.C.

II

Such a statute, so apparently expansive of federal criminal jurisdiction, cannot be read broadly, however. It is a criminal statute, and “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.” Rewis v. United States, supra, 401 U.S. at 812, 91 S.Ct. at 1059. But there is no ambiguity with respect to the specific intent required to be proved. The false statement which the statute prohibits shall be “for the purpose of influencing in any way the action of . any bank the deposits of which are insured by the Federal Deposit Insurance Corporation.” To have “the purpose of influencing” such a bank, the defendant must have known that it was a bank that he intended to influence. We do not determine that he must know that the bank is insured by the F.D.I.C., but, at least, he must know that it is “a bank” to which he has made the false statement in his application for a loan.

The very able trial judge, with his usual care, charged precisely on scienter that “[t]he essence of the crime is the making of a false statement in an application for a loan for the purpose of influencing in any way the action of the bank from which the loan is sought.” And he correctly charged as an essential element of the crime “that they were made for the purpose of influencing the Bankers Trust Company’s action on the loan application.”

The other contentions made by appellant lack merit. He contends that failure to prove reliance by the bank on the false statements is fatal to the prosecution case. That is not so. Speaking of a prosecution under a predecessor statute to 18 U.S.C. § 1014 (12 U.S.C. § 1467a), Chief Justice Hughes said: “It does not lie with one knowingly making false statements with intent to mislead the officials of the Corporation to say that the statements were not influential or the information not important.” Kay v. United States, 303 U.S. 1, 5-6, 58 S.Ct. 468, 471, 82 L.Ed. 607, 611 (1938); United States v. Goberman, 458 F.2d 226 (3 Cir. 1972); Brilliant v. United States, 297 F.2d 385 (8 Cir.), cert. denied, 369 U.S. 871, 82 S.Ct. 1140, 8 L.Ed.2d 275 (1962).

Appellant further contends that the trial court erred in excluding evidence of repayment of the loan. Proof that an applicant did not intend to defraud the bank is irrelevant to whether he intended to influence the bank by false statements. United States v. Pesano, 293 F.2d 229 (2 Cir. 1961); United States v. Goberman, supra.

The argument that the evidence was insufficient to support the conviction is not frivolous, but we have concluded that there was enough evidence for a jury to find beyond a reasonable doubt that the appellant intended to influence the Bankers Trust Company to grant the loan.

Although the argument was not presented succinctly to Judge Weinfeld, nor, indeed, on this appeal, we have taken note of the circumstances that might support appellant’s views. The appellant had previously financed an automobile through General Motors Acceptance Corporation (“GMAC”), concerning which there is no specific federal criminal statute. The purchase contract with the dealer did not refer to Bankers Trust Company. The loan application, while it was on a Bankers Trust Company form and signed by appellant, was filled in by the salesman. There was no proof of any oral conversation in which the appellant was told that this loan was not to be made by GMAC, as it had been earlier, but rather by Bankers Trust Company.

There was testimony, however, that the salesman showed the form, which was headed “Bankers Trust Company— Buyer’s Credit Statement” to appellant who affixed his signature. We think that is enough to create an inference, which the jury could accept, that appellant knew he was making an application to the bank. See United States v. Maenzo, 475 F.2d 251 (7 Cir. 1973); United States v. Barbato, 471 F.2d 918 (1 Cir. 1973); United States v. Lee, 422 F.2d 1049 (5 Cir. 1970).

Affirmed.

      . § 1014. Loan and credit applications generally ; renewals and discounts; crop insurance
      Whoever knowingly makes any false statement or report, or willfully overvalues any land, property or security, for the purpose of influencing in any way the action of the Reconstruction Finance Corporation, Farm Credit Administration, Federal Crop Insurance Corporation, Farmers’ Home Corporation, the Secretary of Agriculture acting through the Farmers’ Home Administration, any Federal intermediate credit bank, or any division, officer, or employee thereof, or of any corporation organized under sections 1131-1134m of Title 12, or of any regional agricultural credit corporation established pursuant to law, or of the National Agricultural Credit Corporation, a Federal Home Loan Bank, the Federal Home Loan Bank Board, the Home Owners’ Loan Corporation, a Federal Savings and Loan Association, a Federal land bank, a joint-stock land bank, a Federal land bank association, a Federal Reserve bank, a small business investment company, a Federal credit union, an insured State-chartered credit union, any institution the accounts of which are insured by the Federal Savings and Loan Insurance Corporation, any bank the deposits of which are insured by the Federal Deposit Insurance Corporation, any member of the Federal Home Loan Bank System, the Federal Deposit Insurance Corporation, the Federal Savings and Loan Insurance Corporation, or the Administrator of the National Credit Union Administration, upon any application, advance, discount, purchase, purchase agreement, repurchase agreement, commitment, or loan, or any change or extension of any of the same, by renewal, deferment of action or otherwise, or the acceptance, release, or substitution of security therefor, shall be fined not more than $5,000 or imprisoned not more than two years, or both.

      . These thirteen provisions were: Title 7, United States Code, Sections 1026(a) and 1514(a), Title 12, United States Code, Sections 596, 981, 1122, 1123, 1138d(a), 1248, 1312, 1313, 1441(a), 1467(a), Title 15, United States Code, Section 616(a). See 1940 ed. of United States Code.

      . The amendment to 18 U.S.C. § 1014 was a minor part of a comprehensive act dealing with many phases of housing construction and rehabilitation, including home financing. Although the Report of the House Committee on Banking and Currency stated that the amendment of section 1014 would include “any bank insured by the Federal Deposit Insurance Corporation,” H.R.Rep.No.91-1556, 91st Cong. 2nd Sess. 1970, U.S.Code Cong, and Admin.News, p. 5617, the House Bill (HR 19436) as enacted contained no such provision. The Senate Bill (S. 4368) contained no analogous criminal provisions whatever. The Conference added the provision relating to F.D.I.C. insured banks as well as other institutions and agencies, but without reported comment.


source: Caselaw Access Project

author: GOLDBERG, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Lathia Paul BANKS, Jr., and Alvin Badford Dollar, Defendants-Appellants.
    No. 73-1593
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct. 16, 1973.
    Rehearing Denied Nov. 12, 1973.

      Harris Bostic, Atlanta, Ga. (Court appointed, both), for defendants-appellants.
    John W. Stokes, U. S. Atty., E. Ray Taylor, Jr., Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

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

   GOLDBERG, Circuit Judge:

Defendants Dollar and Banks were convicted in the United States District Court for the Northern District of Georgia for armed robbery of the Fort McPherson Commissary, a violation of 18 U.S.C. § 2114. Each was sentenced to 25 years imprisonment. In this appeal defendants contend that their convictions should be reversed for three reasons: 1) that they were denied effective assistance of counsel as a result of the lineup identification procedure employed by FBI agents; 2) that the trial court erred in refusing to submit any of defendants’ proposed charges on identification evidence to the jury; and 3) that the trial court erred in permitting the jury to disperse for lunch after the case had been submitted for deliberation. We affirm.

I

The evidence on which defendants were convicted consisted primarily of testimony by four witnesses, each of whom identified one or both of the defendants either as participants in the robbery or as persons at the scene of the crime on the day it was committed. All four of the witnesses had been present at a lineup conducted by the FBI at the Atlanta Police Department after defendants’ arrest. Each witness viewed the lineup and then adjourned with two FBI agents to a side room before giving an initial response as to the identity of any of the men in the lineup. Counsel for defendants observed the lineup, its preparation and execution, but was not permitted to enter the side room where the witnesses were taken to give their initial responses.

Defendants argue that the exclusion of counsel from the initial response stage of the lineup proceeding violates the spirit and intent of United States v. Wade, 1967, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 1967, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. Wade and Gilbert establish the right of accused to have counsel present at lineup confrontations. In defendants’ view that right is rendered meaningless if counsel cannot observe the demeanor and listen to the initial response of the witness. In some situations such a limitation on the scope of counsel’s activities may well affect the fairness of lineup proceedings; in the ease before us, however, the restriction did not significantly diminish the protection bestowed by Wade and Gilbert, and we therefore conclude that defendants were not denied effective assistance of counsel.

The Supreme Court in Wade recognized the dangers with which lineup identification is fraught:

But the confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial. The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification. . A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification. A commentator has observed that “[tjhe influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor— perhaps it is responsible for more such errors than all other factors combined.” Wall, Eye-Witness Identification in Criminal Cases 26. Suggestion can be created intentionally or unintentionally in many subtle ways. And the dangers for the suspect are particularly grave when the witness’ opportunity for observation was insubstantial, and thus his susceptibility to suggestion the greatest.
Moreover, “[i]t is a matter of common experience that, once a witness has picked out the accused at the line-up, he is not likely to go back on his word later on, so that in practice the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined there and then, before the trial.” [Williams & Hammelmann, Identification Parades, Part I, [1963] Crim.L.Rev. 479, 482.]

388 U.S. at 228-229, 87 S.Ct. at 1933, 18 L.Ed.2d at 1158-1159.

The Court held that the presence of defense counsel at lineup proceedings can help overcome unfairness in at least two crucial respects. First, counsel can observe lineup procedures to detect whether unduly suggestive practices have been utilized. As the Court notes, those involved in the lineup confrontation may be unable to spot prejudicial procedures without the assistance of a competent attorney:

In any event, neither witnesses nor lineup participants are apt to be alert for conditions prejudicial to the suspect. And if they were, it would likely be of scant benefit to the suspect since neither witnesses nor lineup participants are likely to be schooled in the detection of suggestive influences. Improper influences may go undetected by a suspect, guilty or not, who experiences the emotional tension which we might expect in one being confronted with potential accusers.

388 U.S. at 230-231, 87 S.Ct. at 1934, 18 L.Ed.2d at 1159.

Second, defense counsel can reconstruct the lineup identification' procedures for the judge or jury at trial. An accused, even if capable of detecting suggestive features in a lineup, might be reluctant to testify. Through careful questioning of witnesses, however, defense counsel may lift the veil of secrecy that so often shrouds identification confrontations.

Although the Supreme Court discussed at length the reasons for presence of counsel at the lineup, the Court in both Wade and Gilbert failed to address itself to the question of what constitutes “the lineup” or “counsel’s presence [at] . . . the lineup.”

We decline to establish a per se rule as to whether or not an accused is entitled to have counsel present at interviews between government agents and witnesses, relating to, and in the context of, the lineup. We limit our holding to the facts of the case before us.

In the pre-trial identification of Dollar and Banks four witnesses were present. The government contends that a private conference with each witness after the witness had viewed the lineup was essential to prevent the initial response of one witness from prejudicing the response of another. The witnesses were not prohibited from talking with counsel for the accused after giving their initial responses privately to the FBI agents. At trial defense counsel was able to cross-examine all witnesses concerning their private conferences with the agents at the lineup, and thereby to reconstruct the entire procedure for the jury. All witnesses questioned indicated affirmatively that the agents had neither attempted to influence their responses nor offered any suggestion whatever as to the identity of the participants in the lineup. All persons viewed in the lineup were of the same race, and defendants do not contend that the display was otherwise unduly suggestive. Under these circumstances we find that the procedure in question did comply with the constitutional specifications of Wade and Gilbert, and that defendants were not denied effective assistance of counsel. We therefore conclude that the district court did not err in refusing to suppress the identification- evidence.

We emphasize that similar procedures might require a different result if counsel is denied the opportunity to reconstruct all elements of the lineup and related agent-witness interviews, or if any witness indicates suggestive statements or actions by prosecution agents while counsel for the accused is excluded. Clandestine conferences may not be used for the purpose of evading the clear constitutional mandate of Wade and Gilbert.

II

Defendants also claim that the trial court erred in refusing to submit any of defendants’ seven proposed jury charges on identification evidence. In its instructions to the jury the court stated:

Now, the evidence in this case raises the question of whether or not the defendant was in fact the criminal actor and necessitates your resolving any conflict or uncertainty in the testimony on that issue. The burden of proof is on the prosecution, as I have said before, with reference to every element of the crime charged and this burden includes the burden of proving, beyond a reasonable doubt, the identity of the defendants or defendant as the perpetrators of the crime charged.

Record at 478. This charge encompasses an instruction on the law of identification evidence. Thus, defendants’ claim of error rests solely on the proposition that the trial court did not sufficiently emphasize the necessity of proving identity beyond a reasonable doubt. The Supreme Court has provided, however, that “[o] nee the judge has made an accurate and correct charge, the extent of its amplification must rest largely in his discretion.” United States v. Bayer, 1947, 331 U.S. 532, 536, 67 S.Ct. 1394, 1396, 91 L.Ed. 1654, 1658. In the case before us the district court made an accurate and correct charge; we conclude that the judge did not abuse his discretion in refusing to instruct the jury as requested by defendants.

III

Finally, defendants claim that the trial court erred in permitting the jury to disperse for lunch after the ease had been submitted to the jury for deliberation. Defendants’ claim is without merit. In dispersing the jury for lunch the judge cautioned the jurors at least three times not to discuss the case. This Court in United States v. Harris, 5 Cir. 1972, 458 F.2d 670, stated the rule regarding refusal to sequester a jury:

[O]ne who wishes to challenge a judge’s allowance of juror separation must demonstrate a substantial likelihood that some prejudice did result from the refusal to sequester; the mere fact of separation over defendant’s objections will not alone establish a claim to a reversal on the basis of abuse of discretion.

458 F.2d at 675. Defendants in the ease before us offered no evidence to indicate that any prejudice resulted from the refusal to sequester. Thus, the trial court did not err in permitting the jurors to disperse for lunch.

The judgments of the district court as to defendants Dollar and Banks are affirmed.

Affirmed.

      . The Supreme Court has limited the application of Wade and Gilbert to lineups conducted after the commencement of adversary judicial proceedings. Kirby v. Illinois, 1972, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411. The FBI had initiated adversary judicial proceedings against Dollar and Banks by filing a criminal complaint charging them with the robbery of the Commissary. See Fed.R.Crim.P. 3, 4; cf. Giordenello v. United States, 1958, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503.

      . Examples of prejudicial procedures cited by the Court in Wade include: placement of an Oriental suspect in a lineup of six men, the other five of whom were Caucasian; placement of a black-haired suspect among a group of light-haired persons; and placement of a teenaged suspect in a lineup with five persons over age 40. In the Wade case itself witnesses were able to observe the suspect in the custody of an FBI agent before viewing him with the other persons in the lineup.

      . The lineup procedure in Gilbert was found to be defective, in part because it was conducted in an auditorium in which a large number of witnesses to several alleged crimes charged to Gilbert made wholesale identifications in each other’s presence.

      . The record indicates that the able trial judge reached this decision after careful thought and research. In permitting the evidence to be introduced, the judge expressed grave doubts about the exclusion of counsel from the interviews at which witnesses’ initial responses were elicited:
      Well, the Court is at a loss as to why that procedure was followed and it seems like poor judgment on the part of the FBI agents or the U. S. Attorney or whoever did it. The Court doesn’t think that at this time it is contrary to the existing decisions of the Supreme Court, and it’s not at this time going to suppress the evidence.
      Record at 29-30.


author: MERRILL, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Michael Francis HODGINS, Defendant-Appellant.
    No. 72-2844.
    United States Court of Appeals, Ninth Circuit.
    Aug. 2, 1973.
    Rehearing Denied Nov. 2, 1973.

      Michel F. Willey (argued), San Francisco, Cal., for defendant-appellant.
    Joseph E. Reeves, Asst. U. S. Atty. (argued), James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for plaintiffappellee.
    Before MERRILL and ELY, Circuit Judges, and MURPHY, District Judge.

       Honorable Thomas F. Murphy, Senior United States District Judge for the Southern District of New York, sitting by designation.

   MERRILL, Circuit Judge:

Appellant has taken this appeal from conviction of refusal to submit to induction into the armed forces. At issue is the validity of his classification as I-A in light of his application for conscientious objector status. His motion for acquittal was denied by the District Court upon two grounds: that he had failed to state a prima facie claim for a 1-0 classification; that he had failed to exhaust his administrative remedies. Appellant contends that in both respects the court was in error.

When appellant registered for the draft he applied for a 1-0 status and completed and filed his SSS form 150 with the local board. The local board rejected a 1-0 classification without stating reasons, and he was classified I-A. He was granted a personal appearance before the local board. It adhered to its classification. On appeal, the appeal board retained him in I-A without giving reasons. After physical and psychiatric examination he was then reclassified I-Y. Some months later he was re-examined and determined to be fit and was then reclassified I-A. No appeal was taken from this last reclassification. On being ordered to report for induction, he appeared but refused induction.

In support of the District Court’s judgment the Government contends that appellant failed to state a prima facie claim for conscientious objector status in that insufficient information was presented as to the religious nature of his beliefs, how they came to be acquired or the depth to which they were held. We cannot agree.

The “three basic tests” for conscientious objector status as specified in United States v. McKinley, 447 F.2d 962, 968 (9th Cir. 1971) are: (1) that the registrant is opposed to war in any form, rather than selectively to some wars; (2) that his opposition is founded upon religious training and belief (as this language was construed in Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970)); (3) that his beliefs are sincerely held. (Appellee’s reliance on the result in that case is, however, misplaced. It is clearly distinguishable on the facts. There, no form 150 was filed. The registrant relied solely upon an answer he supplied to a question in a current information questionnaire which made no effort to show religious foundations for belief: “I am physically and mentally incapable of killing another human being.”)

The answers given by appellant in his form 150 are set forth in the margin. In three short sentences he sufficiently described his concept of God and why it was that the nature of his belief in God precluded his taking human life. “I believe that God is love and the ability to love. I believe in God. Therefore, I cannot take another human life or assist in that taking, but can only love him.” Nowhere does it appear that his objection to war was selective. Absence from his statement of self-serving protestations of sincerity or depth of feeling does not, in our view, defeat a prima facie claim since these matters more appropriately and effectively are subject to exploration in interview.

Assuming that appellant’s beliefs were sincerely and deeply held (and we find nothing in the record inconsistent with sincerity or depth of feeling), this statement was sufficient to provide a prima facie claim. In denying him a conscientious objector status it was then incumbent upon the local board or the appeal board to specify the basis for denial — whether it was founded on a view that the statement was legally insufficient or upon a finding of lack of sincerity or necessary depth of belief. United States v. Haughton, 413 F.2d 736, 738 (9th Cir. 1969). Here the records of the local board show only “the local board did not feel there was sufficient reason to be granted a 1-0 classification.”

We conclude that appellant was improperly classified I-A.

The Government further contends that by failing to appeal his reclassification from I-Y to I-A, appellant failed to exhaust his administrative remedies and is thus precluded from judicial review. We cannot agree.

In McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969), the Court discussed at length the reason for the exhaustion rule. It is designed to 'avoid premature interruption of the administrative process and allow the agency a measure of autonomy subject to review for abuse. 395 U.S. at 193-194, 89 S.Ct. 1657. It serves to allow the agency to develop the factual background for the case and exercise its administrative expertise. 395 U.S. at 194, 89 S.Ct. 1657. It serves to avoid judicial intervention, at a point when the administrative process may yet resolve the dispute favorably to the complainant. 395 U.S. at 195, 89 S.Ct. 1657.

The Court noted, however, that these administrative law principles may have to be softened somewhat in the Selective Service context where the registrant is denied any judicial review of his induction order, save in criminal proceedings had against him. “Such a result should not be tolerated unless the interests underlying the exhaustion rule clearly outweigh the severe burden imposed upon the registrant if he is denied judicial review.” 395 U.S. at 197, 89 S.Ct. at 1664.

In the case before us all purposes of the exhaustion rule had been met when the appeal from the original I-A classification was taken. No new circumstances appear to have arisen that would suggest that the question on appeal from reclassification would in any respect be different. The reclassification to I-A was from I-Y, and the issues upon appeal would rationally seem to relate to the propriety of terminating the I-Y classification. If properly terminated, the justification for the I-A classification had already been determined. Insistence on a second appeal, under these circumstances, would simply subject the appeal board to a rehearing upon the same facts, a result that would seem to add unnecessarily to its burdens. To require the registrant to seek rehearing on all occasions when the opportunity fortuitously presents itself, in our view places an undue burden on him without any compensating administrative advantages.

United States v. Nelson, 476 F.2d 254 (9th Cir. April 12, 1973), is distinguishable. While it holds that a claim of lack of basis in fact was barred by failure of the registrant to take a second administrative appeal following reopening and reclassification by his local board, an entirely new issue was presented by the local board action, one that had not been presented on the first appeal.

We conclude that the rule requiring exhaustion of administrative remedies did not require the taking of appeal from the order reclassifying appellant I-A from his I-Y classification. Judgment reversed.

MURPHY, District Judge.

With great respect, I disagree.

What with the Congress having ended compulsory military service and peace a fact in Vietnam, perhaps it is too late in the game to protest. I feel, however, constrained to do so.

Only two issues are presented for review: (1) whether the Local Board had a “basis in fact” for the denial of appellant’s classification as a conscientious objector, and (2) whether appellant failed to exhaust his administrative remedies after he was reclassified from 1-Y to 1-A. A summary of his selective service file reveals the following.

Appellant registered for the draft on October 18, 1966, three days after he became 18, and stated in his classification questionnaire that he claimed exemption as a conscientious objector by signing “Series VIII,” which reads:

“Conscientious objectors (do not sign this series unless you claim exemption as a conscientious objector.)
“By reason of religious training and belief I am conscientiously opposed to participation in war in any form and hereby request that the Local Board furnish me the Special Form for Conscientious Objector (SS Form No. 150.)
Michael Francis Hodgins”

On March 12, 1967, he was sent Form No. 150, which he answered and filed on April 3, 1967. The Local Board classified him 1-A on April 11, 1967, and appellant appealed on April 19th. Before the appeal was heard he was accorded a personal appearance before his Local Board on May 9, 1967. After the personal appearance, the Clerk of the Local Board made the following endorsement on his file:

“The Local Board reviewed and did not reopen registrant’s file. Registrant was to remain in classification 1-A. File to be forwarded to Appeal Board for a final determination.
“The Local Board did not feel there was sufficient reason to be granted a 1-0 classification.”

On August 31, 1967, the Appeal Board retained the appellant in classification 1-A.

After having failed to report for a pre-induction physical examination on August 7, 1967 (which prompted a delinquent warning), he was again ordered to report for a pre-induction physical on April 12, 1968. He then reported, but refused to allow a serology test to be performed. He again reported on May 15, 1968, and was examined by a psychiatrist, who recommended that he be classified 1-Y and to be recalled for a further examination in one year. He was so classified by his Local Board on June 14, 1969, and ordered to appear for another pre-induction physical examination on August 8, 1969. He reported on this date and was again examined and found fit for military service, and was so notified. He was reclassified by the Local Board from 1-Y to 1-A on October 7, 1969.

On June 17, 1970, he was ordered to report for induction on July 15, 1970, and failed to report.

On March 17, 1971, he wrote to the Local Board: “I will submit to induction if so ordered to appear,” signing his new name, “Michael Francis Benier.” Accordingly, he was ordered to report for induction on April 22, 1971. He reported, but refused to submit to induction.

The District Judge heard the case without a jury on February 22, 1972. The only issues before him were the identical issues presented to us. The District Judge held the case under advisement for one month, and filed a Memorandum on March 21, 1972. The District Judge, after quoting the three tests summarized in United States v. McKinley, 447 F.2d 962 (9th Cir. 1971), held:

“Defendant’s Form 150, his responses at his personal appearance, and all of the other documents submitted to his Local Board prior to his denial of his 1-0 classification on May 9, 1967, do not meet the requirements-for the presentation of a prima facie case of conscientious objection enunciated in McKinley, supra.
“Defendant’s failure to present facts sufficient to constitute a prima facie entitlement to a 1-0 classification is dispositive of the case.”

The District Court accordingly did not pass on the exhaustion of administrative remedies.

Defendant was sentenced on September 8, 1972. The judgment was that imposition of the sentence be suspended and defendant placed on probation for a period of three years under the provisions of the Youth Corrections Act, on condition that he perform two years’ work of national importance at the rate of 40 hours per week if compensated and 20 hours per week if uncompensated.

The Supreme Court, in Clay v. United States, 403 U.S. 698, 91 S.Ct. 2068, 29 L.Ed.2d 810 (1971), compendiously stated the benchmarks we must follow in order to determine whether a registrant has made out a prima facie claim:

“In order to qualify for classification as a conscientious objector, a registrant must satisfy three basic tests. He must show that he is conscientiously opposed to war in any form. Gillette v. United States, 401 U.S. 437 [91 S.Ct. 828, 28 L.Ed.2d 168]. He must show that this opposition is based upon religious training and belief, as the term has been construed in our decisions. United States v. Seeger, 380 U.S. 163 [85 S.Ct. 850, 13 L.Ed.2d 733]; Welsh v. United States, 398 U.S. 333 [90 S.Ct. 1792, 26 L.Ed.2d 308]. And he must show that his objection is sincere. Witmer v. Unit ed States, 348 U.S. 375 [75 S.Ct. 392, 99 L.Ed. 428]. In applying these tests, the Selective Service System must be concerned with the registrant as an individual, not with its own interpretation of the dogma of the religious sect, if any, to which he may belong. United States v. Seeger, supra; Gillette v. United States, supra; Williams v. United States, 216 F.2d 350, 352,” 403 U.S. at 700. (Emphasis supplied.)

Judge Merrill has construed appellant’s answers to the questions on Form 150 as follows:

“In three short sentences he sufficiently described his concept of God and why it was that the nature of his belief in God precluded his taking human life. T believe that God is love and the ability to love. I believe in God. Therefore, I cannot take another human life or assist in that taking, but can only love Him.’ Nowhere does it appear that, his objection to war was selective. Absence from his statement of self-serving protestations of sincerity or depth of feeling does not, in our view, defeat a prima facie claim since these matters more appropriately and effectively are subject to exploration in interview.
“Assuming that appellant’s beliefs were sincerely and deeply held * * * this statement was sufficient to provide a prima facie claim. In denying him a conscientious objector status it was then incumbent upon the local board or the appeal board to specify the basis for denial — whether it was founded on a view that the statement was legally insufficient or upon a finding of lack of sincerity or necessary depth of belief. United States v. Haughton, 413 F.2d 736, 739 (9th Cir. 1969) * * *.
“We conclude that appellant was improperly classified 1-A.”

If we read Judge Merrill’s opinion on the conscientious objector claim correctly, it appears to be bottomed on two propositions: (1) that appellant, in his Form 150, said enough to sustain his burden and therefore he was improperly' classified 1-A, and (2) that the Local Board, in denying him conscientious objector status, was required to specify the basis for the denial, i. e., either that the registrant’s statement was legally insufficient or that he lacked sincerity, citing Haughton, supra.

We cannot tell with certainty whether the majority relied on the sum total of the two propositions or on each as a separate reason. We are inclined to the belief that they are two separate reasons, since Judge Merrill found, assuming the appellant’s beliefs were sincere, that his “statement was sufficient to provide a prima facie claim,” and secondly, if the Local Board’s cryptic reason (“The local board did not feel there was sufficient reason to be granted a 1-0 classification”) meant it was not satisfied as to his sincerity, it should have said so in so many words.

In Haughton we did not say that the Local Board was required to give a reason where the registrant’s statement was legally insufficient. What we said in Haughton was:

“The local board, however, must state the reasons for its denial of a requested classification when a registrant has ‘met the statutory criteria’ * * * for that classification or, in the language of Dickinson, Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132, has placed himself ‘prima facie within that statutory exemption’ * * * ” 413 F.2d at 739.

We are not here concerned with the problem of the sufficiency of the Local Draft Board’s reasoning in denying him a 1-0 classification. Although we have held many times that where the registrant presented a prima facie ease, the Draft Board was under an obligation to specify its reasons for its refusal to so classify the registrant (see cases collected in United States v. Jamison, 463 F.2d 1219, 1220 (9th Cir. 1972)), the rule is otherwise when no prima facie case is presented. In such a situation the Board need not disclose its reasons for denying conscientious objector classification. United States v. Weaver, 423 F.2d 1126, 1127 (9th Cir. 1970).

In any event, the Local Board did give its reason. While the reason may not be crystal clear, since it was made by a layman, it probably meant that the Board thought that the answers of the applicant on Form 150 were legally insufficient to support his claim.

Accordingly, we focus our attention on the answers which appellant gave in his Form 150 and whether they show or satisfy the three basic tenets.

Our first submission is that merely because he signed the second paragraph under Series I — Claim For Exemption, which precedes the questions and is quoted by Judge Merrill on page 2 of his footnotes, adds little or nothing to his claim for conscientious objector status. We have held as much in United States v. Enslow, 426 F.2d 544, 546 n. 5 (9th Cir. 1970), where a registrant had signed the same preliminary statement albeit in his classification form and never filed a 150 Form.

In answer to the questions on which the Local Board was required to make an informed judgment on the issue of his conscientious objection to participation in war in any form, under the caption “Religious Training and Belief” the appellant at no place says that he is conscientiously • opposed to participate in war in any form, and we submit that it is misleading to say, as Judge Merrill has said, “Nowhere does it appear that his objection to war was selective.” He never used the word “war,” and made no reference to that word in any of his handwritten answers. We have said that a “registrant’s mere assertion that he has the requisite subjective beliefs does not establish his right to the privilege.” Keefer v. United States, 313 F.2d 773, 777 (9th Cir. 1963).

The most that appellant said in answers to the questions in Form 150 was that he did not believe in killing, that he believed God is love and the ability to love, and that the basis of his belief was that he went to a Christian Science Sunday School for several years and then started to think, and read, and meditate. I respectfully submit that such disbelief in killing is the consensus of most of the people of the civilized world, and that it cannot be equated with a conscientious opposition to war in any form. What his teaching was in his Sunday School classes in the Christian Science religion he did not reveal, but we know that the question is not what the tenets of his church are, but the beliefs of the registrant himself. Clay v. United States, supra.

Judge Merrill dismisses the registrant’s cryptic answer “No” to Question No. 7 in Series II as “a mere absence from his statement of self-serving protestations of sincerity or depth of feeling,” as not defeating a prima facie claim, and excuses the absence of any answer by claiming that these matters “more appropriately and effectively are subject to exploration in interview.” Quite obviously no one answer to any one question determines whether or no the registrant’s claim is prima facie sufficient, but we submit it is a question that was asked in order to help the Local Board make an informed judgment. The fact that he answered “No” doesn’t mean that it would have been “self-serving protestations of sincerity or depth of feeling.” The obvious purpose was to furnish the Board with some corroborative evidence of his claim.

The burden of proof is on the registrant. The scope of our review is limited and narrow, and the “decisions of the local boards made in conformity with the regulations are final even though they may be erroneous.” Estep v. United States, 327 U.S. 114, 122, 66 S.Ct. 423, 90 L.Ed. 567 (1946). I find myself in accord with the findings of the Local Draft Board, the Appeal Board, and the District Court, namely, that appellant failed to make out a prima facie case for conscientious objector’s classification.

Appellant’s classification of 1-Y, which he received on June 14, 1969, was changed to 1-A on October 7, 1969. When he was notified of his acceptability for military service, he wrote to the Local Board expressing his displeasure. In his letter of protestation upon being advised of his acceptability for military service, he stated that he would consider working in the C.O. program. This was one month before the Board made his reclassification 1-A. The notice he received of his change of classification advised him of his right to appeal, as did the notice of classification itself. He did not appeal. Eighteen months later he wrote to the Board, as indicated above, that he would submit to induction if ordered to report.

The majority, in holding that appellant was not required, under the circumstances of this case, to exhaust his administrative remedies by appealing the order of reclassification to 1-A from his 1-Y classification, distinguishes United States v. Nelson, 476 F.2d 254 (9th Cir. 1973), by saying: “[A]n entirely new issue was presented by the local board’s action, one that had not been presented on the first appeal.” We submit that such distinction does not come to grips with the positive holding in Nelson. Nelson squarely holds that the registrant’s basis-in-fact defense (of conscientious objector status) “was barred by his failure to exhaust administrative remedies but that his due process claim was not barred.” Hodgins raises no issue that can be characterized as a due process claim.

I would affirm.

      . “Series I.
      B I am, by reason of my religious training and belief, conscientiously opposed to participation in war in any form and I am further conscientiously opposed to participation in non-combatant training and service in the Armed Forces. I, therefore, claim exemption from both combatant and noncombatant training and service in the Armed Forces.”
      “Series II.
      Q. T. Do you believe in a Supreme Being?
      A. Yes.
      Q. 2. Describe the nature of your belief which is the basis of your claim made in Series I above, and state whether or not your belief in a Supreme Being involves duties which to you are superior to those arising from any human relation.
      A. I believe that God is love and the ability to love. I believe in God. Therefore, I cannot take another human’s life, or assist in that taking, but can only love him.
      Q. 3. Explain how, when and from whom or from what source you received the training and acquired the belief which is the basis of your claim made in Series I above.
      A. I went to Christian Science Sunday School for several years, and then started thinking on my own. Since then, I have been reading and meditating alone, or with friends and counselors.
      Q. 4. Give the name and present address of the individual upon whom you rely most for religious guidance.
      A. None.
      Q. 5. Under what circumstances, if any, do you believe in the use of force?
      A. Force comes in many forms. I would use force to protect an innocent from being hurt by someone. This force is restraint. But killing someone because of his views, or the views of his side stand for, conflict with mine, or the views my side stands for,— that is wrong.
      Q. 6. Describe the actions and behavior in your life which in your opinion most conspicuously demonstrate the consistency and depth of your religious convictions.
      A. The opportunity, such as you are asking for, never came up. I do, however, try to make love as much a part of my existence as I possibly can.
      Q. 7. Have you ever given public expression, written or oral, to the views herein expressed as the basis for your claim made in Series I above? If so, specify when and where.
      A. No.’”


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Clayton THOMAS, Defendant-Appellant.
    No. 73-1686
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct. 12, 1973.
    Sutton G. Hilyard, Jr., Sanford, Fla., for defendant-appellant.
    John L. Briggs, U. S. Atty., Jacksonville, Fla., Jeffry R. Jontz, Asst. U. S. Atty., Orlando, Fla., for plaintiff-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

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

   PER CURIAM:

The principal issue presented for our consideration is whether one receives a gun “in commerce” or in a manner “affecting commerce,” and thus violates 18 U.S.C. App. § 1202(a), if the gun he purchases has once traveled in foreign commerce. We must answer in the affirmative.

The facts of this case are not in dispute. In 1955 Thomas was convicted of a felony, and in 1971 F.B.I. agents found him in possession of a revolver. The revolver was manufactured in Germany and imported to Florida in 1970. In May 1970 the importer sold the gun to a Florida gun distributor, who in turn sold it to the Longwood Pawn Shop in Longwood, Florida, on June 29, 1970. The pawn shop sold the weapon to one Frank Taylor in August 1970, and a month later Taylor sold the weapon back to the same pawn shop. On November 19, 1970, appellant bought the revolver from the Longwood Pawn Shop.

A grand jury indicted Thomas for violating 18 U.S.C. App. § 1202(a), which prohibits felons’ possessing firearms that have a sufficient nexus with commerce. The one-count indictment charged that Thomas was a convicted felon and “did knowingly and unlawfully receive and possess in commerce and affecting commerce a firearm, to wit a hand gun; in violation of Title 18 Appendix United States Code, Section 1202(a)(1).” Thus the indictment alleged that Thomas violated the statute in two ways, receiving and possessing.

Where a statute specifies several alternative ways in which an offense can be committed, the indictment may allege the several ways in the conjunctive, and a conviction thereon will stand if proof of one or more of the means of commission is sufficient.

Fields v. United States, 5 Cir. 1969, 408 F.2d 885, 887. Thomas’s conviction must stand, then, if the evidence shows either receipt or possession.

In United States v. Bass, 1971, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488, the Supreme Court decided that § 1202(a) requires the prosecution to show a nexus between receipt or possession and commerce. The Court defined the Government’s burden of proof in showing a nexus between receipt and commerce by saying, “. . .we conclude that the Government meets its burden here if it demonstrates that the firearm received has previously traveled in interstate commerce.” 404 U.S. at 351, 92 S.Ct. at 524. The Court placed no time limit on the previous movement. Therefore a firearm that has only once traveled in interstate commerce has “previously traveled in interstate commerce.” Accord, United States v. Mullins, 4th Cir. 1973, 476 F.2d 664; United States v. Mancino, 8th Cir. 1973, 474 F.2d 1240, cert. denied, 412 U.S. 953, 93 S.Ct. 3020, 37 L.Ed.2d 1007; United States v. Brown, 6th Cir. 1973, 472 F.2d 1181; United States v. Giannoni, 9th Cir. 1973, 472 F.2d 136, cert. denied, 411 U.S. 935, 93 S.Ct. 1911, 36 L.Ed.2d 396. We see no reason to treat foreign commerce differently. Because Thomas’s revolver once traveled from Germany to the United States, it traveled “in commerce,” and the conviction for receipt must stand.

As his last two points on appeal appellant urges that the trial judge’s jury instructions coerced the jury and misstated the applicable law. We find no merit in these contentions.

Affirmed.

      . Title 18, section 1202(a) of the United States Code Appendix provides, in pertinent part:
      (a) Any person who—
      (1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony . . . and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.


author: PER CURIAM.

text:
    Sally D. DEAR, mother, guardian and next friend of R. Cannon Dear and Jeffrey M. Dear, Plaintiff-Appellant, v. Bertram E. RATHJE et al., Defendants-Appellees.
    No. 73-1042.
    United States Court of Appeals, Seventh Circuit.
    Sept. 25, 1973.
    Sally D. Dear, pro se.
    Joseph B. Lederleitner, Chicago, Ill., for defendants-appellees.
    Before SWYGERT, Chief Judge, and KILEY and SPRECHER, Circuit Judges.
   PER CURIAM.

Sally D. Dear, for herself and as next friend of her two children, filed a complaint in the United States District Court for the Northern District of Illinois on August 14, 1972. By her complaint she sought relief against four named individuals, one of them a state court judge, for alleged violations of her civil rights, committed under color of state law. Because hers was a pro se complaint, the Clerk, acting pursuant to Rule 10 B 2(a) of the General Rules of the district court, referred the complaint to the court’s Executive Committee. He also withheld the issuance of summonses against the named defendants. On August 24, the Executive Committee ordered the case “assigned to the calendar of an individual Judge in accordance with Rule 10 B 2 of the General Rules.” The Committee further ordered that summonses not issue until further order of the court. The ease was assigned on August 28 to Judge Tone.

On September 12, Mrs. Dear moved for issuance of summonses, drawing the court’s attention to the command of Rule 4(a), Fed.R.Civ.P., that: “Upon the filing of the complaint the clerk shall forthwith issue a summons.” She also argued that refusal to issue summonses would violate her rights to due process and equal protection of the laws under the Fifth Amendment. The motion was taken under advisement. In a Memorandum of Decision, entered without notice on October 2, the district judge dismissed the complaint for failure to state a claim upon which relief may be granted. He explained his decision to dismiss absent a motion for dismissal and before the issuance of summonses against the named defendants as follows:

This Court takes judicial notice of the series of legal actions brought by plaintiff, Sally D. Dear, against defendant, Ralph C. Dear, and various others who have allegedly acted in concert with him, in view of which it is appropriate to consider sua sponte the merits of plaintiff’s complaint.

On October 12 Mrs. Dear moved that the order of October 2 be vacated, that summonses be issued to the named defendants and that the estate of one of the named defendants be substituted for him as a party defendant. In the motion to vacate, she argued:

2. That Plaintiff never received notice that the Court was even considering these questions, much less ruling on them, and had no opportunity to be heard on the merits of this suit.

3. That a ruling on the merits, without notice and opportunity for hearing is in clear violation of plaintiff’s right to due process and equal protection of the laws guaranteed by the Fifth Amendment to the U.S. Constitution.

4. That the defendants are also guaranteed these rights under the Fifth Amendment, and should have the opportunity to argue to the merits.

On October 20 the motion to vacate was denied, and the other two motions were denied as moot. At that time, the following colloquy took place in open court:

MS. DEAR: Do you have copies of the motion?
THE COURT: I have.
I have already dismissed the action, Ms. Dear, so that automatically took care of the motion for issuance of summons; and since I have dismissed the action, there is no action in which there could be a motion for substitution of parties, and so all the motions are denied.
MS. DEAR: Well, if I may say, your Honor, as far as — if this goes up oh appeal as it is now, and the Appellate Court found for me on the issue of judicial immunity, the defendants in this case — jurisdiction of their persons has never been required [sic] and they would then have a ruling affecting their rights where jurisdiction of their persons were never — ■
THE COURT: I have already dismissed the case, Ms. Dear, and that is the end of it.

Mrs. Dear filed a motion for rehearing. contending that the court’s ruling on the motions “was contrary to the constitution and the laws of the United States.” The motion was denied. Mrs. Dear subsequently moved for a hearing on the motion for rehearing but this was denied on the same day as it was filed.

Mrs. Dear then filed a notice of appeal from the orders dismissing the complaint, denying the motions to vacate the dismissal, to issue summons, and to substitute the estate for one of the defendants, and denying the motion for a rehearing.

We do not reach the merits of the order dismissing the complaint. To do so, we should have to deliver an advisory opinion, for until defendants have been summoned to appear and given some opportunity to respond to the complaint, we cannot know that there is a live controversy between the parties.

It appears that a pattern of practice has developed in the Clerk’s office in which summons are not issued when a pro se complaint is filed. The same practice occurred in Vina v. Hub Electric Co., 480 F.2d 1139 (7th Cir. 1973). We do not need to reach the issue of whether the practice is constitutional since it is possible to decide the appeal on other grounds. The practice here as in Vina is in clear conflict with Rule 4(a), Fed.R.Civ.P. which imposes a duty on the Clerk to issue the summons “forthwith.” Sires v. Cole, 320 F.2d 877, 879 n. 2 (9th Cir. 1963); Jefferson v. Stockholders Publishing Co., 194 F.2d 281, 282 (9th Cir. 1952).

We are not unsympathetic with the plight of the district courts as they face growing numbers of “professional litigants.” We also understand the reluctance of its judges to have their courts used as a tool for harassment of public officials and others. But those who are harassed have the option of civil actions for abuse of process and may resort to equity for injunctive relief. If these and similar remedies have proved inadequate, it is not for a United States district court to resolve the problem by cutting off pro se litigation at the wellspring.

The orders appealed from in the instant case are vacated and the cause is remanded with directions to order the immediate issuance of summonses against the named defendants. The mandate of this court will issue forthwith.

Vacated and remanded with directions.

      . Rule 10 B 2(a) provides in part:
      Each case, immediately after filing by the assignment clerk, shall be assigned to the appropriate calendar and to the category indicated by counsel; provided, that all cases filed by plaintiffs pro se (except petitions for a writ of habeas corpus and other cases filed by persons in custody) shall be assigned to the Executive Committee for consideration prior to the assignment thereof to the calendar of an individual judge.

      . Mrs. Dear’s fears were not farfetched. As our order of July 26, 1973 points out, “defendant-appellee” Atten, when served with a rule to show cause why his failure to file a brief should not result in the court’s considering the appeal without a brief from him, responded that the rule was the “first notice” of the existence of this cause that he had ever received. No other “defendant-appellee” even responded to the rule.


author: WALLACE, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Craig Joel WEISLOW, Defendant-Appellant.
    No. 73-1239.
    United States Court of Appeals, Ninth Circuit.
    Sept. 21, 1973.

      Gail M. Title, Deputy Federal Public Defender (argued), John K. Van De Kamp, Federal Public Defender, Los Angeles, Cal., for defendant-appellant.
    John K. Cameron, Jr., Asst. U. S. Atty. (argued), William D. Keller, U. S. Atty., Eric A. Nobles, Asst. U. S. Atty., Los Angeles Cal., for plaintiff-appellee.
    Before MERRILL and WALLACE, Circuit Judges, and PECKHAM, District Judge.

       Honorable Robert F. Peckham, United States District Judge, San Francisco, California, sitting by designation.

   WALLACE, Circuit Judge:

Weislow pleaded not guilty to a two-count indictment charging him with failure to report for a physical examination and refusal to be inducted, both in violation of 50 U.S.C.App. § 462. Subsequent to a jury waiver, the court found him guilty of both counts. We affirm.

In late 1968, Weislow registered with his local Selective Service Board. Thereafter he mailed to his board a Classification Questionnaire (Form 100) in which he indicated that he would be a full-time college student until June, 1970. He never presented the board with any verification of this claim.

In June, 1969, Weislow was classified 1-A. At no time did he contest it.

Weislow failed to appear for a physical examination, in December, 1969, claiming illness. Thereafter, on February 16, 1970, the local board ordered Weislow to report for another physical examination on March 11, 1970. He failed to report and that failure is the basis of count one. On March 17, the board received a letter from Weislow claiming that on March 11, he was in New York checking into a job opportunity.

Weislow contends that the 1-A classification was improper and that he was therefore free to disregard the board’s order. We cannot agree. The possible invalidity of his classification does not constitute a defense to a prosecution for failure to report for a pre-induction physical examination. MeKart v. United States, 395 U.S. 185, 203, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969); United States v. Heywood, 469 F.2d 602, 605 (9th Cir. 1972).

Weislow’s reliance on United States v. Brandt, 435 F.2d 324 (9th Cir. 1970) is misplaced. That unique case is clearly distinguishable, Brandt was classified II-S and was entitled to that classification as a matter of law when the board, without reason, reclassified him 1-A. Brandt had submitted a Request for Undergraduate Student Deferment and presented evidence that he was pursuing a full-time course of instruction. Weislow did neither.

Even if Weislow could successfully contend that an improperly classified registrant has no duty to report for a pre-induction physical examination when ordered to do so, he would be precluded from raising that claim due to his failure to exhaust his administrative remedies. McGee v. United States, 402 U.S. 479, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971); United States v. Juarez, 469 F.2d 770, 772 (9th Cir. 1972). There was a lapse of eight months between the date of classification and his failure to report for the physical examination in question. At no time did Weislow present evidence of his student status or appeal the board’s classification. He, therefore, cannot now contest the validity of the 1-A classification.

We need not reach the allegations of error relating to the second count inasmuch as we affirm the first count and Weislow received a concurrent sentence. See United States v. Moore, 452 F.2d 576, 577 (9th Cir. 1971).

Finally, Weislow, who was 22, contends that it was error for the trial judge not to sentence him under the Youth Corrections Act (18 U.S.C. § 5005 et seq.). This claim is unmeritorious. Weislow has no right to be so sentenced. The trial judge, who is in the best position to make the determination, has the discretion to sentence or not to sentence pursuant to the Act. We see no need to review that determination. Cf. United States v. James, 443 F.2d 348, 349 (9th Cir. 1971).

Affirmed.

      . 32 C.F.R. § 1622.25(d) provides:
      It shall be the registrant’s duty to provide the local board each year with evidence that he is satisfactorily pursuing a full-time course of instruction at a college, university, or similar institution of learning.
      E.O. 11360, 32 Fed.Reg. 9790 July 4, 1967.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Donnell Arthur ANDERS, Defendant-Appellant.
    No, 73-2142
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct. 30, 1973.
    Rehearing Denied Nov. 29, 1973.

      David Band, Jr., New Orleans, La., for defendant-appellant.
    Gerald J. Gallinghouse, U. S. Atty., Mary W. Cazalas, U. S. Atty., New Orleans, La., for plaintiff-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

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

   PER CURIAM:

Anders appeals from a judgment of conviction for having unlawfully distributed 4.045 grams of heroin in violation of 21 U.S.C. § 841(a)(1). He contends on appeal that he was entrapped by Government agents and that he was denied a speedy trial. There is no merit to either contention. We affirm.

The defense of entrapment is warranted “when the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.” Sorrells v. United States, 287 U.S. 435, 442, 53 S.Ct. 210, 212-213, 77 L.Ed. 413 (1932); Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 821, 2 L.Ed.2d 848 (1958); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). The evidence shows that the criminal design in this ease originated with appellant. He was known by the Bureau of Narcotics and Dangerous Drugs agents to be a heroin dealer. The opportunity to apprehend appellant in the commission of a crime was made possible through a telephone call by an informer to a Government agent. Arrangements were then made through the informer, with the aid of an unsuspecting codefendant of appellant, for the agent to purchase the heroin. Appellant was clearly predisposed to commit the crime. The only reluctance on his part to negotiate was the price offered, and this reluctance was short-lived. The entire transaction, beginning with the telephone call and culminating in a direct sale by appellant to the Government agent, covered a span of approximately two hours.

Appellant’s contention that he was denied a speedy trial is based on an alleged delay of eleven months between the time of the commission of the offense and the date of indictment. In the absence of a showing of actual prejudice resulting from pre-accusation delay, such a contention is unavailing. See United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); United States v. Judice, 5 Cir., 1973, 457 F.2d 414, on petition for rehearing and petition for rehearing en banc. We find no delay-caused prejudice here.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jarel T. HAINES, Defendant-Appellant.
    No. 72-1633.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 27, 1973.
    Decided Sept. 18, 1973.
    James Manahan, Indianapolis, Ind., for defendant-appellant.
    Stanley B. Miller, U. S. Atty., Thomas L. Bose, Asst. U. S. Atty., Indianapolis, Ind., for plaintiff-appellee.

      Before KILEY and CUMMINGS, Circuit Judges, and CAMPBELL, Senior District Judge.

       Senior District Judge William J. Campbell of the Northern District of Illinois is sitting by designation.

   WILLIAM J. CAMPBELL, Senior District Judge.

The defendant, Jarel T. Haines, appeals from a judgment of conviction for knowingly making false material declarations while under oath as a witness before a court of the United States, in violation of 18 U.S.C. § 1623(a). We affirm.

The indictment here charged that the defendant committed perjury when he testified in his own behalf at a prior trial in which he had been charged with bank robbery, in violation of 18 U.S.C. § 2113(a). During the former trial, the defendant testified that on the eve of the alleged bank robbery he had spent the night with a Faye Key at the Terre Haute House Hotel in Terre Haute, Indiana. Terre Haute is located some distance away from the scene of the bank robbery in Lanesville, Indiana. The defendant further testified that the following morning he had met a Russell Hanes (no kin) at the Terre Haute House Hotel to discuss an employment opportunity. His testimony then was that he departed Terre Haute just before noon, the approximate time of the robbery, and that he spent that afternoon at .Indianapolis and Greenwood, Indiana. The perjury indictment charged that this testimony given at the former trial was false to the knowledge of the defendant.

Prior to trial, the defendant moved to dismiss the perjury indictment, contending that the bank robbery prosecution constitutes a plea in bar to the perjury prosecution. More specifically, the defendant argued that since he was acquitted of the bank robbery charge, the alibi perjury allegations raised by the government in the perjury indictment were, in his words, “res judicata”, and that he was being subjected to double jeopardy because the government’s evidence was substantially the same as that presented at the bank robbery trial. On appeal, the defendant raises essentially the same contentions.

As we understand the defendant’s argument, he asserts that the perjury prosecution is barred by the doctrine of collateral estoppel since his acquittal on the bank robbery charge, he contends, constitutes a prior determination of the veracity of his alibi testimony. The doctrine of collateral estoppel, which is embraced within the constitutional guarantee against double jeopardy, “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future law suit.” Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970). In the context of a perjury indictment relating to testimony given at a former trial on a substantive charge, the doctrine of collateral estoppel does not bar the perjury prosecution unless the issues of fact central to that prosecution were necessarily determined in the former trial. See United States v. Williams, 341 U.S. 58, 71 S.Ct. 595, 95 L.Ed. 747 (1951); United States v. Nash, 447 F.2d 1382 (4th Cir. 1971); Adams v. United States, 287 F.2d 701 (5th Cir. 1961); Wheatley v. United States, 286 F.2d 519 (10th Cir. 1961); Ehrlich v. United States, 145 F.2d 693 (5th Cir. 1944). Unless the record of the prior proceeding affirmatively demonstrates that an issue involved in the second trial was definitely determined in the former trial, the possibility that it may have been does not prevent the re-litigation of that issue. Adams v. United States, 287 F.2d 701, 705 (5th Cir. 1961).

As in Adams, an examination of the pleadings and evidence presented at the former trial here indicates that the jury could have disbelieved the defendant’s alibi testimony and still reached a verdict of acquittal. There is no necessary inconsistency between Haines’ innocence of the bank robbery charge and his not being at the Terre Haute House Hotel in Terre Haute, Indiana. In other words, the jury could have discredited the defendant’s testimony concerning his whereabouts at the time of the alleged offense, and still arrived at the conclusion that the government had failed to prove that he was a participant in the bank robbery. Thus, the issue regarding the veracity of the facts constituting the alibi defense was not necessarily adjudicated at the bank robbery trial. Therefore, the subsequent prosecution of the defendant for perjury in violation of 18 U.S.C. § 1623(a) did not place him in double jeopardy.

For the foregoing reasons, the judgment of conviction is affirmed.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Donald Wiliam WERTMAN, Defendant-Appellant.
    No. 73-1968.
    United States Court of Appeals, Fifth Circuit.
    Oct. 19, 1973.
    James C. Truett (Court-appointed), Tallahassee, Fla., for defendant-appellant.
    William H. Stafford, Jr., U. S. Atty., J. Worth Owen, Asst. U. S. Atty., Pensacola, Fla., for plaintiff-appellee.
    Before TUTTLE, BELL and GOLDBERG, Circuit Judges.
   PER CURIAM:

This is an appeal from a conviction following a non-jury trial on charges of an offense, against a thirteen year old boy, under Florida Statutes Annotated § 800.04. The offense was committed on a federal reservation, and the Florida statute was applicable under the Assimilative Crimes Act, 18 U.S.C.A. § 13.

There are two assignments of error. As to the first, we find the evidence to be sufficient to warrant the conviction.

Second, we find no impropriety in the sentence which was less than the maximum under the Florida statute. Despite the fact that no such relief was sought in the district court, appellant contends that it was error for the court to fail to use the psychiatric examination procedure required by Florida statutes before sentencing him for the offense in question. See F.S.A. § 801.051 et seq. We disagree. The federal district courts use federal facilities and follow federal procedures in imposing sentences under the Assimilative Crimes Act. See 18 U.S.C.A. § 4208(b). Cf. United States v. Smith, 10 Cir., 1972, 464 F.2d 194, where indeterminate sentences under the Federal Youth Corrections Act, 18 U.S.C.A. § 5010(b), were imposed in sexual assault cases tried under the Colorado statutes.

Nevertheless, we do note that § 801.051 clearly expresses a Florida legislative policy of ascertaining the mental condition of sexual offenders prior to their sentencing. While we hold that the Assimilative Crimes Act does not bind federal courts to state sentencing procedures, we think it appropriate for the district court to consider, in its discretion, this state sentencing policy in the circumstances here. Upon a properly filed motion to correct or reduce sentence, Rule 35, F.R.Crim.P., the district court may, in its discretion, order the presentence examination authorized by 18 U.S.C.A. § 4208(b).

The judgement of conviction is affirmed.

      . F.S.A. § 800.04 [1973 Supp.] is as follows:

        “Lewd, lascivious or indecent assault or act upon or in presence of child — Any person who shall handle, fondle or make an assault upon any male or female child under the age of fourteen years in a lewd, lascivious or indecent manner, or who shall knowingly commit any lewd or lascivious act in the presence of such child, without intent to commit rape where such child is female, shall be guilty of a felony of the second degree, punishable as provided in § 775.082, § 775.083, or § 775.-084.”


text:
    Reginald HUTCHERSON et al., Plaintiffs-Appellants, v. Laurie LEHTIN et al., Defendants-Appellees.
    No. 71-1704.
    United States Court of Appeals, Ninth Circuit.
    Sept. 19, 1973.

      William R. Petrocelli (argued), Clifford Sweet, Legal Aid Society of Alameda County, Oakland, Cal., for plaintiffs-appellants.
    Robert S. Daggett (argued), Moses Lasky of Brobeck, Phleger & Harrison, San Francisco, Cal.; Benjamin Zuppan, Deputy County Counsel, Oakland, Cal., William H. Hoogs, Berkeley, Cal., for defendants-appellees.
    Before MERRILL and BROWNING, Circuit Judges, and ANDERSON, District Judge.

       Honorable J. Blaine Anderson, United States District Judge, District of Idaho, sitting by designation.

   PER CURIAM:

Appellants bring this appeal from an order of the United States District Court for the Northern District of California, 313 F.Supp. 1324, dismissing their action for a judgment declaring California’s unlawful detainer statutes unconstitutional and an injunction against their enforcement. Believing that the principles of res judicata apply in this matter, we affirm the district court’s order of dismissal.

During the summer of 1969, Appellee Lehtin, as owner of an Oakland, California apartment building, brought unlawful detainer proceedings in Oakland Municipal Court against the appellants, tenants in the building, for alleged nonpayment of rent. Appellants, by way of their amended answer, sought to raise twelve affirmative defenses relating to the condition of the premises and the landlord’s alleged breach of certain eovenents to repair, as well as the affirmative defense that to deny the appellants the right to raise these issues would violate the United States Constitution. Relying on settled California law, the Municipal Court Judge struck all of the affirmative defenses from the amended answer on the grounds that they were irrelevant to the right of possession and therefore inadmissible in an unlawful detainer action. Judgment was entered against appellants for rent due and for restitution of the premises to appellee Lehtin. Rather than take an appeal of the Municipal Court judgment, appellants brought this action in federal district court under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) contending that to deny appellants the right to raise affirmative defenses which do not bear on the question of the right of possession would deny them due process and equal protection of the law in violation of the 14th Amendment to the United States Constitution.

Appellants, in their amended answer to the unlawful detainer complaint, raised the constitutional question of whether issues other than the right to possession must be allowed to be presented in an unlawful detainer action. The issue was therefore preserved for appeal through the California courts. Appellants cannot subsequently raise the same constitutional issue in a separate action in federal court involving the same parties, even though it is brought as a civil rights action, after an adverse determination by a state court. The principles of res judicata preclude such a course of action, leaving appellants to their state appellate remedies. Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923); Flynn v. State Board of Chiropractic Examiners, 418 F.2d 668 (9th Cir. 1969); Johnson v. Los Angeles, 450 F.2d 294 (9th Cir. 1971); Francisco Enterprises, Inc. v. Kirby, 482 F.2d 481 (9th Cir. 1973).

Judgment affirmed.


text:
    NATIONAL ASSOCIATION FOR the ADVANCEMENT of COLORED PEOPLE, LANSING BRANCH, et al., Plaintiffs-Appellees, v. LANSING BOARD OF EDUCATION, a body corporate, et al., Defendants-Appellants.
    No. 73-8119.
    United States Court of Appeals, Sixth Circuit.
    Aug. 29, 1973.
    Fred C. Newman, Lansing, Mich., for appellants.
    John W. Davis, Lansing, Mich., for appellees.
    Before PHILLIPS, Chief Judge, and PECK and LIVELY, Circuit Judges.
   PER CURIAM.

This case is before the Court on an emergency application for stay pending appeal of an order of the District Court granting a preliminary injunction in a school desegregation case. The injunction directs the Board of Education of Lansing, Michigan to reinstate a desegregation plan adopted by that Board on June 19, 1972. Schools in Lansing tentatively are scheduled to commence on September 6, 1973.

The record shows that as early as 1964 the Lansing Board of Education became concerned because certain elementary schools in that system were in the process of becoming segregated. During the ensuing years certain study groups and ad hoc committees were appointed to study the problem and to make reports to the Board of Education. These reports are summarized in some detail in the preliminary injunction issued by District Judge Noel P. Fox in the present case. Based in part on the reports of such studies and after numerous public hearings and extensive public debate, the Lansing Board of Education on June 19, 1972 adopted a desegregation plan, commonly known as the “Cluster Plan,” involving students in grades 3 through 6 in 13 of Lansing’s 50 elementary schools. This plan does not involve high schools or junior high schools.

The “Cluster Plan” met with public opposition resulting in a recall election directed against the five members of the Board of Education who supported it. All five members of the Board who voted for the “Cluster Plan” were recalled.

Five new Board members were elected in January, 1973. At the first regularly scheduled meeting of the Board as reconstituted, the “Cluster Plan” was rescinded effective at the end of the 1972-73 school year. The District Court found that this rescission would have the effect of reassigning many Lansing elementary students back to their previously segregated schools.

It is the established rule of this Circuit that the granting or denial of a preliminary injunction will not be disturbed on appeal unless contrary to some rule of equity or the result of improvident exercise of judicial discretion. Oliver v. School District of City of Kalamazoo, 448 F.2d 635 (6th Cir. 1971), and cases therein cited.

In a somewhat analogous situation which arose in a school desegregation case involving the public schools of Detroit, this Court held that District Judge Stephen J. Roth did not abuse his discretion in denying an application for a preliminary injunction. Bradley v. Milliken, 433 F.2d 897, 904 (6th Cir. 1970). This Court has upheld the determinations of District Courts in school desegregation eases, as well as other eases, when properly supported by the pleadings and evidence, even though different results may be reached in different cases. See Goss v. Board of Education, 482 F.2d 1044 (6th Cir. 1973) (in banc).

We hold that the District Judge did not abuse his discretion in granting the injunction on the record in the present case.

The Board of Education further urges the granting of a stay on the authority of the “Broomfield Amendment”, Public Law 92-318, 86 Stat. 235, § 803, known as the “Education Amendments Act of 1972.” We hold that this statute has no application in the present case. See Drummond v. Acree, 409 U.S. 1228, 93 S.Ct. 18, 34 L.Ed.2d 33 (1972).

This case is before this Court on appeal, the notice of appeal having been filed August 14, 1973. The order of the District Court granting the preliminary injunction is an appealable order. (28 U.S.C. § 1292(a)). The emergency application for stay pending appeal is denied. Further, this Court concludes that it is manifest that the questions on which the decision of this case depends do not require further argument. Rule 8, Sixth Circuit Rules. See, Keyes v. School District #1, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973); Bradley v. Milliken, 484 F.2d 215 (6th Cir. 1973) (in banc); Mapp v. Board of Education of Chattanooga, 477 F.2d 851 (6th Cir. 1973) (in banc); Davis v. School District of City of Pontiac, 443 F.2d 573 (6th Cir.), cert. denied, 404 U.S. 913, 92 S.Ct. 233, 30 L.Ed.2d 186 (1971).

Either following the plenary hearing on the merits or before the plenary hearing, the District Judge specifically is authorized to make such modifications in the plan implemented by the interlocutory injunction as he may find to be appropriate. Kelly v. Metropolitan Board of Education of Nashville, 463 F.2d 732 (6th Cir.), cert. denied, 409 U.S. 1001, 93 S.Ct. 322, 34 L.Ed.2d 262 (1972); Oliver v. School District of City of Kalamazoo, supra, 448 F.2d at 636.

Affirmed.


author: HERBERT F. MURRAY, District Judge:

text:
    Bishop P. PARRISH, Appellant, v. Robert C. SEAMANS, Jr., United States Secretary of the Air Force, Appellee.
    No. 72-2056.
    United States Court of Appeals, Fourth Circuit.
    Argued Feb. 7, 1973.
    Decided Oct. 9, 1973.
    George W. Gregory, Jr., Cherow, S. C., for appellant.
    Wistar D. Stuckey, Asst. U. S. Atty. (John K. Grisso, U. S. Atty., on brief), for appellee.
    Before CRAVEN and RUSSELL, Circuit Judges, and MURRAY, District Judge.
   HERBERT F. MURRAY, District Judge:

The appellant was tried by a general court martial in Japan during the period of March 7 to 26, 1955. He was convicted of conspiracy to misuse public funds (Article 81 of the Uniform Code of Military Justice; 10 U.S.C. § 881); of the offense of misuse of public funds; of two offenses of wrongful appropriation of government-owned property; and of two offenses of false swearing. Sentenced to dismissal from the service, total forfeitures of all pay and allowances, and confinement at hard labor for two years, appellant had his case reviewed by the Air Force Board of Review which set aside the findings of guilty with regard to one of the false swearing specifications and both of the wrongful appropriations specifications. Further, the Board reduced the sentence to one year. Appellant next petitioned the United States Court of Military Appeals for a review of his case, and, on August 31, 1956, that court affirmed the decision of the Board of Review. Appellant further appealed to the Air Force Board for Correction of Military Records and this Board, by the authority of 10 U.S.C. § 1552, changed appellant’s record to show that he had been administratively discharged with an honorable discharge certificate.

On December 23, 1971, appellant instituted this suit in the United States District Court for the District of South Carolina, alleging that his conviction violated several of his constitutional rights. He sought to have his military trial and conviction declared unconstitutional and void, and he requested that a Writ of Mandamus be issued, compelling the Secretary of the Air Force to restore all forfeited rank, pay, allowances, entitlements and privileges. The district court found that mandamus was not the proper remedy and that appellant should have sought relief in the Court of Claims, not the district court. Parrish v. Seamans, 343 F.Supp. 1087 (D. South Carolina 1972).

Parrish alleges that the Court of Claims cannot provide an available adequate remedy, that he “can receive a money judgment only” from that court, and that he “is entitled to have his conviction declared unconstitutional and null and void, to be restored to his former rank of Colonel, to have his records cleansed of a criminal conviction, to be awarded retirement pay which he shall receive until his death.”

On August 29, 1972, the jurisdiction of the Court of Claims was amended to include in part:

To provide an entire remedy and to complete the relief afforded by the judgment, the court may, as an incident of and collateral to any such judgment, issue orders directing restoration to office or position, placement in appropriate duty or retirement status, and correction of applicable records, and such orders may be issued to any appropriate official of the United States. In any case within its jurisdiction, the court shall have the power to remand appropriate matters to any administrative or executive body or official with such direction as it may deem proper and just.

28 U.S.C. § 1491 [Emphasis added].

Furthermore, as pointed out by the appellee, appellant may be able to request a review of his conviction before the United States Court of Military Appeals based on their decision in United States v. Jacoby, 11 USCMA 428, 29 CMR 244 (1960). That decision, filed after appellant’s conviction, held that members of the armed services are entitled to confront the witnesses against them. In any event, it is certain that mandamus is an extraordinary remedy which is not appropriate under these circumstances where other avenues of relief are available. The judgment of the district court is, therefore,

Affirmed.

      . Appellant’s primary objection to the trial in Japan was the use of depositions in lieu of witnesses.


text:
    UNITED STATES of America, Appellee, v. Leon OSHER, Defendant-Appellant.
    No. 290, Docket 73-1929.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 17, 1973.
    Decided Oct. 17, 1973.
    Daniel L. Meyers, New York City, for defendant-appellant.
    Alan R. Kaufman, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., for the Southern District of New York, Douglas F. Eaton and S. Andrew Schaffer, Asst. U. S. Attys., on the brief), for appellee.
    Before KAUFMAN, Chief Judge and LUMBARD and TIMBERS, Circuit Judges.
   PER CURIAM:

Following a jury trial before Judge Gagliardi, Leon Osher was convicted on two counts of an eight count indictment charging mail fraud in violation of 18 U.S.C. § 1341. He was acquitted on the remaining six counts. The district court imposed a sentence of 15 months imprisonment on count one, and three years probation to be served thereafter on count three. We affirm the judgment in all respects.

Although appellant raises a number of issues, we deem it necessary to treat only one question extensively. Osher asserts the Government failed as a matter of law to prove under either count that the mailing was, in the language of the statute, “for the purpose of executing” the fraudulent scheme.

The evidence disclosed that by means unknown, Osher came into the possession of a Bank Americard shortly after it was issued to Lewis Sandler on April 6, 1972, by the B. T. Credit Company (“B.T.”), a subsidiary of Bankers Trust Company. Count one charged that Osher impersonated Sandler and used the card on April 14 and 15, 1972, to purchase goods and services from various merchants in the vicinity of Fort Lauderdale, Florida. The vendors presented the charge receipts for payment at the Barnett National Bank of Jacksonville, Florida. The bank, on April 21, mailed the vouchers to B.T. in New York City for collection. This constituted the only mailing alleged or proven with respect to count one. Count three charged that Osher used the card to obtain merchandise, again in Fort Lauderdale, on April 14. The indictment charged and the Government proved that the Barnett National Bank mailed B.T. the charge slips relating to these transactions on April 26.

Appellant contends that these mailings could not be “for the purpose of exeeuting” the fraud because the scheme was completed when he obtained the goods and services. The argument is made that the means by which the merchants and banks collected upon the vouchers was wholly irrelevant to the perpetration of the fraud. Reliance is placed upon Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277 (1960), and Kann v. United States, 323 U.S. 88, 65 S.Ct. 148, 89 L.Ed. 88 (1944).

We are precluded from accepting this line of reasoning by the established law of this circuit. United States v. Madison, 458 F.2d 974 (2d Cir.), cert. denied, 409 U.S. 859, 93 S.Ct. 145, 34 L.Ed.2d 105 (1972); United States v. Chason, 451 F.2d 301 (2d Cir. 1971), cert. denied, 405 U.S. 1016, 92 S.Ct. 1291, 31 L.Ed.2d 479 (1972); United States v. Kellerman, 431 F.2d 319 (2d Cir.), cert. denied, 400 U.S. 957, 91 S.Ct. 356, 27 L.Ed.2d 266 (1970). In Kellerman we held that the sale of stolen or forged credit cards constitutes conspiracy to commit mail fraud since the only value the card has lies in the ability of the holder to induce others to advance credit upon it; this, we said, must ultimately involve utilization of the mails in the collection process. A fortiori, the individual who uses the card fraudulently violates § 1341, and we so held in Madison and Chason. These decisions control the disposition of the present appeal.

The majority of the circuits which have considered the question are in accord with this view. United States v. Ciotti, 469 F.2d 1204 (3d Cir. 1972); United States v. Kelly, 467 F.2d 262 (7th Cir. 1972); United States v. Thomas, 429 F.2d 407 (5th Cir. 1970); see United States v. Kelem, 416 F.2d 346 (9th Cir. 1969), cert. denied, 397 U.S. 952, 90 S.Ct. 977, 25 L.Ed.2d 134 (1970). We are aware that a minority rule to the contrary has recently appeared. United States v. Maze, 468 F.2d 529 (6th Cir. 1972), cert. granted, 411 U.S. 963, 93 S.Ct. 2145, 36 L.Ed.2d 683 (1973); United States v. Lynn, 461 F.2d 759 (10th Cir. 1972). Although the Supreme Court in Maze has granted certiorari to resolve the conflict among the circuits, we shall adhere to what we believe is the sounder view, as expressed by this Court and by the majority of the Courts of Appeals.

We have considered appellant’s other contentions, and they are without merit. Accordingly, the judgment is affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert E. COTE, Defendant-Appellant.
    No. 72-2417
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct. 11, 1973.
    Rehearing Denied Nov. 9, 1973.

      George Grove, Jr., Beverly Hills, Cal., for defendant-appellant.
    Frank McCown, U. S. Atty., Alex H. McGlinchey, Asst. U. S. Atty., Fort Worth, Tex., for plaintiff-appellee.
    Before BELL, DYER and CLARK, Circuit Judges.

      Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty. Co. of N.Y., 431 F.2d 409, Parti (5th Cir. 1970).

   PER CURIAM:

Pursuant to the order of the Supreme Court of the United States dated June 25, 1973 vacating our judgment and remanding this cause to this court, we have made an “independent constitutional judgment on the facts of the case as to whether the material is constitutionally protected”, Jacobellis v. Ohio, 378 U.S. 184, 190, 84 S.Ct. 1676, 1679, 12 L.Ed.2d 793 (1964). Furthermore, we have tested the materials under both the standard for obscenity set out in A Book Named John Cleland’s Memoirs of a Woman of Pleasure v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), and the standard recently enunciated in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). See United States v. Thevis, 484 F.2d 1149 (5th Cir. 1973). The statute involved, 18 U.S.C. § 1461, has been the subject of authoritative judicial construction which renders its application constitutionally proper.

The materials for which Cote was prosecuted were magazines entitled. “Ups and Downs No. 4”, “Duplex” and “Gemini”; a reel of movie film entitled: “Tri-sex”; and advertising materials thereabout. We have tested each and all of these materials in the manner set out in Thevis, supra,. If the test results of each of these articles were put into tabular form as was done in Thevis, every answer to every question would be yes.

Therefore, the convictions of Robert E. Cote upon his pleas of guilty are again Affirmed.

      . The following excerpt from Defendant’s brief in this court describes the materials involved :
      That the picture books, films and advertisements charged in the indictment in the case at bar depict nude females in sexually suggestive poses and body movements is not in dispute. That there are occasionally a man and woman or two women in a picture (but without explicit sexual activity) is conceded. That the pictures and films are vulgar and monotonous is beyond argument. That no serious social message is communicated or intended by the pictures and films is evident. That no great dramatic, talent or graphic artistry is demonstrated in the pictures and films is readily determinable upon a casual viewing. Tawdry? Very probably. Dull? Certainly. Sexually provocative? Perhaps to some; undoubtedly pathetic or laughable to others.

      . Defendant contends that only hard-core pornography, which he defines as portrayal of explicit sexual acts in which the genitals are exposed, may be punished as criminally obscene. He urges that we follow the “actual performance” of the Supreme Court “as distinguished from its rhetoric." With the announcement of Miller and the companion cases of the same date, the Court’s “performance” has taken a significant new turn. See Thevis, supra.

      . Cote received concurrent two-year sentences upon each count.