text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert Haines WALDRON, Defendant-Appellant.
    No. 71-1230.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 15, 1972.
    Decided Feb. 8, 1973.
    Joseph Beeler, Federal Defender Program, Chicago, Ill., for defendant-appellant.
    James R. Thompson, U. S. Atty., William T. Huyck, Theodore T. Scudder, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.
    Before HASTINGS, Senior Circuit Judge, and PELL and STEVENS, Circuit Judges.
   PELL, Circuit Judge.

This is an appeal from a conviction for refusal to submit to induction in violation of 50 U.S.C. App. § 462. Defendant Waldron, a registrant of a Fort Wayne, Indiana board, attended the Art Institute of Chicago, graduating in June 1968. During his attendance there he received a II-S student deferment, 32 C.F.R. § 1622.25 (1968). In order to obtain that deferment he had executed Selective Service [SSS] Form 104, requesting an undergraduate deferment on September 18, 1967. Following his graduation, he was reclassified I-A, 32 C.F.R. § 1622.10 (1968), on July 2, 1968. He immediately appealed this classification requesting a III-A hardship deferment, 32 C.F.R. § 1622.30, but this appeal was rejected by both his local board and his appeals board. On December 30, 1968, Waldron was mailed his order to report for induction. The date scheduled was February 5, 1969.

Shortly thereafter, Waldron filed a form requesting conscientious objector classification. The local board notified Waldron on January 24, 1969, that it had considered his application but “found no grounds for reopening your classification.” However, on January 28, 1969, Colonel Rhodes, the Indiana State Director of Selective Service, reviewed Wal-dron’s file and recommended that “the local board give postponement and ask registrant in for interview as per LBM #41 [Local Board Memorandum 41].” The board thereupon sent Waldron SSS Form 264 stating that by authority of SSS Regulation 1632.2 Waldron’s order to report for induction was postponed until February 19, 1969. A letter accompanied the form advising Waldron that he would be given an “interview” by the board on February 5, 1969. On February 6, the board sent Waldron two letters, the first advising him that it “found no grounds for reopening your classification after you [sic] being interviewed” and the second ordering him to report for induction on February 19, 1969. Because he was living in Chicago, Waldron had the order to report transferred to Chicago. On March 27, 1969, Waldron refused to submit to induction.

On this appeal Waldron raises two principal grounds for reversal: first, that his application for conscientious objector status was improperly denied, both substantively and procedurally; and second, that he was impermissibly precluded from obtaining a I-S(C) deferment, 32 C.F.R. § 1622.15 (1968), during the school year 1968-69 while he was in graduate school. For the purposes of this appeal we will assume, arguendo, that Waldron did present a prima facie case for conscientious objector status. Our first determination is whether or not such a claim was barred by Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971).

Admittedly, if the induction notice of December 30, 1968, is deemed to be the controlling notice, then Waldron’s, conscientious objector claim was late and barred by Ehlert. To avoid the force of the Ehlert decision, Waldron argues that the order of December 30, 1968, was superseded by the letter of February 6, 1969, and, thus, his conscientious objector claim of January 1969 was timely filed. In support of his position, Wal-dron cites Rodriguez v. United States, 452 F.2d 659 (7th Cir. 1971), and White v. United States, 422 F.2d 1254 (9th Cir. 1970).

In Rodriguez, the defendant had failed to report for induction because of extremely bad weather and consequently had been ordered to report a second time. This court held that the second order cancelled the first so as to make timely the defendant’s application for a III-A classification .filed before the second order to report was mailed. The White case presents a slightly different factual situation with the Ninth Circuit holding that a second order to report for civilian work following White’s refusal to report superseded the prior order and made timely his III-A application. The Government urges us to distinguish these cases on the ground that they involved dependency claims based on “objectively identifiable” and “extraneous” circumstances beyond the registrant’s control, as opposed, apparently, to a volitional claim. Cf. Ehlert, supra, 402 U.S. at 104-105, 91 S.Ct. 1319.

We think, however, that the clear answer here is that the postponement of Waldron’s induction by the board as a result of Waldron’s application for conscientious objector status was just that, a postponement, and as such no new order issued on February 6. The granting of a courtesy interview, even erroneously, if at the request of the registrant should not, by virtue of its necessitating an induction postponement, be used to make timely all previously filed claims. Othei’wise, a local board could never grant a courtesy interview without concatenating reopening. We think this result is precluded by Ehlert and its rationale. In reference to the “legal limbo” in which a registrant is placed while his induction is postponed, we note only that it was at Waldron’s request and only for a brief period of time. See United States v. Benson, 469 F.2d 1356 (7th Cir. 1972), where far longer postponements were held not to be prejudicial.

Waldron also urges that the intervention by the State Director effectively reopened his classification, thus circumventing the bar of Ehlert. We first note that the local board treated the postponement and interview as being pursuant to 32 C.F.R. § 1632.2, and not as a mandatory reopening under 32 C.F.R. § 1625.3. Regulation § 1625.2, however, as the Supreme Court held in Ehlert, “barred presentation to the local board of a claim that allegedly arose between mailing of a notice of induction and the scheduled induction date.” 402 U.S. at 108, 91 S.Ct. at 1325. (Emphasis added.) There being no basis for the board to assume that the State Director had invoked 32 C.F.R. § 1625.3, it is clear that the board could not have reopened Waldron’s classification. See Wright v. Ingold, 445 F.2d 109 (7th Cir. 1971).

Waldron argues that even if reopening were improper under 32 C.F.R. § 1625.2, the State Director’s request nevertheless mandated a reopening under 32 C.F.R. § 1625.3(a). He analogizes his position to that in United States v. Aufdenspring, 439 F.2d 388 (9th Cir. 1971), United States v. Noonan, 434 F.2d 582 (3d Cir. 1970), cert. denied, 401 U.S. 981, 91 S.Ct. 1190, 28 L.Ed.2d 333 (1971), and Miller v. United States, 388 F.2d 973 (9th Cir. 1967). Each case is, however, distinguishable from the case before us. In Aufdenspring, the language of the letter from the California Headquarters was construed as releasing the board from any restrictions. This distinction was relied upon by the Ninth Circuit itself in United States v. Hand, 443 F.2d 826 (9th Cir. 1971). In Noonan, the State Director’s letter was much stronger than the oral statement of Colonel Rhodes. Miller is the source of the doctrine of de facto reopening, but, although the language has some relationship to the present case, a significant fact is that Miller by a letter had claimed conscientious objector status before his induction notice was mailed and thus the case has an inapposite foundation for us. Further, on their facts, all three of the above cases are distinguished from Waldron’s in that in each there was “written” communication from the state headquarters to the local board, a requirement of 32 C.F.R. § 1625.3. Colonel Rhodes’s advice was merely oral and thus failed to comply with the regulation.

In his reply brief, Waldron concedes that there was no “order,” but argues that the “State Director authorized it [the board] to reopen his classification.” While the State Director can release the local board from the constraints of § 1625.2, e. g., United States v. Aufden-spring, supra, we do not find “authorized” to be equatable' with “ordered.” While we recognize that some of the state headquarters’ written communications in the Miller line of cases scarcely seem to be couched in mandatory terms, and without determining that we would have reached the same conclusion as those courts did on the facts before them, we do note the Miller court language that the “effect of what the State Director did was to open up the situation ... in the same manner and to the same extent as if the induction order had not been issued.” 388 F.2d at 975. We feel compelled to no such conclusion in the present case by the oral recommendation of postponement and interview. We do not, however, rest our determination solely on the oral nature of the communication as we would not find the Miller effect even if the State Director’s recommendation had been in a formal written communication.

Even if we were to assume, arguendo, that the State Director, in contradistinction to an ordered release from the § 1625.2 restraints, could delegate his authority to reopen to the local board, we find no basis for thinking that the delegation would be appropriate in the present type of case. All of the eases cited by Waldron were instances in which the State Director was found by the reviewing court actually to have exercised his reopening authority under § 1625.3. We do not see any instance of an intermediate position between § 1625.2 and § 1625.3 with the State Director delegating his authority to the local board. The regulations just do not include such authority. That the courtesy interview recommended by the State Director may have been pointless, insofar as the board’s authority was concerned in light of the subsequent decision in Ehlert, does not require us to rewrite the regulations to provide authority that did not otherwise exist.

Since we hold that the State Director did not reopen Waldron’s classification, it is immaterial what statement the board made to Waldron in denying him reopening since the board was “barred” from reopening on any grounds, Ehlert, supra. Waldron urges, however, that we cannot know that the local board relied on § 1625.2 for not reopening his classification, and therefore we must reverse. If, as we held in Wright v. Ingold, supra, the board had no power even to consider a late conscientious objector claim, then no reasons are necessary. Such cases as United States v. Stetter, 445 F.2d 472 (5th Cir. 1971), cited by appellant, are inapplicable since the court in those cases was not reviewing a post-induction-order claim, but rather one timely filed. Ehlert has made the area here involved sui generis in selective service law by the use of the term “barred.”

Finally, Waldron asserts, because the local board may have passed on the merits of his claim for conscientious objector status, he may not be able to get such review in the Armed Services and that his case is controlled by cases such as United States v. Ziskowski, 465 F.2d 480 (3d Cir. 1972), and United States v. Alioto, 469 F.2d 722 (1st Cir. 1972), rather than by Ehlert. The Third Circuit reached its result on language from the local board similar to that we have before us. It was held that this language might be interpreted by the armed forces as a ruling on the merits (sincerity) of the registrant’s claim, thus barring any in-service review. Since this would create that sort of “no-man’s” land that Ehlert had said should not exist, the Third Circuit reversed the conviction. The First Circuit likewise reached this result in Alioto. Apparently neither circuit has adopted a rule such as that stated in Wright v. Ingold, supra. In this Circuit, the local board has no power to reopen and thus any ruling must perforce be on grounds of lateness insofar as the armed forces may be concerned. Any ruling on the merits by the board, being impermissible in this Circuit, would not be reviewed by the courts and could not serve to bar subsequent in-service adjudication of conscientious objector status without amounting to a denial of due process and thereby allowing a writ of habeas corpus to issue. Thus, we find the Ziskow-ski-Alioto rationale inapplicable in the present case.

Apart from his conscientious objector claim, Waldron claims error in the denial of an opportunity to obtain a I-S (C) student deferment until the end of the academic year for his graduate school work during the school year 1968-69. The local board advised Waldron that there were no graduate deferments available. In part, this denial was based on the regulation adopted by the Selective Service System, 32 C.F.R. § 1622.-15(b), which dealt with eligibility for Class I-S. Waldron contends that this regulation is in derogation of the underlying act, § 6(h)(1) of the Military Selective Service Act of 1967 [MSSA of 1967], 50 U.S.C. App. § 456(h)(1) (1968), in that it disqualified from I-S (C) all students (a) who had received II-S deferments even though the deferment was only as a graduate student, (b) who had received a II-S deferment only under the provision of the law prior to the MSSA of 1967, or (c) who had received a II-S deferment without “requesting” it. This court has held that the first error referred to above would require reversal of a conviction, Foley v. Hershey, 409 F.2d 827 (7th Cir. 1969). Appellant may be correct as to the other two alleged errors as well. We do not have to reach those issues because it is clear that, even if the regulation is over-broad, Waldron was clearly within the permissible scope of the regulation. This is not a First Amendment case where it may be permissible to challenge for over-breadth a statute whose constitutionally permissible scope would include a prohibition of the defendant’s actions. We will not overturn a conviction under an overbroad regulation when the action was within the valid prohibition of the underlying statute. Here, the record shows that Waldron had received his II-S deferment as an undergraduate, under the 1967 Act, and at his request, all in accordance with the statute itself.

Finally, Waldron contends, even though he may have requested a II-S deferment by the execution of SSS Form 104, that the form was so misleading as to vitiate the request at least to the extent that it was deemed to constitute a waiver of future I-S(C) deferments after he had received his baccalaureate degree. There are two types of student deferments. The II-S, full-time student deferment is found in Section 6(h)(1) of the MSSA of 1967 while the I-S(C) deferment for a student to finish his year in school is found in 50 U.S.C. App. § 456(i). SSS Form 104 in quoting from Section 6(h) (1) omits the language of the section which creates the exception to eligibility for the I-S(C) deferment which is otherwise mandated by § 456(i). Waldron argues that he was affirmatively misled by the form in that he did not realize in requesting a II-S deferment as an undergraduate student he was waiving a future I-S(C) deferment when a graduate student. At first glance this is an appealing argument but to accept it is to ignore the entirety of SSS Form 104, for the next sentence states:

“Any person who requests and is granted a student deferment under this paragraph, shall, upon the termination of such deferred status or deferment, and if qualified, be liable for induction as a registrant within the prime age group irrespective of his actual age, unless he is otherwise deferred under one of the exceptions specified in the preceding sentence [extreme hardship to dependents or for graduate study, occupation, or employment necessary to the maintenance of the national health, safety, or interest] .”

We find that this sentence clearly and undeniably advises the registrant that following his II-S student deferment, he may obtain a further deferment only if he falls within one of the two specified categories. Waldron did not. Thus, a I-S(C) deferment was by this language precluded.

For the reasons hereinbefore given the judgment of the district court is affirmed.

Affirmed.

      . While we have categorized Waldron’s contentions into two principal ones, his brief on appeal proposes numerous supportive issues of claimed error. The Government contends that some of these had been waived by being first raised on appeal. This is denied by Waldron. We do not find it necessary to reach the question of waiver.

      . We note that this language may be broader than Congress meant as it could be read to bar other deferments if the registrant had received a II-S under the MSSA of 1967. But that question is not before this court. All we need to say is that the language was sufficiently clear to advise Waldron that he would not be eligible for a I-S(C) deferment at a later date, and so the form is not misleading so as to vitiate the request required by the Act itself.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Jose T. LUNA, Petitioner-Appellant, v. Dr. George BETO, Director, Texas Department of Corrections, Respondent-Ap-pellee.
    No. 72-3282
    Summary Calendar.*
    United States Court of Appeals, Fifth Circuit.
    Feb. 26, 1973.
    William T. Armstrong, Staff Atty., Staff Counsel for Inmates, Texas Dept, of Corrections, Weldon, Tex., for petitioner-appellant.
    Crawford Martin, Atty. Gen., Austin, Tex., for respondent-appellee.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.
   PER CURIAM:

Luna’s sole complaint on appeal is that he was denied a fair trial in the Texas state court as evidenced by an affidavit of one juror which impeached his own verdict.

We agree with the district court that “the case fits within the well-settled general rule that a juror will not be heard to impeach his own verdict.” Cunningham v. United States, 5 Cir. 1966, 356 F.2d 454.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ronald Floyd ROBERTS, Defendant-Appellant.
    No. 72-3161.
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 21, 1973.
    Rehearing Denied March 15, 1973.

      James A. Johnston, Edward B. Clout-man, III, Dallas, Tex., for defendant-appellant.
    Frank D. McCown, U. S. Atty., Ft. Worth, Tex., William F. Sanderson, Jr., Asst. U. S. Atty., Dallas, Tex., 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:

This is an appeal from a conviction for failure to submit to induction into the armed forces. Appellant was ordered to report for induction on March 23, 1971. After a series of postponements, he filed with his local board a dependency questionnaire, in an effort to obtain a III-A “hardship” deferment based on his mother’s alleged physical and emotional dependence upon him. After the local board had rejected appellant’s hardship claim and again ordered him to report for induction, appellant’s mother telephoned the clerk of the local board and informed her that she had suffered a severe lumbar strain requiring one week’s hospitalization followed by a period of therapy during which appellant’s assistance was needed to enable her to use traction equipment. No record of this telephone conversation appeared in appellant’s file, because the clerk independently determined that the information “would not affect the young man’s status or classification” (T. 39).

Relying on United States v. Jackson, 5th Cir. 1972, 454 F.2d 821, appellant argues that the clerk’s determination to exclude Mrs. Roberts’ message from his file precluded the local board from considering the information and thus denied him the right to an administrative appeal in the event the board chose not to reopen his file. We agree that the clerk had no authority independently to exclude Mrs. Roberts’ message from the file, but appellant’s reliance on Jackson is nevertheless misplaced. There, the clerk had excluded facts (a physician’s report that the registrant suffered from functional hypoglycemia) that arguably formed the basis for a medical deferment. In the instant case, however, the claim that appellant was needed to help his mother use traction equipment during a relatively brief period of therapy could not even arguably entitle appellant to a hardship deferment. Accordingly the judgment is

Affirmed.


author: LEWIS R. MORGAN, Circuit Judge:

text:
    Clinton MANGES, Plaintiff-Appellant, v. William B. CAMP et al., Defendants-Appellees.
    No. 72-1962.
    United States Court of Appeals, Fifth Circuit.
    March 1, 1973.

      Jack Skaggs, James Harris Denison, Jr., Harlingen, Tex., for plaintiff-appellant.
    William S. Sessions, U. S. Atty., San Antonio, Tex., Walter H. Fleischer, Anthony J. Steinmeyer, Dept, of Justice, Washington D. C., Ralph Langley, Emerson Banach, Jr., San Antonio, Tex., for defendants-appellees.
    Before JOHN R. BROWN, Chief Judge, and THORNBERRY and MORGAN, Circuit Judges.
   LEWIS R. MORGAN, Circuit Judge:

Clinton Manges, owner of controlling interest in the stock of The Groos National Bank, received an order on March 4, 1971, from the Comptroller of the Currency of the United States, prohibiting Manges “from further participation in any manner in the conduct of the affairs of The Groos National Bank”. Manges filed suit in the district court below seeking a permanent injunction against the Comptroller from continuing this order in force. The district court dismissed the suit for want of jurisdiction due to 12 U.S.C. § 1818(i), a withdrawal statute. This case involves appeal of that dismissal.

This court has determined that jurisdiction does lie in this specific case, that the withdrawal statute is not applicable here, and that the Comptroller acted outside of his proper statutory authority.

FACTS

On October 8, 1965, Clinton Manges was convicted upon his plea of guilty to the charge of making a false statement to the Small Business Administration, in violation of 15 U.S.C. § 645. Manges was sentenced to pay a fine of Two Thousand Five Hundred ($2,500.00) Dollars, and he did so pay on October 11, 1965. In December of 1970, Manges began purchasing shares of the common stock of The Groos National Bank of San Antonio, Texas. By February 2, 1971, he had obtained controlling interest of the Bank’s common stock. Manges reported this acquisition to the Comptroller of the Currency on February 14, 1971, along with other required information concerning his background. The 1965 conviction was included in that information. Manges, on February 16, 1971, presented written requests to the Bank’s Board of Directors asking them to pass certain resolutions. The Board took no action.

The Comptroller of the Currency then issued the order of March 4, 1971, which prohibited Manges from participating in any manner in the conduct of the affairs of the Bank. A copy of the order was sent to Manges and to The Groos National Bank. Pursuant to this order, the Bank (the Board of Directors) refused Manges’ participation in its affairs and prevented him from voting his stock. Manges, in July of 1971, requested that the Comptroller clarify the order of March 4, 1971. The Comptroller acknowledged Manges’ request and said nothing.

This case was commenced December 20, 1971, when Manges requested that the Comptroller be permanently enjoined from continuing in force and effect his order of March 4th. Manges further requested that a preliminary injunction be issued against the Board of Directors of The Groós National Bank preventing them from taking any action to his financial detriment as concerns control of said Bank. The district court dismissed, basing its decision on 12 U.S.C. § 1818(i), a withdrawal statute.

ISSUES

Manges, on appeal, not only contends that the Comptroller was acting beyond the scope of his authority in 12 U.S.C. § 1818(g)(1), but he also attacks the constitutionality of 12 U.S.C. § 1818(h)(2) and § 1818(i), as violative of the due process and equal protection guarantee of the Fifth Amendment. Manges further states that judicial review of this statute should be allowed and cannot be excluded in this situation. These contentions should not be taken lightly. If Manges’ claims are true, then he has suffered grievous harm due to the action by the Comptroller of the Currency, possibly in violation of the United States Constitution. The government naturally asserts that the Comptroller was acting well within his designated authority under the statute and was in no way violating any of Manges’ guaranteed rights. This court, therefore, feels careful scrutiny of th.e statute in question and the intent behind it is demanded.

JURISDICTION

This court, however, upon reading 12 U.S.C. § 1818(h)(2) and § 1818(i), is not so convinced that the Comptroller was within his designated statutory authority. Further, if the Comptroller was not acting within his authority granted by Congress, then 12 U.S.C. § 1818(i) could not withdraw jurisdiction.

There is, however, a very strong court created exception to withdrawal statutes. This exception comes into play when there has been a clear departure from statutory authority, and thereby exposes the offending agency to review of administrative action otherwise made unreviewable by statute.

Two recent decisions by the Supreme Court give concrete support to the concept that a clear departure from designated authority demands judicial review. In Oesterich v. Selective Service System, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968), a draft board granted a divinity student exemption from military service as provided for by law. Then the board revoked this exemption and ordered the student inducted due to conduct unrelated to the granting or continuing of that exemption. The Military Selective Service Act of 1967 provided that there would be no pre-induction judicial review of the classification or processing of the registrant. The Supreme Court held that the draft board clearly departed from its statutory mandate and acted in a lawless manner. Supra at 238, 89 S.Ct. 414. Justice Douglas stated on behalf of the Court that concerning the statute itself “[n]o one, we believe, suggests that § 10(b)(3) [withdrawal section of the statute] can sustain a literal reading . . . Examples are legion where literalness in statutory language is out of harmony either with constitutional requirements or with an Act taken as an organic whole.” (citations omitted). Supra at 238, 89 S.Ct. at 417.

Also, in Breen v. Selective Service System, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970), under similar facts, the Court once again ruled that a clear departure from statutory mandate was present and justified judicial review. Supra at 467, 90 S.Ct. 661. Justice Harlan in his concurrence was careful to point out that the Court’s judicial scrutiny of Breen’s legal contention, unlike review of factual and discretionary decisions, in no way hindered the function of the Selective Service System which was the primary concern of Congress in enacting this withdrawal section. Supra at 468, 90 S.Ct. 661.

The question then before this court is whether or not the Comptroller acted within the scope of his authority as Congress so intended it to be.

The precise language of 12 U.S.C. § 1818(g)(1) states “Whenever any . . person participating in the conduct of the affairs of such bank, is charged in any information, indictment, or complaint authorized by a United States attorney, with the commission of or participation in a felony involving dishonesty or breach of trust, the appropriate Federal banking agency may, by written notice served upon such . . . person . . . prohibit him from further participation in any manner in the conduct of the affairs of the bank. A copy of such notice shall also be served upon the bank. Such suspension and/or prohibition shall remain in effect until such information, indictment, or complaint is finally disposed of or until terminated by the agency.” This language, on its face, certainly appears to speak to the present tense, that is to say, it speaks to the situation where a person is presently involved and participating in the affairs of a bank and is presently charged with a felony. The Comptroller has asserted this language was intended to go not only to the present, but also to any past felony charges or convictions that might have occurred as regards Manges.

Because what has occurred, on its face, appears highly suspect as regards the safeguarding of individual rights guaranteed under the Constitution, this court must seek the precise intent Congress had in promulgating this legislation.

After reviewing carefully the legislative history concerning this Act there can be no doubt that Congress never intended to establish a procedure such as the one utilized here by the Comptroller, H.R.Rep. 2077, 89th Cong., 2nd Sess., 1966; S.Rep. 1482, 89th Cong., 2nd Sess., 1966, U.S.Code Cong. & Admin. News 1966, p. 3532; 112 Cong.Rec. 24980-25026 (1966); 112 Cong.Rec. 20077-20248 (1966). Further, if the Comptroller’s argument were taken as true and this statute were to operate as the Comptroller asserts, then this could be the only section of the statute whereby judgment of one individual was in no way reviewable by any court or administrative procedure.

This court at no time has overlooked the intent of Congress to provide safeguards to ensure that the public and financial institutions shall not be subject to loss due to infiltration by criminal or dishonest elements. There are other provisions of this statute that not only safeguard the institutions involved, but also appear to provide adequate procedural safeguards to guarantee that no individual shall have his rights violated due to the arbitrary action of one individual or even the arbitrary action of a group of individuals. It should be noted that 1818(g)(1) is the only section that could possibly subject a person to possible arbitrary and capricious judgment of one individual. No other section of the statute has such a provision. In all other situations judgment as to fitness as regards the criminal background of an individual resides in the collective judgment of a number of individuals rather than in a single person. What Congress did intend in promulgating 1818(g)(1) was to routinely eliminate any person who is convicted or charged with a felony involving a breach of trust while he is at the same time participating in the affairs of a national bank.

This routine removal, however, cannot be the case with Clinton Manges. If this section did apply to Clinton Manges, then logically any person in the United States who has ever been convicted of a felony and who also owns stock in a national bank could be deprived of effective ownership of that stock by the unreviewable order of a single government administrator.

This court notes that the draft of the original bill was amended so as to provide that the Federal Reserve Board and not a single individual should be designated with removal powers as regards national bank officials. The Senate Committee on Banking and Currency reported to the full Senate that:

The duty and responsibility of suspending or removing bank officials is a quasi-judicial function of the highest delicacy, requiring the most careful balancing of the interests of the institutions and officials involved, on the one hand, and the interest of the depositors, savers, borrowers, and the Government and the public generally on the other hand. To permit suspensions and removals without thorough consideration would be unfair to the institutions and officers involved. Any procedure which would permit this would have a harmful effect on the banking system itself and on depositors, borrowers and the public. S.Rep.No.1432, 89th Cong., 2 Sess., page 3, (1966), U.S.Code Cong. § Admin.News 1966, p. 3540.

Although this refers to bank officials, certainly a person owning controlling interest in a bank should be within the purview of this concept.

This construction of the statute then properly avoids serious constitutional questions raised herein by appellant Manges relating to the lack of any hearing. By this decision, we do not in any way comment on any of the possible constitutional issues involved in this suit or any constitutional issues that may be raised as pertains to this statute in later suits.

This court then finds that the Comptroller was not acting within the scope of his proper authority under 1818(g)(1), thus, exposing himself to judicial review under the doctrine of Oesterich and Breen, supra. This case also involves a clear departure from statutory authority though not as obvious on its face as in the Selective Service cases above. There can be no doubt after considering the intent and purpose Congress had in promulgating this legislation that this court should and does have jurisdiction in this specific situation.

It is the order of this court that the judgment below be reversed and the injunction granted as to the Comptroller of the Currency of the United States prohibiting him from acting under Section 1818(g)(1) as to Clinton Manges. This action then of the Comptroller being void and of no effect can no longer serve as authority for the Directors of The Groos National Bank to refuse Manges’ participation in the affairs of that bank. Therefore, an injunction will lie as to those Directors if they refuse Manges’ participation, basing their action upon that order of the Comptroller. The order of the lower court dismissing the suit by Clinton Manges against the Comptroller of the Currency of the United States is

Reversed and remanded for proceedings not inconsistent with this opinion.

      . 12 U.S.C. § 1818(g)(1).

      . This court is following the recommendation of the United States Senate “ . - . the power to suspend or remove an officer or director of a bank or savings and loan association is an extraordinary power, which can do great harm to the individual affected ... it must be strictly limited and carefully guarded.” 112 Cong.Rec. 20083 (1966).

      . Manges has been deprived of effective ownership of several million dollars worth of stock without .notice, hearing, or any judicial review or administrative procedure other than the decision of one man, the Comptroller of the Currency. This is clearly not allowable under our present system of constitutional government. In Joint Anti-fascist Refugee Comm. v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 647, 95 L.Ed. 817 (1951), (concurring opinion) Justice Frankfurter stated that essential to due process of law is “the right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction.” Where tangible property is taken, either directly or indirectly, there is no doubt that the opportunity for hearing must exist. Londoner v. Denver, 210 U.S. 373, 28 S.Ct. 708, 52 L.Ed. 1103 (1908).

      . Evidence of this specific intent to routinely remove persons charged -with a felony is substantiated by Senator Proxmire in his discussion of another section of this statute. 112 Cong.Rec. 20245 (1966).

      . This court lias found that there is a common nucleus of operative fact in this case and, therefore, pendent jurisdiction as to The Groos National Bank and its directors clearly exists. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).


author: VAN DUSEN, Circuit Judge. ALDISERT, Circuit Judge

text:
    BLUE BIRD FOOD PRODUCTS CO., Appellant, v. BALTIMORE & OHIO RAILROAD COMPANY.
    Nos. 71-1901 to 71-1904.
    United States Court of Appeals, Third Circuit.
    Argued March 7, 1972.
    Resubmitted under Third Circuit Rule 12(6) on Nov. 20, 1972.
    Decided Feb. 20, 1973.
    Aldisert, Circuit Judge, dissented and filed opinion.

      Walter W. Rabin, Meltzer & Schiffrin, Philadelphia, Pa., for appellant.
    Alan Edward Casnoff, Frederick H. Ehmann, Jr., Norman R. Bradley, Philadelphia, Pa., for appellee.
    Before BIGGS, VAN DUSEN and ALDISERT, Circuit Judges.
   OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

Blue Bird Food Products Co. (“Blue Bird”) appeals from the district court’s entry of judgment for the Baltimore & Ohio Railroad Company (“B & Q”) with respect to four actions filed by Blue Bird against B & O. Blue Bird claimed damages from B & O under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 20(11), in connection with four carloads of fresh hams shipped to it from a midwest packing company via the B & O. After a non-jury trial extending through three days, the district court entered judgment in favor of B & O, apparently on the ground that Blue Bird had not made out a prima facie case. For the reasons to be stated, we will vacate the judgment and remand the case to the district court for further proceedings consistent with this opinion.

In Missouri Pacific Railroad Company v. Elmore & Stahl, 377 U.S. 134, 84 S.Ct. 1142, 12 L.Ed.2d 194 (1964), the Court set forth the circumstances in which a carrier may be held liable for damages pursuant to 49 U.S.C. § 20(11):

“[Ujnder federal law, in an action to recover from a carrier for damage to a shipment, the shipper establishes his prima facie case when he shows delivery in good condition, arrival in damaged condition, and the amount of damages. Thereupon, the burden of proof is upon the carrier to show both that it was free from negligence and that the damage to the cargo was due to one of the excepted causes relieving the carrier of liability.” 377 U.S. at 138, 84 S.Ct. at 1145. (Emphasis added.)

The disagreement between the parties to the instant appeal revolves around the first requirement for a prima facie case set forth in Elmore & Stahl, supra, that is, whether the hams were in good condition when delivered from the shipper to the initial carrier.'

Blue Bird introduced no direct testimony before the district court that the hams involved in these suits were delivered to the carrier in good condition. Instead, Blue Bird proposed to satisfy this requirement by the introduction into evidence of the bill of lading for each of the four ham shipments. The following language appeared in each of the four bills of lading:

“RECEIVED, subject to the classifications and tariffs in effect on the date of the issue of this Bill of Lading, . . . the property described below, in apparent good order, except as noted (contents and condition of contents of packages unknown) .” (Emphasis added.)

The “property” referred to in this language was variously described in the body of each bill of lading as “4 LONG HOOKS 58 RACKS” weighing 40046 pounds, “2527 pea Fresh Meats” weighing 36047 pounds, “1 LOT GRN MT PK CUTS” weighing 39712 pounds, and “loose fresh pork picnics” weighing 39478 pounds. None of the bills of lading listed an exception to the “apparent good order” of the hams when delivered to the initial carrier. Three of the four bills of lading indicated that the hams were being shipped pursuant to “Plan 2-Y^”; the fourth did not indicate a routing plan.

In Tuschman v. Pennsylvania Railroad, 230 F.2d 787 (3d Cir. 1956), this court held that a representation in a bill of lading that goods were received “in apparent good order” establishes a prima facie case of delivery in good order with respect to all aspects of the goods which were open to inspection and visible, but that the carrier may show that the alleged damage was caused in whole or in part by a condition which was not apparent when it received the goods:

“The acknowledgment by the bill of lading of the crane’s apparent good order was prima facie evidence that, as to all parts which were open to inspection and visible, the crane was in good order at the point of origin. This did not preclude the railroad from showing that the alleged damage in whole or part proceeded from some cause or causes which existed, but which were not apparent when it received the crane.” 230 F.2d at 791.

See also Nelson v. Woodruff, 66 U.S. 156, 160, 162, 1 Black 156, 17 L.Ed. 97 (1861). This evidentiary rule set forth in Tusch-man is consistent with the language contained in the bill of lading, since this language represents only that the goods were received from the shipper in “apparent” good order; any defects in those parts of the goods which were not open to inspection and visible would presumably not be “apparent” to the carrier and thus would not be included within the carrier’s representation.

The district court, however, concluded that the “apparent good order” representation in the bill of lading did not create a prima facie case with respect to the four ham shipments involved in the ease sub judice. The basis for this judgment by the district court was its implicit finding that in these four eases the shipper loaded the hams in a trailer provided by the shipper and then “sealed” the trailer before delivering it back to the carrier for shipment to the consignee. The district court determined that when merchandise is delivered to a carrier in a “sealed” trailer it is not “open and visible,” and held that in these circumstances the consignee who sues the carrier for damage to the goods cannot establish his prima facie case by means of the “apparent good order” representation in the bill of lading but must instead “establish by direct evidence that the goods were delivered to the carrier in good order.” 329 F.Supp. at 1118.

After the initial argument in this case and the filing of majority and dissenting opinions, which were vacated by the panel following consideration of a Petition for Rehearing, a pre-hearing conference was held in September 1972 and, thereafter, a supplemental stipulation was filed at the direction of this court (see F.R.A.P. 10(e)) amplifying the description of Plan 2-14, which had been contained in the trial court record in a one-sentence stipulation (see note 8 above).

Because the comments of counsel at the September pre-hearing conference (see note 8 above) and the Stipulation and statements thereafter filed make clear that there is no agreement between counsel on the facts concerning the sealing of these trailers and the existence or nonexistence of a “custom in the industry for the party loading the shipment into the trailer to place its seal upon the trailer,” we have concluded that the equivocal last sentence of Mr. Roeder’s testimony quoted in note 8 above does not constitute a sufficient evidentiary basis to support a finding that these trailers were sealed in view of the burden resting on the carrier to come forward with evidence showing a sealing of the trailers, making the condition of their contents non-apparent when received, under Tusch-man above at page 4. Since 1966 Mr. Roeder has been assigned to Philadelphia and the trailers were delivered to the carrier in the midwest in 1968. As stated by Judge Aldisert, speaking for the court, in Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir. 1972), a finding bearing “no rational relationship to the supporting evidentiary data” is clearly erroneous. Hence there was no proper basis for the conclusion of the district court that no part of the contents of the trailers was “open and visible,” as well as the conclusion that the shipper cannot establish his prima facie case by means of the “apparent good order” representation in the bill of lading.

The district court received evidence on many factual issues which it did not determine because of its findings that the contents of the trailer were not open and visible. For example, there was testimony indicating that a visual inspection at the point of shipment would not have disclosed the defects in the hams because spoilage is caused by a micro-organism not apparent to the naked eye, even though present in sufficient quantity to effect such spoilage. This contention is opposed by plaintiff-appellant. Also, because of the rear door on the trailer and the manner of loading, there was testimony that only the hams adjacent to those doors would have been subject to examination.

For the foregoing reasons, the district court judgment will be vacated and the case remanded for further proceedings consistent with this opinion.

ALDISERT, Circuit Judge

(dissenting).

This is the second time this panel has considered this appeal. When it was first before us, the majority filed an opinion reversing the district court, charging that court with making a finding which was clearly erroneous. I filed a dissenting opinion. Following a petition for rehearing, there was a reconsideration by the same panel. The majority now find as clearly erroneous that which they specifically found in their first opinion as “not clearly erroneous.” I again dissent. This time I dissent not only from the conclusion reached by the majority but also the method utilized to reach it.

This appeal requires review of a non-jury determination that a shipper failed to establish a prima facie case that shipments of hams were in good condition at the time of delivery to a railroad carrier. At trial, the shipper relied upon an acknowledgment in the railroad’s bill of lading that the goods were “in apparent good order.” The railroad contended that this acknowledgment in the bill of lading fails to satisfy the prima facie evidence rule because the phrase refers only to shipments “which were open to inspection and visible,” Tuschman v. Pennsylvania Railroad Co., 230 F.2d 787, 791 (3d Cir. 1956), whereas here the hams were received by the railroad in sealed trailers.

The district court found that the goods were loaded into trailers by the shippers, and that these trailers were then sealed and placed on the railroad’s freight cars for transportation. Based on its finding that the trailers were sealed, the court concluded that the railroad was not bound by the “apparent good order” statement on the bill of lading because “[w]here merchandise is sealed in a trailer . . . the contents are not open and visible.” 329 F.Supp. 1118.

The majority determine that application of the clearly erroneous rule dictates rejection of this critical finding. When this appeal was before this panel for original consideration, the majority stated that “the district court’s finding that the trailers were ‘sealed’ by the shipper before delivery to the carrier is supported by substantial evidence and is not clearly erroneous.” The majority properly observed in their first opinion that the “later stipulation of the parties concerning Plan 2-¼ did not by its terms negate the testimony of Mr. Roeder.” The majority now hold there is not “a sufficient evidentiary basis to support a finding that these trailers were sealed.” (page 107.).

The majority attempt to justify this oscillation by ascribing some significance to certain statements made by appellate counsel, not at trial in the district court, but adduced at a pre-argument hearing conducted after the original decision by this court, thirteen months after the district court trial took place. I am in total disagreement with this approach and would affirm the judgment of the district court.

What divides this court, after reconsideration, is basically the same difference in jurisprudential philosophy which divided it upon initial consideration. Ours is a fundamental difference in what we perceive to be the appropriate role of an appellate court in reviewing facts found by a trial court sitting without a jury. Regretfully, there is very little in the approach taken by the majority with which I can generate even a modicum of agreement.

The district court observed:

Critical to our decision are these facts. The rail carrier furnishes a piggyback trailer to the shipper, who cools and loads the shipment in a trailer which he is required to pre-cool. The shipper then seals the trailer. The trailer is then delivered to the piggyback train for cross country transit.

329 F.Supp. at 1117-1118.

The majority view, as clearly erroneous, the finding that the trailers were sealed. This was an important finding, for it was on this basis that the district court was able to draw the distinction “between those cases in which the merchandise being shipped were open to inspection and visible. Tuschman v. Pennsylvania Railroad Co., [230 F.2d 787, 3d Cir. 1956], and a situation wherein a loaded and sealed trailer is delivered to a carrier. Lincoln Farm Products Corp. v. Central Railroad Co. of New Jersey [81 N.J.Super. 161, 195 A.2d 200 (1963)].” 329 F.Supp. at 1118.

I find sufficient evidence in the record to sustain the trial court’s finding that the trailers were sealed. As the majority concede: (1) the shipments were made under “Plan 2-44” (page 104); and (2) it was the uncontradicted testimony of Mr. Roeder, a witness for the railroad: “In a plan two and a quarter, the shipper would affix the seal to the rear door, that trailer would be received at the ramp, or the trailer received under seal.”

Notwithstanding the uncontradicted record before the district court, the majority would by judicial fiat distort the trial record and infect it with dubious matters adduced at a F.R.A.P. 33 pre-hearing conference before an appellate court. With all due respects, I cannot detect the faintest tint of the relevancy of a post-trial, post-appellate argument disagreement “between counsel on the facts concerning the sealing of these trailers.” The function of an appellate court is to review only the record which was before the district court in order to determine whether that court committed error. Thus, I consider it highly improper for an appellate court to consider any evidence, stipulation, or statements of counsel which were not before the trial court at the time the decision under review was made. F.R.A.P. 10. Hunt v. Local Board No. 197, 438 F.2d 1128, 1146 (3d Cir. 1971), (dissenting opinion, Aldisert, J., joined by Van Dusen, J.).

Yet, that is precisely what the majority has done in reaching its conclusion. In an attempt to fashion some basis for the conclusion that there was insufficient evidence at trial “to support a finding that these trailers were sealed” (page 107), the majority rely on matters presented to an appellate court which were not before the district court. They rely on “comments of counsel” and “the Stipulation and statements thereafter filed [which] make clear there is no agreement between counsel on the facts concerning the sealing of these trailers and the existence or non-existence of a ‘custom in the industry for the party loading the shipment into the trailer to place its seal upon the trailer,’ .” (pages 106, 107.) Moreover, even if such a procedure did not offend my concepts of appellate review, the substance of post-trial disagreement of facts by trial counsel is totally inconsequential.

In concluding “there was not a sufficient evidentiary basis to support a finding that these trailers were sealed,” (page 107) the majority pointedly ignore Mr. Boeder’s testimony:

Q. Do you ever break the seals on those trailei-s?
A. Once in a while we do break the seals.
Q. For what purpose would you break the seals?
A. [A description of the circumstances.]
* * *
Q. Do you inspect all the loads that come into Philadelphia ?
A. No, we don’t.
Q. Where would that notation be if the seal were broken ?
A. We would make a notation on the waybill, and we would also make a notation in our seal record book.
Q. If you know, were the seals broken in any of these four cases?
A. Not to my knowledge.

(Record at 132-133.) (Emphasis supplied.)

The irrefutable and controlling fact is, as the majority explicitly conceded in their original opinion, that no evidence was introduced at trial to offset the critical evidence that the trailers were shipped under Rule 2*4, and Mr. Roeder’s testimony that the trailers shipped under Rule 2*4 were sealed.

Accordingly, I would affirm the judgment of the district court.

      . The district court’s opinion is reported at 329 F.Supp. 1116 (E.D.Pa.1971).

      . 49 U.S.C. § 20(11) provides in relevant part as follows:
      “Any common carrier, railroad, or transportation company subject to the provisions of this chapter receiving property for transportation from a point in one State . . . to a point in another State shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass within the United States . . . when transported on a through bill of lading, and no contract, receipt, rule, regulation, or other limitation of any character whatsoever shall exempt such common carrier, railroad, or transportation company from the liability imposed; and any such common carrier, railroad or transportation company so receiving property for transportation from a point in one State . . . to a point in another State . . . , or any common carrier, railroad, or transportation company delivering said property so received and transported shall be liable to the lawful holder of said receipt or bill of lading or to any party entitled to recover thereon, whether such receipt or bill of lading has been issued or not, for the full actual loss, damage, or injury to such property caused by it or by any such common carrier, railroad or transportation company to which such property may be delivered or over whose line or lines such property may pass within the United States when transported on a through bill of lading, notwithstanding any limitation of liability or limitation of the amount of recovery or representation or agreement as to value in any such receipt or bill of lading, or in any contract, rule, regulation, or in any tariff filed with the Interstate Commerce Commission; and any such limitation, without respect to the manner or form in which it is sought to be made is declared to be unlawful and void:....”

      . Exhibit P-2 at 32a.

      . Exhibit P-3 at 33a.

      . Exhibit P-4 at 34a.

      . Exhibit P-1 at 31a.

      . Exhibit P-1 at 31a contains no routing-plan. However, Blue Bird appears to have conceded that this trailerload was also shipped under Plan 2-1/4. See N.T. 314.

      . During tlie course of the trial, the parties stipulated that Plan 2-1/4 is a “commonly known” plan “in which the shipper loads a trailer belonging to the initial carrier; that the carrier then picks up the loaded trailer at the point of origin, transports the trailer across country to its ramp in Philadelphia and that then consignee picks up such trailer at the ramp.” N.T. 316-17. Nothing was said in this stipulation respecting the sealing of the trailer. At a pre-hearing conference held in September 1972, counsel for defendant conceded that “the record does not specifically indicate that the trailers were sealed” (p. 4) and “there is no specific witness who . . . said that in these four cases the trailer was sealed at origin by the shipper.” See Glick v. White Motor Company, 458 F.2d 1287, 1291 (3d Cir. 1972); see, also, for example, Chwalow v. Commissioner of Internal Revenue, 470 F.2d 475, 477 (3d Cir. 1972), showing that this court has given effect to statements by counsel concerning the facts in documents filed in this court after appeal. However, Mr. Roeder, a witness for B & O, testified :
      “Q Now, what is a seal on a trailer?
      “A The seal is a metal band fixed to the rear door. Generally the seal has numbers on it.
      “Q Who affixes that seal, if you know?
      “A In a plan two and a quarter, the shipper would affix the seal to the rear door, that trailer would be received at the ramp, or the trailer received under seal.” (Emphasis supplied.)
      The above testimony does not establish a custom and is too indefinite to form, the basis of a finding that the shipper sealed these trailers in light of paragraph 6 of the Stipulation filed October 16, 1972, describing Plan 2-1/4 in detail without any reference to the sealing of the trailers. See pages 106, 107, including fóot-notes 11-13.

      . Whether this determination was intended to be a finding of fact or a legal conclusion is not entirely clear. No mention of whether the contents of each of the trailers was “open and visible” was made in the district court’s initial presentation of facts, after which the district court observed that “[s]ince these facts are not in dispute there is presented solely an issue of law as to whether the plaintiff has provided sufficient proof to establish that the hams were in good condition at the time they were turned over to the carrier.” 329 F.Supp. at 1118. The district court then declared:
      “We are impelled to conclude that a distinction must be drawn between those cases in which the merchandise being shipped were open to inspection and visible. Tuschman v. Pennsylvania Railroad Co., supra, and a situation wherein a loaded and sealed trailer is delivered to a carrier. Lincoln Farm Products Corp. v. Central Railroad Company of New Jersey, 81 N.J.Super. 161, 195 A.2d 200, supra.
      “It seems to us that when the contents of a shipment are open and visible to inspection, the “apparent good order” notation establishes a prima facie case. We are not persuaded that this rule is applicable to the circumstances that prevail here. Where merchandise is sealed in a trailer, and the contents are not open and visible, the plaintiff must establish by direct evidence that the goods wore delivered to the carrier in good order.”
      We assume, for purposes of this decision, that the district court has made a finding of fact that the contents of the trailers were not “open and visible,” but note that F.R.Civ.P. 52(a) requires that the trial court “shall find the facts specially and state separately its conclusions of law thereon.” See Pepi, Inc. v. Helcar Corp., 458 F.2d 1062 (3d Cir., 1972).

      . Due to the incomplete and ambiguous testimony at the trial describing Plan 2-14 and the condition of the trailers when delivered to the carriers, the possibility of supplementing the record through stipulation or otherwise with (1) a more complete description of this plan, which constituted a “tariff” referred to in the bill of lading, and (2) a statement of the condition of the trailer door seals and the visibility of the trailer contents at the time of delivery to the carrier was recognized in paragraph C of the order directing that these appeals be resubmitted to the panel. This paragraph C provided:
      “C. A pre-hearing conference will be held at a date to be set in early September by a later order of the court for discussion of the factual and legal issues relevant to determination of the district court action, including the following:
      “1. Was any part of the contents of the trailer ‘open and visible’ in view of the testimony of Mr. Boeder that the door to the trailer could be easily opened and other evidence in the record? If some part of the contents was open and visible, did the damage alleged by Blue Bird result, in whole or in part, from a cause which would have been apparent from a reasonable inspection of the contents in light of the manner in which the contents were loaded?
      “2. Is the carrier bound by the representation in the bill of lading that the ‘property described below’ was recieved ‘in apparent good order’ when no statement was placed on such bill that the contents of the trailer were not subject to inspection?
      “3. Is the trailer a ‘package’ within the meaning of the phrase ‘(contents and condition of packages unknown)’ in the bill of lading?
      “4. Does the phrase ‘subject to the classifications and tariffs in effect on the date of the issue of this Bill of Lading’ in the bill of lading affect the duty of the carrier to make an inspection of the contents of the trailers?”

      . Paragraph 6 of the Stipulation filed in this court on October 16, 1972, pursuant to the order of the panel at the pre-hear-ing conference (pp. 39-40), contains this language:
      “6. Under Plan 11-14 the railroad supplies a trailer at consignor’s loading point. The trailer is then loaded by the consignor, picked up by the railroad and transported to its ramp, carried to the railroad ramp nearest the consignee, and removed from the flatcar for pick up at the railroad ramp by the consignee. The trailer is then transported by the consignee from the railroad ramp to the consignee’s door and is unloaded by the consignee and then returned empty to the railroad.
      “The items which set forth provisions applicable to the plan generally known as Plan 11-% are items 28046-0, at page 103 of Supplement 42 of tariff 450-D, and item 3208-E of supplement 42 to tariff 450-D. Item 28046-0 provides, inter alia, that the consignor will perform the loading of cargo into the trailer at the point of origin. The other provisions applicable to Plan 11-14 are set forth in item 3208-E. . . .”
      Since the parties concede that the hams were shipped pursuant to Plan 214 (note 7 above), the language “subject to the classifications and tariffs in effect on the date of issue of this Bill of Lading” makes the terms of the tariff applicable. See, e. g., Central of Georgia Ry. Co. v. Griner & Rustin, 33 Ga.App. 705, 127 S.E. 878, 880-881 (Court of Appeals of Georgia 1925).

      . Pursuant to the following paragraph 8 of the Stipulation filed in this court (see note 11 above), plaintiff-appellant and defendant-appellee each filed a STATEMENT in this court on October 16, 1972:
      “8. The parties differ as to whether certain other items in tariff 450-D and the supplements thereto are relevant to the subject matter before the Court, and it is agreed that each party may present to the Court, in addition to this Stipulation, a statement setting forth those items in tariff 450-D and its supplements which that party feels should be called to the attention of the Court.”

      . See penultimate sentence of STATEMENT BY APPELLEE filed October 16, 1972.

      . See also Chalk v. Beto, 429 F.2d 225, 227 (5th Cir. 1970); Transport Mfg. & Equip. Co. v. Fruehauf Trailer Co., 295 F.2d 223, 227 (8th Cir. 1961); 9 Wright & Miller, Federal Practice & Procedure, Civil § 2585 at pp. 733-734 (1971).

      . The district court apparently did not realize that the facts recited in this language were “in disjjute”: “merchandise is sealed in a trailer, and the contents are not open and visible” (329 F.Supp. at 1118).

      . On remand it would appear appropriate for the district court to have the record before it supplemented and to make new findings of fact and conclusions of law on various issues, including these (see F.R.Civ.P. 59(a) and 54(b); 5A Moore’s Federal Practice U 52.13 at 2765-2766) :
      A. Was any part of the contents of the trailer “open and visible” in light of the time and condition of its being sealed and the party responsible for such sealing?
      B. Is there a custom governing the sealing of such trailers shipped under Plan 2-% (see note 13 above) ?
      If the trailer was sealed with a strong lock by the shipper, the district court would appear to have been correct in its conclusion that the contents of the trailer were “not open and visible,” 329 F.Supp. at 1118, and, hence, the defendant was not bound by the “apparent good order” representation in the bills of lading. See Armour Research Foundation of Ill. I. of T. v. Chicago R. I. & P. R.R., 311 F.2d 493, 494 (7th Cir. 1963). On the other hand, if easily removable “metal bands” were used to seal the trailer or the seals were placed by the carrier, such representation may have been sufficient to make out a prima facie case. See, e. g., Yeckes-Eichenbaum v. Texas Mexican Railway Co., 165 F.Supp. 204, 206-207 (S.D.Tex.1958), rev’d on other grounds, 263 F.2d 791 (5th Cir. 1959).
      Also, the nature of the lock on the trailer door and the party responsible for it might require the conclusion that the “apparent good order” representation was negatived by the language “(contents and condition of contents of package unknown).-” Cf. Serrano v. United States Lines, 238 F.Supp. 383, 387 (S.D.N.Y.1965); Glass-Tite Industries v. Spector Freight Systems, 102 R.I. 301, 230 A.2d 254 (1987). We agree with Judge Friendly that the question of what constitutes a package “demands a solution better than the courts can afford.” See Leather’s Best, Inc. v. S.S. Mormaclynx, 451 F.2d 800, 814 (2d Cir. 1971) ; Rules, Regulations, and Practices of Regulated Carriers With Respect to the Processing of Loss and Damage Claims, ICC Ex Parte No. 263, 340 I.C.C. 515, 606-613 (1972). It would appear that a revision of the normal language now used on bills of lading would be appropriate for Trailer-On-Flat-Car (TOFC) service, which has proved beneficial to rail carriers, shippers, and the public. See Substituted Service in Piggyback, 322 I.C.C. 301, 307, 322 (1964).

      . The district court noted that (329 F. Supp. at 1118) :
      “This disposition obviates the necessity for any discussion of the other points raised.”


author: SETH, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Billy Gene THOMAS, Appellant.
    No. 72-1524.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Nov. 15, 1972.
    Decided Feb. 16, 1973.
    Certiorari Denied June 4, 1973.
    See 93 S.Ct. 2758.

      Robert L. Christensen, Albuquerque, N. M., for appellant.
    Richard J. Smith, Asst. U. S. Atty. (Victor R. Ortega, U. S. Atty., on the brief), for appellee.
    Before HILL and SETH, Circuit Judges, and CHRISTENSEN, District Judge.
   SETH, Circuit Judge.

Defendant-appellant, Billy Gene Thomas, was found guilty by a jury on six counts charging the possession with intent to distribute, distribution of heroin and amphetamines, and conspiracy to so distribute in violation of several sections of 21 U.S.C. § 801 et seq., commonly called the Comprehensive Drug Abuse Prevention and Control Act of 1970.

Counsel was appointed for appellant by the court on September 22, 1971, following the filing of a criminal complaint against appellant on September 21, 1971. On September 28, 1971, appellant and his appointed counsel appeared at a preliminary hearing. The Government was present, represented by counsel. On September 29, 1971, the court denied a motion for reduction of the $10,000.00 bond it had previously set. Thereafter, on October 18, 1971, Special Agent in Charge of the Albuquerque Division of the Bureau of Narcotics and Dangerous Drugs, David Canaday, went to the New Mexico State Prison and obtained a written statement from appellant in the absence of and without the knowledge of plaintiff’s attorney.

While appellant argues that he gave agent Canaday this statement only because he was promised that if he cooperated with the agents, he would be released from prison on his own recognizance and would be placed on probation, it is not disputed that the interview was requested by appellant and that appellant read and signed a Miranda type waiver of rights form.

On October 19, 1971, the indictment charging appellant was handed down. The next day, after agent Canaday admittedly conferred with the prosecuting attorney, appellant was released from prison on his own recognizance by the United States Magistrate on motion of the Government.

At appellant’s trial, the statement was offered in evidence by the prosecution and was admitted over the objection of defense counsel. The circumstances surrounding the statement were developed. It was used by the Government in its cross-examination of appellant after appellant had voluntarily taken the stand to testify in his own behalf.

Appellant contends that by allowing the prosecuting attorney to use appellant’s statement, which was obtained without informing his attorney of the impending interview and thus giving the attorney a reasonable opportunity to be present at the interview, is to condone conduct by the prosecution which can be considered to be unethical. The canons of ethics governing the actions of attorneys in all United States Courts in this circuit prohibit an attorney from communicating about the controversy with a party on the other side of the case who is represented by an attorney. This canon of ethics has been held to mean that it is improper to so communicate even if the party agrees to be interviewed without his attorney being present. The canon is applicable to criminal as well as civil cases. See 42 Neb.L.Rev. 483.

Other courts have expressed concern over the violation of this canon. See, for example, United States v. Pour Star, 428 F.2d 1406 (9th Cir.). The majority in Coughlan v. United States, 391 F.2d 371 (9th Cir.), stated at page 372:

“We, on the other hand, do not want to be considered as lending our approval to the practice, if indeed a practice exists, of interviewing accused persons in jail in the absence of counsel. The better, fairer and safer practice is to afford the defendant’s attorney reasonable opportunity to be present.”

The Fifth Circuit, in Wilson v. United States, 398 F.2d 331 (5th Cir.), when dealing with this problem said at page 333:

“However, this Court agrees with the dissenting opinion [in Coughlan, supra] as to the impropriety of Government interrogation of a person in custody pending trial, in the absence of counsel which the interrogator knew had been appointed to represent the defendant.”

Although in the case before us it is questionable if agent Canaday knew that appellant had counsel, this makes no difference, and the canon was violated when the statement was sought to be used over defendant’s objection. We have not passed on this question before and the proecution had no notice of the position of this court on the subject until this appeal.

We are not here presented with the question of admissibility of a statement obtained from an accused after he has once declined to make a statement or requested an attorney to be appointed. See People v. Fioritto, 68 Cal.2d 714, 68 Cal.Rptr. 817, 441 P.2d 625 (1968), and our holding here should not be so interpreted.

What we do hold, however, is that once a criminal defendant has either retained an attorney or had an attorney appointed for him by the court, any statement obtained by interview from such defendant may not be offered in evidence for any purpose unless the accused’s attorney was notified of the interview which produced the statement and was given a reasonable opportunity to be present. To hold otherwise, we think, would be to overlook conduct which violated both the letter and the spirit of the canons of ethics. This is obviously not something which the defendant alone can waive.

A violation of the canon of ethics as here concerned need not be remedied by a reversal of the case wherein it is violated. This does not necessarily present a constitutional question, but this is an ethical and administrative one relating to attorneys practicing before the United States courts. The problem is initially one for the trial courts; however, in appeals such as this in the future the concerned attorneys will appear before this court and consideration of the matter will be therein undertaken as to occurrences taking place after this opinion has been circulated. The enforcement officials are agents of the prosecuting party, and in the event use is made of information secured by interviews of the nature which here took place, short of its introduction in evidence, the problem will be dealt with in the proper case. That issue is not here presented.

The Government has referred us to Dillon v. United States, 391 F.2d 433 (10th Cir.), decided by this court. Although at first glance Dillon is seemingly dispositive of the issue presented in this appeal, a review of the briefs in that case indicates that the impropriety of the use of this type of evidence as a violation of the canons of ethics was not there presented to the court for its consideration. Thus the issue before us was not there met.

The issue was presented as an Escobe-do matter with a new warning after the FBI took over the interrogation following questioning by state officers. It appears that the canons issue was raised but not decided in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246. See also the dissent therein.

We find no error, and the case is affirmed.


author: WILLIAM E. DOYLE, Circuit Judge.

text:
    Bobbye STONSIFER, Plaintiff-Appellant, v. COURTNEY’S FURNITURE COMPANY, INC., an Oklahoma corporation, Defendant-Appellee.
    No. 72-1518.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Jan. 11, 1973.
    Decided Feb. 15, 1973.
    David C. Shapard of Shapard & Sha-pard, Oklahoma City, Okl., for plaintiff-appellant.
    Kenneth R. Webster, of McKinney, Stringer & Webster, Oklahoma City, Okl., for defendant-appellee.
    Before MURRAH, SETH and DOYLE, Circuit Judges.
   WILLIAM E. DOYLE, Circuit Judge.

This is a slip and fall case which occurred on January 4, 1970, on premises known as the Wildwood Apartments in Oklahoma City, Oklahoma. Plaintiff had visited the premises for the purpose of looking at an apartment. She had parked in the space allotted for automobiles and had crossed the lawn to get to the manager’s office. After seeing the apartment she departed by taking a different route and in doing so traveled a sidewalk on the north side of the apartment house. Allegedly this sidewalk sloped downward and off to one side. At the time that the plaintiff was walking on it, it was covered with ice and had been for some four days. As a result of the fall the plaintiff suffered a broken pelvis and other injuries which are described in the pleadings.

The defendant-appellee took the plaintiff’s deposition on January 20, 1971, and on the basis of this deposition filed a motion for summary judgment. The trial court first denied the motion and later granted it on May 19, 1972. The basis for the court’s ruling was that “[t]he owner of premises has no obligation to warn an invitee, who knew or should have known the condition of the property, against patent and obvious dangers.” The court went on to say that an invitee assumes all normal and ordinary risks and that the owner is under no duty to reconstruct or alter the premises. Finally, the court said that the plaintiff was fully aware of the snow and ice on the sidewalk and was fully aware of the obvious hazards.

The plaintiff’s deposition revealed that although the day in question, January 4, 1970, was clear, there had been snow and cold on preceding days. The plaintiff admitted that she had seen ice on the sidewalk at the time of getting out of her car. She further stated that she had taken perhaps five steps on the ice before the fall. In addition, she said that although she had not seen the ice prior to stepping on the sidewalk, she became aware of it once she was on the sidewalk

In granting summary judgment the trial court applied the decision of the Supreme Court of Oklahoma rendered in Buck v. Del City Apartments, Inc., 431 P.2d 360 (Okl.1967). In the Buck case the plaintiffs, husband and wife, had been guests at a motel. The plaintiff wife fell on icy steps in front of the motel unit or cabin. The weather was inclement and the plaintiffs were fully aware of this. It was determined that the plaintiff held the status of guest and not tenant. Notwithstanding this, the action of the trial court in dismissing the case for insufficiency of the evidence was affirmed. The Oklahoma Supreme Court’s opinion noted that “[t]he owner or person in charge of the premises, is not obligated to warn an invitee, who knew or should have known of the condition of the property, against patent and obvious dangers.” Saying that “[t]he invitee assumes all normal or ordinary risks incident to the use of the premises, and the owner or occupant is under no legal duty to reconstruct or alter the premises so as to remove known and obvious hazards, nor is he liable to an invitee for an injury resulting from a danger which was obvious and should have been observed in the exercise of ordinary care,” the court went on to say:

The duty to keep premises in a reasonably safe condition for the use of the invited public applies solely to defects or conditions which may be characterized as in the nature of hidden dangers, traps, snares, pitfalls, and the like — things which are not readily observable. The law does not require the owner or occupant of land to warrant that the invitee shall suffer no injury upon the premises; his duty is discharged when reasonable care is taken to prevent the invitee’s exposure to dangers which are more or less hidden, and not obvious. In the absence of a duty neglected or violated, there can be no actionable negligence. Beatty v. Dixon, Okl., 408 P.2d 339; Herndon v. Paschal, Okl., 410 P.2d 549; Sullins v. Mills, [395 P.2d 787] supra; Pruitt v. Timme, Okl., 349 P.2d 4.
It is clear from the evidence that the wife knew or should have known of the general weather conditions. The dangers from them are universally known and were equally as apparent to her as they were to the motel-keepers. There is no evidence here that the usual hazard from the icy condition was in any way increased by an act of the motelkeepers. Where there is no act on the part of the owner or occupant of the premises creating a greater hazard than that brought about by natural causes, dangers created by the elements, such as the forming of ice and the falling of snow, are universally known, and all persons on the property are expected to assume the burden of protecting themselves from them. Sullins v. Mills, supra; see also Hallett v. Furr’s, Inc., 71 N.M. 377, 378 P.2d 613; Forbes v. Ruff, 72 N.M. 173, 381 P.2d 960; Carter v. Davis, 74 N.M. 443, 394 P.2d 594.

Significant here was the court’s conclusion that

mere slipperiness of snow or ice in its natural state and accumulations does not give rise to liability. Plaintiffs’ argument is based on authorities from jurisdictions which have modified the traditional common-law view. These authorities are not persuasive to us.

As the court points out in the Buck case, there are some jurisdictions which have modified the traditional common-law viewpoint which obtains in Oklahoma. These cases have imposed a burden on the landlord to exercise a duty of care to an invitee on the premises. They require the exercise of reasonable care toward the invitee and even call for anticipating and remedying conditions which expose the invitee to an unreasonable risk of harm.

The plaintiff appellant seeks to bring herself within the Oklahoma exception which allows an invitee to recover where the condition is in the nature of a trap, snare or pitfall. However, the district court refused to find that the condition, even though the sidewalk slanted away from the building and to the side, constituted such a latent hazard. Unquestionably, this would furnish the only tenable legal theory for the plaintiff, for it is very clear that Oklahoma follows the trap, snare or pitfall approach which holds the owner liable to an invitee if, but only if, he maintains a hidden or latent hazardous condition.

At bar the trial court first denied the defendant-appellee’s motion for summary judgment, but later granted it. This later and final action was based unquestionably on the decision in Buck v. Del City Apartments, Inc., supra. We cannot say that the trial court failed to accurately follow the Oklahoma law or failed to apply it to the admissions of the plaintiff given in her deposition which was taken by defendant’s counsel.

The judgment of the district court is affirmed.

      . Thus, Prosser on Torts 404 (3rd ed. 1964), points out that where the condition is such that the invitee cannot negotiate it, even though he is fully aware of the conditions, that the court or a jury may he allowed to find that the obviousness, warning or even knowledge is not enough. The following cases are cited:
      King Soopers, Inc. v. Mitchell, 1959, 140 Colo. 119, 342 P.2d 1006; Reboni v. Case Bros., 1951, 137 Conn. 501, 78 A.2d 887 (electric wires close to crane) ; [Csiz] Czismadia v. P. Ballantine & Sons, 2 Cir. 1961, 287 F.2d 423 (slippery floor); McCracken v. Curwensville Borough, 1932, 309 Pa. 98, 163 A.217, 86 A.L.R. 1379 (icy highway); Ward v. Avery, 1931, 113 Conn. 394, 155 A. 502 (slippery floor); Williamson v. Derry Elec. Co., 1938, 89 N.H. 216, 196 A. 265 (same); Seelbach, Inc. v. Mellman, 1943, 293 Ky. 790, 170 S.W.2d 18; Poster v. A. P. Jacobs & Associates, 1948, 85 Cal.App.2d 746, 193 P.2d 971. Cf. New Orleans & N. E. R. Co. v. Brooks, 1936, 175 Miss. 147, 154, 165 So. 804, 806 (carrier provided reasonable alternative, but knew that public used unsafe way anyway).

        Id. at 404 n. 59.

        See also Restatement of the Law of Torts 2d § 343(a).

      . The deposition is unsatisfactory in that the plaintiff was led through some 66 pages of formal and rigid questioning and was never allowed to tell her story in her own way. We are convinced, however, that her admissions as to knowledge of the weather conditions generally and as to cognizance of the ice in particular were such that the result would not have changed even if she had been allowed to express herself with spontaneity.