text:
    UNITED STATES of America, Plaintiff-Appellee, v. Luther CONNER, Defendant-Appellant.
    No. 72-3790.
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Aug. 31, 1973.
    Rehearing Denied Sept. 24, 1973.
    Luther Conner, pro se.
    John W. Stokes, U. S. Atty., E. Ray Taylor, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

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

   PER CURIAM:

Appellant plead guilty to the charge of interstate transportation of money taken by fraud and was sentenced to imprisonment for five years. Appellant contended at sentencing and now contends that his plea was made while under the influence of drugs and therefore he should be allowed to withdraw that plea.

Appellant’s precise points on appeal are: (1) it was plain error for the court below to sentence appellant after he asked to withdraw his plea, (2) it was plain error for the court to dismiss appellant’s allegation that he was under withdrawal of narcotics when he made his guilty plea, and (3) it was error for the court not to honor the plea bargain which induced in part appellant’s plea of guilty.

This court has carefully reviewed and considered the record below and finds appellant’s contentions to be without merit. It is abundantly clear from the record that appellant was given more than ample warnings as to the consequences of his plea of guilty and further it appears that the court below was very careful to ascertain that appellant fully understood and had the ability to understand at the time what was going on around him. It should be noted that appellant was examined at a hospital by a medical doctor immediately prior to his hearing and that doctor found the appellant not to be going through withdrawal.

The decision of the lower court in all respects is

Affirmed.


source: Caselaw Access Project

author: COLEMAN, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Susan Jill FORBICETTA, Defendant-Appellant.
    No. 73-1974.
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Sept. 19, 1973.
    Rehearing and Rehearing En Banc Denied Nov. 2, 1973.
    Jack Freed, Miami Beach, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before GEWIN, COLEMAN and MORGAN, 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.

   COLEMAN, Circuit Judge:

In a Bench trial, Miss Forbicetta was convicted of the knowing, intentional and unlawful importation of cocaine in violation of 21 U.S.C., § 952(a), and of the knowing, intentional, and unlawful possession with intent to distribute cocaine in violation of 21 U.S.C., § 841(a)(1).

It could not have been denied that on November 21, 1972 the appellant arrived at Miami International Airport on a flight from Bogota, Colombia, carrying, while concealed on her person, 2% pounds of cocaine. An attack upon the validity of the search which discovered the cocaine provided the only hope of avoiding a conviction. The search was found valid, we agree, and the convictions are affirmed.

This was a border search, accomplished at the very time the appellant was entering the United States from abroad. The evidence reflected that according to the experience of customs officials at Miami, a high percentage of the individuals discovered in the act of attempting to smuggle cocaine at the Miami International Airport arrived on flights from Bogota; the American women discovered in this activity were usually young, clean looking, and traveling alone; women discovered carrying cocaine on their persons usually wore loose-fitting dresses to conceal the bulkiness of the packages hidden beneath their clothing; usually when an official could not see the contours of a feminine figure under loose-fitting dresses, even when the subject was in a bending position, the wearer genei’ally had something strapped to her waist; individuals attempting to smuggle cocaine usually carried only one suitcase and no items to declare so as to clear customs quickly; it had been observed that it was very unusual for young people to go on vacations to Colombia if they had no relatives there; and the usual airline female traveler ordinarily wore tight-fitting clothes.

In this context Miss Forbicetta arrived from Colombia, traveling alone, with one suitcase, and no liquor or other items requiring customs inspection. She was young (age 21), thin, clean looking, and attractive. She was wearing a loose-fitting dress. When she bent to pick up her suitcase, the dress revealed no contours of her figure.

The customs official then questioned Miss Forbicetta. Her passport revealed that she was from Brooklyn. She said that she had been a bank teller, was unemployed, and gone to Colombia for a vacation, and had no relatives in Colombia.

She was then referred to two female customs inspectors. They, in the presence of none others, in a room which had no windows, asked the appellant to remove her dress and slip. The customs inspectors then could easily see that something was concealed under the remaining girdle. Upon removal of that garment there appeared seven large packets, containing the 21/2 pounds of cocaine.

Under an abundance of precedent, this was a lawful border search, United States v. Thompson, 5 Cir., 1973, 475 F.2d 1359; United States v. Skipwith, 5 Cir., 1973, 482 F.2d 1272; United States v. Cyzewski, 5 Cir., 1973, 484 F.2d 509; United States v. Maggard, 5 Cir., 1971, 451 F.2d 502; United States v. Briones, 5 Cir., 1970, 423 F.2d 742; United States v. Hill, 5 Cir., 1970, 430 F.2d 129; Rodriquez v. United States, 5 Cir., 1961, 292 F.2d 709.

In United States v. Skipwith, supra, the defendant fell within the F.A.A. anti-skyjack profile and stated that he had no identification. A sky marshal detained him and found that the name on his airline ticket was false, took him to his office, and, fearing that a bulge in the defendant’s pocket was a gun, had him to empty his pockets, revealing a plastic bag of cocaine. The search was held to be lawful.

In Miss Forbieetta’s case, her appearance, method of travel, and response to questions met a “smuggling profile” born of experience gained in coping with that elusive activity. She was at the border, in the act of entering the Country. She was examined by other women in a dignified manner, in a place where there could be no peeping eyes, and there was no exploration of body cavities. This search was entirely reasonable.

The appellant complains of the alleged bias of the trial judge. Counsel did file a motion, 28 U.S.C., § 144, that the Judge recuse himself, which was overruled. Despite this unfavorable ruling, jury trial was waived, after the defendant had been very meticulously assured of her right to trial by jury. It is easily seen that counsel adopted this course because the only hope for his client was the asserted illegality of the search. That was a question of law, not a question for a jury. As an issue of law, and upon undisputed facts, the District Court has decided it correctly.

Nothing remains but for the Judgment of the District Court to be

Affirmed.


author: PER CURIAM.

text:
    Neal FUTERNICK, Plaintiff-Appellant, v. Elliott L. RICHARDSON, Secretary of Health, Education and Welfare, Defendant-Appellee.
    No. 72-2184.
    United States Court of Appeals, Sixth Circuit.
    Argued June 11, 1973..
    Decided Aug. 29, 1973.

      Norton J. Cohen, Detroit, Mich., for appellant; Miller, Klimist, Cohen, Martens & Sugerman, Detroit, Mich., on brief.
    Nancy J. Ezis, Asst. U. S. Atty., for appellee; Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., on brief.
    Before PHILLIPS, Chief Judge, WEICK, Circuit Judge, and CECIL, Senior Circuit Judge.
   PER CURIAM.

Appellant, seeking child’s disability insurance benefits, appeals from the order of the District Court granting the Secretary’s motion for summary judgment. We affirm.

Plaintiff filed an application for benefits on June 25, 1968, after his father’s death, alleging that he had been disabled by a mental condition since the age of six. After this application was denied administratively, a Hearing Examiner found that the claimant was not entitled to benefits. The Appeals Council affirmed and the District Court, on motion for summary judgment, refused to disturb the denial of benefits.

Appellant, who is presently 42 years old, seeks child’s benefits under 42 U.S. C. § 402(d). His claim, based on his father’s insured status, asserts that he was disabled as of June 15, 1949, his eighteenth birthday, and that his disability continued until the time of his application for benefits. If such disability was not continuous, he would not be entitled to benefits. 42 U.S.C. § 402(d)(1)(G).

The record indicates that plaintiff has had an emotional problem since the age of six. Contemporaneous medical reports during his minority described his condition as epileptic equivalent and night terrors. Since his eighteenth birthday he has often been hospitalized and has been diagnosed as a paranoic schizophrenic. The available medical evidence indicates that he may have been disabled at the time of his application for benefits. We emphasize, however, that the burden is on the claimant to make two separate showings: (1) that claimant was disabled on his eighteenth birthday and (2) that this disability has continued until the date of application for benefits.

Medical evidence submitted by claimant from two doctors, Dr. William Clark and Dr. George H. Hopson, indicates that claimant was disabled on June 15, 1949, by mental illness. There is virtually no evidence submitted by the Secretary to dispute this conclusion.

However, we agree with the District Court that there is substantial evidence that the claimant has not been disabled continuously since his eighteenth birthday. Claimant was employed for nineteen months by the Detroit Welfare Department in 1958-59. Although he was terminated in December 1959, for poor performance, there was no complaint about his work for the first sixteen months of his employment.

The regulations of the Secretary set out a rebuttable presumption that a person earning more than an average of $140 monthly is gainfully employed. 20 CFR § 404.1534(b). A person gainfully employed or capable of gainful employment is not disabled. 42 U.S.C. § 423(d)(2)(A). During the nineteen months of continuous employment during 1958-59, claimant earned considerably more than $300 per month.

Since his eighteenth birthday, claimant has received a college degree and has also worked in two other jobs for short periods. He has a driver’s license which has been regularly renewed since 1957.

The Court of Appeals’ jurisdiction in this case is founded upon 42 U.S.C. § 405(g) which provides that the Secretary’s findings shall be conclusive “if supported by substantial evidence.” The latter term has been defined by the Supreme Court as being “ . . . more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L. Ed.2d 842 (1971).

This court’s statement in Henry v. Gardner, 381 F.2d 191, 194 (6th Cir.), cert, denied, 389 U.S. 993, 88 S.Ct. 492, 19 L.Ed.2d 487 (1967), is particularly appropriate in this case:

“We are bound by the inferences drawn by the Secretary even though we might have reached an opposite conclusion if we were free to consider the matter de novo.” See Lane v. Gardner, 374 F.2d 612 (6th Cir. 1967).

Substantial evidence on the record considered as a whole supports the conclusion of the Secretary that the claimant has not been disabled continuously since his eighteenth birthday.

Affirmed.


author: PER CURIAM:

text:
    Jo Ann GRAHAM et al., Plaintiffs, United States of America, Plaintiff-Intervenor-Appellant, v. EVANGELINE PARISH SCHOOL BOARD et al., Defendants-Appellees, Louisiana State Board of Education, Added Defendants-Appellees, Lawrence Vizinat et al., Defendants-Intervenors-Appellees.
    No. 72-3033.
    United States Court of Appeals, Fifth Circuit.
    Aug. 22, 1973.
    Rehearing and Rehearing En Banc Denied Oct. 30, 1973.
    Richard H. Swan, John D. Leshy, Brian K. Landsberg, Attys., Dept of Justice, Washington, D. C., Donald E. Walter, U. S. Atty., Shreveport, La., David L. Norman, Asst. Atty. Gen., Dept, of Justice, Washington, D. C., for appellant.
    Marion Overton White, Opelousas, La., for Jo Ann Graham.
    John F. Ward, Jr., Baton Rouge, La., L. O. Fuselier, Dist. Atty., Ville Platte, La., for Evangeline Parish School Board and others.
    Thomas W. McFerrin, Asst. Atty. Gen., Baton Rouge, La., for La. State Board of Education.
    Donald Soileau, Mamou, La., for Vi-zinat and others.
    .Before JOHN R. BROWN, Chief Judge, and INGRAHAM and RONEY, Circuit Judges.
   PER CURIAM:

The District Court denied the request of the United States for preliminary and permanent injunctions requiring the Louisiana State Board of Education and the Evangeline Parish School Board to cease providing textbooks and supplies to the children of the Evangeline Academy. We vacate and remand on the authority of Norwood v. Harrison, 413 U. S. 455, 93 S.Ct. 2804, 37 L.Ed.2d 723 [1973].

Norwood, together with the spate of cases involving state aid to parochial schools decided by the United States Supreme Court this past term, Levitt v. Committee for Public Education, 413 U. S. 472, 93 S.Ct. 2814, 37 L.Ed.2d 736 [1973]; Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 [1973], and Sloan v. Lemon, 413 U.S. 825, 93 S.Ct. 2982, 37 L.Ed.2d 939 [1973], virtually ensure the relief sought by the United States as a plaintiff-intervenor in this school desegregation case.

Although the District Court made no specific findings of fact concerning the provision of free textbooks and transportation by the State to students attending Evangeline Academy and apparently assumed without deciding that the Evangeline Academy is a racially segregated school, the Court’s ruling and the record. before us indicate clearly that Louisiana was providing just the kind of aid to the type of school which falls within the proscription of Norwood. To the extent that it aided segregated private schools, a Mississippi statutory program, in many respects similar to the Louisiana system, was found in Nor-wood to be unconstitutional. Under these programs, textbooks were purchased by the State and lent to students in both public and private schools without regard to the schools’ racially discriminatory policies.

From the record before us, it appears that Evangeline Academy is a racially segregated institution providing an alternative to the court ordered integration of Evangeline Parish public schools. Within one month of the District Court’s desegregation order, Evangeline Academy was incorporated and operative. All of its students are white, and its opening resulted in a corresponding attrition of white students from the Parish’s public schools. From its inception, the Academy received aid from the Parish School Board: bus transportation and textbooks for students, and library books for the school. State assistance to such a school and its students had the inevitable effect of frustrating the order disestablishing a dual public school system.

In Norwood, the Supreme Court found that

[a] textbook lending program is not legally distinguishable from the forms of state assistance foreclosed by the prior cases.
Free textbooks [lent to students], like tuition grants directed to private school students, are a form of financial assistance inuring to the benefit of the private schools themselves. . When, as here, ... [a necessary learning expense] is borne by the State, the economic consequence is to give aid to the enterprise; if the school engages in discriminatory practices the State thereby gives support to such discrimination. Racial discrimination in state-operated schools is barred by the Constitution and “ [i]t is also axiomatic that a state may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.” Lee v. Macon County, 267 F.Supp. 458, 475 (M.D.Ala.1967).

413 U.S. at 463, 93 S.Ct. at 2810 (Footnote added).

Without findings of fact, we cannot properly deal with the argument concerning the transportation of students. On remand, however, the District Court will need to reconsider the entire case insofar as it relates to state aid to Evangeline Academy. The District Court should consider, in the light of Norwood, all of the State’s assistance to the Academy in determining what further relief might be necessary to disengage the State and its local agencies from the operation of the segregated private school.

Vacated and remanded.

       1 ] The Court had previously identified these prior cases as:
      Brown v. South Carolina Board of Education, 296 F.Supp. 199 (D.C.S.C.1968), aff’d per curiam, 393 U.S. 222, 89 S.Ct. 449, 21 L.Ed.2d 391 (1968) ; Poindexter v. Louisiana Financial, etc., Commission, 275 F. Supp. 833 (E.D.La.1967), aff’d per curiam, 389 U.S. 571, 88 S.Ct. 693, 19 L.Ed.2d 780 (1968). See Wallace v. United States, 389 U.S. 215, 88 S.Ct. 415, 19 L.Ed.2d 422 (1967), aff’g Lee v. Macon County Board of Education, 267 F.Supp. 458 (M.D.Ala.1967). Mississippi’s tuition grant programs were invalidated in Coffey and United States v. State Educational Finance Commission, 296 F.Supp. 1389 (S.D.Miss.) ; Coffey and United States v. State Educational Finance Commission, S.D.Miss., CA No. 2906, decided Sept. 2, 1970 (unreported).
      413 U.S. at 463 n. 6, 93 S.Ct. at 2810.


author: PELL, Circuit Judge.

text:
    REX CHAINBELT, INC., a Wisconsin corporation, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
    No. 72-1446.
    United States Court of Appeals, Seventh Circuit.
    Argued April 5, 1973.
    Decided Aug. 3, 1973.
    David J. Cannon, U. S. Atty., Milwaukee, Wis., Scott P. Crampton, Asst. Atty. Gen., William M. Brown, Jr., Atty., Tax Div., U. S. Dept, of Justice, Washington, D. C., for defendant-appellant.
    Andrew 0. Riteris, George A. Evans; Milwaukee, Wis., for plaintiff-appellee.
    Before CLARK, Associate Justice, and PELL and SPRECHER, Circuit Judges.

       Associate Justice Tom C. Clark, United States Supreme Court, Retired, is sitting by designation.

   PELL, Circuit Judge.

This is an appeal by the United States from the judgment of the district court in favor of taxpayer, Rex Chainbelt, Inc. That company had filed suit for a refund on an excise tax paid for the years 1961 through 1966 on an item which the Government contends is an accessory or part of an automotive truck chassis and therefore is subject to an 8% tax under Section 4061(b) of the Internal Revenue Code of 1954.

Rex Chainbelt manufactures concrete mixers designed to be attached to the chassis of a truck and to be powered by its engine. The mixer’s drum is connected to the exposed front end of the truck engine’s crankshaft by a drive train which transmits the engine power to the drum and sequentially reduces the engine speed to provide a drum rotation at a speed suitable for concrete mixing. The mechanical drive train consists of chain and sprocket, final reduction drive, mixer transmission, universal joints, drive line, and transfer case.

The mixer is sold as a unit, including all of the above mentioned drive train elements. Customers attach the mixer to a taxable chassis which they purchase from a truck manufacturer.

“The parties agree that [for the taxable years in question] the mixer is exempt from excise taxes up to the transfer case and that the chassis to which the mixer is attached is taxable up to the [same] transfer case.” The disagreement occurs on the taxability of the transfer case.

The district court held that the transfer case was not an automotive part or accessory subject to excise taxes under 26 U.S.C. § 4061(b) and that if it was to be considered an automotive part or accessory within the meaning of that section of the Code, it was nevertheless exempt from taxation by virtue of 26 U.S.C. § 4218(c). The district court’s findings of fact and conclusions of law are unofficially reported at (CCH) 72-1 U.S.Tax Cas. ¶ 16,029.

Treasury Regulations on Manufacturers and Retailers Excise Tax, Section 48.4061(b)-2(a), defines the term “parts or accessories,” in part, as follows:

(a) In general. The term “parts or accessories” includes (1) any article the primary use of which is to improve, repair, replace, or serve as a component part of an automobile truck or bus chassis or body, or other automobile chassis or body, or taxable tractor, (2) any article designed to be attached to or used in connection with such chassis, body, or tractor to add to its utility or ornamentation, and (3) any article the primary use of which is in connection with such chassis, body, or tractor, whether or not essential to its operation or use. The term “parts or accessories” includes all articles which have reached such a stage of manufacture as to be commonly known as parts or accessories whether or not fitting operations are required in connection with their installation. An article shall not be deemed to be a taxable part or accessory even though it is designed to be attached to the vehicle or to be primarily used in connection therewith if the article is in effect the load being transported and the primary function of the article is to serve a purpose unrelated to the vehicle as such. For example, a construction derrick attached to a truck is not a taxable part or accessory inasmuch as the derrick is the load of the truck and its use is in connection with construction work at a construction site rather than in connection with the transportation or loading or unloading function of the truck. On the other hand, an article such as a towing cradle or loading or unloading equipment designed to be attached to or to be primarily used in connection with a truck is a taxable part or accessory inasmuch as the article contributes to the load-carrying function of the truck.

In Universal Battery Co. v. United States, 281 U.S. 580, 50 S.Ct. 422, 74 L.Ed. 1051 (1930), precursory, equivalent regulations were approved by the Court.

In attempting to support the district court’s determination that the transfer case was not a part or an accessory, Rex Chainbelt, while conceding that the case was designed to be attached to and used with the chassis and was in fact so attached and used, argues that it was a part of the exempt “load” within the meaning of the regulation and if it was not, it still did not add utility to the chassis.

While w.e might find some merit in the contention that the primary use of the transfer case was in connection with the functioning of the exempt mixer, it would seem that an equally strong argument could be made to the effect that primacy was to be found in the connection with the chassis and particularly the motor thereof. It would be difficult in our opinion to say that the attachment did not add utility to the chassis.

While querying the correctness of the first prong of the district court’s decision, we do not deem it necessary to make a firm determination as it appears clear to us that the exemption from tax provided by Section 4218(c) is applicable to the transfer cases in issue.

The district court’s findings of fact included a finding that the transfer case was a component part of the exempt mixer. We do not find this crucial determination within the exempt phrasing of Section 4218(c) to be erroneous. The record fairly reflects, inter alia, the following supportive facts. The designs of the case and of the entire drive train are governed by the design of the mixer drum, which differs from manufacturer to manufacturer. A transfer case is not sold except together with a mixer other than as a replacement part for the mixer for which it was designed. Mixers of one manufacturer are not sold for use with transfer cases of another manufacturer. The transfer case is included in the gross weight of the mixer. In the absence of the mixer it could serve no utility purpose when attached to the truck chassis. (The Government appears to be typifying the transfer case as a power take off, a characterization that we find unsupported.) There were other items which were treated in the industry as accessories, but basically the transfer ease was treated as an integral part of the exempt mixer. The transfer case has no function except with the mixer for which it was designed.

The Government appears to be relying to a considerable extent on the fact that the transfer case is physically located at the extreme front end of the truck chassis while the mixer to which it is connected is toward the rear of the truck chassis. We do not consider this matter of geography to be a sufficient basis for faulting the district court’s determination that factually the transfer case was a component part of the mixer mechanism.

For the reasons hereinbefore set out, the judgment of the district court is affirmed.

Affirmed.

      . Originally, Rev.Rule 56-479,1956-2 Cum. Bull. 796, held that concrete mixers were not subject to the excise tax on truck bodies (Code Section 4061 (a) (1)) since they are primarily designed and adapted for mixing concrete rather than as truck bodies. The automobile truck chassis on which the mixer is mounted, however, was ruled subject to the tax. Rev.Rule 67-282, 1967-2 Cum.Bull. 363, revoked the earlier ruling on the grounds that concrete mixers are primarily designed and adapted for the transportation of concrete and held that concrete mixers were subject to the excise tax effective July 1, 1968 (for years subsequent to the years in issue here). The Tax Reform Act of 1969, P.L. 91-172, amended Section 4063 of the 1954 Code by adding paragraph (a) (5), exempting from the excise tax truck-mounted concrete mixers and parts or accessories designed primarily for use on or in connection with concrete mixers sold after December 31, 1969. Accordingly, the Internal Revenue Service has ruled that transfer cases are within the statutory exception for years subsequent to December 31, 1969.

      . “If any person manufactures, produces, or imports a part or accessory taxable under section 4061(b), . . . and uses it (otherwise than as material in the manufacture or production of, or as a component part of, any other article to be manufactured or produced by him), then he shall be liable for tax under this chapter in the same manner as if such article were sold by him.” (Effective 1958)


text:
    UNITED STATES of America, Plaintiff-Appellee, v. William David ROSE, Defendant-Appellant
    No. 73-1702
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Sept. 21, 1973.
    Herbert T. Schwartz, Gainesville, Fla. (Court-appointed), for defendant-appellant.
    William H. Stafford, Jr., U. S. Atty., Robert L. Crongeyer, Jr., Asst. U. S. Atty., Pensacola, Fla., for plaintiff-ap-pellee.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

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

   PER CURIAM:

In this case, a jury convicted William David Rose on two counts of the knowing and intentional distribution of Schedule II and III drugs in violation of 21 U.S.C. § 841(a)(1).

Viewing the evidence most favorably to the government, it was clearly shown that Rose wilfully aided and abetted one James Bryant in the actual distribution of the illegal products. The trial record is really devoid of any element of entrapment. Moreover, had such been the case, Rose took the witness stand and denied any participation whatsoever in the transaction. A directed verdict of not guilty could not have been justified.

Although himself denying any personal participation in the actual distribution of the contraband, Rose argued below and argues here that the proof offered on behalf of the government showed that his alleged participation was an “agent of the undercover government agent”, who actually acquired the drugs. Unfortunately, it was Rose who first approached the undercover agent and inquired as to whether he would like to purchase some high quality cocaine or speed. This inquiry resulted in the visit to Bryant and the illegal distribution. This consideration aside, this is a distri-. bution case and the appellate argument is crushed beneath the weight of our recent decisions in United States v. Johnson [opinion dated July 19, 1973] 481 F.2d 645, and United States v. Miller [opinion dated August 6, 1973] 483 F.2d 61.

The judgment of conviction is

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jack ALDRIDGE et al., Defendants-Appellants.
    Nos. 72-1022 to 72-1024.
    United States Court of Appeals, Seventh Circuit.
    Argued Nov. 28, 1972.
    Decided July 25, 1973.
    Rehearings Denied Aug. 28 and Oct. 15, 1973.

      James H. Voyles, Jr., T. Michael Smith, James Manahan, Terrence P. Pehler, Indianapolis, Ind., for defendants-appellants.
    Stanley B. Miller, U. S. Atty., Indianapolis, Ind., Robert G. Clark, Crim.Div., Fraud Section, Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before DUFFY, Senior Circuit Judge, CAMPBELL, Senior District Judge, and ESCHBACH, District Judge.

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

       District Judge Jesse E. Eschbach of the Northern District of Indiana is sitting by designation.

   WILLIAM J. CAMPBELL, Senior District Judge.

The three defendants-appellants were found guilty by a jury in the Southern District of Indiana on an indictment charging them and others with securities fraud (15 U.S.C. § 77q(a)) and mail fraud (18 U.S.C. § 1341). Fourteen counts of the original twenty-one count indictment were ultimately submitted to the jury. Defendants Perrault and Good were convicted on each count submitted to the jury; defendant Aldridge was convicted on the eight counts in which he was charged. Defendant Ba-gal, an attorney, and defendant Brown, an accountant, were acquitted on all counts pertaining to them. A co-defendant Calvin Mummert entered a plea of guilty during the course of the trial. Each of the three convicted defendants has filed a separate appeal which this court has ordered consolidated. We affirm the judgments of conviction as to each defendant.

As set forth in the indictment, the scheme to defraud may be briefly summarized. The several defendants in various combinations organized American National Trust on May 7, 1963 and controlled its operation until June 8, 1963. On that date defendants Aldridge, Mum-mert and Perrault became trustees, continuing in that capacity until 1965, 1966 and 1967 respectively. Under an agreement which predated the formation of the trust, defendants Aldridge and Good together with Mummert caused the trust to purchase a property owned by a company controlled by Aldridge, and divided the proceeds of the sale among themselves. A satellite corporation controlled by the defendant Good, American Trust Management, was utilized by the defendants to effect the sale of 7.5 million dollars in shares of American National Trust and an additional 7.5 million dollars in shares of Republic National Trust, which was organized by defendants Good and Perrault. Self-dealing in the management of these trusts was alleged in the indictment, including the purchase by American National Trust of two properties from American Trust Management for a total of $763,000.00 with a resulting profit to American Trust Management of $322,000.00, and the payment of $305,000.00 in real estate commissions to the defendant Good and to Midwest Trust Associates, a company controlled by Good.

Three central misstatements of material fact and three corresponding omissions to state facts necessary to make the statements made not misleading, were also charged in the indictment as follows:

1. A statement that investors in the Trusts would earn 8% on their investments, and the failure to state that the Trusts were suffering continuing operating losses;
2. The statement that the Trusts paid monthly distributions to investors out of earnings and the failure to state that the distributions were returns of capital.
3. The statement that an investor could obtain the return of his entire investment from the respective Trusts and the failure to state that the Trusts would redeem their shares only until the end of the initial offering period.

Each defendant challenges the sufficiency of the evidence against him. The evidence shows that the three convicted defendants were familiar with the sales presentations taught at the sales training sessions conducted by the trusts. The material misrepresentations outlined above were passed on to prospective salesmen during those training sessions. That the defendants were aware of the poor financial condition of the trusts is apparent from the fact that outside accountants’ financial reports had been made available to them. The proof also indicated that the three defendants knew that the distributions were not being made from income, as represented, but were being made from capital. The defendants further knew that there was no intention to permit redemption of the trusts’ certificates beyond the initial offering period. The self-dealings of defendants Aldridge and Good were known to all defendants, but no effort was made to inform prospective purchasers of these dealings. Summarized in the light most favorable to the government, this evidence reveals that the three defendants were the organizers and promoters of the two trusts involved in the indictment, that they participated fully and elaborately in all of their operations and that they were aware of the misrepresentations passed on to the public by their salesmen, and finally that they knew of the trusts’ bad financial condition as well as their own self-dealings. The evidence was thus sufficient to support the convictions.

All three defendants also maintain that the testimony of co-defendant attorney Seymour Bagal violated their attorney-client privilege. As previously stated, attorney Bagal, who had represented the two trusts involved in the indictment, was also indicted in this case but was found not guilty by the jury. He testified regarding several conversations he had with the three defendants. Significantly, his testimony was offered as part of his own defense and was not placed in evidence as part of the government’s case in chief.

A uniformly recognized exception to the privilege extends to communications made to an attorney in furtherance of a continuing or future fraud or crime. Petition of Sawyer, 229 F.2d 805 (7th Cir. 1956), cert, denied sub nom. Sawyer v. Barczak, 351 U.S. 966, 76 S.Ct. 1025, 100 L.Ed. 1486 (1956). The exception may be invoked where the communications are made in furtherance of acts contemplated by the client; the attorney need not have joined together with the client to commit the fraudulent or criminal acts and the attorney may be ignorant of them. See United States v. Clark, 289 U.S. 1, 15, 53 S.Ct. 465, 77 L.Ed. 993 (1933). At the time of Ba-gal’s testimony here, the government had established a prima facie case that the defendants had been involved in both securities and mail frauds. Thus, the communications fall within the exception to the attorney-client privilege and were properly admissible into evidence.

It is further contended by the three defendants that the trial court improperly instructed the jury that codefendant Calvin Mummert had pleaded guilty to fourteen counts of the indictment and that Mummert’s plea was in no way evidence of guilt against the remaining defendants. Some nine days into a six week trial the defendant Mummert asked leave to change his plea of not guilty in order to enter a plea of guilty. The remaining defendants requested the court to inform the jury that Mummert was no longer a part of the case but asked that the guilty plea not be communicated to the jury. The defendants sought to have the jury instructed only that Mummert was no longer a part of the case and that they should not consider his departure as evidence against any of the defendants or as evidence against the position of the government. The government maintained that the unexplained departure of one of the defendants might be taken as inference against its position, and therefore requested the court to inform the jury of the plea of guilty but to instruct it not to infer anything adverse as to the guilt of the remaining defendants. The district judge elected to follow the latter course.

The instruction as given was approved by this court in substantially the same form in United States v. Kahn, 381 F.2d 824 (1967), cert, denied, 389 U.S. 1015, 88 S.Ct. 591, 19 L.Ed.2d 661 (1969). It is true that in Kahn the plea of the co-defendant occurred near the beginning of the trial whereas here the plea was entered nine days into the trial. However, this court stated in Kahn that “without a convincing demonstration otherwise, it is to be presumed that clear and strong cautionary instructions are curative.” United States v. Kahn, 381 F.2d 824, 838 (7th Cir. 1967). On the basis of Kahn, we hold that there was no error in the giving of this instruction.

The defendant Perrault next questions the sufficiency of the government’s proof of venue as to six counts of the securities fraud charges and two counts of the mail fraud charges on which he was convicted. In this regard, the government’s burden is to demonstrate venue by a preponderance of the evidence rather than beyond a reasonable doubt. Hill v. United States, 284 F.2d 754 (9th Cir. 1961), cert, denied, 365 U.S. 873, 81 S.Ct. 908, 5 L.Ed.2d 862 (1961). Either direct or circumstantial evidence may be employed to establish venue. United States v. Mendell, 447 F. 2d 639, 641 (7th Cir. 1971), cert, denied. 404 U.S. 991, 92 S.Ct. 535, 30 L.Ed.2d 542 (1971). Here the evidence revealed that it was the custom of the trusts at least until 1965 to mail directly from the home office wherever appropriate. The home office was located within the Southern District of Indiana. Share certificates were prepared in this office as early as 1963 and stock records were maintained there through 1966. This supports an inference that if share certificates were mailed to purchasers, they were mailed from the home office. Similarly, each accountant who testified stated that primary cash records and cancelled checks were maintained at the home office. This permits an inference that if a distribution check was mailed, it was mailed from the home office. We hold that the government’s proof of venue was sufficient.

The defendant Perrault also contends that he was prejudiced by certain remarks made during the prosecutor’s closing argument. It is claimed that these remarks amounted to impermissible comment on the defendant’s failure to take the stand and testify. See Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1964). First, Perrault argues that he was prejudiced when government counsel argued that, while the evidence showed Perrault received certain monies as trustee of the two trusts, “there was no evidence that he did not receive more.” The argument was made in response to an argument offered by Perrault’s counsel to the effect that Perrault had not been shown to have the intent to defraud since he was not shown to have profited from the self-dealings within the management of the trusts. In this context, the comment of government counsel was not unfair since it dealt with the evidence in the record and not with Per-rault’s failure to testify. See United States v. Hepner, 410 F.2d 920, 935 (7th Cir. 1969).

Another comment of the prosecutor complained of by Perrault appears in the record as follows:

“He also signed the March, 1966, letter which came out stating the intent of the Trustee only to say, only to make redemption until the end of the period when the shares were sold. He would deny that, but his signature was on the letter saying that was the intent.”

This argument was made in reference to letters signed by Perrault in which trust affairs and policies were misrepresented to the shareholders. It is not clear that the jury would construe this as a comment on Perrault’s failure to testify. In any event, there was no repetition of the argument, and it was certainly not an argument manifestly intended to be or of a character that the jury naturally and necessarily understood it to be a comment on Perrault’s failure to testify. See United States v. Lyon, 397 F.2d 505, 509 (7th Cir. 1968). A single, unrepeated comment of ambiguous nature, such as this, even if it is assumed to be a comment on the defendant’s failure to testify, does not compel reversal where, as here, the government’s case is strong. United States v. Lyon, supra.

The final contention of error raised by the defendant Perrault concerns the district judge’s refusal to appoint an accountant for Perrault in order to determine the benefits paid to him by the trust. Funds for the payment of expert assistance are authorized by 18 U.S.C. § 3006A(e)(3), a portion of the Criminal Justice Act, which provided that such compensation was not to exceed three hundred dollars. The district judge indicated that he would permit the four defendants to aggregate the three hundred dollars and hire an expert with authority to pay him twelve hundred dollars, but that he had no authority to permit additional compensation. Perrault stated that the purpose for which he wished the assistance of an appointed accountant was to determine the exact amount of money he had received directly or indirectly from the trust. In this regard, there is no showing of a need for an accountant since other documentary evidence showed the amount of money Perrault received from the trust. Additionally, Perrault does not even claim that he was prejudiced by not being able to hire an accountant. This contention does not require a reversal.

The defendant Good maintains that the indictment is multiplicious since only one scheme was alleged in support of the several substantive counts; that the indictment is duplicitous in both the securities and mail fraud counts by its allegations that the statues involved were offended in more than one matter; that the indictment is duplicitous by reason of its failure to designate who were principals and who were aiders and abettors; that the mail fraud count failed to state an offense; and that the indictment failed to set forth a scheme to defraud. Each argument is without merit.

As to the mail fraud counts, it is settled that the gravamen of the offense is the use of the mails and that each such use of the mails constitutes a separate offense. United States v. Eskow, 422 F.2d 1060, 1064 (2nd Cir. 1970), cert, denied, 398 U.S. 959, 90 S. Ct. 2174, 26 L.Ed.2d 544 (1970). As to the securities fraud counts, this court in United States v. Amick, 439 F.2d 351, (7th Cir. 1971), cert, denied, 404 U.S. 823, 92 S.Ct. 47, 30 L.Ed.2d 51 (1971), rejected the view urged by the defendant Good that the indictment charged but a single offense on its face by virtue of charging a single scheme. Similarly, Good’s contention that the securities fraud counts in the indictment are duplicitous for charging more than one way in which the defendant violated the statute was also considered and rejected in Amick. Nor is there merit in Good’s contention that the indictment is duplicitous for failing to state who is charged as a principal and who is charged as an aider and abettor. It is clear that an aider and abettor is properly charged as a principal. United States v. Tropiano, 418 F.2d 1069,1083 (2nd Cir. 1969).

Lastly, the defendant Aldridge claims that the case as to him requires reversal because of a delay in returning the indictment. Aldridge makes no claim or showing of prejudice and, therefore, under United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed. 2d 468 (1971), the contention is without merit.

Accordingly, for the reasons set out above, the judgments of conviction are each affirmed.

Affirmed.


author: STEVENS, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Thomas Michael RIELY, Defendant-Appellant.
    No. 72-1709.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 21, 1973.
    Decided Aug. 9, 1973.
    Rehearing Denied Oct. 9, 1973.

      George C. Pontikes, Chicago, 111., for defendant-appellant.
    James R. Thompson, U. S. Atty., William T. Huyck and Theodore T. Scudder, Asst. U. S. Attys., Chicago, 111., for ap-pellee.
    Before STEVENS, Circuit Judge, GRANT, Senior District Judge, and GORDON , District Judge.

       Senior District Judge Robert A. Grant of the Northern District of Indiana is sitting by designation.

       District Judge Myron L. Gordon of the Eastern District of Wisconsin is sitting by designation.

   STEVENS, Circuit Judge.

Appellant’s failure to report for induction on October 28, 1969, was followed by criminal prosecution, conviction, and this appeal. He contends that his induction order was defective because his local board failed to state reasons for denying him exemption as a conscientious objector on August 19, 1967.

Under the reasoning of our decision in United States v. Lemmens, 430 F.2d 619 (7th Cir. 1970), his contention would fail because his SSS-Form 150 did not describe a belief which on its face fulfilled the legal requirements. He argues, however, that the confession of error by the Solicitor General in Joseph v. United States, 405 U.S. 1006, 92 S.Ct. 1274, 31 L.Ed.2d 473, as interpreted in United States v. Weaver, 474 F.2d 936 (7th Cir. 1973), has extended the Lem-mens rule to cover all unexplained denials of exemption after a reopening that would have been improper unless the registrant stated a prima facie claim. As we read the Solicitor General’s Memorandum in Joseph, it does not go quite that far; moreover, the legal significance of that document is somewhat obscure since the government has not confessed error in this case.

We first consider the case without regard for the Joseph Memorandum and then turn to its significance.

I.

Appellant registered in 1964, received a student deferment in 1965, and, in 1966, was classified I-A. On May 19, 1967, he submitted his Form 150 requesting a 1-0 classification. The form was not supported by any letters or documents, stated that appellant had not given public expression to his views, that there was no individual upon whom he relied for religious guidance, and that he was not a member of any religious sect or organization. The source of his beliefs was described as “deep thinking of the subject matter under the influence of mind expanding drugs.” The basis of the claim was stated as a belief “that man, as part of the Universe, was created to live together and make achievements which will better the entire human race, and under no circumstances become involved in organized war.”

Appellant’s Form 150 was plainly insufficient on its face. Making the dubious assumption that the unsupported, vague assertion in the form may be interpreted as an expression of opposition to “war in any form,” see Gillette v. United States, 401 U.S. 437, 444-446, 91 S.Ct. 828, 28 L.Ed.2d 168, appellant’s statement wholly failed to satisfy the statutory requirement that his claim be rooted in “religious training and belief,” even as that phrase has been construed in United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733, and Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308. In our opinion, appellant’s assertions were not the kind of “non-frivolous allegations of facts” that would have required the board to reopen his classification under the test stated by the Supreme Court in Mulloy v. United States, 398 U.S. 410, 416, 90 S.Ct. 1766, 26 L.Ed.2d 362.

But since the board did reopen his classification, appellant argues that it could not legitimately deny him an exemption without furnishing a statement of reasons. This argument is not supported by the Lemmens analysis.

We first note that the board action under review took 'place over two years before the statute was amended to require that registrants be furnished a brief written statement of the reasons for adverse Board decisions. See Fein v. Selective Service System, 405 U.S. 365, 377-378, 92 S.Ct. 1062, 31 L.Ed.2d 298. Although there was no statute or regulation in 1967 requiring that such a statement be furnished; we have nevertheless held, consistently with other circuits, that a statement of reasons is essential if “meaningful” review would otherwise be impossible, United States v. Lemmens, 430 F.2d 619 (7th Cir. 1970). In that case, after carefully establishing the proposition that the registrant had described the type of belief which qualifies for the exemption, see 430 F.2d at 621-622, Judge Fairchild explained the reason for the rule— “. . . the court cannot otherwise determine with any degree of assurance that the decision really made by the Board properly supported the rejection and had a basis in fact.” Id. at 624.

That reason is inapplicable if the registrant’s claim is plainly insufficient on its face. For in such a case his lack of entitlement to the exemption does not depend on the board’s appraisal of his veracity. He has the burden of both bringing facts establishing his right to an exemption to the attention of the board and also convincing them of his veracity. As long as the impact of the second issue is meaningless, no purpose would be served by insisting on “meaningful” review of that issue.

Under the law of this circuit as it had developed prior to the confession of error in Joseph, the Board’s failure to explain its rejection of appellant’s conscientious objector claim would have been considered harmless since his claim was insufficient on its face.

II.

Appellant argues, however, that since the board did reopen his classification after he submitted his Form 150, it must have found his claim sufficient on its face, and even if that finding is erroneous, we must accept it. This argument is predicated on the Solicitor General’s confession of error in Joseph and is supported by this court’s recent decision in United States v. Weaver, 474 F. 2d 936 (7th Cir. 1973). Weaver, however, is distinguishable on a ground which makes the Solicitor General’s Joseph analysis inapplicable here.

The approach taken by the Solicitor General in his Joseph Memorandum focuses on the actual basis for the board’s rejection of a claimed exemption. Under his reasoning, if the board’s denial actually rested on a finding of insincerity, the registrant is entitled to meaningful review of that finding even though the board’s assumption that a prima fa-cie case was stated is erroneous. That analysis does not require that a statement of reasons be furnished if it is perfectly clear that the board action rested on a determination that the registrant’s claim did not meet the statutory criteria.

Appellant argues that such a conclusion is foreclosed in this case because the board did reopen his classification, and under the regulations then in effect, a reopening would have been improper unless the board determined that he had stated a prima facie case for exemption.

It is manifest that the board made a procedural error. Either it erroneously-made an entry on appellant’s record which implied that his classification had been reopened even though the board had not determined that his claim for exemption was sufficient on its face, or else the board erroneously determined that his claim was sufficient and then summarily denied the exemption without appraising his sincerity in a personal interview. Quite clearly, the former is the more reasonable interpretation of this record.

Prior to May 19, 1967, when he submitted his Form 150, appellant was classified I-A. The next entry which appears in his file (SSS Form 100) on August 19, 1967, simply reads, “I-A.” App. 13. Since appellant was not invited to appear before the board before August 19, 1967, that entry cannot reasonably support the conclusion that the board simultaneously found (a) that the appellant’s claim demonstrated that he was entitled to exemption if he was sincere, and (b) that he was, in fact, insincere. We are persuaded, to quote the Solicitor General, “that the only determination that could possibly have been made on this record was that petitioner’s claim did not meet the statutory criteria. In such a situation, the board’s decision, whether characterized as a refusal to reopen . . . or as a denial of exemption after reopening would necessarily have been based on a determination that petitioner was not prima, facie entitled to conscientious objector status. Consequently, it was not obliged to state reasons.” Memorandum for the United States, supra, n.2, page 21.

In Weaver the registrant made a personal appearance before the board on December 9, 1969, in connection with his request for conscientious objector status. It is entirely possible that Weaver's personal interview caused the board to reach the conclusion that he was insincere. Under the Solicitor General’s reasoning in Joseph, the registrant was entitled to meaningful review of that conclusion, and the failure to furnish a statement of reasons for the board action dictated reversal of Weaver’s conviction. But in this case, since there was no personal appearance in connection with appellant’s request for conscientious objector status, and the entire record before the board relating to that request was limited to the Form 150 itself, the Solicitor General’s analysis dictates affirmance.

The judgment is

Affirmed.

      . The only other relevant statements in the form were appellant’s answers to questions 5 and 6:
      “5. Under what circumstances, if any, do you believe in the use of force?
      A. I believe in the use of non-violent force, when the results are beneficial to mankind.
      I do not believe in organized-violent-force, such as that used by army’s [sic] in wars.
      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. A non-violent way of life. A rejection of violence out of love.”

      . Seeger and Welsh construed § 6(j) of the Universal Training and Service Act, codified at 50 U.S.C. App. § 456(j). At the time of Seeger, that section provided in part:
      “Nothing contained in this title shall be construed to require any person to be subject to combatant training and service in the armed services of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. Religious training and belief in this connection means an individual’s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code.” 62 Stat. 612.

        Seeger and Welsh disposed of the view that “religious training and belief” required belief in a Supreme Being:
      “We have concluded that Congress, in using the expression ‘Supreme Being’ rather than the designation ‘God,’ was merely clarifying the meaning of religious training and belief so as to embrace all religions and to exclude essentially political, sociological, or philosophical views. We believe that under this construction, the test of belief ‘in a relation to a Supreme Being’ is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption.” 380 U.S. at 165-166, 85 S.Ct. at 854.
      The specific exclusion of a merely personal moral code was preserved: “The use by Congress of the words ‘merely personal’ seems to us to restrict the exception to a moral code which is not only personal but which is the sole basis for the registrant’s belief and is in no way related to a Supreme Being.” 380 U.S. at 186, 85 S.Ct. at 864. Although Riely signed the printed “Claim for Exemption” on the Form 150, his handwritten descriptions of his beliefs elsewhere in the Form 150 make it clear that his views amounted at best to a “merely personal moral code.”

      . The Solicitor General cites some of the leading eases at pages 12-14 of his memorandum in Joseph:

      “In recent years, however, as petitioner points out (Pet.Br. 26-28), there has emerged in the courts of appeals a substantial line of authority — beginning essentially with United States v. Haugh-ton, 413 F.2d 736 (C.A. 9) — holding that the failure of local boards to articulate in writing the bases for their denials of conscientious obector claims is fatal where the information in the Selective Service file shows that the registrant made out a prima facie case for exemption. See, e. g., Scott v. Commanding Officer, 431 F.2d 1132 (C.A. 3) ; United States v. Stetter, 445 F.2d 472 (C.A. 5), and the cases collected therein at 482-483 nn. 5-12.” Memorandum for the United ' States on the Merits: Joseph v. United States, No. 70-251, O.T. 1971, pages 12-14.

      . Frankly, we have some difficulty identifying the legal basis for this analysis. It is not supported by statute, regulation, or our reading of Lemmens, and does not purport to rest on a constitutional requirement. Nevertheless, since this circuit has accepted it, we must of course, respect it.

      . “Upon further consideration, however, we [the Solicitor General] now think it more likely that the board in this case did initially determine (albeit erroneously) that the petitioner prima facie qualified for conscientious objector status, but denied his claim on grounds of insincerity. * * *
      “We might feel otherwise if it could be argued here that there were no grounds for questioning petitioner’s sincerity, so that the only determination that could possibly have been made on this record was that petitioner’s claim did not meet the statutory criteria. In such a situation, the board’s decision, whether characterized as a refusal to reopen . . . or as a denial of exemption after reopening . would necessarily have been based on a determination that petitioner was not prima facie entitled to conscientious objector status. Consequently, it would not have been obliged to state reasons.
      “This combination of factors could well have led the local board to doubt the sincerity of petitioner’s professed opposition. Whether or not it is enough to provide a ‘basis in fact’ (50 U.S.O. App. 460(b) (3)) for denial — a question that is not presented in this case — it is, we think, sufficient to foreclose an argument that on this record the only decision that the local board could possibly have reached in this case is that petitioner’s claim on its face failed to meet the statutory standard. In such circumstances, we have felt compelled to the conclusion that the local board, because it reopened and classified anew, did in fact initially determine that the claim placed petitioner prima facie within the statutory exemption, but then denied him a 1-0 classification because it disbelieved him.
      “D. CONCLUSION ON STATEMENT OP REASONS ISSUE
      “It was, therefore, incumbent on the board to state reasons for its denial under Ilaughton, and related eases (see pp. 12-13 supra). The fact that the courts might later find that the prima facie determination was erroneous cannot excuse it from this requirement. The law on this point is directed to the time when the board makes its initial determination. If it concludes, whether rightly or wrongly, that the statutory ci-iteria of conscientious objection have been prima facie met, the grounds for its subsequent reclassification must be stated.” Memorandum for the United States, supra, n. 2, pages 19-23.

      . 32 C.P.R. § 1625.4 then provided in part: “When a registrant, any person who claims to be a dependent of a registrant, any person who has on file a written request for the current deferment of the registrant in a case involving occupational deferment, or the government appeal agent files with the local board a written request to reopen and consider anew the registrant’s classification and the local board is of the opinion that the information accompanying such request fails to present any facts in addition to those considered when the registrant was classified or, even if new facts are presented, the local board is of the opinion that such facts, if true, would not justify a change in such registrant’s classification, it shall not reopen the registrant’s classification.” 32 C.F.R. § 1625.4 (revised as of January 1, 1968).

      . It should be noted that various grounds for questioning appellant’s sincerity which appear in his file after August 19, 1967, shed no light on the board’s action on that date — thus we attach no significance to the suggestion that appellant later claimed to be a minister, to be insane, to be physically unfit for service, to be a student, or to his failure to attend scheduled personal appearances before the board.

      . The same circumstance was present in United States v. Hulsey, 463 F.2d 1071, 1075 (7th Cir. 1972), on which Weaver relied.


author: GORDON, District Judge. GRANT, Senior District Judge. MYRON L. GORDON, District Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. William FERN, Defendant-Appellant.
    No. 72-1284.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 21, 1973.
    Decided Sept. 20,1973.
    Lawrence S. Galka, Robert S. Bailey, Chicago, 111., for defendant-appellant.
    James R.. Thompson, U. S. Atty., William T. Huyck, Asst. U. S. Atty., Chicago, 111., for plaintiff-appellee.
    Before STEVENS, Circuit Judge, GRANT, Senior District Judge, and

       Senior District Judge Robert A. Grant of the United States District Court for the Northern District of Indiana sitting by designation.

   GORDON, District Judge.

GRANT, Senior District Judge.

William Fern was convicted by the court below of knowingly possessing a quantity of heroin and opium in violation of 21 U.S.C. § 841(a)(1). He was sentenced to the custody of the Attorney General for five years imprisonment. Defendant was tried by the district court on the basis of stipulated evidence which had been adduced at a pre-trial hearing on a motion to suppress, the motion having alleged a fourth amendment violation. The sole issue presented on appeal is whether a search of defendant at the airport by deputy marshals violated the Fourth Amendment’s prohibition against unreasonable searches and seizures.

On 9 September 1971, at approximately 12 o’clock midnight, Deputy United States Marshal Paul Pongrace, assigned to the Air Piracy Detail at O’Hare Airport, was observing passengers who were waiting to board an American Airlines flight to San Francisco. Deputy Pon-grace noticed defendant Fern sitting in a lounge in the boarding area. It appeared to Deputy Pongrace that the defendant was pretending to read a newspaper and thereby conceal the fact that he was glancing about at the people around him. He observed defendant change his seat several times, leaving a carryall suit bag behind but at all times clutching a white flight bag. Prior to the 12:05 departure time, Deputy Pon-grace cheeked with the ticket agent and was informed that defendant had purchased a one-way ticket to San Francisco. He then determined that Fern met the basic characteristics of the air piracy personality profile. Pongrace and a second deputy marshal positioned themselves at the boarding gate in order to cheek the identification of Fern and another profile selectee. When Fern approached, the marshals identified themselves and asked defendant for some personal identification. He produced a New York State driver’s license in the name of William Fern and a Canadian citizenship paper bearing the name of “Gum Chien Leong”. He claimed that he lived in San Francisco but, when asked where in San Francisco he resided, he answered that he did not know the address. He also claimed that he was traveling from New York to San Francisco although his ticket stub showed that he had boarded in Chicago. Throughout the encounter defendant stammered, “perspired profusely” and exhibited other numerous mannerisms.

A search of defendant’s person produced nothing. However, at the conclusion of the search defendant suddenly backed up against the jetway wall. Deputy Pongrace grabbed his flight bag and felt a hard object like a weapon. He handed the bag to the other deputy to be searched. The marshal opened the bag and pulled out a hair dryer. A further search revealed a clear, plastic bag filled with heroin and two newspaper-wrapped bricks of smoking opium.

Defendant contends that had the marshals sought a search warrant prior to the search, they would not have been able to establish probable cause justifying the issuance of a search warrant. Nor, argues defendant, does the case involve consent, hot pursuit, exigent circumstances, or something in plain view— any of which would constitute an exception to the general rule excluding evidence obtained as a result of a warrant-less search and seizure. Finally, recognizing the possible applicability of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L. Ed.2d 889 (1968), defendant argues that Deputy Pongrace did not have knowledge of sufficient “specific and articulable facts” so as to “reasonably warrant” the search involved. 392 U.S. at 21, 88 S. Ct. 1868.

Defendant admits that in three recent decisions the Courts of Appeals for the Second, Third and Fourth Circuits have sustained narcotics seizures in cases comparable to the case at bar. United States v. Bell, 464 F.2d 667 (2nd Cir. 1972); United States v. Epperson, 454 F.2d 769 (4th Cir. 1972); United States v. Lindsey, 451 F.2d 701 (3rd Cir. 1971). However, he contends that each case is distinguishable on its facts from his case. He notes that in both Bell and Epperson, a magnetometer (a metal detecting device) was utilized and revealed a high metallic content on the defendants which neither defendant was able to explain. Defendant suggests that in each case the magnetometer results provided the reasonably articulate level of suspicion of physical danger which justified the search and seizure. Thus, he argues that the failure to use the magnetometer in his case precluded a Terry showing which could have justified the search and seizure. In Lindsey, the marshal had also observed the nervous mannerisms of the defendant and, when he asked the defendant for identification, was given conflicting identifications. Having noted bulges in Lindsey’s coat pocket, the marshal conducted a pat-down search and found the bulges “very solid”. He extracted from the pocket two aluminum-wrapped packages later found to contain heroin. Because of the possibility of an airplane highjacking and the limited time the marshal had to act, the court held that “the level of suspicion required for a Terry investigative stop and protective search should be lowered.” 451 F.2d at 703. Defendant characterized this holding as “a drastic constitutional principle . . . justified solely -on the basis of the danger that skyjacking presents.”

The government contends that the Terry decision clearly establishes that the reasonable suspicion required to justify an investigatory stop is determined by the context of each case, i. e., a flexible rather than a fixed standard. It correctly notes that the Supreme Court established a balancing test in which “the governmental interest which allegedly justifies official intrusion” is balanced against the particular invasion of “the constitutionally protected interests of the private citizen” caused by the search and seizure. Terry, supra, 392 U.S. at 21, 88 S.Ct. at 1879. The governmental interest includes not only the prevention of crime, but also the protection of the officer and “other prospective victims of violence.” Id. at 24, 88 S.Ct. at 1881.

In the instant case the government argues that the governmental interest in preventing the crime of skyjacking at the only point where such prevention is practical, i. e., on the ground, and its interest in protecting “other prospective victims of violence”, i. e., the airline passengers, justified not only the stop of defendant but also the search of his flight bag. In addition, it argues that the marshals possessed knowledge of an ample number of “specific and articulable facts” to justify the search of the defendant. Besides their observation of defendant’s suspicious behavior and the conflicting identifications for which defendant was unable to offer a satisfactory explanation, the marshals had determined that defendant met the basic characteristics of the air piracy personality profile used by the Federal Aviation Administration. With reference to defendant’s criticism that the characteristics constituting the air piracy profile were too limited in number and too broad in scope, the government notes the testimony of John T. Dailey, a psychologist for the Federal Aviation Administration. At trial Dr. Dailey cited a study of 60 prior airplane skyjackings which revealed that all 60 of the skyjackers fit the characteristics of the profile, whereas only one per cent of all airplane passengers fit the profile.

Concerning defendant’s contention that the use of a magnetometer should be an important, if not essential, prerequisite to an airport-boarding search, the government cites additional testimony of Dr. Dailey to the effect that the magnetometer is not indispensable to the successful operation of the anti-skyjacking system and in fact can be separated. Lindsey, supra, is also cited as authority for the proposition that the use of a magnetometer is not an absolute prerequisite to an airport-boarding search.

We find considerable merit in each of the arguments advanced by the government. The authorities cited provide ample support for its position that sufficient “specific and articulable facts” existed to justify the marshals’ stop of defendant and the search of his flight bag. The facts available to the marshals would have clearly warranted a man of reasonable caution in the belief that the action taken was appropriate. Terry, supra, 392 U.S. at 22, 23, 88 S.Ct. 1868. The governmental interests which justified the stop and search are so obvious and of such vital importance that courts are now “treating airport security searches as an exceptional and exigent situation under the Fourth Amendment.” United States v. Moreno, 475 F.2d 44, 48 (5th Cir. 1973).

As was well stated by the 5th Circuit in Legato,

In United States v. Moreno . . , this court recognized that the public danger posed by air piracy has transformed the airport into a “critical zone where special fourth amendment considerations apply.”
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[T]he Moreno court made it clear that such an intrusion is not unconstitutional if it is based upon a particularized set of facts which reasonably substantiates the investigating officer’s belief that the individual searched was armed in some fashion and hence a threat to air security. United States v. Legato, supra.

Commenting on that question of reasonableness, the 5th Circuit in Skipwith stated as follows:

In the critical pre-boarding area where this search started, reasonableness does not require that officers search only those passengers who meet a profile or who manifest signs of nervousness or who otherwise appear suspicious. Such a requirement would have to assume that hijackers are readily identifiable or that they invariably possess certain traits. The number of lives placed at hazard by this criminal paranoia forbid taking such deadly chances. . . . United States v. Skipwith, supra.

We are not troubled by the fact that the marshals extended their search to include defendant’s flight bag. The following passage from the Moreno decision demonstrates why airport security officers have not been limited to the traditional stop and frisk:

In applying Terry, were we to hold that airport security officials must always confine themselves to a “pat down” search where there is a proper basis for an air piracy investigation, we think that such a per se restriction in the final analysis would be self-defeating. We have already pointed out that the hijacker can conceal explosives or weapons in places which might be overlooked in the course of a cursory pat down. It should be emphasized that such a search is not primarily for the investigating officer’s protection, but rather for the protection of a distinct and uniquely threatened class — this nation’s air carriers, their crews and passengers. 475 F.2d at 51.

The judgment of the district court is affirmed.

MYRON L. GORDON, District Judge

(dissenting).

I respectfully dissent. The issues presented by the instant case are two-fold: first, whether probable cause existed for the search and secondly, whether the appellant voluntarily consented to the search. I find neither probable cause nor consent.

Airport searches have provoked a large amount of recent litigation. See such decisions as United States v. Ruiz-Estrella, 481 F.2d 723 (2d Cir., 1973); United States v. Moreno, 475 F.2d 44 (5th Cir. 1973); United States v. Skipwith, 482 F.2d 1272 (5th Cir., 1973); United States v. Legato, 480 F.2d 408 (5th Cir., 1973); United States v. Davis, 482 F.2d 893 (9th Cir., 1973); United States v. Doran, 482 F.2d 929 (9th Cir., 1973); United States v. Echols, 477 F.2d 37 (8th Cir., 1973); United States v. Kroll, 481 F.2d 884 (8th Cir., 1973), and United States v. Wilkerson, 478 F.2d 813 (8th Cir., 1973).

I do not believe that the type of “stop and frisk” situation discussed in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) is applicable here. In Terry, the Court determined that a “frisk” or limited search for weapons “constitutes a severe, though brief, intrusion upon cherished personal security”, but the Court concluded at p. 29, 88 S.Ct. at p. 1884:

“. . . The sole justification of the search in the present situation is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.”

There is no inherent right to travel to a certain place in a particular aircraft. Accordingly, airline authorities may condition the sale of a ticket or permission to board the airplane upon a person’s consent to be searched for weapons, explosives, and the like. One’s consent to such a search should be reasonably express; it should not be broadly implied because the consent to a search amounts to a waiver of a fundamental constitutional right. Waiver in this context means the “intentional relinquishment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938).

It is clear from the facts of this case that the search of the appellant’s handbag conducted here cannot be brought within the ambit of Terry.

The mere fact that the appellant fitted a “behavioral profile” does not constitute probable cause for the search in this case. Moreover, when faced with a heated issue such as this, I think we might reflect on the unfortunate ruling in Ko-rematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944), before approving the search in this ease.

In the recent case of Condrado Almei-da-Sanchez v. United States, 413 U.S. 266, 274, 93 S.Ct. 2535, 2540, 37 L.Ed.2d 596 (1973), the Court said:

“. . . It is well to recall the words of Mr. Justice Jackson, soon after his return from the Nuremberg Trials:
‘These [Fourth Amendment rights], I protest, are not mere second-class rights but belong in the catalog of indispensable freedoms. Among the deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.’ Brinegar v. United States, 338 U.S. 160, 180 [69 S.Ct. 1302, 1313, 93 L.Ed. 1879] (Jackson, J., dissenting).
“The Court that decided Carroll v. United States, ante [267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543], sat during a period in our history when the Nation was confronted with a law enforcement problem of no small magnitude ■ — -the enforcement of the Prohibition laws. But that Court resisted the pressure of official expedience against the guarantee of the Fourth Amendment.”

I believe that the evidence was illegally seized and must therefore be suppressed. Accordingly I would reverse.

       District Judge Myron D. Gordon of the United States District Court for the Eastern District of Wisconsin sitting by designation.

      . Since the instant case was argued here, the 5th Circuit in two separate decisions handed down June 14, 1973, United States v. Skip-with, 482 F.2d 1272, and United States v. Legato, 480 F.2d 408, have also sustained nar-cotíes seizures in similar situations.