author: HASTINGS, Senior Circuit Judge. SWYGERT, Chief Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Gino ROSCIANO, Defendant-Appellant.
    No. 73-1666.
    United States Court of Appeals, Seventh Circuit.
    Argued Nov. 2, 1973.
    Decided April 12, 1974.
    Gerald M. Chapman, Chicago, 111., for defendant-appellant.
    James R. Thompson, U. S. Atty., Ann P. Sheldon, Asst. U. S. Atty., Chicago, 111., for plaintiff-appellee.
    Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and PELL, Circuit Judge.
   HASTINGS, Senior Circuit Judge.

This case presents a single question for review on appeal, viz.: whether the trial court’s refusal to order a presentence report was an abuse of discretion. However, because of the various ramifications of this issue argued here, we shall detail relevant parts of the course of this litigation in order to clarify the situation in what otherwise might be considered a frivolous appeal.

Defendant Gino Rosciano was charged in a two-count indictment. Count I charged that he and nine other men conspired to possess goods stolen from an interstate freight shipment in violation of Title 18, U.S.C. § 371. Count II charged a violation of the substantive offense, Title 18 U.S.C. § 659. A trial by jury resulted in a verdict of acquittal on the Count I conspiracy charge, and a verdict of guilty on the Count II substantive offense. Judgment was entered on this verdict and defendant was sentenced to a term of six years imprisonment on March 3,1972.

Defendant appealed his conviction to this court. On February 16, 1973, a division of our court affirmed his conviction in an unpublished order, 474 F.2d 1350. The only issues raised on that appeal were the giving and refusal of certain instructions and the identification procedure used with respect to defendant prior to the trial. It is conceded that no issues were raised concerning the denial of a presentencing investigation, the denial of probation or the severity of the six-year sentence imposed. Our court denied a petition for rehearing on March 9, 1973. A timely petition for a writ of certiorari was denied by the Supreme Court on June 18, 1973, 412 U.S. 948, 93 S.Ct. 3007, 37 L.Ed.2d 1001. The mandate of this court was filed in the district court on June 25, 1973.

Three days after the mandate issued defendant filed a motion in the district court for reduction of sentence and for admission to probation or, in the alternative, for such further and different relief as the court might deem proper. A passing reference was made therein that, at the time of initial sentencing, no presentence investigation had been made. Defendant’s motion requested that a presentence investigation be ordered for the purpose of verifying the representations made therein and sought a hearing on the motion. A hearing was held July 3, 1973, and the court on that date ordered that the sentence be modified so that defendant could serve his six-year sentence under the provisions of Title 18, U.S.C. § 4208(a)(2), thereby making defendant eligible for immediate parole.

Thereafter, on July 12, 1973, defendant filed a motion for stay of execution pending appeal, or, in the alternative, for 30 days in which to wind up his business affairs. The court held a hearing thereon and granted an extension of stay of execution for two weeks, until July 27, 1973.

On July 11, 1973, defendant filed notice of appeal from the order of July 3, 1973, modifying his six-year sentence. His notice of appeal further stated that he was appealing from that part of such order which, “by implication, [denied] that portion of the * * * Motion for reduction of sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure which sought a presentenee investigation, a hearing on said Motion and probation.”

It is now apparent that defendant claims prejudice because the trial court denied his request for a presentence investigation and report in the instant proceeding. It is also clear that he is relying on Rule 35, Fed.R.Crim.P., hereinabove referred to. Rule 35 reads:

The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence. The court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction. The court may also reduce a sentence upon revocation of probation as provided by law. ■

Rule 32(c)(1), Fed.R.Crim.P., deals with the making of presentence investigations and states, inter alia, that this shall be done by the probation service and reported to the court “before the imposition of sentence or the granting of probation unless the court otherwise directs.”

On brief and in oral argument, defendant has further refined the crux of the issue presented, viz.: whether the trial court erred in failing “to permit, and consider, a pre-sentence investigation pursuant to Federal Rule of Criminal Procedure 32(c)(1) without indicating the reasons for such a refusal so that they can be subject to review.” (Emphasis added.)

Here we are faced with an admittedly narrow point in the sentencing procedure. The district court, after an affirmance of conviction and the issuance of mandate, entertained defendant’s motion for reduction of sentence and for the granting of probation or other proper relief. A hearing was held as requested. After considering the motion, which set out in great detail defendant’s own characterization of his reasons for relief, and hearing counsel on the question of mitigation, the trial court took the matter under advisement until later in the day. The court thereupon, in effect, sustained the motion for relief by modifying the sentence as hereinabove set out, making defendant eligible for immediate parole. Defendant contends that this is not enough because his showing, had it been supported by a presentence investigation at that juncture, would have entitled him to immediate probation by the court itself. Defendant further' contends that this “would have and would still, be more beneficial than incarceration.”

It is conceded further that the guilt or innocence of defendant is not before us on this appeal. Yet defendant has devoted much effort and time to demonstrate that his part in the theft involved in this case was minimal as compared to the activities of his co-defendants. Defendant’s efforts, of course, were to bolster his plea for a reduction of sentence or probation. Such contention, however, was effectively rebutted by the Government.

In short, we are requested to exercise .our supervisory power over the district court and review the ultimate sentence as modified, as well as the denial of probation. Did the trial court abuse its discretion in this sentencing procedure?

The language of Rule 32(c) (1), supra, vests a discretion in the district court to direct that a presentence investigation not be made before the granting of probation or the imposition of sentence. We have on many occasions reviewed the exercise of this discretion. It is not a new subject and has continually received our careful scrutiny.

Beginning with United States v. Karavias, 7 Cir., 170 F.2d 968, 971-972 (1948), an opinion by then District Judge Swygert, now Chief Judge, sitting by designation with Judges Major and Minton, recognized that a discretion was vested in the trial court to determine whether a presentence investigation was unnecessary.

In United States v. Tenenbaum, 7 Cir., 327 F.2d 210, 212, cert. denied, 377 U.S. 905, 84 S.Ct. 1165, 12 L.Ed.2d 177 (1964), an opinion by Judge Kiley, joined by Judges Hastings and Swygert, held that the trial court did not abuse its discretion in denying a presentence investigation, citing Karavias, supra.

In United States v. Fannon, 7 Cir., 403 F.2d 391 (1968), vacated and remanded on other grounds, 394 U.S. 457, 89 S.Ct. 1224, 22 L.Ed.2d 416 (1969), in an opinion by Judge Swygert, joined in by Judges Castle and Kiley, it was stated:

It is the rule in this circuit that if a trial judge in the exercise of judicial discretion determines that a presentence investigation is unnecessary and will not be of benefit in fixing a proper and just sentence, such a presentence investigation may be dispensed with. [Citing Karavias, supra, and Tenenbaum, supra.] In the present case, the district judge had ample opportunity to observe and consider all the evidence relating to the defendant’s life history. On the witness stand, the defendant testified about his marital and family background, military service, and prior felony record. At the time of sentencing, the judge stated he had studied the matter, that he believed a presentence report was unnecessary, and even invited defense counsel and the defendant to state any facts which the court might be unaware of otherwise. Neither the defendant nor his counsel stated any relevant fact which was not otherwise known to the court. Id. at 394.

In United States v. Hutul, 7 Cir., 416 F.2d 607 (1969), cert. denied, 396 U.S. 1012, 90 S.Ct. 573, 24 L.Ed.2d 504 (1970), in an opinion by Chief Judge Castle, joined by Judges Cummings and Kerner, it was stated:

Defendant Mitchell contends that the district court abused its discretion by not ordering a presentence report on her before passing sentence. Rule 32(c), Fed.Rules Crim.Proc., provides that the probation service of the court shall make a presentence investigation “unless the court otherwise directs.” The decision to direct that no presentence investigation be made rests in the sound discretion of the district court. [Citing Fannon, supra, and Karavias, supra.]
Defendant Mitchell has failed to show an abuse of such discretion or how she was prejudiced by the absence of a presentence report. The record reveals that Mitchell’s attorney, in his argument in mitigation after judgment was rendered, brought out the facts necessary to make a proper determination for sentencing. 'Thus, the fact that defendant Mitchell was only 19 years of age at the time of the crime, was a first offender, and was not as actively involved in the scheme as the other defendants was brought out. On this basis, the court imposed a one-year sentence to be followed by two years probation, as compared to the five-year sentences imposed on the other defendants. It is not the function of this Court to substitute its judgment on the proper sentence for that of the district court which viewed the demeanor and deportment of the defendants standing before it. While the use of presentence investigations and reports should be encouraged, we find no abuse of discretion in the instant ease. Id. at 627.

In United States v. Teague, 7 Cir., 445 F.2d 114, 122 (1971), an opinion by Judge Kerner, joined by Judges Hastings and Kiley, reaffirmed our holding in Hutul, supra, and reiterated our view that “we believe it to be the better practice for judges to consider information in pre-sentence reports.” Nevertheless, we found no abuse of discretion.

Finally, in Farbo v. United States, 7 Cir., 452 F.2d 132, 134 (1971), in an opinion by Senior Judge Duffy, joined by Judges Cummings and Pell, we found it clear from the record that a presentence report was not needed by the trial court, and held that the trial judge properly exercised his discretion in determining that such a report was not necessary, citing Fannon, supra, and Tenenbaum, supra.

We find there is solid declaration of policy by this court that it generally is the better practice for a trial court, before final sentencing or probation, to order a presentence investigation and report. It is a well recognized and important aid in sentencing. We again subscribe to this policy and urge that the practice be followed by the district courts. However, we also recognize that a decision not to do so may fall short of being an abuse of discretion, when there clearly is no need for the same.

We have carefully reviewed the transcript of the evidence and colloquies between court and counsel; the interrogation of the defendant, both at the time of the initial sentencing and the hearing on the motion for reduction of sentence; and also the lengthy recitals by defendant in his several motions in the case. Contrary to defendant’s contentions, we find that the sentencing court was presented with a clear and comprehensive picture of defendant’s family life, personal habits, business career and the circumstances offered in mitigation. In each instance the trial judge gave opportunity for additional information. His actions were the result of a considered judgment. He had defendant before him in person. We conclude that here, as in Hutul, supra, the court did not err in finding that a presentence investigation and report were not necessary. We find no abuse of discretion.

Further, we find from the record that the trial judge made clear his reasons for not ordering such report and conclude that he did not err in failing to more specifically recite and detail such reasons. He might have more explicitly labeled them as such.

Defendant’s argument that immediate enlargement on probation is more beneficial than incarceration is merely a plea for us to review the sentence as ultimately fixed by the court. As stated in Hutul, supra, 416 F.2d at 627, this is not our proper function. We most recently said in United States v. Kaczmarek, 7 Cir., 490 F.2d 1031 at page 1036 (1974): “The authority of the District Court to impose any sentence within the statutory maximum is not subject to review except under ‘extraordinary circumstances,’ [citing cases].” Since no such extraordinary circumstances are present here, we shall not substitute our judgment for that of the trial court.

We have reviewed the sentencing record of all the co-defendants in this case. Defendant Rosciano received a much lighter sentence than most of the others and it was well within the statutory maximum. We cannot say that the trial judge abused his discretion in determining the sentence finally imposed.

We have carefully considered defendant’s many citations of authority concerning desirable sentencing procedures. We are fully cognizant of our responsibilities in this area. However, we find no rational basis in the instant appeal for departing from the course heretofore charted by this court. Here, it is apparent that defendant believes that any result other than probation is a gross miscarriage of justice. We do not agree.

In light of the foregoing, the judgment of the district court appealed from is affirmed.

Affirmed.

SWYGERT, Chief Judge

(dissenting).

The majority acknowledges that it is “the better practice for a trial court, before final sentencing or probation, to order a presentence investigation and report.” Nevertheless, it is said that failure to utilize a presentence report does not amount to an abuse of discretion “when there clearly is no need for the same.” Consistent with past decisions in this circuit, the majority finds no abuse of discretion where it can be demonstrated from the record that a minimum of mitigating facts pertaining to the defendant existed, known to the judge, and that the presentence report constituted in essence mere surplusage beyond the minimum level of knowledge needed by the trial judge to fix the defendant’s sentence.

I cannot agree with the majority that the record amply demonstrates that the trial judge’s imposition of a six-year sentence on the defendant Rosciano was “the result of a considered judgment.” Moreover, even assuming that the trial judge possessed the minimum level of information required to fairly impose a sentence on Rosciano, I would still find that his failure to order a presentenee report was an abuse of discretion. That is, rather only suggest to the district courts what is admittedly “the better practice,” I would hold that absent substantial reasons for nonusage of the report, explicitly articulated by the trial judge, such failure to use a presentence report amounts to an abuse of discretion.

As the Second Circuit has noted with respect to the nonuse.of presentence reports: “Some circuits are evidently uneasy about the problem, however, and justified the lack of [the] report because all the necessary information had been made available in some other manner or because the sentence was lenient.” United States v. Warren, 453 F.2d 738, 744 (2d Cir. 1972). The majority here takes a similar approach. •

My reading of the record, however, does not indicate that at the time of the initial sentencing hearing the court was in possession of all necessary information. The record tends to demonstrate that the trial judge was interested in the expeditious disposition of the sentencing procedure and summarily rejected a presentence investigation. The pertinent colloquy is set forth below.

At the sentencing hearing statements in mitigation were made on behalf of each of the six defendants sentenced. The Government offered rebuttal in each instance. Immediately after the conclusion of the testimony with respect to the final defendant the court without further deliberation or consideration sentenced six of the defendants.

Nor do I perceive Rosciano’s six-year sentence to be lenient in view of his meager involvement in the theft. Roseiano’s efforts were minimal and consisted primarily of helping to unload the stolen merchandise from the truck. Rosciano owned a gas station adjacent to the business operation, Universal Lawn and Garden Supply Company, at which the stolen goods were unloaded and stored. Rosciano testified that he frequently assisted in unloading trucks delivering landscaping goods to Universal Lawn and that he had dealt with Universal Lawn for seven years due to the fact that he was a landscaping contractor. He testified that to his knowledge he had never helped unload stolen goods. Rosciano’s testimony was contradicted by David Buss, one of the principal planners and perpetrators of the theft. Buss pleaded guilty and testified on behalf of the Government. As a result of the assistance in unloading the stolen merchandise valued at $53,875 Rosciano apparently received an electric shaver. For his effort he was convicted of possession of stolen property — although he was found not güilty with respect to the charge of conspiracy to possess stolen goods — and sentenced to six years imprisonment. Although the other defendants played a much more active role in the perpetration of the theft and were 'found guilty on both the substantive count and conspiracy count, nevertheless, they received concurrent sentences only two to foúr years in excess of that imposed on Rosciano for the conviction on the single count. Indeed the three principal planners and perpetrators of the theft, after pleas of guilty and the grant of their requests for presentence reports, were given suspended sentences and placed on probation for periods ranging between three and five years.

The disparity in treatment in this ease is extraordinary to say the least. The three principal offenders, who planned the theft and stole the truck containing a fifty thousand dollar cargo, received probation after pleading guilty and after the judge received presentence reports as to them. Rosciano, who played a peripheral, minor role in helping unload the truck and who received a Ronson shaver for his services and who requested a trial by jury, received six years imprisonment after the judge refused out of hand to order a presentence report. Accordingly, I find nothing in the record to justify the court’s refusal to use a presentence report.

Under the circumstances such refusal amounted to an abuse of discretion since there was an absence of explicit and substantial reasons for not having a presentence report prior to pronouncement of the sentence. The reasons for not utilizing a presentence report should be clearly articulated by a trial judge and not left to the speculation of appellate judges in an effort to justify th& trial court’s failure to state reasons for its inaction. As stated by the Second Circuit in United States v. Warren, 453 F.2d 738, 744 (2d Cir. 1972):

It would be wise, however, for trial judges, in those rare cases in which they dispense with the presentence report, to state on the record the reasons for failing to make use of a tool which has proven helpful in individualizing and thus improving the sentencing process. Such a requirement will provoke thought about the decision to bypass this potentially valuable step in the criminal process.

It cannot be gainsaid that the rule on presentence reports vests broad discretion with the trial judge as to its use. That discretion, however, does not vest the trial judge with authority to arbitrarily reject the use of the presentence report. Yet the majority countenances such arbitrary action by adhering to an approach that does not require the trial judge to explicitly detail his reasons for nonuse of the presentence report. Courts which have been adamant in imposing a requirement of statement of reasons on local draft boards and administrative agencies should not be reticent in imposing a similar requirement with respect to the use of a tool that has become well-nigh standard practice in federal courts. See McGee v. United States, 462 F.2d 243, 247 (2d Cir. 1972).

In addition I would require that the reasons stated in an effort to justify nonuse of the presentence report must be substantial. To that end I do not consider the mere saving of time of itself sufficient to justify nonusage of the report. Moreover, the fact that the report may be duplicative of defendant’s efforts at mitigation is not necessarily of itself a sufficient basis for not using the report. Even assuming duplication of effort, the fact remains that the presentence report rises above mere surplusage for it stands as the effort of an independent -agency responsible to the court and not the self-serving statements of an adversary on behalf of his client. Any recommendations or findings emanating from the presentence report which are favorable to a defendant are no doubt given more credence than similar recommendations and findings by a defendant and his counsel. Accordingly, even if duplicative, the presentence report represents a beneficial source of information that can be relied upon and as such outweighs any troublesomeness due to its allegedly repetitive nature.

With all due deference and respect to my- brethren in the majority, my reading of the record has failed to uncover any statement of reasons by the trial judge —let alone those that approach the stature of explicit and substantial — justifying his dispensing of a presentence report. Accordingly, on the basis of the foregoing, I would find that the trial judge' abused his discretion.

I find it • somewhat anomalous that courts are fastidious in safeguarding a criminal defendant’s rights prior to a verdict of guilt, yet upon being convicted we fail to adhere to our zeal to assure the defendant our full and fair attention on the equally important aspect of sentencing. When a defendant challenges the sentencing procedure, we often seek to avoid confrontation by uttering the rubric: Sentencing is a matter of broad discretion, including the procedures attending it. But while discretion is a sine qua non, it has its limits. We scarcely need to be reminded that sentencing has a tremendous and far-reaching impact on the life of a human being.

I would remand to the district court for consideration of a presentence report.

      . The others charged in the indictment were William Pascente, Anthony LaBarbera, Joseph Pagone, Edward Wedge, Charles Mack, Robert Buss, Davicl Buss, Orville Edens and Anthony Circelli.

      . MR. SIKES: I would assume that your Honor would order a presentence investigation—
      THE COURT: No, I don’t intend to order a presentence investigation. I will set this matter down for sentencing as to all defendants on — What do we have scheduled for Friday?
      THE CLERK: We are supposed to start a trial tomorrow afternoon.
      THE COURT: I have the trial with you.
      MR. SIKES : Yes, your Honor.
      THE CLERK: Just ruling on motions and those two motions with the case with the nineteen defendants. The matter where you were going to appoint counsel for them.
      THE COURT: Yes. Well, I can proceed with sentencing — Can the government be prepared on Friday?
      MR. FAHNER: We can, your Honor.
      MR. LYDON: Yes, your Honor.
      THE COURT: All right.
      THE COURT: Well, I certainly find no objection to increasing the bond to $9,000. I think that’s a reasonable request and the bonds will be so increased.
      MR. SMITH: Your Honor, may I be heard on behalf of Rosciano?
      THE COURT: Yes.
      MR. SMITH: Mr. Rosciano has no previous convictions. There is one previous arrest. He is a man who has a home, who is a homeowner and everything else—
      THE COURT: Well, I’m going to go ah'ead with the sentencing on Friday so not much time is going to be involved here. If you can make the bonds tonight, you can make them tonight. . If you can’t make them tonight. . . .

      . Although nine defendants were charged with the theft, three of them pleaded guilty and were sentenced at separate proceedings subsequent to the sentencing of the six defendants found guilty by the jury.

      . Buss’ testimony on this point was as follows :
      A We were all stacking and counting. The heavy-set guy [Rosciano] had a packing slip to go by.
      Q Do you know where he got that packing slip?
      A It was inside the trailer.
      Q And did you finally finish stacking the boxes and taking a count of them?
      A. Yes, we did.
      Q Then what happened, sir?
      A We were hungry, so the heavy-set guy went out for something to eat and he finally came back. We had sandwiches.
      Q All right. And while you were having the sandwiches, did you have any conversation at that time?
      A Yes.
      Q And who was present at that time, at the time of that conversation?
      A The smaller guy, the heavy-set guy and myself.
      Q And would you please relate to the ladies and gentlemen of the jury the conversation, stating who said what.
      A The heavy-set guy said he wanted a Ronson shaver, because there weren’t very many of them anyway, and I said that if he were to ask Bob, he probably could get one.
      Q All right. Was there any further conversation at that time?
      A I can’t recall.
      Q All right. Then what happened?
      A About the time that we were finishing eating Bob and Joe Pagone finally arrived and came back.
      Q All right. After Bob and Joe Pagone returned, what happened next?
      A There was a discrepancy in the count and so we had to count all of the boxes again.
      Q Well, who was present at that time?
      A Bob, Joe Pagone, the heavy-set guy and the smaller guy and myself.

        Q Could you please tell us who was doing what, specifically.

        A Well, Bob was taking the inventory at this time and Joe Pagone and the heavier-set guy and the smaller guy and myself, we were re-stacking and re-counting.

      . The relevant portion of the Federal Rules of Criminal Procedure, Rule 32(c) (1) provides :
      The probation service of the court shall make a presentence investigation and report to the court before the imposition of sentence or the granting of probation unless the court otherwise directs. The report shall not be submitted to the court or its contents disclosed to anyone unless the defendant has pleaded guilty or has been found guilty.

      . It is most noteworthy that the proposed amendment to Rule 32(c)(1) proposed by the Advisory Committee on Criminal Rules provides that utilization of the presentence report is mandatory except in four explicit situations where the court has discretion to dispense with the report. The proposed rules provide:
      (c) PRESENTENCE INVESTIGATION.
      (1) When Made. The probation service of the court shall make a presentenee investigation and report to the court before the imposition of sentence or the granting of probation, except that the court, at its discretion, may dispense with a presentence report, in the following situations:
      (i) If the maximum penalty is one year or less;
      (ii) If the defendant has two or more prior felony convictions;
      (iii) If the defendant refuses to be interviewed by the probation department or requests that disposition be made without a presentence report;
      (iv) If it is impractical to verify the background of the defendant.
      As the Advisory Committee Note indicates this change in the rule has as its “principal objective uniformity in presentence practice throughout the federal system and fairness to the defendant to be sentenced.”


source: Caselaw Access Project

author: PER CURIAM. SWYGERT, Chief Judge STEVENS,- Circuit Judge, STEVENS, Circuit Judge

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Gino ROSCIANO, Defendant-Appellant.
    No. 73-1666.
    United States Court of Appeals, Seventh Circuit.
    Argued June 13, 1974.
    Decided July 18, 1974.

      Gerald M. Chapman, Themis Anagnost, Chicago, 111., for defendant-appellant.
    James R. Thompson, U. S. Atty., Ann P. Sheldon, Gary L. Starkman, Asst. U. S. Attys., Chicago, 111., for plaintiffappellee.
    Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and FAIRCHILD, CUMMINGS, PELL, STEVENS, SPRECHER and TONE, Circuit Judges.

       Since neither Chief Judge Swygert nor Judge Sprecher was a member of the panel in United States v. Fawcett, their concurrence in this dissent is not intended to express any views with respect to the dissent in that case which is referred to in footnote 4 and attached as an appendix,

   PER CURIAM.

This matter came before us as a result of our May 2, 1974, order granting an en banc rehearing of the panel decision herein reported at 499 F.2d 166. The question involved is whether a district judge, who has not been requested by counsel to do so, is nevertheless required by Rule 32(c)(1) of the present Federal Rules of Criminal Procedure to give explicit reasons for his denial of a presentence report before imposing sentence after considering mitigating factors. The panel decision is not in conflict with any previous decision of this Court.

The function of en banc hearings is not to review alleged errors for the benefit of losing litigants. Western Pacific R. R. Corp. v. Western Pacific R. R. Co., 345 U.S. 247, 256-259, 73 S.Ct. 656, 97 L.Ed. 986; F.R.A.P. 35(b). Even so, it may not be inappropriate to note that after a sentence reduction hearing, defendant was accorded the possibility of immediate parole under 18 U.S.C. § 4208(a)(2). The Government has advised us that on his prison entry, the Parole Board will be given information equivalent to that in a presentence report. Accordingly, the importance of the case even to defendant is reduced.

Barring some Congressional delay, effective August 1, 1974, an amendment to Criminal Rule 32(c)(1) will require presentence reports “unless the court otherwise directs for reasons stated on the record.” No decision in this case will control under the proposed rule, so that very few future cases will be affected. Similarly, any decision here will affect few past cases, because Rule 35 imposes a 120-day limitations period on motions to correct sentences imposed in an illegal manner.

Consequently, en banc hearing is not necessary to maintain uniformity of our decisions, and the case is not of exceptional importance. See F.R.A.P. 35(a). We conclude that the rehearing en banc was improvidently ordered. Hence our order of May 2, 1974, is withdrawn.

SWYGERT, Chief Judge

(dissenting).

I join in Judge Stevens’ dissent from the holding that the en banc rehearing was improvidently ordered. As my Brother demonstrates, the fact that a new national rule governing criminal procedure in the district courts would require reasons for the dispensation of a presentenee report may be in the offing or that the Parole Board may ameliorate any injustice visited on Gino Roseiano is a poor excuse for avoiding a frontal examination of the procedure adopted by the judge in this case. In fact, it is no excuse at all because as far as Roseiano is concerned, the new rule will not benefit him and the hope that the Parole Board may rectify any injustice is exactly that, a hope, and not as Judge Stevens so. adequately illustrates, an assurance. Courts should be ever sensitive to the rights and liberties of individuals. Rosciano’s liberty is at stake — not the salutary effect of some future rule, nor the suggestion that the Parole Board may right a wrong which may have resulted from what seems to me an extreme disparity of sentences in this case.

STEVENS,- Circuit Judge,

with whom

SWYGERT, Chief Judge, and SPRECHER, Circuit Judge, join, dissenting.

Sentencing is a critical stage of the criminal process. Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 19 L.Ed.2d 336. We have recently recognized its importance by imposing procedural requirements upon the district courts of this circuit that were not explicitly mandated by any provision of the Federal Rules of Criminal Procedure. United States v. Miller, 495 F.2d 362 (7th Cir. 1974). Before that opinion was released, since it represented a departure from procedures theretofore required in this circuit, the active judges of the court considered whether or not to have the issue argued before the full court. Had there been substantial disagreement among the active judges — as there was in this case — certainly the decision would have been made en banc rather than by a divided three-judge panel.

One may ask why the preparation of a presentence report — or an explanation of why it need not be prepared — is a matter of less importance than its proper use after it has been prepared.

The trial judge must have broad discretion in his performance of the sentencing function. The sentence must do more than fit the crime; it must fit the particular defendant and also, on occasion, the particular moment in history when it is being imposed. It is therefore imperative that sentencing procedures be fair and that they appear to be fair — to the defendant, to those who are deeply interested in his future, and to the public at large. It is that imperative that led the court to hold that normally there must be disclosure of those portions of the presentence report which affect the trial judge’s determination. It is of comparable importance to have such a report prepared in the first instance, or to have the record plainly disclose why there is no need for a report in a particular case.

For the reasons set forth in Chief Judge Swygert’s dissent from the panel opinion, this record portrays an appearance of manifest unfairness that has not been explained. An explanation might well demonstrate the fairness of both the sentence and the sentencing procedure; but without any explanation, we must be concerned, not merely with the status of this litigant, but with the practice that may regularly be followed in the district courts of the circuit. I recognize that it would be impossible for a district judge always to give reasons which would satisfy every interested person that a particular sentence or a sentencing procedure is fair, but that acknowledgment does not undermine the importance of developing and adhering to fair procedures.

On the merits, the question raised by this appeal is simply whether a trial judge who determines that he does not need a presentence report should state on the record his reasons for dispensing with it. In years past, when there may have been a greater willingness to assume that a judge’s private or ex parte deliberations approached the omniscient, the question would readily have been answered in the negative. Today there is a greater awareness of the fact that injustice does occur from time to time in the sentencing process; today the question should clearly be answered affirmatively. Why, then, should we not do so in this ease?

First, it is suggested that nothing more than the destiny of one litigant is involved on this appeal. But that is the nature of our adversary system; since the earliest days of the common law, judges have applied and molded rules to resolve controversies between particular litigants. Much of our law, with a special emphasis on its procedures, was evolved through the process of case-by-case adjudication. The fact that an issue is raised by a particular litigant with a stake in the application of a rule is a reason for, not against, making a needed change,, and, of course, if the law of the circuit is to be changed, it is appropriate that such action be taken by the court sitting en banc.

Second, it is pointed out that neither the panel decision nor the action of the trial judge is in square conflict with any prior decision of this court. If we are dedicated to the proposition that the law shall never be changed, or, more narrowly, that judicial decisions shall never change the law, then that reason is sufficient; indeed, it is sufficient not only to refuse to act en banc, but also to justify disposition of the appeal by an unpublished order. I suggest, however, that the scholarly treatment of the issue in Judge Hastings’ original opinion for the panel evidenced an appropriate awareness of the importance of the underlying issue. If we believe that our prior decisions are not only consistent but also correct, nothing further need be said; but if one is persuaded — as I am —that the old rule should be changed, then that consistency is a compelling reason why the matter should be considered by the full court sitting en banc.

Third, reference is made to the proposed amendment to Rule 32(c)(1) of the Federal Rules of Criminal Procedure which, if it becomes effective on August 1, 1974, will thereafter expressly require the preparation of a presentence report in every case “unless the court otherwise directs for reasons stated on the record.” Again, the pendency of this proposed amendment provides strong reason for, not against, deciding the issue. If the issue is of sufficient importance to be the subject of an amendment to the Federal Rules of Criminal Procedure, certainly it is also important enough for our en banc consideration. The fact that the collective judgment of the scholars, barristers and judges who have formulated the proposed amendment is in accord with the position of the appellant in this case tends to confirm my appraisal of the merits and lends strong moral support to a change in the law of this circuit. If we should independently reach the same conclusion, such weight as our views may have would, in turn, lend support to the amendment. It may well be true that the amendment will become effective on August 1, 1974, regardless of what action we take; but experience with other such proposals teaches that the expected does not always materialize, and even after an amendment is adopted, it is not necessarily impervious to future change.

Moreover, after the proposed rule does become effective, interpretation of the “reasons stated on the record” requirement will be necessary. In view of what I regard as an incorrect panel conclusion that the record in this case adequately discloses the trial judge’s reasons for not ordering a presentence report, I think we should unambiguously hold that the reasons for the trial judge’s action must be stated with much greater clarity than they were in this case, and not take the chance that the panel opinion will be treated as justification for only token compliance with the new rule.

Fourth, it is said that the case is not even particularly important to the appellant since the equivalent of the presentence report will be given to the Parole Board although not to the judge. Whatever significance this comment may have must rest on the assumption that the trial judge’s participation in' the sentencing process is not merely secondary in importance to the function performed by the Parole Board, but indeed of no special importance at all. Arguably the judge should be entirely removed from the sentencing process and either all sentences should be automatically set by legislative mandate or, at the other extreme, they should all be indeterminate and the timing of a prisoner’s release should be committed exclusively to the discretion of the executive. Neither of these extremes has been adopted in the federal system. As long as the judge is required to play a critical role in the sentencing process, the procedures which he follows will retain their critical importance.

There is a certain irony in the suggestion that the availability of the equivalent of a presentence report to the Parole Board provides a justification for bypassing the judge. For the Parole Board, which must deal with thousands and thousands of inmates each year, is preoccupied with the problem of disparity; we have been informed that it is in the process of developing administrative rules and forms designed to effectuate the maximum uniformity in the treatment of offenders. One item to which the Board presumably would attach special importance is any action taken by the trial judge at the time of sentencing. If the judge has acted on incomplete information, he has, in effect, been partially blind; there is a risk that an inadvertent error may be compounded by the Parole Board’s subsequent reliance on his less than fully informed judgment.

Finally, I note another irony in the suggestion that this case is not really very important to the appellant who is commencing his six-year term in a federal prison. The considerations set forth in the court’s per curiam memorandum were all perfectly apparent before we invited appellant to employ counsel to argue the matter before the court sitting en banc. We all took the time to read the briefs, to listen to that argument, and to deliberate about the matter. I am not at all persuaded that our order granting rehearing en banc was entered improvidently; I would agree, however, that the order we enter today merits that characterization. I believe we do this litigant and ourselves an injustice by failing to address an important issue squarely.

APPENDIX

United States of America, Plaintiff-Appellee, v. Harry R. Fawcett and George Manuel, Defendants-Appellants.

ORDER

Nos. 72-1332, 72-1333

X- X- * * * X-

VI.

Before sentencing, Fawcett requested a copy of the presentence report. The request was denied. Appellant argues that although Criminal Rule 32(c)(2) permits the trial court at its discretion to deny disclosure, non-disclosure violates due process and deprives him of the right to effective counsel because the defense has no way to correct misinformation. Appellant’s argument, however, is foreclosed by settled law. See Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337; United States v. Trigg, 392 F.2d 860, 864 (7th Cir. 1968); United States v. Stidham, 459 F.2d 297, 299 (10th Cir. 1972); United States v. McKinney, 450 F.2d 943 (4th Cir. 1971); United States v. Knupp, 448 F.2d 412 (4th Cir. 1971) (en banc); United States v. Queen, 140 U.S.App.D.C. 262, 435 F.2d 66 (1970); Fernandez v. Meier, 432 F.2d 426 (9th Cir. 1970); United States v. Warren, 432 F.2d 772 (5th Cir. 1970); United States v. Baker, 429 F.2d 1344, 1348 (7th Cir. 1970).

The judgment is

Affirmed.

STEVENS, Circuit Judge

(dissenting in part).

The majority seems to interpret Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337, and the many cases which have followed it, as establishing the broad proposition that the trial judge has no obligation to disclose any information contained in a presentence report even though it may be of critical importance in his determination of the sentence. As I rea'd Williams, it decides a much narrower issue.

In Williams the Court held that the sentencing judge is not limited to the consideration of evidence received in open court or factual matter which would be admissible under accepted rules of evidence. But the Court did not address the narrow question whether the sentencing judge may rely upon critical information about the defendant’s past without at least giving him notice of the substance of the matter relied upon. Indeed, it is of interest that in Williams the sentencing judge discussed in specific detail the items in the presentence report which had persuaded him to impose the death penalty. See Record 12-20. Williams v. New York, No. 671, O.T. 1948. And, in defending the fairness of the sentencing procedure before the Supreme Court, the State emphasized the fact that neither the defendant nor his counsel had questioned the accuracy of any of the information in the report:

“It is significant that although the court revealed the foregoing information, neither appellant nor his counsel made any claim that all or any part of it was untrue or inaccurate in the slightest respect. No request was made to be confronted with the witnesses supplying the information. Nor was any request made for an opportunity to offer rebuttal evidence. Since appellant and his counsel remained silent when confronted with the information above related, the court acted on its conclusion to reject the jury’s recommendation and imposed the death penalty (R. 20).” Appellee’s brief at 6, Williams v. New York, No. 671, O.T. 1948.

The rationale of three other Supreme Court decisions persuades me that the sentencing procedure must avoid the risk that the trial judge has relied upon critical misinformation which the defendant has had no opportunity to contradict or to explain. If the judge regards any information in the presentence report as sufficiently important to affect the sentence, the substance of that information must be disclosed to the defendant or his counsel before sentence is pronounced. I draw that conclusion from the holdings in Mempa v. Rhay, 389 U.S. 129, 88 S.Ct. 254, 19 L.Ed.2d 336; Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690; and Kent v. United States, 383 U.S. 541, 562-563, 86 S.Ct. 1045, 16 L.Ed.2d 84.

Mempa, of course, established the basic proposition that sentencing is a critical stage of the criminal prosecution; for that reason, counsel must be provided. Kent reminds us that counsel cannot adequately represent his client unless he is provided with the information on which the trier of facts bases its determination. And in Townsend the Court squarely held that the imposition of sentence on the basis of misinformation “which the prisoner had no opportunity to correct [rendered] the proceeding lacking in due process.” 334 U.S. at 741, 68 S.Ct. at 1255.

The fundamental elements of due process are required in the sentencing procedure. The most fundamental of all such requirements is adequate notice. Unless the defendant is given an opportunity to correct material misinformation, or to explain facts that might be given improper weight in a secret presentation, he has not had such notice. In my opinion, if a trial judge denies a motion seeking access to a presentence report, he must either make it clear that his sentence determination is not predicated on the contents of the report or describe the substance of any matter he considers significant. In order to avoid the kind of error exemplified by Townsend v. Burke, I believe the Constitution mandates a procedure comparable to that employed by the trial judge in Williams v. New York. It may require more; to the extent that the majority approves anything less, I respectfully dissent.

      . Advocates and judges soon learn that prose which they find irrefutably convincing may be completely unpersuasive to others.

      . We have not hesitated to use our supervisory power to change procedural rules in the past. See, e. g., United States v. Shapiro, 883 F.2d 680 (7th Cir. 1967) (en banc); United States v. Silvern, 484 F.2d 879 (7th Cir. 1973) (en banc); United States v. Carmichael, 489 F.2d 983 (7th Cir. 1973) (en banc). See also Moody v. United States, 497 F.2d 359 (7th Cir. May 22, 1974), in which an opinion by a panel exercising supervisory power to modify a procedural rule, was circulated to all active judges of the court. See n. 7 therein.

      . The panel decision in this case and the recent decision in Miller do, however, point in opposite directions. I do not understand the function of en banc hearings to be limited merely to the resolution of 'diametrically opposed holdings. Such hearings are primarily useful in facilitating the orderly development of a consistent body of jurisprudence.

      . ■ Before this circuit saw fit to change the law applicable to the disclosure of information contained in a presentence report, see United States v. Miller, supra, we had dealt with that subject by unpublished order, even when one member of a panel disagreed with his brethren. See United States v. Fawcett, 481 F.2d 1406 (1973). In order to avoid what might otherwise be a violation of sub-paragraph (4) of our present Circuit Rule 28, I am publishing a copy of my dissent in the Fawcett case as an appendix to this opinion. (Such publication is not intended to make that opinion a part of this one.)

      . The likelihood that an amendment to Rule 11 will become effective on August 1, 1974, did not prevent the court from exercising its supervisory power in Moody v. United States, supra, n. 2, decided on May 22, 1974.

      . If the trial judge had thought he was required to state his reasons, I have no doubt that he would have done so clearly and unambiguously in this case. My views about the merits of the procedural issue reflect no disrespect for the way this judge handled the issue in this case because he faithfully followed controlling precedent in. this circuit. The fact that an appellate court decision changing a procedural rule results in a reversal of an order entered by a trial judge is a by-product of the judicial process, not an unfavorable comment on the work of the judge.

      . I am also puzzled by the reference to the fact that counsel made no request for a presentence report. If that fact were significant, the panel opinion could have disposed of the appeal without extended discussion of other matters. The proposed amendment to Rule 32(c) (1) does not condition the judge’s duty on any request by counsel. Quite clearly, the absence of such a request should be given no significance. But if the point were as clear to my brethren as it is to me, why do they highlight it in stating the question presented?


author: KILEY, Senior Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Amos Lane BRIDGES, Appellant.
    No. 73-1796.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 24, 1974.
    Decided June 12, 1974.
    Rehearing Denied July 8,1974.

      Norman S. London and Lawrence J. Fleming, St. Louis, Mo., for appellant.
    Henry A. Schwarz, U. S. Atty., and William C. Evers, III, Asst. U. S. Atty., E. St. Louis, 111., for appellee.
    Before KILEY, Senior Circuit Judge, CUMMINGS, Circuit Judge, and HOFFMAN, Senior District Judge.

       Senior District Judge Julius J. Hoffman of the Northern District of Illinois sitting by designation.

   KILEY, Senior Circuit Judge.

Defendant Bridges was convicted, by a jury, of unlawfully possessing and using an unregistered dynamite bomb to damage a building, in violation of 26 U. S.C. § 5861(c) and (d) and 18 U.S.C. § 844 (i). We reverse the conviction and remand for a new trial.

We recite the evidence in the light most favorable to the government. At approximately 9:30 p. m. on April 8, 1972, a building used by the Teamsters Union, of which Bridges was a member, was bombed in East St. Louis, Illinois. There had been a controversy between Bridges and the Union over non-payment of dues and a telephone bill, resulting in his suspension from the Union. Bridges had threatened to “thump” the head of one Union official over the issue of the dues. A half hour before the bombing, two men were observed next to the building near a car that resembled Bridges’. Dynamite particles were found in the blast debris, and dynamite components were found in the swabs taken of Bridges’ hands and the debris collected from the trunk of his car and the vacuum cleaner in his house.

I.

At the close of the government’s case, the court denied Bridges’ motion for acquittal. We find no error in that ruling. The evidence recited above was prima facie sufficient to justify an in- ' ference of guilt.

II.

Bridges contends that the court committed reversible error in denying his motion for mistrial after a government witness testified that Bridges refused to answer a question concerning his recent handling of explosives.

Bridges learned that he was a suspect in the case and surrendered himself, on the advice of counsel, on April 11, 1972 at a local police station. Federal agents arrived and, after reciting the Miranda warnings, interrogated him.

At the trial the prosecutor asked one of the agents:

Q. What questions did you ask of him and what answers did he 'give you?
A. I asked him if he handled any explosives. He declined to answer.

The court sustained a motion by Bridges’ counsel to strike, and instructed the jury to disregard the answer, but denied his motion for a mistrial. The prosecutor thereafter asked the agent:

Q. Did you ask Mr. Bridges if he had handled any explosives recently ?
A. Yes, sir.
Q. And what did he tell you when you asked that question ?
A. He declined to answer.

Again the court denied a motion for a mistrial and repeated the first ruling. Subsequently the prosecutor asked another agent:

Q. Was Mr. Bridges asked if he had handled any explosive materials recently ?
A. Yes.
Q. What did he reply ?
A. He declined to answer.

The court for the third time denied a motion by Bridges’ counsel for a mistrial.

We hold that the court’s denial of the motions for mistrial was constitutional error because the agents’ testimony violated Bridges’ Fifth Amendment right against self-incrimination and compels reversal of his conviction.

In recent opinions we have expressed a concern over conduct of overzealous prosecutors. We shall presume in fairness that the prosecutor did not anticipate the agent’s answer to the first question. But we cannot indulge that presumption with respect to the prosecutor’s second and third series of questions which specifically elicited the prejudicial answers given to the first question. The prosecutor should have known that Bridges had the right not to answer, yet deliberately disregarded that right. In fact, he apparently claimed that he was entitled to disregard Bridges’ rights.

In Kroslack v. United States, 7 Cir., 426 F.2d 1129, 1130-1131 (1970), this court responded to a similar, though less serious, violation, stating:

It was reversible error for the agent to testify that when the defendant was questioned he refused to make a statement. Baker v. United States, 5th Cir., 357 F.2d 11 (1966). . . . We find little difference between the prejudice resulting from the testimony admitted in the case before us, and a prosecutor’s comment before a jury on a defendant's exercise of his constitutional right not to take the witness stand. Such comments have been held to be reversible error. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). The testimony elicited here could well have led the jury to infer guilt from defendant’s refusal to make the statement. We think exercise of a constitutional privilege should not incur this penalty. Id. at 614, 85 S.Ct. 1229. (Footnote omitted.)

III.

Following Bridges’ refusal to answer the questions concerning his handling of explosives at the April 11, 1972 interrogation, the federal agents swabbed his hands. On the basis of the chemical analysis of the swabs, the agents obtained a warrant, searched Bridges’ car, collected debris from the interior and trunk of the ear, and swabbed the interi- or. The agents subsequently obtained another warrant and searched Bridges’ house for a vacuum cleaner which contained material similar to that found in the trunk of his car.

The court, after a pre-trial hearing, denied Bridges’.motion to suppress the analysis of his hand swabbing, on the ground that it was done in violation of his Fourth and Fifth Amendment rights; and to suppress the materials seized in the searches, on the ground that the affidavits supporting the warrant applications contained untruths and that therefore the warrants were improperly issued.

At the hearing Bridges testified that neither he nor his attorney consented to the hand swabbing, that he attempted to call his attorney during the interrogation but could not reach him, and that he eventually offered his hands for swabbing because the only “other alternative would have meant a little hassle, I imagine.” The agents testified that Bridges submitted to the swabbings without protest and did not use the available telephones.

, The court found that Bridges had consented to the swabbing; that even if he had not, his Fifth Amendment right was not violated because the swabbing was not testimonial; that the swabbing without his consent was not an unreasonable search and seizure; and that there was probable cause to issue the warrants since the minor discrepancies in the affidavits were insufficient to invalidate the warrants.

Bridges contends the court erred in denying the motion to suppress. We disagree.

A.

The district court did not err in denying the motion on the Fifth Amendment ground. We think that swabbing, like drawing the defendant’s blood in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), was not a violation of that Amendment’s protection against self-incrimination, since the swabbing did not “provide the state with evidence of a testimonial or communicative nature. . . .” Id. at 761.

Neither did the court err in denying the motion on the Fourth Amendment ground.

In Schmerber the Court held that the warrantless intrusion into Schmerber’s body for blood was reasonable in light of the exigent circumstances therein; the blood was drawn to determine its alcoholic content which diminishes rapidly in time.

The Second Circuit, in United States v. D’Amico, 2 Cir., 408 F.2d 331, 333 (1969), held that admission into evidence of clippings of D’Amico’s hair did not violate his Fourth Amendment right. The court stated:

Some official in-custody investigative techniques designed to uncover incriminating evidence from a person’s body are such minor intrusions into or upon the “integrity of an individual’s person” ([Schmerber] 384 U.S. at 772 .), that they are not, in the absence of a search warrant, unreasonable intrusions. (Footnote omitted.)

It is apparent that had the agents not swabbed Bridges’ hands at the time, the opportunity may not have knocked again, especially if Bridges washed his hands. Accordingly, we find that the intrusion upon Bridges was similar to thiat in Schmerber and D’Amico. The swabbing was no more offensive to Bridges’ person than fingerprinting or photographing him. Schmerber, at 764; D’Amico, at 333. We hold that the swabbing was not an unreasonable search, and affirm the district court’s ruling.

B.

We turn to the remaining issue of whether the warrants were issued without probable cause.

The transcript of the suppression hearing supports the district court’s finding of sufficient facts in the affidavits to establish probable cause: statements relating to the agents’ investigation of the scene of the crime, interviews with witnesses and Union officials, and the interrogation of Bridges.

The court also decided that the two minor factual errors in the affidavits did not vitiate the warrants.

Assuming arguendo that this court’s decision in United States v. Carmichael, 7 Cir., 489 F.2d 983 (1973), reached back to the Bridges suppression hearing, it would not require a finding of error in the court’s decision. In Carmichael we held that “(1) any misrepresentation by the government agent of a material fact, or (2) an intentional misrepresentation by the government agent, whether or not material” will invalidate a search warrant and require suppression of the evidence. Id. at 988.

The factual errors herein were (1) a statement that dynamite had been found on Bridges’ hands, whereas only components of dynamite were- found, and (2) a statement that Bridges consented to the swabbing on advice of his counsel, when actually his counsel advised him merely to report to the police station.

We think the first misstatement is an unintentional misrepresentation of an immaterial fact because the distinction between the components of dynamite and dynamite itself could not affect probable cause.

We also think that the second error was unintentional. It is probable that, since Bridges had informed the agents that he was present on the advice of his attorney, they assumed the attorney also advised him to consent to the swabbing. Also, whether he consented to the swabbing is immaterial to the issue of probable cause.

Accordingly, we hold that the search warrants were validly issued and that the evidence obtained need not be suppressed.

C.

Bridges also contends that the district court erred in failing to suppress the results of the chemical analysis of the hand swabbing on the ground that the extracts from the swabs were consumed in the course of the analysis and consequently not made available to Bridges for pre-trial discovery.

In denying the motion to suppress, the court found that there was no showing that the government deliberately destroyed the swab extracts; that results of the analysis were given to Bridges; and that at trial his counsel could challenge the procedures used in the analysis, and could introduce the results of independent analysis of samples of other evidence tendered by the government.

Subsequent to the court’s ruling, the Fifth Circuit held, in United States v. Love, 482 F.2d 213 (1973), in affirming defendant’s conviction for violating the same statutes as herein, that the destruction through chemical analysis of hand swabs taken of the defendant did not require their suppression at defendant’s trial.

We agree with that decision and with the reasoning of the district court below. While it would be better practice in the future for a defendant’s expert to be present during the testing when it appears that the samples will be destroyed, we hold that the court’s ruling was not erroneous.

D.

There is no merit in Bridges’ contention that the court erred in admitting the swabs and debris taken from the blast site for insufficient proof of chain of custody. The trial court’s discretionary ruling on identification of evidence sufficient for its admissibility is subject to reversal only for an abuse of discretion. Brewer v. United States, 353 F.2d 260 (8th Cir. 1965); Gallego v. United States, 276 F.2d 914 (9th Cir. 1960). There was no abuse in this case. The government need not exclude all possibilities of tampering with evidence. As the court said in Gallego: “If . the trial judge is satisfied that in reasonable probability the article has not been changed in important respects, he may permit its introduction in [to] evidence.” 276 F.2d at 917.

IV.

Bridges also contends that the district court erred in refusing to give his instruction on reasonable doubt and burden of proof. We have read Bridges’ rejected instruction and are satisfied that the court did not err in declining to give it, since it was substantially duplicative of the instruction that was given. United States v. Fellabaum, 408 F.2d 220, 227 (7th Cir. 1969).

Bridges also challenges the following given instruction:

The burden of proving the charge in the indictment is upon the Government, and it is required to prove the charges set forth in the indictment beyond a reasonable doubt. The burden of proof never shifts to the defendant. The law does not require a defendant to prove his innocence or to produce any evidence. He may rely on the evidence brought out on cross examination of witnesses for the Government. If the Government proves its case as made in the indictment beyond a reasonable doubt, then it is your duty to return a verdict of guilty. If, however, the Government does not prove its case against this defendant beyond a reasonable doubt, then it is your duty to return a verdict finding the defendant not guilty.
Reasonable doubt means exactly what the words indicate, a doubt that is reasonable, taking into consideration all of the evidence and the law as given you by the court in these instructions. It does not mean that you have the right or privilege to go outside the evidence to hunt up doubt, and a fanciful, imaginary doubt that does not arise from the law and the evidence should not enter into your verdict in this case.
Now, there is nothing mysterious about the term “reasonable doubt.” It is not for the purpose of permitting guilty men to escape, but it is a rule for the protection of the innocent.
Reasonable doubt does not mean a probability of a doubt or a possibility of a doubt or a.speculative doubt, but it is a substantial doubt based upon the evidence or lack of evidence in the case.
If, upon consideration of all the evidence in the case, you have an abiding conviction of the guilt of the defendant amounting to a moral certainty, then the defendant has been proven guilty beyond a reasonable doubt and it would be your duty to find him guilty.

We find two paragraphs of the given instruction objectionable: the paragraph stating that “reasonable doubt” is not for the purpose of “permitting guilty men to escape,” and the paragraph equating “reasonable doubt” with “substantial doubt.” On retrial, those paragraphs should be deleted.

Contrary to what the government implied in its brief, neither of the objectionable paragraphs is approved in the LaBuy “Jury Instructions in Federal Criminal Cases.” Both have been criticized in several cases from other Circuits : “permitting guilty men to escape” — Reynolds v. United States, 238 F.2d 460 (9th Cir. 1956), and Gomila v. United States, 146 F.2d 372 (5th Cir. 1944); “reasonable doubt” equated with “substantial doubt”- — United States v. Atkins, 487 F.2d 287 (8th Cir. 1973), and United States v. Alvero, 470 F.2d 981 (5th Cir. 1972).

We reverse and remand for a new trial.

      . § 5861. Prohibited acts — It shall be unlawful for any person — ■
      (c) to receive or possess a firearm made in violation of the provisions of this chapter; or
      (d) to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record;
      § 844 (i) Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned for not more than ten years or fined not more than $10,000, or both; and if personal injury results shall be imprisoned for not more than twenty years or fined not more than $20,000, or both; and if death results shall also be subject to imprisonment for any term of years, or to the death penalty or to life imprisonment as provided in section 34 of this title.

      . Tr. 138.

      . Tr. 145.

      . Tr. 219.

      . United States v. Ott, 7 Cir., 489 F.2d 872 (1973); United States v. Trutenko, 7 Cir., 490 F.2d 678 (1973) (Chief Judge Swygert dissenting) ; Epperson v. United States, 7 Cir., 490 F.2d 98 (1973) (Judge Pell dissenting) .

      . He stated:
      If Your Honor please, the jury has a right to know what Mr. Bridges said. His statements are admissible into evidence as admissions against his interest and the jury should be entitled to know whether or not he handled explosives. He refused to answer that question. I asked that question and made no comment on that statement. It is my position that all persuasive pieces of evidence available to the Government to show the guilt of Mr. Bridges are admissible. This is one fact in a long series of doubt Which this witness suggested as such. I am merely presenting all the facts to the jury. (Tr. 220.)

      . Tr. 8.

      . We are not persuaded that the evidence supports the district court’s finding that Bridges consented to the swabbing. In the circumstances of the station-house interrogation, the evidence does not show consent with the clear and convincing evidence required. United States v. Como, 340 F.2d 891 (2nd Cir. 1965); Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).

      . For the same reason, we reject Bridges’ contention that the conrt erred in failing to give his “position” instruction. (“It is the position of the defendant” that he is not guilty of the offense.) The instructions given by the court were substantially the same as the rejected position instructions.


author: PER CURIAM:

text:
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. WAH CHANG ALBANY CORPORATION and Local 6163, United Steelworkers of America (AFL-CIO), Defendants-Appellees.
    No. 73-3555.
    United States Court of Appeals, Ninth Circuit.
    June 17, 1974.

      C. L. Thomas (argued), EEOC, Washington, D. C., for plaintiff-appellant.
    William H. Schmelling (argued), of Willner, Bennett, Meyers, Riggs & Skarstad, Portland, Or., Perry Goldberg (argued), Chicago, 111., for defendantsappellees.
    Before BROWNING and WRIGHT, Circuit Judges, and KING, District Judge.

       The Honorable Samuel P. King, United States District Judge for the District of Hawaii, sitting by designation.

   PER CURIAM:

The Equal Employment Opportunity Commission [EEOC or Commission] appeals from an order of the District Court for the District of Oregon which dismissed an EEOC action brought pursuant to the Commission’s authority under Section 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. (1974) § 2000e-5(f)(1) and (3), against Wah Chang Albany Corporation [Wah Chang Albany or Employer] and Local 6163, United Steelworkers of America (AFL-CIO) [Union], because the first amended complaint did not allege that the discriminatory charge had been deferred to the appropriate state or local agency.

Defendants argued, and the district judge ruled, that deferral was one of the pre-conditions to the court’s jurisdiction and therefore was required to be pleaded by Rule 8(a)(1), Fed.R.Civ.P. Defendants argued alternatively that deferral was a necessary pre-condition to relief and therefore was required to be pleaded by Rule 8(a) (2). The district judge did not reach this alternative ground for dismissal.

We reverse.

We hold that Rule 8(a) does not require specific allegations relating to, deferral, either for the purpose of establishing the grounds upon which the court’s jurisdiction depends, or for the purpose of stating a claim showing that the pleader is entitled to relief.

In an area in which it is difficult to demonstrate ultimate or eternal truth, we look to what ought to be the better practice in the light of the history of notice pleading under the Federal Rules of Civil Procedure.

A similar situation was faced in Hodgson v. Virginia Baptist Hospital, Inc., 482 F.2d 821 (4th Cir. 1973), and the opposing points of view as to the application and interaction among Rules 8, 9, and 12, Fed.R.Civ.P., are well explicated by the majority and minority opinions in that case. The majority pointed out that: “A major aim of American procedural reform has been to reduce reliance on pleadings to refine the evidentiary basis for a litigant’s claim.” 482 F.2d at 823.

A fundamental policy of the Equal Employment Opportunity Act [Act] is to avoid federal action whenever possible by making the state a partner in the enforcement of Title VII. See, e. g., 110 Cong.Rec. 12707 (1964) (remarks of Senator Humphrey). Thé deferral requirement of Section 706(c), 42 U.S.C.A. (1974) § 2000e-5(c), is thus an important feature of the statute to be carried out by the executive department and to be upheld by the judiciary. On the other hand, we do not see this procedural direction to the Commission as affecting the power of the court to deal with a complaint that makes no specific mention of deferral.

The Equal Employment Opportunity Act is an intricate statute hedged about with definitional, substantive, and procedural limitations, restrictions, and requirements. The Supreme Court has decreed in Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972), that these provisions are not to be interpreted too literally or too téchnically, reversing The Tenth Circuit, which then followed with Vigil v. American Telephone and Telegraph Company, 455 F.2d 1222 (10th Cir. 1972), to the same effect.

The civil action authorized by Section 706(f)(1) is essentially a claim for relief from an unresolved unlawful employment practice. In keeping with the spirit of Love v. Pullman Co., the procedural steps that must be taken before suit may be prosecuted are most reasonably considered conditions precedent, the performance or occurrence of which may be pleaded generally as permitted by Rule 9(c), Fed.R.Civ.P.

Deferral to a state or local agency, while not to be overlooked, is contingent, depending upon ' the existence, provisions, and requirements of the state or local law. Failure to allege deferral is as consistent with a position that deferral is not required as that deferral has been by-passed. See, e. g., General Ins. Co. v. EEOC, 491 F.2d 133, 135 (9th Cir. 1974). Issues in this regard are defensive in character and can be resolved readily by motion for summary judgment under Rule 56, Fed.R. Civ.P. Such a procedure is no more burdensome on the defendant than a motion to dismiss under Rule 12(b), Fed. R.Civ.P.

Defendants argued that they could not safely formulate responsive pleadings based on something more than speculation about the nature of the charges which are the basis of the complaint unless the EEOC was required to plead the additional matters requested. The argument strikes us as frivolous. The Act requires that notice of a charge be served upon the person against whom such charge is made and that the Commission attempt for at least 30 days to settle the charge by conciliation.. If an allegation of the complaint does in fact come as a surprise to a defendant, Rule 8(b), Fed.R.Civ.P., permits him to deny the allegation by avering that he is without knowledge or information sufficient to form a belief as to the truth of the allegation.

Plaintiff EEOC for some reason not immediately apparent omitted from the first amended complaint the general allegation that all conditions precedent to the commencement of the action had been fulfilled. This allegation should be restored to the complaint.

The cause is remanded for further proceedings consistent herewith.

      . The original complaint, filed May 7, 1973, charged that the defendants engaged in various practices which discriminated against its women employees on the basis of their sex. It alleged that jurisdiction of the action was conferred by Section 706(f)(1) and (3) of Title VII. It further alleged that charges of employment discrimination had been filed more than 30 days prior to the commencement of the action, and that “All conditions precedent to the commencement of this action have been fulfilled”.
      Defendants moved to dismiss the complaint for, inter alia, failure to allege facts sufficient to sustain the district court’s jurisdiction under Title VII. In their memoranda in support of the motions, defendants argued that the general allegation in the complaint as to fulfillment of conditions precedent was insufficient; that the complaint should have specifically alleged the timeliness of the charge filed with the Commission, deferral to the appropriate state agency, a finding of reasonable cause by the Commission, and the Commission’s inability to secure a conciliation agreement acceptable to it.
      On August 15, 1973, the district court granted defendants motion to dismiss and gave the plaintiff 30 days “in which to file an amended complaint which must allege that the EEOC has complied with each specific condition precedent”.
      The Equal Employment Opportunity Commission, on September 12, 1973, filed its First Amended Complaint. It again alleged that 30 days had elapsed since the filing of charges with the Commission specifying the names of the charging parties and dates of filing. It then alleged that the Commission, after investigating and finding reasonable cause to believe that the defendants had engaged in unlawful employment practices, had been unable to secure a conciliation agreement acceptable to it. The general statement that “All conditions precedent to the commmencement of this action have been fulfilled” was left out.
      The defendants again moved to dismiss the complaint, contending that the complaint was still jurisdictionally defective in failing to allege the timeliness of the charge and deferral to the appropriate state agency. On the argument of the motion the court took the position that since it had previously ordered the Commission to allege all conditions precedent, the failure to allege deferral to a state agency justified the assumption that deferral had not occurred. Government counsel pointed out that, as a matter of pleading, it was not necessary to allege every single procedural step which the Commission had taken. The court ruled that deferral was jurisdictional and had to be alleged, and granted the motions to dismiss, without leave to amend.

      . Section 706(c) provides:
      In the case of an alleged unlawful' employment practice occurring in a State, or political subdivision of a State, which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no charge may be filed under subsection (b) of this section by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated, provided that such sixty-day period shall be extended to one hundred and twenty days during the first year after the effective date of such State or local law. If any requirement for the commencement of such proceedings is imposed by a State or local authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by registered mail to the appropriate State or local authority.

      . Recent decisions of this court, holding that where there has been no deferral to a state agency the district court should not dismiss but should retain jurisdiction for a period, sufficient to allow the employee to seek redress through the state agency, necessarily imply that deferral is not a jurisdictional fact in the sense that its absence deprives the court of power to act. See Oubichon v. North American Rockwell Corp., 482 F.2d 569, 571 (9th Cir. 1973); Parker v. General Tel. Co., 476 F.2d 595 (9th Cir. 1973); Motorola, Inc. v. EEOC, 460 F.2d 1245, 1246 (9th Cir. 1972).

      . The district courts have faced his problem with varying results. See EEOC v. Bartenders Int’l Union, 369 F.Supp. 827 (N.D.Cal.1973); EEOC v. Rhode Island Sand & Gravel Co., Inc., Civil No. 5197 (D.R.I. June 18, 1973) ; EEOC v. Kimberly-Clark Corp., No. C-73-42 (W.D.Tenn. June 8, 1973); EEOC v. Pick Memphis Corp., 5 EPD ¶ 8471 (W.D.Tenn. January 16, 1973); EEOC v. Eagle Iron Works, 367 F.Supp. 817 (S.D.Iowa 1973); EEOC v. General Electric Company, 370 F.Supp. 1258 (W.D.Va.1973); EEOC v. Guaranty Savings & Loan Association, 369 F.Supp. 36 (N.D.Ala.1973); EEOC v. Mobil Oil Corp., 362 F.Supp. 786 (W.D.Mo.1973); EEOC v. Western Electric Co., Inc., 369 F.Supp. 1002 (W.D.Tenn.1973); EEOC v. Western Elec. Co., Inc., 364 F.Supp. 188 (D.Md.1973); Van Hoomissen v. Xerox Corporation, 368 F.Supp. 829 (N.D.Cal.1973), appeal dismissed, 497 F.2d 180 (9th Cir. 1974); EEOC v. Container Corporation of America, 352 F.Supp. 262 (M.D.Fla.1972); EEOC v. McLean Trucking Co., 5 FEP Cases 608 (W.D.Tenn.1972); Foye v. United A. G. Stores Cooperative, Inc., 336 F.Supp. 82 (D.Neb.1972); Trivett v. Tri-State Container Corp., 368 F.Supp. 131 (E.D.Tenn.1972); Nishiyama v. North American Rockwell Corporation, 49 F.R.D. 288 (C.D.Cal.1970).

      . See, e. g., EEOC v. Firestone Tire & Rubber Co., 366 F.Supp. 273 (D.Md.1973).

      . Appellee suggests that the EEOC should have sought reconsideration of the district court’s order. Brief of Appellee Wah Chang Albany Corporation at 14. Although the Federal Rules do provide for the reconsideration of orders, Fed.R.Civ.P. 60(b) is not a substitute for apxjeal. 7 J. Moore, Federal Practice ¶ 60.18 [8] at 217 (2d ed. 1974).


author: HILL, Circuit Judge.

text:
    Donald Dee HARTMAN, Plaintiff-Appellant, v. MILLER HYDRO COMPANY, Defendant-Appellee.
    No. 73-1803.
    United States Court of Appeals, Tenth Circuit.
    Argued April 16, 1974.
    Decided June 28, 1974.
    Rehearing Denied July 23, 1974.
    Bradley Post, Wichita, Kan. (Orval L. Fisher, Wichita, Kan., on the brief), for plaintiff-appellant.
    Gerald Sawatzky, Wichita, Kan. (Mikel L. Stout, Wichita, Kan., on the brief), for defendant-appellee.
    Before LEWIS, Chief Judge, and HILL and SETH, Circuit Judges.
   HILL, Circuit Judge.

This products liability case, based on diversity, arises out of personal injuries sustained by the. appellant Donald Dee Hartman, when his trousers, and subsequently the middle region of his body, became entangled in the revolving shaft of a bottle washing machine manufactured by appellee Miller Hydro Company (Miller Hydro) and owned by his employer, The Pepsi Cola Bottling Company (Pepsi Cola).

Hartman instituted suit against Miller Hydro in the United States District Court for the District of Kansas, premising liability upon ordinary negligence and strict liability. Essentially, the latter claim alleged faulty design by Miller Hydro in that it (1) failed to install a guard over the revolving shaft, and (2) failed to provide an emergency stop switch for the shaft, near the operator’s station. Upon hearing all of the evidence and instructions, the jury returned a verdict for Miller Hydro.

On appeal, Hartman contends the trial court erred in instructing the jury that liability was dependent on Miller Hydro’s knowledge of the probable danger, and in requiring him to prove such knowledge.

Miller Hydro, a Georgia corporation engaged in the design and manufacture of large machines, custom built a large bottle washing machine for the Pepsi Cola plant in Wichita, Kansas. It was designed to receive dirty pop bottles from a conveyor (which was driven by a revolving shaft), convey them into the machine where they were washed, and discharge them at the other end. The machine itself was a component part of connecting machines making up a production line consisting of a deeaser (removes bottles from cases), an extension tongue (takes bottles to washer), and a filler (fills and caps bottles).

The machine was manufactured, assembled, tested and inspected at Miller Hydro’s Georgia plant, and then dismantled and shipped to Wichita in pieces where it was reassembled by Pepsi Cola employees under supervision of Miller Hydro installation engineers.

Once in operation (early in 1969), bottles tended to jam up or upset before entering the machine, requiring an employee to stand near the machine to remedy the situation. Although the proper place for an employee to position himself was in dispute at trial, it appears that employees often stood in the vicinity of the drive shaft. They would lean against, or over, the shaft while setting up or unjaming bottles. Some even stepped on the revolving shaft while climbing onto the machine.

The drive shaft itself was modified by Pepsi Cola personnel subsequent to the installation of the bottle washing machine. A sprocket was changed to increase the shaft’s speed. The record also discloses that approximately six months before Hartman’s injury another employee’s apron became caught in the unguarded shaft. This person was able to extricate himself, however, and avoided injury.

Hartman’s injury occurred on February 23, 1970, about a year after the new bottle washing machine had been in operation. He had positioned himself near the shaft to operate the machine. While leaning over the shaft to set up some dirty bottles that had fallen over, as he had done on other occasions when operating the machine, his pants became caught in the shaft and he was pulled into its moving parts, resulting in injury. At that time there was no guard over thq shaft and no stop switch in the near vicinity. One stop switch was located farther down the machine, and another was located on a wall on the other side of the machine.

After the evidence was presented the trial court instructed the jury on negligence, contributory negligence, strict liability as defined in § 402A of the Restatement of Torts 2d, and assumption of risk. As regards strict liability the jury was instructed, inter alia, that plaintiff must prove the defendant

had knowledge of the probable danger of such defect in design, -plan and manufacture of the machine, when used for the purpose for which intended and in the manner intended.

Hartman contends this instruction erroneously required proof of an element that need not be established under a cause of action premised on strict liability.

We have reviewed the record and find . that it is unnecessary to consider the propriety of the trial court’s instructions. Instead, we think the dispositive issue is whether strict liability instructions were appropriate.

A party is entitled to an instruction on his theory of the case only if the theory is supported by competent evidence. General Motors Corp. v. Walden, 406 F.2d 606 (10th Cir. 1969). Hartman’s theory, strict liability, necessarily required him to put forth evidence that the machine was defective and that its defective condition created an unreasonable danger to the user, to merit strict liability instructions. We believe he failed in both respects.

As concerns the product’s defectiveness, the relevant evidence may be summarized as follows. It was virtually undisputed at trial that the machine’s design included provision for a guard over the shaft. A Miller Hydro employee testified, by way of deposition, that guards are placed on all exposed shafts at the time a machine is manufactured and that he personally placed a guard on the shaft in question. The Miller Hydro finished products inspector, also testifying by deposition, stated that he checked all of the guards on the bottle washing machine before it was dismantled for shipping, and that the machine had no exposed parts.

A Miller Hydro installation engineer said he found all guards for the machine at the time of installation and another said he personally placed a guard over the shaft in question. In fact, this employee said he stood on the guard while making adjustments on the top part of the machine.

A state safety inspector examined the machine shortly after its installation. He did not notice, and his report did not indicate, that the shaft’s guard was missing. Some Pepsi Cola employees testified that the guard was missing after installation, but could not definitely state that it was missing at the time of installation. Evidence also was introduced that Pepsi Cola personnel had performed remedial work on the shaft subsequent to installation, which would require removal of a protective guard, if one existed. And a Pepsi Cola employee testified that a guard, if taken off, could possibly end up on the scrap metal pile. This evidence is not sufficient to show the product was defective.

Nor did Hartman present sufficient evidence on the question of whether the location of the stop switch rendered the machine defective. An expert testified that the system’s designer, rather than the manufacturer, should be responsible for locating stop switches. Moreover, Pepsi Cola’s production manager testified that he did not think a stop switch was necessary at the shaft location.

Hartman also had the burden of showing that the machine was unreasonably dangerous. A product is unreasonably dangerous only if it is dangerous to an extent beyond that which would be contemplated by the ordinary consumer, with the ordinary knowledge common to the community as to its characteristics.

Hartman testified he was never warned that a guard should be placed over the shaft, and that he did not know leaning against the exposed shaft was dangerous. As assistant production manager responsible for plant safety, however, he must be accredited with sufficient intelligence to realize that an exposed revolving shaft is dangerous. This conclusion is supported by the fact that another employee had previously become caught in the same shaft. Thus, it cannot be said that a danger existed which was beyond contemplation of an ordinary user. The danger was obvious.

The record thus establishes a lack of competent evidence to support a claim of strict liability. Although the trial court erred in instructing the jury thereon, we do not believe this was reversible error. Hartman merely received one more chance at recovery than he was entitled to receive, and cannot claim prejudice thereby.

Affirmed.

      . Section 402A, Restatement of Torts 2d (1965), provides:
      (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

        la) the seller is engaged in the business of selling such product, and
      (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although
      (a) the seller has exercised all possible care in the preparation and sale of his product, and
      (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

      . Hartman asserts that this argument, raised by Miller Hydro, is inappropriate for appellate consideration because no cross-appeal has been taken. We do not agree. An appellee may, without cross-appealing, urge in support of the judgment any matter appearing in the record. See, e. g., Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). Miller Hydro does not attack, in any respect, the judgment entered below. It merely asserts an additional reason why the judgment should be affirmed.

      . He stated that a guard is placed on a machine and then two holes are drilled through the guard into the machine, for bolts to hold the guard in place. The record discloses that there were two such holes near the drive shaft of the bottle washing machine.

      . His report did indicate that a guard on another machine was missing and that it should be installed.

      . Kestatement (Second) of Torts, Explanatory Notes § 402A, comment i at 352 states in part:
      “The rule stated in this section applies only where the defective condition of the product makes it unreasonably dangerous to the user or consumer. Many products cannot possibly be made entirely safe for all consumption, and any food or drug necessarily involves some risk of harm, if only from over-consumption. Ordinarily sugar is a deadly poison to diabetics, and castor oil found use under Mussolini as an instrument of torture. That is not what is meant by ‘unreasonably dangerous’ in this Section. The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.”