author: JOHN R. BROWN, Chief Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Richard John REAM, Jr., Defendant-Appellant.
    No. 73-2742.
    United States Court of Appeals, Fifth Circuit.
    March 29, 1974.

      James M. Simons, Austin, Tex. (Court-appointed), for defendant-appellant.

      William S. Sessions, U. S. Atty., Jeremiah Handy, Asst. U. S. Atty., San Antonio’, Tex., for plaintiff-appellee.
    Before BROWN, Chief Judge, and GODBOLD and SIMPSON, Circuit Judges.
   JOHN R. BROWN, Chief Judge:

Appellant Ream was convicted of failing to remain in civilian alternate service for twenty-four months in violation of The Military Selective Service Act of 1967, 50 U.S.C.App. §§ 456(5), 462. He asserts as error: (i) the trial court’s failure to hold an evidentiary hearing on certain defense motions, (ii) insufficiency of the evidence to support his conviction, and (iii) improper admission of certain government records into evidence. Finding these contentions to be without merit we affirm.

Richard John Ream, Jr. registered with his local draft board at Big Springs, Texas, on November 25, 1964. On January 14, 1965 he was given a 1-S(H) classification which exempted him from service on the basis of a high school deferment. Subsequently, appellant underwent a physical examination and was found qualified for military service on February 5, 1968. Appellant then wrote his draft board stating he was a conscientious objector and he was mailed the appropriate conscientious objector forms. Appellant returned the forms and on November IS, 1969, after a personal interview before the board, he was classified 1-A. Pursuant to an appeal, the local draft board reclassified appellant 1-O.

Classification as 1-0 committed appellant to select non-combat related employment as a means of fulfilling his military obligations. 32 C.F.R. § 1660.5. Instead of selecting employment with an agency designated as suitable by the State Director, he began work at the Travis State School for the Mentally Retarded in Austin, Texas as a full-time attendant, notifying his local draft board of his alternate service selection sometime thereafter. He was subsequently informed on December 20, 1970, that employment at the Travis State School would meet the requirements of the Selective Service System for employment of conscientious objectors.

Appellant worked for the Travis State School for approximately 13 months until October 10, 1971, when he left the institution having 10 months remaining on his service obligation. On January 9, 1973, an information was filed against appellant by the FBI and on March 29, 1973, an indictment was returned by the grand jury charging him with failing to remain in civilian alternate service for twenty-four consecutive months in violation of 50 U.S.C.App. §§ 456(j), 462.

DENIAL OF APPELLANT’S MOTIONS WITHOUT AN EVIDEN-TIARY HEARING

Composition of Jury

Appellant contends the trial court’s denial of his motion for discovery was an abuse of discretion in violation of his Fourteenth Amendment rights. This motion was designed to obtain certain information such as the age of all persons on the grand jury which had indicted him. Such information appellant hoped would support his allegation that discrimination against persons 18-26 years old caused the grand jury to be improperly constituted. Since we have many times ruled that exclusion of such ages pending the emptying and refilling of the master jury wheel is not a constitutional or statutory violation, United States v. Pentado, 5 Cir., 1972, 463 F.2d 355, cert. denied, Noa v. United States, 410 U.S. 909, 93 S.Ct. 963, 35 L.Ed.2d 271; United States v. Blair, 5 Cir., 1972, 470 F.2d 331, cert. denied, Crews v. United States, 411 U.S. 908, 93 S.Ct. 1536, 36 L.Ed.2d 197; United States v. Gooding, 5 Cir., 1973, 473 F.2d 425, the denial of the discovery motion could not be said to have prejudiced appellant's case in any way.

Challenging Prosecutorial Discrimination

Appellant further contends that the trial court abused its discretion when it denied those portions of his motion for discovery and motion to dismiss which related to his contention of improper prosecutorial intent. The crux of appellant’s contention was that he was being discriminatorily prosecuted because of his anti-war activities. At no time before, during, or after the trial did appellant introduce or proffer any evidence or any affidavits of any persons which would support these assertions. His reliance on the recent Seventh Circuit case of United States v. Falk, 1973, 479 F.2d 616 (en banc) is not enough. Whatever doubts we might have—and they are not small ones— about that decision in light of the Executive’s exclusive prerogative in commencing, maintaining, or terminating prosecutions, United States v. Cox, 5 Cir., 1965, 342 F.2d 167 (Brown, J., specially concurring), cert. denied, Cox v. Hauberg, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700. Falk indicates an evidentiary hearing need be held only when a defendant presents facts sufficient to raise a reasonable doubt about the prosecutor’s motive. 479 F.2d at 620-621.

INSUFFICIENCY OF THE EVIDENCE

Appellant’s second claim of error, insufficiency of the evidence, will be determined by resolution of his third claim that certain records were improperly admitted into evidence by the trial judge. With these records there is ample support for the conviction. Without some of them the government will have failed to prove a prima facie case.

Admissibility of Board Records

The records whose admission is being challenged consist of appellant’s draft registration card, selective service file, and employment records from the Travis State School for the Mentally Retarded. Appellant contends authentication of these records was lacking because the persons through whom the records were introduced at trial did not have proper custody or control. Although at issue was appellant’s compliance with orders of Local Board 71 located at Big Springs, the draft registration card and selective service file were introduced into evidence through Ms. Emily Barron, Executive Secretary for Local Boards Nos. 119, 120, and 132 located in Austin, Texas, the site of the trial some 290 miles from Big Springs. She testified that these were the original records of which she was deemed the legal custodian for purposes of the trial, and that they had been forwarded to her by Local Board 71, of Big Springs, Texas, appellant’s draft board. Appellant’s counsel made no objection to the admission of these records when they were offered into evidence even though given the opportunity. He did object later on to their admission during his cross-examination of the witness when he apparently became aware that the witness was only a “sponsor” of the records. He now contends that an adequate predicate was not laid since Ms. Barron was not the Executive Secretary of Local Board 71, she did not know if the files were accurately kept, and she was not present when any entry in the files was made.

Going to the merits we think these records were admissible. F.R.Crim.P. 27 incorporates F.R.Civ.P. 44 which allows proof of business records. In addition they are admissible under 28 U.S.C. § 1733 as proof of an official document. Authentication of the papers as government records is supplied by 32 C.F.R. § 1606.35(a) which makes the employee of the Selective Service System producing the records the custodian thereof. Furthermore, the trustworthiness of Selective Service records comes from the fact that regulations are precise as to how and in what order a draftee’s file must be kept. 32 C.F.R. § 1621.8, for example, states that “Every paper pertaining to the registrant, * * * and such other papers and documents as may be designated by the Director of Selective Service Shall be filed in his Cover Sheet until authorization to remove it has been received from the Director of Selective Service.” More specific filing instructions are given in the “Registrant Processing Manual”, a handbook for local board procedures issued by the National Director of the Selective Service System. In addition, § 1626.13 requires the local board to carefully check the registrant’s file to make certain the file is complete and in order prior to forwarding it to the Appeal Board. The sponsor of the records herself, Ms. Barron, testified the appellant’s records were kept in accordance with such regulations.

Admissibility of Travis State School Records

Appellant’s related contention that records from the Travis State School reflecting appellant’s employment and termination of employment were improperly admitted, must likewise be rejected. The records in question were introduced by the government through Mr. Clyde A. Hammock, Personnel Officer of the Travis State School, who testified also to a great many things as a matter of personal knowledge. Although the Government unnecessarily complicated the problem by its belated formal proffer of the records, there was in the testimony of Mr. Hammock ample proof for the Judge to conclude that these were maintained regularly under the direction of the personnel department.

Under the Uniform Business Records as Evidence Act, 28 U.S.C. § 1732, these records as offered into evidence were properly admitted. McCormick, Evidence, § 306(2d Ed.1972); Uniform Business Records as Evidence Act, 9 A. U.L.A. 506 (1965). Reliance on them in the daily operation of the personnel affairs of the school is what gave them their trustworthiness quite independent of witness Hammock’s personal recollection of the events or incidents. Missouri Pacific Railroad Co. v. Austin, 5 Cir., 1961, 292 F.2d 415.

Affirmed.

      . 32 C.F.R. § 1622.14 Class l-O: Conscientious objector available for alternate service.

      (a) In Class 1-0 shall be placed every registrant who would have been classified in Class 1-A but for the fact that he has been found, by reason of religious, ethical, or moral belief, to be conscientiously opposed to participation in war in any form and to be conscientiously opposed to participation in both combatant and noncombatant training and service in the Armed Forces.

      . This discretion flows not from a desire to give carte blanche to law enforcement officials but from recognition of the constitutional principle of separation of powers.
      The discretionary power of the attorney for the United States in determining whether a prosecution shall be commenced or maintained may well depend upon matters of policy wholly apart from any question of probable cause.? Although as a member of the bar, the attorney for the United States is an officer of the court, he is nevertheless an executive official of the Government, and it is as an officer of the executive department that he exercises a discretion as to whether or not there shall be a prosecution in a particular case. It follows, as an incident of the constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions.
      342 F.2d at 171.

      . In addition to providing methods by which domestic and foreign records may be authenticated, F.R.Civ.P. 44 also states:
      (c) Other Proof. This rule does not prevent the proof of official records or of entry or lack of entry therein by any other method authorized by law.

      . 28 U.S.C. PtSS. Government records and papers—Copies.—(a) Books or records of account or minutes of proceedings of any department or agency of the United States shall be admissible to prove the act, transaction or occurrence as a memorandum of which the same were made or kept.
      (b) Properly authenticated copies or transcripts of any books, records, papers or documents of any department or agency of the United States shall be admitted in evidence equally with the originals thereof. June 25, 1948, c. 646, § 1, 62 Stat. 946.
      See Yaich v. United States, 9 Cir., 1960, 283 F.2d 613; United States v. Borisuk, 3 Cir., 1953, 206 F.2d 338; United States v. Ward, 2 Cir., 3949, 173 F.2d 628.

      . 32 C.F.R. § 1606.35:
      (a) In the prosecution of a registrant or any other person for a violation of the Military Service Act of 1967, the Selective Service Regulations, any orders or directions made pursuant to such act or regulations, or for perjury, all records of the registrant shall be produced in response to the subpoena or summons of the court in which such production or proceeding is pending. Any officer or employee of the Selective Service System who produces the records of a registrant in court shall be considered the custodian of such records for the purpose of this section.
      See United States v. Downing, 10 Cir., 1972, 454 F.2d 373; United States v. Holmes, 7 Cir., 1968, 387 F.2d 781.

      . 32 C.F.R. § 1621.8 was repealed as of 1972 but was enforced during the time when appellant’s draft records were being kept.


source: Caselaw Access Project

author: HEANEY, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Louis W. WHITLEY, Appellant.
    No. 73-1134.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 13, 1973.
    Decided Feb. 7, 1974.
    Certiorari Denied May 13, 1974.
    See 94 S.Ct. 2399.
    Eric F. Schwarz, Des Moines, Iowa, for appellant.
    Allen L. Donielson, U. S. Atty., Des Moines, Iowa, for appellee.
    Before HEANEY, STEPHENSON and WEBSTER, Circuit Judges.
   HEANEY, Circuit Judge.

Louis W. Whitley, a black, was convicted by a jury on January 9, 1973, for knowingly and intentionally distributing heroin. He contends on appeal, as he did below, that the jury selection process in the Southern District of Iowa systematically and intentionally excludes blacks from jury panels in violation of the Sixth Amendment and the due process and equal protection clauses of the United States Constitution. He argues that he established a prima facie case of discrimination below by showing that blacks comprise 2.33 % of the total population of the District but only .28% of the 350-person venire from which the all-white jury which convicted him was selected. He contends that the government failed to overcome the prima facie case established by him.

We affirm the trial court’s holding that the defendant failed to establish a prima facie case. A deviation of 2.05% standing alone is simply too slight to establish a prima facie case of knowing or intentional exclusion. Substantially larger deviations were held not to establish a prima facie case in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), and Dow v. Carnegie-Illinois Steel Corporation, 224 F.2d 414 (3rd Cir. 1955), cert. denied, 350 U.S. 971, 76 S.Ct. 442, 100 L.Ed. 842 (1956). A deviation of the dimension found here can easily result from the probabilities inherent in the random selection system or the lack of majority status of an inordinately large proportion of the black population or a combination of these factors.

The defendant characterizes the deviation in comparative terms and says that it exceeds 80%. While such a characterization may be proper where blacks constitute a significant proportion of the population, Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); Stephens v. Cox, 449 F.2d 657 (4th Cir. 1971), it is ordinarily inappropriate where a very small proportion of the population is black. A comparative characterization in such circumstances distorts reality.

We also agree with the trial court that any assumed prima facie case of discrimination is clearly rebutted by the ordinance. The District’s plan for the random selection of jurors meets the requirements of the Jury Selection and Service Act of 1968. It has been approved by the Judicial Council of the Eighth Circuit. The plan is similar to those used by all other United States District Courts in that the names for the master jury wheel are selected at random from a list of registered or actual voters, “Report on Jury Selection,” 58 F.R.D. 501, 505-506, and a random plan is used to establish venires and panels. See, United States v. Gordon, 455 F.2d 398 (8th Cir. 1972); United States v. Parker, 428 F.2d 488 (9th Cir.), cert. denied, 400 U.S. 910, 91 S.Ct. 155, 27 L.Ed.2d 150 (1970). Moreover the record affirmatively shows that the plan was administered fairly.

The defendant asserts the plan is discriminatory because many blacks live in urban areas where registration is required and only a few live in areas where one can vote without registering. He reasons that most blacks are, thus, required to perform an additional affirmative act not required of rural whites to be eligible for jury service. We find no merit to this assertion. The State of Iowa requires all voters residing in urban areas, black and white, to register in advance of election day and we are unwilling to say that the requirement is an invalid one.

The defendant finally asserts that the plan is discriminatory in that persons who fail to return jury questionnaires are automatically excused from jury duty. He argues that blacks are less likely to return questionnaires because they are alienated from the American legal system and because their income and educational levels are lower than those of whites. We reject this argument. There is absolutely nothing in this record to support a claim that blacks, in fact, returned a smaller percentage of questionnaires than whites.

Affirmed.

      . The supervisory power of this Court permits us to impose our notions of good policy over and above any constitutional requirements. Fay v. New York, 332 U.S. 261, 287, 67 S.Ct. 1613, 91 L.Ed. 2043 (1947) ; United States v. Butera, 420 F.2d 564 (1st Cir. 1970).

      . The District Court found that blacks constituted only 1.67% of the total population. We use the larger figure urged by the defendant.

      . Presumptive eligibles is the preferable index. See, United States v. Hunt, 265 F.Supp. 178, 190, 191 (W.D.Tex.1967), aff’d, 400 F.2d 306 (5th Cir. 1968), cert. denied, 393 U.S. 1021, 89 S.Ct. 626, 21 L.Ed.2d 566 (1969). It is conceded that blacks constituted a smaller percentage of the voting age population in this District.


author: AINSWORTH, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Askold KOHLMANN, Defendant-Appellant.
    No. 73-3425
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 29, 1974.

      Lawrence S. Katz, Miami Beach, Fla. (Court-appointed), for defendant-appellant.
    Robert W. Rust, U. S. Atty., Barbara E. Vicevich, Trial Atty., Miami, Fla., for plaintiff-appellee.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.

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

   AINSWORTH, Circuit Judge:

The defendant, Askold Kohlmann, was indicted on two counts, the first count charging illegal importation of approximately 116 grams of cocaine, in violation of 21 U.S.C. § 952(a), and the second count charging possession with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1). A jury found the defendant guilty on the first count and not guilty on the second count. He was sentenced to nine months’ incarceration and a three-year special parole term. On appeal, the defendant claims that the district court erred in denying his motion for judgment of acquittal, or, in the alternative, a motion for a new trial. See United States v. Baker, 10 Cir., 1970, 432 F.2d 994; C. Wright, Federal Practice and Procedure § 551, at 484 n. 16 (1969). His principal contention is that the Government failed to prove beyond a reasonable doubt that he was sane at the time of the commission of the offense of which he was convicted and was thus possessed of the requisite criminal intent. See Blake v. United States, 5 Cir., 1969, 407 F.2d 908 (en banc). We affirm.

Prior to commencement of the trial, the defendant and counsel for the defendant and for the Government stipulated that the defendant understood the nature of the charges against him and was competent to stand trial and to assist in his defense. It was also stipulated that the substance taken from the defendant was, in fact, 116 grams of cocaine, and that the chain of custody for the cocaine need not be proven when it was introduced in evidence.

The Government’s case at trial consisted principally of testimony concerning the arrest of the defendant at the Miami International Airport. Upon his arrival on a flight from Jamaica, examination of his luggage revealed an adhesive tape package containing the cocaine. The testimony also related certain statements made by the defendant, after being advised of his rights, to the effect that he was neither a user nor a pusher, but was only carrying the cocaine for a friend; that if defendant had gone to a male rather than a female inspector, he would not have been discovered; and that no fuss should be made over his action because it would soon be legal.

At the close of the Government’s case, the defense presented the testimony of a psychiatrist, a psychologist, and the sister of the defendant. In rebuttal, the Government presented another psychiatrist. The three experts agreed that the defendant was suffering from a mental disorder, paranoid ideation, but the doctors differed on the effect of this disorder on the ability of the defendant to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. The defense psychiatrist testified that the defendant was incapable of conforming his conduct to the requirements of the law, but that, at the time of their interview, the defendant did understand that the law says his act was wrong. The defense psychologist stated that the defendant was schizophrenic and could neither appreciate the wrongfulness of his conduct nor conform his conduct to the requirements of the law. The Government psychiatrist testified that, although the defendant was suffering from a mental disease, it was not of such magnitude to make him either incapable of appreciating the wrongfulness of his conduct or of conforming his conduct to the requirements of the law. Defendant’s sister testified to certain unusual behavior on the part of the defendant in past years.

“A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.” Blake v. United States, 5 Cir., 1969, 407 F.2d 908, 916 (en banc). An accused may, however, have a mental disorder or deficiency and still be mentally competent to be held legally responsible for his crime. Mims v. United States, 5 Cir., 1967, 375 F.2d 135, 142. Where there is a reasonable doubt as to the defendant’s sanity at the time of the commission of the crime, the case is properly submitted to the jury, for the jury is charged with assessing the criminal responsibility of the accused. Id. at 142-143. This includes the determination whether the legal test of insanity has been met. Id. Consequently, although the doctors agreed that the defendant was suffering from a mental disorder, in light of the conflicting evidence on the defendant’s ability either to appreciate that his conduct was wrong or to conform his conduct to the law, the case was properly submitted to the jury. See United States v. Harper, 5 Cir., 1971, 450 F.2d 1032, 1037. In addition to the expert testimony, the jury, in determining the sanity question, could also consider the statements made by the defendant shortly after his arrest at the airport.

The applicable standard on a motion for judgment of acquittal is whether “viewing the evidence presented most favorable to the Government, a reasonable-minded jury could accept the relevant and admissible evidence as acquate and sufficient to support the conclusion of the defendant’s guilt beyond a reasonable doubt.” Stephens v. United States, 5 Cir., 1965, 354 F.2d 999; Weaver v. United States, 5 Cir., 1967, 374 F.2d 878, 881; Sanders v. United States, 5 Cir., 1969, 416 F.2d 194, 196, cert. denied, 397 U.S. 952, 90 S.Ct. 978, 25 L.Ed.2d 135 (1970). The evidence adduced was sufficient to support the jury’s conclusion of criminal responsibility on Count I of the indictment charging illegal importation of the cocaine.

Defendant also urges that the jury’s verdict is inconsistent and has no rational basis because the defendant was found guilty on Count I of the indictment and not guilty on Count II, the charge of possession with intent to distribute the cocaine. A careful review of the record, however, discloses that the jury could reasonably arrive at differing conclusions with respect to the two counts. See. United States v. Cantu, 5 Cir., 1972, 469 F.2d 679, cert. denied, 411 U.S. 908, 93 S.Ct. 1536, 36 L.Ed.2d 197 (1973). Moreover, even if we assume that the jury’s verdict is inconsistent or is the result of a compromise, this is not cause for speculation or inquiry into the verdict on our part. Dunn v. United States, 284 U.S. 390, 393-394, 52 S.Ct. 189, 190-191, 76 L.Ed. 356 (1932); United States v. Cantu, supra; Rua v. United States, 5 Cir., 1963, 321 F.2d 140, 143, cert. denied, 377 U.S. 969, 84 S.Ct. 1651, 12 L.Ed.2d 738 (1964).

Defendant’s motion for judgment of acquittal, or, in the alternative, motion for a new trial, was properly denied by the district court.

Affirmed.

      . See United States v. Harper, 5 Cir., 1971, 450 F.2d 1032, 1037:
      The issue of the defendant’s insanity, when raised as a defense to a criminal prosecution, is to be decided by the jury on the basis of all the evidence. Therefore, although expert opinion evidence on the issue cannot be arbitrarily ignored, it is not binding upon tlie jury. Rather it is only advisory in nature. Indeed, it is the jury’s function to assess the credibility of the expert witnesses and the weight to be given to their testimony. Mims v. United States, 5 Cir. 1967, 375 F.2d 135, 140-143.


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Flavis PIERCE, Defendant-Appellant.
    No. 73-1271.
    United States Court of Appeals, Sixth Circuit.
    Argued Nov. 27, 1973.
    Decided Feb. 12, 1974.
    J. Kimbrough Johnson (Court Appointed), Memphis, Tenn., for defendant-appellant.
    J. Richard Buchignani, Asst. U. S. Atty., for plaintiff-appellee; Thomas F. Turley, Jr., U. S. Atty., Larry E. Parrish, Asst. U. S. Atty., W. D. Tenn., Memphis, Tenn., on brief.
    Before EDWARDS, Circuit Judge, McALLISTER, Senior Circuit Judge, and JOINER, District Judge.
   PER CURIAM.

Flavis Pierce was convicted on two counts of selling heroin in violation of Title 21, U.S.C. Section 841(a)(1), and 18 U.S.C. Section 2. He was sentenced to imprisonment for five years.

A police officer testified appellant had sold him a substance which was afterward identified as heroin. Contrary to appellant’s vigorous argument, there was clearly substantial evidence to submit to the jury for their determination of the facts.

Appellant argued that it was reversible error to admit evidence of Nancy George who had testified that she had aided him in conducting a sale of drugs. This claim of error is based on the ground that evidence of prior criminal conduct is inadmissible because of its tendency to prejudice the jury and to deprive the accused of a fair trial on the specific charge against him.

Nancy George testified that she had known appellant for about a year; that they had lived in the same house at one time; that she had seen him dealing in drugs; that he had employed her to deal in drugs for him; that she had sold such drugs, consisting of two “ten-dollar bags;” that she had seen him selling drugs on more than one occasion, and that he had given her barbiturates for selling the drugs for him.

Appellant was charged with knowingly selling drugs. We are of the view that the evidence of Nancy George did not constitute prejudicial reversible error.

“ ‘Where intent and knowledge are essential elements of the crime for which a defendant is being tried, evidence of other transactions, even though criminal in nature, is admissible if the transactions are so connected with the offense charged that they serve to show a general pattern and to prove the necessary criminal intent or guilty knowledge. Schmeller v. United States, 6 Cir., 143 F.2d 544, 551; Richardson v. United States, 6 Cir., 150 F.2d 58, 63; Henderson v. United States, 9 Cir., 143 F.2d 681, 683.’ Kowalchuk v. United States, 176 F.2d 873, 878 (6th Cir. 1949).” United States v. Clark, 437 F.2d 942 (6th Cir. 1971).

The judgment of the District Court is affirmed.


author: PER CURIAM:

text:
    Amadeo Augusto Luciano SANTELISES, Jr., Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
    No. 80, Docket 32879.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 5, 1973.
    Decided Jan. 4, 1974.

      Martin L. Rothstein, New York City (Austin T. Fragomen, Jr., New York City, on the brief), for petitioner.
    Stanley H. Wallenstein, Sp. Asst. U. S. Atty., New York City (Paul J. Curran, U. S. Atty., and Joseph P. Marro, Asst. U. S. Atty., New York City, on the brief), for respondent.
    Before WATERMAN, FRIENDLY and TIMBERS, Circuit Judges.
   PER CURIAM:

On this petition to review an order of the Board of Immigration Appeals which dismissed an appeal from an order of an Immigration Judge who found petitioner deportable pursuant to Section 241(a)(5) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(5) (1970), because of his conviction under 18 U.S.C. § 1546 (1970) (causing immigration visas to be accepted by others, knowing they were procured by fraud), petitioner claims that the deportation order violates the prohibition against cruel and unusual punishment and denies him the equal protection of the laws. We deny the petition to review.

Petitioner is a native and citizen of the Dominican Republic. He entered the United States as a permanent resident in 1960. Thereafter he resided here with his wife and child, both American citizens. He worked as a travel agent. In 1965, he was charged in the Southern District of New York with various offenses connected with the preparation and use of false immigration documents. He pled guilty to several counts, including two that charged misuse of visas and other entry documents in violation of 18 U.S.C. §1546 (1970). On January 28, 1966, he was sentenced to concurrent one year terms of probation.

In June 1966, the Immigration and Naturalization Service commenced deportation proceedings against petitioner pursuant to 8 U.S.C. § 1251(a)(5) (1970), which authorizes the deportation of any alien who has been convicted of violating 18 U.S.C. § 1546. At the deportation hearing in August 1966, petitioner conceded the factual allegations asserted by the INS, including his conviction under § 1546; but he argued that deportation would violate his constitutional rights referred to above. The Immigration Judge on October 9, 1967 found petitioner deportable because of his conviction; found that he was not entitled to any form of discretionary relief; and ordered that he be deported to the Dominican Republic, the country of his birth and nationality.

Petitioner appealed to the Board of Immigration Appeals which entered an order on September 18, 1968 dismissing the appeal. The instant petition seeks review of the latter order.

We reject out of hand petitioner’s claim that deportation constitutes cruel and unusual punishment. It is settled that deportation, being a civil procedure, is not punishment and the cruel and unusual punishment clause of the Eighth Amendment accordingly is not applicable. See, e.g., Harisiades v. Shaughnessy, 342 U.S. 580, 594-95 & n. 22 (1952) (interpreting the ex post facto clause of Article I, § 9), citing with approval Fong Yue Ting v. United States, 149 U.S. 698, 730 (1892); Buckley v. Gibney, 332 F.Supp. 790, 796 (S.D. N.Y.) (Wyatt, J.), aff’d on opinion below, 449 F.2d 1305 (2 Cir. 1971), cert. denied, 405 U.S. 919 (1972); Cortez v. INS, 395 F.2d 965, 967-68 (5 Cir. 1968); Burr v. INS, 350 F.2d 87, 90-91 (9 Cir. 1965), cert. denied, 383 U.S. 915 (1966); United States ex rel. Circella v. Sahli, 216 F.2d 33, 40 (7 Cir. 1954), cert. denied, 348 U.S. 964 (1955).

Nor do we find any merit in petitioner’s equal protection claim. Whether it is his claim that he has been singled out for harsher treatment because of his conviction under § 1546 than those convicted of crimes involving moral turpitude under Section 241(a)(4) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(4) (1970), or that as an alien he has been singled out for deportation whereas citizens convicted of the same or other crimes are not deported, his claim is wholly without merit. Deportation is not a remedy available against citizens but rather is an implementation of Congress’ power to exclude. And the classification created by Section 241(a)(5) of the Act which is here involved—i.e. deportation of aliens convicted under § 1546—surely has a rational basis: maintenance of the integrity of the immigration system by eliminating certain types of immigration frauds. Cf. Dandridge v. Williams, 397 U.S. 471 (1970); Faustino v. INS, 432 F.2d 429 (2 Cir. 1970), cert. denied, 401 U.S. 921 (1971).

Petition denied.

      . The petition to review was filed in this Court on October 29, 1968. The government filed the administrative record on November 16, 1971. Petitioner’s brief was filed on June 13, 1973. In the meanwhile, petitioner moved in the district court to set aside his conviction under § 1546. That motion was denied on October 12, 1972. Santelises v. United States, 72 Civ. 1470 (S.D.N.Y.1972) (unreported). We affirmed on April 12, 1973. 476 F.2d 787 (2 Cir. 1973).

      . Petitioner relies upon a statement by Chief Justice Warren, speaking for four Justices, in Trop v. Dulles, 356 U.S. 86, 98 (1958), that the view that deportation was not a punishment but an implementation of the sovereign power to exclude “may be highly fictional.” Petitioner’s reliance upon this statement is misplaced. It was merely dictum since the case dealt with expatriation rather than deportation.

      . The Board of Immigration Appeals, in its order of September 18, 1968 dismissing petitioner’s appeal from the deportation order, included a dictum which petitioner construes as indicating that he would not again become deportable by reason of the same conduct if, following his departure, he were to be lawfully admitted for permanent residence. The Department of State, in a letter dated May 7, 1970 to petitioner’s counsel, expressed the opposite view. Petitioner asks us to “affirm” the Board’s dictum referred to and to overrule the position of the Department of State. We decline the invitation. Our jurisdiction under Section 106(a) of the Immigration and Nationality Act, 8 U.S.C. § 1105a(a) (1970), is limited to “judicial review of all final orders of deportation.” The Department of State letter is not a part of the administrative record upon which the deportation order below was based, see Section 106(a)(4), 8 U.S.C. § 1105a (a) (4) (1970), and of course the letter is not a deportation order. In short, upon the instant petition to review, the issue of petitioner’s future admissibility as an alien is not before us.


text:
    Elizar LANE, Plaintiff-Appellant, v. FRANKLIN STORES CORPORATION and Zurich Insurance Company, Defendants-Appellees.
    No. 73-2812.
    United States Court of Appeals, Fifth Circuit.
    March 27, 1974.
    Charles R. Maloney, New Orleans, La., for plaintiff-appellant.
    Máchale A. Miller, Daniel Lund, John P. Hammond, New Orleans, La., for defendants-appellees.
    Before GEWIN, GOLDBERG and CLARK, Circuit Judges.
   PER CURIAM:

At oral argument upon this appeal the parties stipulated as follows:

“It is stipulated by and between Elizar Lane, . Plaintiff-Appellant, and Franklin Stores Corporation and Zurich Insurance Company, Defendants-Appellees, that the order of the United States District Court in the proceedings entitled Elizar Lane versus Franklin Stores Corp., et al. Number 72-1280 on the docket of the U. S. District Court for the Eastern District of Louisiana, granting summary judgment in favor of Franklin Stores Corporation and Zurich Insurance Company shall have effect as a res judicata bar as to any action by Elizar Lane against Zurich Insurance Company as the insurer of Franklin Stores Corporation, but such judgment shall not have res judicata effect as to any action by Elizar Lane against Barkers of New Orleans, Inc., or Zurich Insurance Company as the insurer of Barkers of New Orleans, Inc.”

The judgment of the district court is modified in accordance with the stipulation and as modified is affirmed.

Modified and affirmed.


text:
    Charles Arnold SANDLIN, Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Dept. of Corrections, Respondent-Appellee.
    No. 73-3297
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 27, 1974.
    Charles Arnold Sandlin, pro se.
    Robert C. Flowers, Ben M. Harrison, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.
    Before BELL, SIMPSON and MORGAN, Circuit Judges.

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

   PER CURIAM:

Appellant, a Texas state prisoner, was denied federal habeas relief. The sentence appellant is serving was imposed after conviction by a jury of robbery by assault. His conviction was affirmed on appeal. Sandlin v. State, Tex.Cr.App. 1972, 477 S.W.2d 870.

We have carefully considered the entire record, including the state trial transcripts, in determining the merits of appellant’s various federal habeas claims. We find no merit in these claims, whether considered singly or collectively. Specifically, we conclude (1) that appellant’s trial counsel was not ineffective; (2) appellant was not lacking in requisite mental capacity at the time of the commission of the offense; (3) he possessed the requisite mental competency to stand trial; (4) he was not subjected to an illegal arrest, search or seizure; and (5) the claim of an illegal lineup is without substance.

Affirmed.


text:
    BROWN & WILLIAMSON TOBACCO CORP., Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
    No. 73-1674.
    United States Court of Appeals, Sixth Circuit
    Argued Feb. 7, 1974.
    Decided Feb. 28, 1974.
    Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Jonathan S. Cohen, Ann Belanger, Attys., Tax Div., Dept. of Justice, Washington, D. C., on brief, for defendant-appellant; George J. Long, U. S. Atty., William F. Trusty, Asst. U. S. Atty., of counsel.
    Robert L. Maddox, Jon L. Fleischaker, Wyatt, Grafton & Sloss, Louisville, Ky., David A. Schechter, Louisville, Ky., on brief, for Brown & Williamson Tobacco Corp.
    Before CELEBREZZE and ENGEL, Circuit Judges, and ROSENSTEIN, Senior Customs Judge.

       Senior Judge Samuel M. Rosenstein, United States Customs Court, sitting by designation.

   PER CURIAM.

This is an appeal from a judgment entered on March 30, 1973, in which the Appellee was awarded a refund of federal income taxes.

Upon consideration of the briefs and arguments of counsel, it is ordered that the Judgment of the District Court be and it is hereby affirmed for the reasons set forth in the opinion of District Judge Allen. 369 F.Supp. 1283 (1974).


text:
    UNITED STATES of America, Appellee, v. Donald Ratliff CADY, Appellant.
    No. 73-1345.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 12, 1974.
    Decided March 1, 1974.
    Allen L. Donielson, U. S. Atty., Des Moines, Iowa, for appellee.
    Before MEHAFFY, Chief Judge, and GIBSON and WEBSTER, Circuit Judges.
   ORDER DISMISSING APPEAL

Appellant Donald Ratliff Cady entered a plea of guilty to an information charging him with violation of 18 U.S.C. § 3 as an accessory after the fact to the crime of aggravated bank robbery (18 U.S.C. § 2113(d)). He was sentenced to ten years imprisonment. After filing a timely notice of appeal, appellant failed to file a brief or otherwise assert any claim of error in the proceedings below. A careful review of the record reveals no prejudicial error. This court has previously extended the time for the filing of briefs and has notified appellant that failure to comply with the briefing schedule would result in dismissal under Local Rule 9(a).

Appeal dismissed.


text:
    Ozie WASHINGTON, Petitioner-Appellant, v. Harold J. CARDWELL, Warden, Arizona State Prison, Respondent-Appellee.
    No. 73-1627.
    United States Court of Appeals, Ninth Circuit.
    Feb. 26, 1974.
    B. Michael Dann (argued), Treon, Warnicke & Dann, Phoenix, Ariz., for petitioner-appellant.
    Thomas A. Jacobs (argued), Gary. K. Nelson, Peter M. Van- Orman, Ronald L. Crismon, Asst. Attys. Gen., Phoenix, Ariz., for respondent-appellee.
    Before BROWNING, CARTER and WRIGHT, Circuit Judges.
   PER CURIAM:

Petitioner sought a writ of habeas corpus claiming his guilty plea to a first-degree burglary charge in the Arizona courts was based on an erroneous, but reasonable, belief that he would receive a sentence of three to five years. The sentence actually imposed was 10 to 15 years. After two evidentiary hearings, the district court denied the writ, stating simply that the petition was “without merit,” without entering more specific findings of fact or conclusions of law.

Findings of fact and conclusions of law reflecting the grounds of decision should have been entered. Wright & Miller, Federal Practice & Procedure: Civil § 2573. They serve the dual function of informing the petitioner why his petition is being denied and facilitating appellate review. Von Moltke v. Gillies, 332 U.S. 708, 730-731, 68 S.Ct. 316, 92 L.Ed. 309 (1948) (separate opinion of Frankfurter, J.).

Petitioner does not contend, however, that failure to enter such findings and conclusions is a sufficient ground for reversal in the circumstances of this case. Nor does petitioner contend that the trial court applied an erroneous legal standard in resolving the factual issues and dismissing the writ. Petitioner’s sole contention is that the factual determination underlying the dismissal was clearly erroneous. We have read the record and we are satisfied that the dismissal was supported by substantial evidence.

Affirmed.


author: MILLER, Judge.

text:
    Application of James D. GEERDES.
    Patent Appeal No. 9118.
    United States Court of Customs and Patent Appeals.
    Feb. 21, 1974.
    Boris Haskell, Washington, D. C., attorney of record, for appellant.
    Joseph F. Nakamura, Washington, D. C., for the Commissioner of Patents; Fred E. McKelvey, Washington, D. C., of counsel.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Judges.
   MILLER, Judge.

This appeal is from the decision of the Patent Office Board of Appeals affirming the rejection of claims 2-4, 7, 8, 19, and 20 of application serial No. 689,787, filed December 12, 1967, for “Expanded Composite Materials.” We reverse.

INVENTION

The invention is a method of producing expanded or foamed polymer compositions in the absence of recognized blowing agents by milling, under high impact and energy conditions, particles of a polymer together with submicro particles of an additive material which is essentially nonvolatile at a temperature at which said polymeric material is fluid. The mixture is confined in a mold cavity under pressure and heat sufficient to render the polymeric material fluid; and the pressure is then released, permitting the mixture to foam and solidify.

Appellant’s specification states:

The present invention relates to expanded or foamed polymer compositions. Expanded polymer compositions are well known; they are commonly formed by incorporating a blowing agent in a body of polymer material. The blowing agent may be a gas releasing solid material, or a solid or liquid material that converts to a gas under the conditions of treatment. For example, a blowing agent may be mixed and dispersed in a polymeric molding powder. When this mixture is treated under a confining pressure so as to convert the blowing agent to a gas and the polymer to a plastic or viscous fluid stage, and the pressure is then released, the pockets of compressed gas formed by conversion of the blowing agent expand, causing an expansion of the mixture as a whole. The foamed polymer then is caused to solidify in expanded state to provide the foamed structure.

The specification further states that the expanding or foaming steps may be accomplished in various environments, in particular, extrusion. In the case of extrusion the specification reads:

As the molten material exits from the die orifice, the pressure on the material is suddenly released, and it expands before the resin sets. Continuous operation of the extruder will produce a continuous rod, ribbon or filament of foamed polymer whose cross-section shape is controlled by the shape of the die orifice. As is well understood in the art, the temperature at various stages of the extruder and at the die orifice are [sic] controlled to affect the foam properties, and secondary expansion dies may be located adjacent the extrusion orifice to control the degree of expansion of the ex-trudate, its cross-sectional size, and its cross-sectional shape.

After describing the milling step performed under high impact and compression energy conditions, the specification continues:

In accordance with the present invention, it is found that particularly after the latter level of energy has been imparted to the system, the composite material can be caused to foam with a uniform and controlled expansion when treated in a manner conventionally used for generating foamed polymers by control of heat and pressure. This foam generation is obtained in the absence of any recognized blowing agent, although the foaming action of the inert filler can be supplemented by the addition to the composite of a conventional blowing agent. Despite the foam generation, the filler or additive material is still present in the composite material and performs the same function for which it would be normally used in the absence of the foaming aspect.

The following portion of appellant’s specification was particularly noted by the board in its opinion:

In practicing the present invention, the composite material was extruded using a die comprising an outlet or orifice which was extended beyond the normal heated head and with control of the temperature of the extended section.

All the claims are method claims. Claim 19 is the only independent claim (letters, paragraphing, and emphasis added):

19. A method of forming an expanded polymeric material comprising,
A milling together particles of a thermoplastic polymeric material and submicro particles of an additive material, both said materials being essentially non-volatile at a temperature at which said polymeric material is fluid, said milling being effected by a rotary impact mill having impactors traveling at a velocity of at least about 600 linear feet per second, to form a composite of said two materials, said composite consisting essentially of said two materials,
B confining said composite in a mold cavity under pressure and heating said composite to said temperature to render said polymeric material fluid,
C releasing said pressure while said polymeric material is fluid and permitting said composite to expand as a foam, and
D solidifying the foamed polymeric material with said additive particles retained therein.

Dependent claims 2-4, 7, 8, and 20 present preferred process conditions and materials.

PRIOR ART

Many references were cited by the examiner, and appellant’s brief concedes their teachings as follows:

Appellant has, and does acknowledge that the high energy milling [step A] of plastic and submicro additive particles to form a composite of the two materials is prior art to Appellant, this process per se being an earlier development of Appellant’s assignee. Appellant has, and does acknowledge that the molding process [steps B, C, and D] is also per se prior art, it being the conventional process of forming a foamed plastic with a blowing agent (although the Examiner has not cited such prior art).

It is to be noted that the prior art references cited by the examiner with respect to the claimed molding steps involve solid extrusion processes, which differ from foam extrusion processes in that they are designed to solidify the ex-trudate by the time it leaves the orifice die.

REJECTIONS

The board’s reasons for affirming the examiner’s rejection of all the claims under 35 U.S.C. § 103 were that “the claims on appeal permit the .presence of a blowing agent,” and that “the prior art clearly suggests the combination of the here claimed milling procedure with the molding procedure.” It added that “The nature of the article obtained is not determinative of the patentability of the process.”

The board also affirmed the examiner’s rejection of the claims under the first and second paragraphs of 35 U.S.C. § 112, saying that “The specification appears to indicate that the success of appellant’s process depends upon the use of special equipment and/or processing temperatures.” It also stated that the specification “does not adequately set forth any manner, other than experimentation,” of selecting both the proportions of additive to polymer (“to obtain any desired degree of expansion”) and the size of the particles and the effect thereof on the properties of the product. With respect to the additives, it declared: “The claims are inclusive of materials which would not apparently be operative in the claimed process.”

OPINION

Scope of Claims

Before considering the rejections under 35 U.S.C. §§ 103 and 112, we must first decide whether the claims include within their scope the presence of recognized blowing agents. The solicitor argues that they do, pointing out that the term “consisting essentially of” in step A does not exclude the presence of recognized blowing agents and, further, that example VII of the specification discloses the use of recognized blowing agents in the claimed process. However, every limitation in the claim must be given effect rather than considering one in isolation from the others. In re Wilder, 429 F.2d 447, 57 CCPA 1314 (1970). Thus, we note that milling step A requires that the thermoplastic polymeric material and the submicro particles of additive material be “essentially non-volatile at a temperature at which said polymeric material is fluid” and, further, that the composite consist “essentially of said two materials.” Step B is the initial molding step wherein the composite is placed under pressure and heated to a temperature “to render said polymeric material fluid.” The pressure is released in step C, when the polymeric material is fluid in order to permit the composite to foam. In the final solidifying step D, the additive particles are retained in the solidified foamed material.

For recognized blowing agents to operate properly, they must be in a volatile or gaseous condition when the polymeric material is fluid and the pressure is released. However, the condition of being “essentially non-volatile” required of the materials during steps A, B, and C, and the further requirement that the particles of the additive material be retained in the solidified foamed material clearly negative the use of a recognized blowing agent.

Although appellant’s specification indicates that recognized blowing agents may be added to enhance the foaming action of the claimed process, the scope of the claims involved in this appeal does not encompass such agents. Counsel for appellant at oral hearing affirmed that the claims exclude the presence of recognized blowing agents and that practice of example YII would not infringe the claims.

In view of the foregoing, we conclude that the claims involved in this appeal exclude the presence of recognized blowing agents.

We believe it is also important to point out that the molding steps of claim 19 involve a foaming process rather than a solid molding process. This is particularly pointed out by the requirement in step C that the pressure be released when the polymeric material is a fluid. In a solid extrusion process, the pressure behind the extrusion orifice would be maintained so that the extrudate would be solidified by the time it leaves the orifice die. The difference between the two processes was described by appellant’s counsel during oral argument as follows:

We confine the material behind an orifice, and we keep it under pressure until it’s solid or we release the pressure and permit it to expand while it’s fluid, and that limitation that releases the pressure while said polymeric material is fluid distinguishes from . the non-foaming process.

In response to a question from the bench on how the material is extruded if it is not fluid, appellant’s counsel responded:

. . if we could visualize the nozzle as being an elongated tube, the resin can be forced into the tube under compression as it has to be, retained under compression within the tube, the tube cooled, the resin solidified, and the material has never been released . . . from its confining pressure; there’s no foam.

THE 35 U.S.C. § 103 REJECTION

In affirming this rejection by the examiner, the board considered various prior art references involving solid molding processes and also appellant’s admitted prior art foam molding process. Saying “the combination of any known molding technique” with the known milling procedure would not be unobvious, the board relied on a combination of the known milling step with either a known solid molding process or a known foam molding process. However, we do not believe it would have been obvious to combine the milling of nonvolatile materials by an admittedly old process with molding steps specifying foaming conditions, since, in the absence of a recognized blowing agent, foaming would not be expected to occur. And the alternative combination of an old milling step with a molding process involving solid molding conditions is not responsive, since such a process does not meet the limitations of the claims.

The following statement by the examiner represents a clear recognition of the unexpectedness of the foamed product achieved by appellant’s process, even though it was made in the context of his 35 U.S.C. § 112 rejection:

It still is not understood how applicant produces the foamed polymeric resin which he alleges that he obtains.

Such a statement is understandable, considering the absence of any recognized blowing agent, and underscores the unobviousness of appellant’s process. Appellant’s citation of In re Naylor, 369 F.2d 765, 54 CCPA 902 (1966), is apposite. There we said:

We cannot ignore the particular product unexpectedly produced by the claimed process, as the Patent Office apparently has done, in determining whether the claimed subject matter as a whole is obvious.

Both the examiner and the solicitor had contended that the product of the claimed process was otherwise known in the prior art, but the court rejected this argument, saying:

Just as there may be obvious processes of producing new and nonobvious materials ... so there may be unobvious methods of arriving at well-known materials.

See also In re Kuehl, 475 F.2d 658, (CCPA 1973).

The solicitor argues that the Naylor case is inapplicable, since here the examiner has questioned the sufficiency of the disclosure; whereas in Naylor the examiner did not do so. However, we fail to see the relevance of such a distinction to the question of obviousness for purposes of 35 U.S.C. § 103.

The solicitor further argues that the board’s statement, that the nature of the article obtained is not determinative of the patentability of the claimed process, finds support in In re Swain, 154 F.2d 118, 33 CCPA 833 (1946) and In re Kanter, 399 F.2d 249, 55 CCPA 1395 (1968). Neither case appears relevant, for each dealt with application of a known process to novel starting materials not employed by the prior art. Here we are concerned with the unexpectedness of the product resulting from a combination of known process steps not suggested by the prior art as suitable for producing such a product.

Accordingly, we hold that the board’s affirmance of the examiner’s rejection under 35 U.S.C. § 103 Was erroneous.

THE 35 U.S.C. § 112 REJECTION

We note that the board’s reasons for affirming the section 112 rejection deal only with the “how to make and use” requirements of the first paragraph of section 112 and do not treat the merits of the rejection under the second paragraph thereof. It determined that the specification was not enabling with respect to “use of special equipment and/or processing temperatures” and selection of proportions and size of particles; and it stated that “[t]he claims are inclusive of materials which would not apparently be operative in the claimed process.” The question thus raised is whether the scope of enablement, provided one of ordinary skill in the art by the disclosure, is commensurate with the scope of protection sought by the claims. In re Coleman, 472 F.2d 1062 (CCPA 1973).

With respect to the board’s determination concerning that portion of appellant’s specification relating to the use of special equipment and/or processing temperatures, such use appears in a paragraph directed to preferred working conditions and illustrative examples. Also, the conditions and apparatus for th,e milling process and molding techniques involved are known. For example, one of the cited references evidencing skill in the extrusion art shows annular heating and cooling chambers, and also heating elements which carefully regulate the temperature of the resin powder as it is being compressed, cured, and extruded. The area of technology involved here is not particularly complex, and there is no evidence in the record to indicate that one skilled in the art would not be able to make and use the claimed invention.

The board expressed concern that “experimentation” is involved in the selection of proportions and particle sizes, but this is not determinative of the question of scope of enablement. It is only undue experimentation which is fatal. In re Borkowski, 422 F.2d 904, 57 CCPA 946 (1970); In re Coleman, supra, and In re Smythe, 480 F.2d 1376, (CCPA 1973). One skilled in the extruding art would expect variations in proportions and particle sizes to affect the properties of the foamed product. Also, the specification contains a variety of examples showing different proportions and particle sizes.

Finally, we cannot agree with the board’s determination that the claims are inclusive of materials which would not apparently be operative in the claimed process. The claims call for producing a foam and solidifying the foam. Having stated the objective (foamed product) together with the process steps, use of materials which might prevent achievement of the objective (by rendering the process inoperative) can hardly be said to be within the scope of the claims. We also note that the board’s determination of apparent inoperativeness is unsupported by reasons or evidence. Of course, it is possible to argue that process claims encompass inoperative embodiments on the premise of unrealistic or vague assumptions, but that is not a valid basis for rejection. In re Cook, 439 F.2d 730, 58 CCPA 1049 (1971).

In view of the foregoing, we conclude that the scope of enablement of appellant’s specification is commensurate with the scope of his claims for purposes of the first paragraph of 35 U.S.C. § 112. Also, our review of the claims satisfies us that they meet all of the requirements of the second paragraph of section 112.

Accordingly, we hold that the board erred in affirming the examiner’s rejection under 35 U.S.C. § 112.

The decision of the board is reversed.

Reversed.

RICH, J., concurs in the result.

      . Claims initially filed with the specification were broad enough to include within their scope processes, such as that illustrated by example VII, which employ recognized blowing agents. However, claims excluding recognized blowing agents were substituted for them.


text:
    CONSOLIDATED CIGAR CORPORATION, Appellant, v. R. J. REYNOLDS TOBACCO COMPANY, Appellee.
    Patent Appeal No. 9126.
    United States Court of Customs and Patent Appeals.
    Feb. 28, 1974.

      William R. Liberman, New York City, attorney of record, for appellant.
    R. Bradlee Boal of Cooper, Dunham, Clark, Griffin & Moran, New York City, attorney of record, for appellee.
    Before MARKEY, C. J., and RICH, BALDWIN, LANE and MILLER, JJ.
   MILLER, Judge.

This is an appeal from the decision of the Trademark Trial and Appeal Board, abstracted at 174 USPQ 192 (1972), dismissing the opposition of appellant, Consolidated Cigar Corporation, to the registration by appellee, R. J. Reynolds Tobacco Company of “DUTCH APPLE” for smoking tobacco. We affirm.

The sole issue is whether the board erred in holding that the use of the marks fér their specified products is not likely to cause confusion or mistake, or to deceive, within the meaning of 15 U. S.C. § 1052(d).

Appellant is the owner of registrations of “DUTCH MASTERS” for cigars. The board found continuous use by appellant long antedatiñg appellee’s alleged first use on April 8, 1970. It also found that the goods of the parties are such as a single producer might well be expected to make.

During the deposition proceedings, appellee introduced five exhibits, which were identified by its witness (one of appellee’s house counsel), namely: a tin of pipe tobacco (“Flying Dutchman”) bearing a label “Walgreens Discount Price,” a copy of the September, 1971, issue of Playboy magazine containing a full-page advertisement for “Flying Dutchman” pipe tobacco similar in appearance to the tin of pipe tobacco, a cigar five-pack (“Dutchman’s Dream”), another cigar five-pack, (“Pennsylvania Dutchman”), and a package of pipe tobacco (Nat Sherman Co. “Dutch Roll”). Appellant’s counsel objected to the questions and answers relating to all but the Playboy advertisement as being outside the scope of the pleadings, as based on hearsay, and as improperly presented and authenticated as to source. The only response in the board’s opinion is that the testimony was “for the sole purpose of establishing that others in the tobacco trade have adopted and are using marks including the word “DUTCH” in connection with the sale of their goods.”

In its Notice of Opposition, appellant alleged that the mark “DUTCH APPLE” is so similar and nearly identical to its mark “DUTCH MASTERS” as to be likely to lead to and cause confusion and mistake in the mind of the purchasing public and to deceive the purchasing public as to the source or origin or sponsorship of the smoking tobacco products of appellee. Inasmuch as the objected-to questions and answers were for the purpose indicated by the board, (and not to attack the validity of opposer’s registrations), they were not only within the scope of the pleadings, but bore directly on appellant’s principal allegation. We agree with appellant that most of the questions elicited responses which amounted to hearsay. However, the exhibits, which were admissible, speak for themselves, especially the Playboy advertisement and Walgreens label clearly showing public sale of “Flying Dutchman” pipe tobacco.

Although the board found that the goods of the parties are such as a single producer might well be expected to make, it does not automatically follow that the purchasers of appellee’s pipe tobacco might well be confused and think that appellant, the producer of cigars, was the source. We are thus presented with a different situation from that in Consolidated Cigar Corporation v. M. Landaw, Limited, 474 F.2d 1402 (CCPA 1973), where we expressed the view that the mark “LITTLE DUTCHMAN” (sought to be registered for cigars) “suggests that it designates a cigar, perhaps a small or mild one, emanating from the same source as the DUTCH MASTERS cigar.” Cf. Consolidated Cigar Corporation v. Liverant, 106 USPQ 333 (Asst. Com’r. of Patents 1955).

Appellant argues that the word “MASTERS” is not the dominant portion of its mark and says that the board has already so held in Consolidated Cigar Corporation v. Liggett & Myers Tobacco Company, 137 USPQ 483 (TTAB 1963). We do not so read the holding in that case, but in the Landaw case the court said of “DUTCH MASTERS” that “It is to be observed that the more prominent part of appellant’s mark is the word ‘DUTCH.’ ” However, this would not mean that the word “MASTERS” is unimportant. Indeed, the visibility given the reproduction of the painting depicting Dutch Masters, “The Syndics of Cloth Hall,” with which “DUTCH MASTERS” is associated in advertising and packaging of the product, compels the conclusion that appellant’s good will, resulting from many years of widespread advertising and sales, attaches to the entire mark it has continuously used—“DUTCH MASTERS.”

Considering appellant’s mark as a whole, it is apparent that it suggests both a geographical area or an ethnic association and a masterful product (cigars). Appellee’s mark, on the other hand, suggests both the same geographical area or ethnic association and an apple-flavored product (smoking tobacco), which is clearly dissimilar in meaning to a masterful product. Appellee states that it is the owner of registration No. 869,284, which is supported by the record, and that 'this is for “APPLE,” which,is not supported by the record. However, this does not materially affect our appraisal of the board’s findings.

Contrary to appellant’s contention, the board did not, in effect, “downgrade” the “DUTCH” portion of appellant’s mark. It considered the respective marks in their entireties, as required by 15 U.S.C. 1052(d), found that they differ substantially in both sound and appearance and that the connotations thereof are distinctly different, and reached its decision which, in view of the foregoing and in consideration of the entire record, we hold has not been shown to have been erroneous.

The decision is affirmed.

Affirmed.

      . Application No. 356,582, filed April 13, 1970.

      . Registration Nos. 502,797, issued October 12, 1948, and 232,114, issued August 30, 1927.


author: RICH, Judge. MILLER, Judge

text:
    Charles E. WAKEFIELD, Appellant, v. Bruce J. WATKINS and Glenn D. Johnson, Appellees.
    Patent Appeal No. 9109.
    United States Court of Customs and Patent Appeals.
    March 7, 1974.
    Roderick W. MacDonald, Dallas, Tex., attorney of record, for appellant.
    Hayden A. Carney, Pasadena, Cal., attorney of record, for appellees.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Judges.
   RICH, Judge.

This is a sequel to our decision in Watkins v. Wakefield, 443 F.2d 1207, 58 C.C.P.A. 1363 (1971), and is an appeal from the decision of the Board of Patent Interferences of March 2, 1972, adhered to on reconsideration, following our reversal of a decision of that board in the former appeal.

The sole question here, as in the former appeal, is the diligence of the party Watkins et al. (Watkins) during the “critical period” extending from just prior to June 5, 1961, when Wakefield is conceded to have conceived the invention, to an actual reduction to practice by Watkins in January, 1962. In making its first decision, the board restricted its consideration to what, for convenience, we will call the second half of the critical period, and found lack of diligence from October 4, 1961, to actual reduction to practice on January 12, 1962. In an opinion on a request for reconsideration of its first opinion, the board was very explicit in restricting its consideration to that second half of the period, saying:

With respect to the question of diligence, since we found that Watkins et al. were not diligent and had not proven adequate excuse for the failure to exercise diligence during that portion of the critical period from October 4, 1961 to January 12, 1962 (Conclusion 5) which alone is fatal to their case, it is not necessary to discuss, and we decline to discuss, any matters relating to diligence during any other period of time beginning immediately prior to June 5, 1961. [Emphasis ours.]

After we reversed the board’s limited holding of lack of diligence and lack of excuse during the second half of the critical period, proceedings before the board were reopened with respect to the first half of the period, resulting in the board decision here on appeal which was that, following the logic of our prior opinion, Watkins’ assignee, Shell Oil Company, was diligent from prior to June 5 to October 4, 1961, i. e., during the first half of the critical period. Since, in legal effect, this was a holding that Watkins was diligent throughout the entire critical period, priority was awarded to him. We affirm.

We described the invention of the counts in our prior opinion and will not do so again except to point out that it is an integral part of an underwater well-drilling system which we characterized as large and complex. To emphasize that point, we note the facts that the indexing pad or landing base supports a conductor pipe which is 156 feet high, having a lower section 90 feet long and 16 inches in diameter and an upper section of 66 feet which is 24 inches in diameter and 1 inch thick. The lower 140 feet of pipe has to go into a drilled well bore with the landing base resting on the ground, its ball-shaped supporting connection with the pipe being some 4 feet in diameter. The top 16 feet of the conductor pipe extend above ground level and this section is surrounded by a stiffener pipe 36 inches in diameter, the space between being filled with cement to form a strong wellhead to which drilling and completion equipment may be attached. Testing the invention of the counts under actual operating conditions requires the drilling, at least part way, of an underwater well.

The gist of our prior decision was that Watkins was legally diligent in reducing the invention to practice so long as the assignee, Shell, was diligently pursuing the development and completion of the entire system of which the invention was an integral part. We said that continuous diligence with respect to the entire operation “provides adequate excuse” for delays in reducing to practice the invention of the counts per se. Excusing lack of activity with respect to the invention itself is tantamount to a legal finding of diligence in reducing the invention to practice. We held there was ample justification for not trying to test the invention under conditions simulating actual use “in favor of the far more meaningful procedure of testing the assembly under actual operating conditions.”

Under these circumstances, the effect of our prior decision was to settle the question of diligence from October 4, 1961, to January 12, 1962. The board, in its first opinion, started with October 4 because that was the date when construction of the invention had proceeded to the point of assembling the index plate and ball joint in the plant of the construction contractor, final assembly thereof to the conductor pipe not taking place until the parts were aboard the well-drilling vessel, after which reduction to practice occurred. We now have to settle the question of diligence from just prior to June 5, 1961, Wake-field’s conception date, to October 4, 1961.

The record shows that Shell’s assign-ors the inventors Watkins and Johnson, were key engineers in Shell’s newly-formed Marine Division and that they conceived the invention of the counts in the course of developing the entire underwater system in which it came to be used. The actual reduction to practice in January, 1962, took.place in drilling an underwater well known as “Naples State 101,” offshore in California’s Santa Barbara Channel. Wakefield’s argument is that the board erred in following the reasoning of our prior opinion to find diligence during the period June 5—October 4, 1961, his principal ground for alleging error being that Watkins has failed to sustain the burden of proving that Shell made its election to drill the Naples State 101 well at any time before July 11, 1961. On this basis he alleges a first period of lack of diligence from June 5 to July 11. He sees a distinction between the first and second halves of the critical period in that what occurred in the latter was all subsequent to the election to drill that well. Wakefield sees a second period of no diligence between July 11 to August 8 when an effort was made to locate a ball by the contractor, and a third one-week gap until the next such effort was made. This summarizes his ease for lack of diligence.

We think it is unimportant when Shell elected or decided to drill the Naples State 101 well. We agree with Watkins that it is immaterial whether the system being developed by Shell was to be used in that well or some other well. The proofs are that Shell’s Marine Division was diligently designing and building equipment for a system of underwater drilling from long prior to June 5, 1961— at least from April 17, 1961—and that a decision had been made to use the equipment embodying the invention of the counts in the system long before it was decided what would be the first well in which it would be tried out. Wake-field’s Reply Brief asks us not to draw from the record the “erroneous inference” that Watkins, Johnson, and Shatto, the Mechanical Engineer of their division and a principal witness, “had any intention of drilling a well” prior to July 11, 1961. We see nothing erroneous in inferring that the designing of an underwater well-drilling system was for the sole purpose of drilling a well somewhere and it seems unimportant to us, from the standpoint of determining diligence in that enterprise, at what point in time a drilling site for the well was selected.

April 17, 1961, is the date of working drawings of the invention which were in sufficient detail to enable a contractor to build the equipment. Shatto testified that Shell elected to use the invention shortly before those drawings were made. The invention was part of the equipment that was actually used as soon as design and building of the equipment was finished, which confirms the existence of the intent. Since we find that Shell’s diligence in developing the system was continuous from a time prior to June 5, 1961, to the beginning of the second half of the critical period, we find that Watkins was justified in not working on the invention per se, or was excused from so doing, during that period, to any greater extent than he did. Since we have now held him diligent during all of the critical period, he was entitled to a holding that he was entitled to the award of priority.

The decision of the board is affirmed.

Affirmed.

MILLER, Judge

(concurring).

I fully agree with the majority opinion, but I believe it should be pointed out that the issue of diligence during the entire “critical” period could have been settled —all at once and a long time ago. The board in the original case declined to discuss, much less decide, any matters relating to diligence during any period other than October 4, 1961, to January 12, 1962. Thus, our review in the original case was limited to that period, and our decision of July 1, 1971, triggered further proceedings in the Patent Office leading to this appeal to close the gap left by the board’s first decision. Loss of valuable time and expense to the parties, the Patent Office, and the court has been the result, and the patent to Watkins has been delayed for over three years. The practice of avoiding piecemeal decisions whenever possible is to be strongly encouraged.


author: LEWIS, Chief Judge.

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SERV-ALL CO., INC., Respondent.
    No. 73-1276.
    United States Court of Appeals, Tenth Circuit.
    Feb. 27, 1974.
    Allen H. Feldman, Washington, D. C. (Alan D. Cirker, Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, and Elliott Moore, Asst. Gen. Counsel, N.L.R.B., on the brief for petitioner.
    John J. Mahon, Albuquerque, N. M. (Leonard L. Pickering, Albuquerque, N. M.), on the brief for respondent.
    Before LEWIS, Chief Judge, and MURRAH and HOLLOWAY, Circuit Judges.
   LEWIS, Chief Judge.

The National Labor Relations Board (Board), adopting the findings and recommendations of a Trial Examiner, determined that respondent Serv-All Co., Inc. was in violation of §§ 8(a)(1), (5) and 8(d) of the National Labor Relations Act and issued a remedial order. The Board now seeks enforcement of its order. The matter was heard before the full Board and its decision is reported at 199 N.L.R.B. No. 159, the chairman and one member dissenting. The respondent opposes enforcement contending, in accord with the reasoning of the dissenters, that the Board’s decision is contrary to the limitation mandate of § 10(b) of the Act. The facts are detailed in the Board opinions and may be narrated for the purpose of our review.

In 1966, the Mechanical Contractors Association (MCA), a New Mexico group of plumbing and piping contractors, entered into a collective bargaining agreement with the designated Union. The agreement provided that non-association members could become parties by separately signing the association agreement. The association was designated agent for receipt of notice for reopening and for termination of the agreement for all nonmembership employers. A section of the agreement provided that unless the employer gave written notice 60 days prior to the expiration or termination of the agreement indicating to the contrary, the employer agreed to be bound by the terms and conditions of the succeeding collective bargaining agreement, including any amendments, extensions and renewals which might be negotiated. Respondent, a commercial air conditioning contractor, became a separate signatory party to the contract.

In 1968, the contract was reopened for negotiation and by bilateral agreement of the signatory parties the contract’s termination date was extended to March 31, 1970. In 1969, MCA and the Union again began negotiations for a new contract. During the course of these negotiations difficulties arose and the Union sought and received from 20-30 non-association parties a letter of intent that such parties would abide by the ultimate contract result of the negotiations. Respondent refused to sign such a letter and as a result thereof four of respondent’s eight employees refused to work after the Union struck MCA in May 1970. In June 1970, the Union and MCA reached an oral agreement and the strike was terminated. A formal contract was signed by these parties on July 11, 1970. In June 1970 respondent filed a representation petition with the Board contending the Union no longer represented a majority of its employees and in September respondent refused to pay the health benefits and wage increases contained in the July 11 contract.

On March 18, 1971, the Union filed its charging complaint with the Board leading the Board dissenters to the conclusion that the complaint should be dismissed because “all the operative facts occurred more than six months before the charge was filed.” The majority of the Board reject this reasoning stating:

While it is true that Respondent’s initial refusal to sign or abide by the contract, the strike, and Respondent’s filing of the RM petition all occurred outside the 10(b) period, there were other incidents, outlined in the Trial Examiner’s Decision, which are sufficient, in our opinion, to indicate that Respondent’s initial refusal to bargain recurred well within the 6-month period. We believe that the colloquy that occurred during the RM hearing, which is quoted in the dissent, in effect constitutes a refusal to sign the agreement, (emphasis added.)

The issue for our determination thus resolves to whether respondent's conduct constituted a continuing violation of the Act or whether the respondent’s initial refusal to bargain or to abide by the contract terms triggered the time bar of § 10(b) and thereafter it committed no actionable unfair labor practice.

We are convinced from our review of the total record that respondent clearly negatived any obligation to abide by the result of the Union-MCA negotiations, or to bargain with the Union, several months earlier than the six-month period prior to the filing of the complaint. Whether this conduct by respondent did or did not, when viewed in isolation, constitute an unfair labor practice is patently a stale issue and clearly within the shelter of § 10(b). So, too, we hold that the record does not adequately support the finding of the Board majority that respondent’s initial refusal recurred within the applicable six-month period. Here the Board does not rely on a specific request by the Union to sign or negotiate and a refusal by respondent, but infers such refusal from the following testimony given at the hearing:

Q. [By Mr. Kool, Counsel for the Union] And you testified that the union hadn’t asked you to sign this agreement?
A. [By Mr. Blankenship, president of Respondent] Not that I know cf.
Q. If I handed it to you now, would you sign it ?
A. No, sir.
Q. Why not ?
A. That’s my purpose for being here.

We do not, nor could the Board dissenters, accept the decision of the Board and consequently we conclude that the reasoning and findings of the dissent are sound and dictated by the record in fact. But we also hold that the majority decision is faulty in law and not dependent upon the fact issue of whether respondent refused to sign during the six-month period preceding the complaint.

The First Circuit in NLRB v. Field & Sons, 462 F.2d 748, specifically held that § 10(b) barred prosecution of a multiemployer association member who had refused to sign a bargaining agreement in July 1969, was again requested and refused to sign in July 1970 and then charged. We agree with that result. The Sixth Circuit in NLRB v. McCready & Sons, 482 F.2d 872, reached the same result reasoning that any application of a continuing obligation doctrine under facts remarkably similar to those we have here considered is inconsistent with the purposes of § 10(b). The court there stated:

An employer so charged would predictably defend against such a charge by denying that a contract binding on him had in fact been formed. Indeed, this is precisely the defense asserted . before the Board and here. Establishment of such a defense could and probably would require reference to facts and occurrences surrounding the contract negotiations, With the passage of time, those facts become harder to prove as memories fade and witnesses become unavailable. Adoption of the position urged upon us by the Board would allow a charge to be brought at the whim of a union at any time within the term of the contract at issue—in this case three years. During this period, the employer is left in a precarious position, uncertain of his liability and bearing an onus of defense which increases with time. This clearly contravenes the purpose of Section 10(b). 482 F.2d at 875.

We agree with the reasoning of the Sixth Circuit.

Enforcement is denied.

      . United Association of Journeymen and Apprentices of the Plumbing & Pipefitting Industry of the United States & Canada, Local No. 412, AFL-CIO.

      . This action precluded respondent from giving timely notice to terminate under the explicit terms of the agreement.

      . Section 10(b) of the Act provides in pertinent part that
      . . . no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board. . . .


text:
    UNITED STATES of America ex rel. Clarence JONES, Petitioner-Appellant, v. The Honorable Leon J. VINCENT, Superintendent, Green Haven Correctional Facility, Stormville, New York, Respondent-Appellee.
    No. 443, Docket 73-2074.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 31, 1974.
    Decided Feb. 6, 1974.

      Sheila Ginsberg, New York City (Robert Kasanof, The Legal Aid Society, New York City), for petitioner-appellant.
    Arlene R. Silverman, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen., of N. Y., Samuel A. Hirshowitz, First Asst. Atty. Gen., of counsel), for respondentappellee.
    Before WATERMAN and MULLIGAN, Circuit Judges and BRYAN, District Judge.

       Honorable Frederick van Pelt Bryan, United States District Court for the Southern District of New York, sitting by designation.

   PER CURIAM:

This is an appeal from an order of the United States District Court, Hon. Jacob Mishler, Chief Judge, Eastern District of New York, dated July 18, 1973, denying petitioner’s application for a writ of habeas corpus. Affirmed.

Petitioner, who is presently on parole from Green Haven Correctional Facility, was convicted in the Supreme Court, Kings County, on July 11, 1967, for the crime of manslaughter in the first degree. That conviction was affirmed by the Appellate Division, 32 A.D.2d 1069, 303 N.Y.S.2d 921 (2d Dep’t 1969), with one judge dissenting. The New York Court of Appeals affirmed without opinion, 27 N.Y.2d 501, 312 N.Y.S.2d 677, 260 N.E.2d 870 (1970). The United States Supreme Court denied certiorari, 400 U.S. 994, 91 S.Ct. 466, 27 L.Ed.2d 443 (1971).

The principal argument here of the petitioner is that he was denied his Sixth and Fourteenth Amendment rights to the effective assistance of counsel. The facts upon which this argument is presented are set forth in the opinion of the district court. We affirm on the opinion below. Although we find that the defendant’s trial counsel may have failed to conduct the perfect trial, a review of the trial record indicates that the defense afforded to the petitioner was not so inadequate as to shock the conscience of the court or to make the proceeding either a farce or a mockery of justice, United States ex rel. Curtis v. Zelker, 466 F.2d 1092, 1101 (2d Cir. 1972) cert. denied, 410 U.S. 945, 93 S.Ct. 1405, 35 L.Ed.2d 612 (1973).


text:
    UNITED STATES of America, Appellee, v. Earl Franklin COLE, Appellant. UNITED STATES of America, Appellee, v. Catherine Jean BAKER, a/k/a Catherine Jean Gault, Appellant.
    Nos. 73-1509, 73-1510.
    United States Court of Appeals, Fourth Circuit.
    Argued Oct. 4, 1973.
    Decided Feb. 21, 1974.

      Warren E. Magee, Washington, D. C., for appellant Earl Franklin Cole.
    Albert J. Ahern, Jr., Baileys Crossroads, Va., for appellant Catherine Jean Baker.
    Thomas K. Moore and Joseph A. Fisher, Asst, U. S. Attys. (Brian P. Get-tings, U. S. Atty., and David H. Hopkins, Asst. U. S. Atty., on brief) for appellee United States.
    Before BOREMAN, Senior Circuit Judge, and CRAVEN and FIELD, Circuit Judges.
   PER CURIAM:

Tried by a jury, Earl Franklin Cole, a former General of the United States Army, and Catherine Jean Gault, a former civilian employee of the Army, were convicted on eight counts of a fourteen count indictment which had been returned against them. After a careful examination of the record we are convinced that the General and Gault did not receive a fair trial and, accordingly, that their convictions must be set aside. We further conclude that there was a lack of evidentiary support for the convictions on three of the counts and that the district court erred in denying motions for judgment of acquittal on those counts.

The charges stemmed from the service of the defendants in Vietnam during the period when Cole was Deputy Assistant Chief of Staff for CORDS (Civil Operations and Revolutionary Development Support) and Mrs. Gault was employed as his secretary. They involved to a large degree three trips made by Gault to places outside Vietnam in the years 1967 and 1968 pursuant to orders authorized by Cole, and Cole’s certification of Gault’s claim for overtime pay during periods coincident with these trips. Seven of the counts upon which the defendants were convicted charged them with violations of 18 U.S.C. § 1001 in making false statements relative to the travel vouchers or authorization for these trips by Gault, or for overtime claimed by her on Time and Attendance Reports filed during the periods when she was on such trips. The remaining substantive count upon which Gault alone was convicted charged the defendants with a violation of 18 U.S.C. § 287 in making a fraudulent claim incident to Gault’s request for civilian living quarters allowances at a time when she allegedly lived in Government accommodations. In addition to the foregoing, the first count of the indictment charged that Cole and Gault had conspired during the period from June 1966 through October 1972 to commit the substantive offenses. The conspiracy count was dismissed by the court at the end of the Government’s case for lack of evidence.

Primarily, we base our decision upon the conclusion that the trial judge overstepped the bounds of judicial propriety by repeatedly injecting himself into the trial and unduly restricting counsel for the defendants in their efforts to defend their clients.

It is, of course, settled beyond doubt that in a federal court the judge has the right, and often an obligation, to interrupt the presentations of counsel in order to clarify misunderstandings or otherwise insure that the trial proceeds efficiently and fairly. United States v. Cassiagnol, 420 F.2d 868, 879 (4 Cir. 1970), cert. denied 397 U.S. 1044, 90 S.Ct. 1364, 25 L.Ed.2d 654 (1970); Davis v. United States, 279 F.2d 127 (4 Cir. 1960), cert. denied 364 U.S. 822, 81 S.Ct. 60, 5 L.Ed.2d 53 (1960); Simon v. United States, 123 F.2d 80 (4 Cir. 1941), cert. denied, 314 U.S. 694, 62 S.Ct. 412, 86 L.Ed. 555 (1941). In the language of Judge Dobie,

It cannot be too often repeated, of too strongly emphasized, that the function of a federal trial judge is not that of an umpire or of a moderator at a town meeting. He sits to see that justice is done in the cases heard before him; and it is his duty to see that a case on trial is presented in such way as to be understood by the jury, as well as by himself. Simon v. United States, supra, at 83.

However, we have previously stated, “this privilege or duty is subject to reasonable limitations,” United States v. Cassiagnol, supra, and we have endorsed the observation in Groce v. Seder, 267 F.2d 352, 355 (3 Cir. 1959), that

Where both sides are represented by eminently competent counsel we think it important that the court minimize its own questioning of witnesses, to the end that any such judicial departure from the normal course of trial be merely helpful in clarifying the testimony rather than prejudicial in tending to impose upon the jury what the judge seems to think about the evidence.

In the present case both the issues of falsity and materiality depended in a substantial degree upon the interpretation and application of a labyrinth of Army regulations and procedures incident to the Time and Attendance Report forms. The unenviable task of counsel for the defendants to demonstrate to the jury the manner in which these regulations and procedures bore on the issue of guilt or innocence was compounded by the intrusions of the district judge which tended to portray the defense attorneys as evasive and hyper-technical when, in fact, a detailed inquiry into the actual operation of the various regulations was plainly necessary and appropriate. It would serve no useful purpose to detail all of the instances of undue interruption nor to point out which, if any, of the incidents alone would require reversal. Suffice it to say, however, that in our opinion the cumulative effect was so pervasive and prejudicial that the verdicts cannot stand.

We also think the court erred in admitting evidence of an alleged prior similar offense by Gault. To bolster its case on the four counts involving the Time and Attendance Reports, the Government called as a witness a Colonel Bailey who testified to an incident which had occurred at West Point in the year 1963. At that time the witness was assistant to Cole who was Adjutant General of the United States Military Academy and Mrs. Gault was employed as Cole’s secretary. Referring to a Time and Attendance Report presented to him by Mrs. Gault on that occasion, Bailey stated “Well, I questioned the number of hours claimed on the report and asked her to explain them,” whereupon the court stated “Without going into the details you determined it was not an accurate report that she wanted you to certify?” This assumptive observation by the court clearly intruded upon the province of the jury and, additionally, was an erroneous summary of Bailey’s testimony. Upon cross examination Bailey testified that he asked Gault for an explanation and that she advised him she had been working for General Cole. He further testified that while he advised Cole he disagreed with the report he did not inquire as to the validity of Mrs. Gault’s statement that she had been working for General Cole. The basis of Bailey’s challenge of the report was that it reflected Gault had been working on a Saturday when he had not observed her at her desk in the office. Upon cross examination Bailey conceded that on certain occasions both the officers and secretaries performed work outside the office, but when asked by defense counsel whether outside work by Gault on the occasion in question would have made her claim a truthful one, the district judge terminated the questioning as “improper.”

The Government offered this evidence as tending to establish design, motive and intent on the part of Gault, and under proper circumstances such evidence may, of course, be introduced to prove an element of the offense charged. United States v. Baldivid, 465 F.2d 1277 (4 Cir. 1972), cert. denied, 409 U.S. 1047, 93 S.Ct. 519, 34 L.Ed.2d 499 (1972); United States v. Mastrototaro, 455 F.2d 802 (4 Cir. 1972), cert. denied 406 U.S. 967, 92 S.Ct. 2411, 32 L.Ed.2d 666 (1972). However, while this court has never held that prior offenses may be shown only by proof of convictions, we have noted that the convincingness of the evidence that other crimes were committed is a factor that should be weighed in the decision to admit such evidence. United States v. Samuel, 431 F.2d 610, 612 (4 Cir. 1970); Benton v. United States, 233 F.2d 491 (4 Cir. 1956). It has been stated that “for the jury to be entitled to consider it there must of course be substantial evidence of these facts, and some courts have used the formula that it must be ‘clear and convincing’,” McCormick, Evidence, 1954 ed., p. 331. While the admission of such evidence rests largely in the discretion of the trial judge, in our opinion Bailey’s challenge of Gault’s statement in 1963 was so tenuous and remote in time from the charges in the indictment that it should have been excluded.

Finally, as heretofore stated, we think the defendants were entitled to a judgment of acquittal on three counts of the indictment. Counts Four and Nine charged that Cole and Gault falsely stated on certain travel vouchers that Gault “had been on justified and authorized temporary duty travel * * * when in truth and in fact * * * said travel was unjustified and had been fraudulently authorized.” Count Five charged that Cole obtained travel orders for Gault by stating that she would be traveling to Alaska and to the mainland of the United States on official business when, in fact, he knew “the purpose of said travel Was not for official business.”

These counts related to two trips which Gault made to the mainland of the United States and Alaska late in the year 1967 and in the fall of 1968, and the only evidence presented by the Government bearing on these counts was the testimony of Mrs. Mary Tuthill, Mrs. Marjorie Willis who was Gault’s daughter, and William Colby. Mrs. Tuthill testified that Gault was a house guest in her home on Long Island for four days in December of 1967 which was during the period covered by Count Four. Mrs. Willis testified that she was a guest in the Tuthill home on the occasion of her mother’s visit, and further testified that in the fall of 1968 she saw her mother briefly in Alaska at which time her mother had helped furnish an apartment for her. The testimony of these two witnesses was of little, if any, probative value to the Government’s theory that Gault was not on official business on either of these trips since Gault’s travel orders expressly authorized leave time for her which was not exhausted by either of the visits testified to by Tuthill and Willis.

Although the witness Colby had been Cole’s immediate superior in Vietnam, the district judge would not permit him to testify as to Cole’s duties as Deputy Assistant Chief of Staff. He did, however, testify that CORDS had several programs designed to obtain financing for rehabilitation projects and that while he had not personally authorized any official trips for Gault, the stated purposes of her trips were, within the mission of Cole’s command and that Cole had authority to order travel in support of that mission. It is clear, and the district court appears to have conceded, that Cole had jurisdiction to authorize the trips and the only remaining question was the official purpose or justification for them.

With a complete absence of evidence from the military establishment or elsewhere on this point, the jurors were permitted to make a post-factum appraisal of the validity of these military orders which had been issued in Vietnam some five years before by applying nothing other than their own civilian criteria. The verdicts on these counts were, of necessity, based upon sheer speculation and conjecture, and it is fundamental that a jury should not be asked to determine an issue which can be decided only in that fashion. Cf. United States v. Lattimore, 112 F.Supp. 507 (D.C.1953).

The judgments of conviction are reversed and the cases remanded to the district court with directions to enter judgments of acquittal as to counts Four, Five and Nine, and grant a new trial with respect to the remaining counts if the Government should so elect.

Reversed and remanded with instructions.