author: JOHN W. PECK, Circuit Judge.

text:
    In the Matter of Bayview Estates, Inc., Debtor. BAYVIEW ESTATES, INC., Appellant-Debtor, and Wallace M. Handler, Receiver of Bayview Estates, Inc., Appellant-Receiver, v. BAYVIEW ESTATES MOBILE HOMEOWNERS ASSOCIATION, Appellee.
    No. 74-1341.
    United States Court of Appeals, Sixth Circuit.
    Dec. 20, 1974.

      Jerry Michael Ellis, Schmier, Fealk & Ellis, Southfield, Mich., Frank E. Ken-ney, Jr., Kenney, Kenney, Chapman & Prather, James J. Harrington, III, Bloomfield Hills, Mich., for appellant.
    John Corey Qua, Legal Services of Eastern Mich., Flint, Mich., for appellee.
    Before PECK and LIVELY, Circuit Judges, and McALLISTER, Senior Circuit Judge.
   JOHN W. PECK, Circuit Judge.

This case concerns the bankruptcy of a mobile homes development corporation which became insolvent. Bayview Estates, Inc., debtor-appellant, is a Michigan corporation formed in 1969 to engage in the construction and development, operation and management of a mobile home park. The debtor developed 120 mobile home sites and attendant recreational facilities on a tract of land in Anchorville, Michigan.

In August 1972 a group of tenants, having formed the Bayview Estates Mobile Homeowners Association (appellee herein and hereinafter referred to as “the Association”), filed an ’ action against the debtor in the St. Clair County Circuit Court. The action alleged that the Association members were damaged as a result of various health and safety code violations in the park, including low water pressure, inadequate drainage, poor streets and inadequate electrical wiring. In conjunction with the filing of the action, Association members began withholding their rent payments and picketing a restaurant in which one of the principal stockholders of the debtor had an interest. The picketing, in turn, spawned a separate suit against the Association and its members. Thereafter, the parties agreed to a consent order which, among other things, required that Association members pay their rents into an escrow account held by the local township treasurer.

The trial of the suit commenced by the Association in the St. Clair County Circuit Court began in January 1973, and continued until the debtor filed a Petition for Arrangement Under Chapter XI of the Bankruptcy Act. The bankruptcy court promptly issued an order staying the commencement or continuation of any suits against the debtor. Association members immediately thereupon discontinued making rent payments to the township treasurer and began paying same into a non-interest bearing account in the names of their attorneys.

The bankruptcy court, at the request of the receiver, issued two show cause orders. The first, directed to the township treasurer, inquired as to the reason she should not turn over the monies held in escrow ($45,987.15); the second, directed to the Association, asked why its members should not be required to halt their litigation against debtor and be required to pay all rentals due to the receiver. The Association filed appropriate responsive pleadings and the matters came on to be heard before the bankruptcy court.

The bankruptcy court found that it had jurisdiction in a summary proceeding to determine rights as to the es-crowed funds, and that it had the power to enjoin the tenants from continuing the suit in state court. Pursuant to the above findings, the township treasurer and the Association’s attorneys were ordered to turn over the monies ■ held in escrow.

The Association appealed to the district court. Judge Pratt, in a memorandum opinion and order of January 17, 1974, held that the escrowed funds were not subject to the summary jurisdiction of the bankruptcy court, but specifically deferred decision on whether the state court suit could be enjoined. On remand, however, the bankruptcy court dissolved its stay on the state court proceedings. The debtor and the receiver perfected the instant appeal from the district court’s order.

As the district court stated, “This appeal primarily concerns the power of the bankruptcy court to exercise its summary jurisdiction over [the escrowed] funds.” Section 311 of the Bankruptcy Act, 11 U.S.C. § 711, provides that the reorganization court shall have “exclusive jurisdiction of the debtor and his property, wherever located.” This court has held that the bankruptcy court’s exercise of summary jurisdiction depends upon a finding that it has possession, either actual or constructive, of the property in question. Willyerd v. Buildex Co., 463 F.2d 996, 999 (6th Cir. 1972). “And the test of this jurisdiction is not title in but possession by the bankrupt at the time of the filing of the petition in bankruptcy.” Thompson v. Magnolia Petroleum Co., 309 U.S. 478, 481, 60 S.Ct. 628, 630, 84 L.Ed. 876 (1940). The reorganization court “may conclude, where it lacks actual possession, that the physical possession held by some other persons is of such a nature that the property is constructively within the possession of the court.” Taubel, etc., Co. v. Fox, 264 U.S. 426, 433, 44 S.Ct. 396, 399, 68 L.Ed. 770 (1924). In the instant case it is apparent that the bankruptcy court did not have actual possession of the disputed monies and that if its jurisdiction is to be upheld it must be upon the theory of constructive possession.

Generally, constructive possession means “possession as a matter of law through the medium of a third person, or otherwise, without actual physical possession by the bankrupt, court officer or claimant, as the case may be . ” Remington on Bankruptcy, § 2361, at 93 (5th ed. 1953). The Supreme Court has stated that constructive possession

“exists where the property was in the physical possession of the debtor at the time of the filing of the petition in bankruptcy, but was not delivered by him to the trustee; where the property was delivered to the trustee, but was thereafter wrongfully withdrawn from his custody; where the property is in the hands of the bankrupt’s agent or bailee; where the property is held by some other person who makes no claim to it; and where the property is held by one who makes a claim, but the claim is colorable only.” Taubel, etc., Co. v. Fox, 264 U.S. at 432-433, 44 S.Ct. at 399.

In the instant case neither the debtor nor the receiver ever had physical possession of the funds, and the township treasurer was not a bailee or an agent of the debtor. As will hereinafter become apparent, the last two categories listed by the Supreme Court are equally inap-posite.

Debtor argues that since the tenants were legally obligated to make rental payments, the escrowed funds were being held for its benefit by a person who had no interest in them. This argument assumes debtor’s entitlement to the monies, but as the district court noted, “The questions whether the rents were due under the lease agreement and whether the funds in escrow were held for the benefit of the debtor are matters of state law. In re H. L. Gentry Construction Co., 200 F.Supp. 546 (E.D.Mich.1961).” Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 67 S.Ct. 237, 91 L.Ed. 162 (1947); In re Easy Living, Inc., 407 F.2d 142 (6th Cir. 1969); Reid v. Richardson, 304 F.2d 351 (4th Cir. 1962).

Under Michigan law the duty to pay rent by the tenant and the landlord’s obligation to provide safe, habitable, and fit premises in compliance with state health and safety codes are mutually dependent covenants. M.C.L.A. § 554.139; M.S.A. § 26.1109. Further, the breach of these covenants may excuse payment of some or all of the rent due under the lease. Rome v. Walker, 38 Mich.App. 458, 196 N.W.2d 850 (1972). At the time the bankruptcy petition was filed, debt- or’s rights in the funds had not been established. Thus, while it is true that the funds were being held by “some other person who [made] no claim to [them],” the township treasurer was the “legal custodian for claimants who [were] asserting rights adverse to those of the [debtor or receiver] . . . .” Dannel v. Wilson-Weesner-Wilkinson Co., 109 F.2d 364 (6th Cir. 1940).

Confronted with a similar question relating to constructive possession, the Tenth Circuit made the following observation:

“[W]hen possession is held by a third person, adverse claims may not be summarily adjudicated unless by consent, or unless the claim is merely col-orable.” (Citations omitted.) Sherr v. Sierra Trading Corp., 492 F.2d 971 (1974).

The Fifth Circuit was even more emphatic. “[S]ummary jurisdiction over property in the hands of third parties rests on the condition that the property is in the possession of one who acknowledges that he holds it subject to the bankrupt’s demand.” In re American Southern Publishing Co., 426 F.2d 160, 164 (1970). These observations generally comport with the views expressed by the text writers.

“Where a third person holds possession of the bankrupt’s property, and makes no adverse claim to it, that person will be subject to summary jurisdiction even though others make claims adverse to the bankrupt. But where possession is assertedly held not for the bankrupt, but for others prior to bankruptcy, . . . the holder is not subject to summary jurisdiction.” (Emphasis supplied.) Collier on Bankruptcy, 123.06, at 503 — 504 (14th' ed. 1974).

In light of the above, it is clear that at the time of the filing of the petition in bankruptcy the township trustee was not holding the funds for the benefit of the debtor and that the Association did have a colorable claim to the funds. It follows, then, that the bankruptcy court did not gain constructive possession of the funds and thus did not have the right to exercise its summary jurisdiction over them.

Debtor maintains that Section 314 of the Act, 11 U.S.C. § 714, confers on the bankruptcy court the power to enjoin the state court suit by the tenants Association. That section states that

“[t]he court may . . . enjoin or stay until final decree the commencement or continuation of suits other than suits to enforce liens upon, the property of a debtor, and may, upon notice and for cause shown, enjoin or stay until final decree any act or the commencement or continuation of any proceedings to enforce any lien upon the property of the debtor.” (Emphasis supplied.)

The flaw in debtor’s argument is that the funds were not “the property of the debtor,” and thus the bankruptcy court acted properly in dissolving its stay.

We have carefully examined the remainder of debtor-appellant’s claims and found them to be without merit. Accordingly, the judgment of the district court is affirmed and the cause is remanded for further proceedings not, inconsistent herewith.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Aaron Harold KENNER, Appellant.
    No. 74-1534.
    United States Court of Appeals, Fourth Circuit.
    Submitted Nov. 25, 1974.
    Decided Dec. 23, 1974.
    Certiorari Denied April 14, 1975.
    See 95 S.Ct. 1578.
    William A. Cosby, Jr., Richmond, Va., on brief for appellant.
    Brian P. Gettings, U. S. Atty., and Charles L. Beard, Asst. U. S. Atty., on brief for appellee.
    Before RUSSELL, FIELD and WIDENER, Circuit Judges.
   PER CURIAM:

Aaron Harold Kenner was convicted of violating 18 U.S.C. App. § 1202(a)(1), which provides criminal penalties for any person who has been convicted of a felony “. . . and who receives, possesses, or transports in commerce or affecting commerce . . . any firearm . ” On appeal, Kenner does not challenge that he has a valid previous felony conviction, that he had possession of a firearm, or that the government’s proof established that the firearm in question had traveled in interstate commerce at some point in time before he possessed it. Kenner asserts, however, that the government offered no proof connecting his possession of the weapon with its interstate transportation. It is also argued the statute is unconstitutional if construed to permit a conviction upon a mere showing that a firearm had, at some undetermined point, traveled in interstate commerce before being possessed by a convicted felon.

We have expressed our view on numerous recent occasions that in a prosecution for violation of 18 U.S.C. App. § 1202(a), the government need not establish a nexus between the receipt or possession of a weapon and its movement in interstate commerce. E. g., United States v. Davis (4th Cir. 1974), 498 F.2d 1398; United States v. Jordan (4th Cir. 1974), 502 F.2d 1163; United States v. Mullins (4th Cir. 1973), 476 F.2d 664, cert. denied 414 U.S. 839, 94 S.Ct. 91, 38 L.Ed.2d 75 (1973). We also reiterate our view that the statute is constitutional. United States v. Cabbler (4th Cir. 1970), 429 F.2d 577, cert. denied, 400 U.S. 901, 91 S.Ct. 138, 27 L.Ed.2d 138 (1970).

Accordingly, we dispense with oral argument and affirm.

Affirmed.


author: PER CURIAM.

text:
    UNITED STATES of America, Appellee, v. Evan WILLIAMS, Appellant.
    No. 74-1372.
    United States Court of Appeals, Eighth Circuit.
    Dec. 30, 1974.
    J. William Gallup, Omaha, Neb., for appellant in this Court but did not file appearance.
    William K. Schaphorst and Thomas D. Thalken, Omaha, Neb., for appellee in this Court but did not file appearance.
    Before LAY, HEANEY and STEPHENSON, Circuit Judges.
   PER CURIAM.

Defendants Evan Williams and Dennis Swanson were convicted by a jury of aiding and abetting in the distribution of heroin. Their convictions were affirmed by this court. United States v. Williams, 484 F.2d 176 (8th Cir.), cert. denied, 414 U.S. 1070, 94 S.Ct. 581, 38 L.Ed.2d 475 (1973). Thereafter Williams filed timely motions for new trial and reduction of sentence. The new trial motion was premised upon affidavits purporting to reflect newly discovered evidence. The district court held an evidentiary hearing. Its order denying both motions was entered on May 7, 1974. Williams has appealed.

The following motions are now before the court: the government’s motion for summary dismissal on the ground that defendant’s notice of appeal was not timely filed; the motion of defendant’s appointed counsel to withdraw on the ground that any appeal would be frivolous; and the motion of defendant himself for appointment of new counsel.

At the outset, the government’s motion for summary dismissal is denied. We construe the district court’s acceptance of the notice of appeal as a grant of additional time to file pursuant to Fed.R.App.P. 4(b) even though no formal order is entered to that effect. United States v. Mills, 430 F.2d 526, 527 — 528 (8th Cir. 1970), cert. denied, 400 U.S. 1023, 91 S.Ct. 589, 27 L.Ed.2d 636 (1971).

At the hearing below two witnesses testified that they were residents of the house where defendants were arrested. Their testimony was offered for the purpose of showing that defendants did not aid and abet the sale of heroin. The trial court held:

Having listened to this testimony and viewed the demeanor of the witnesses, it is the Court’s opinion that their credibility would not satisfy a jury. The inconsistencies in the testimony and affidavit of Mike Latoza are particularly glaring. Debbie Latoza was absent at the crucial times. Moreover, none of the testimony directly contradicts Yarpe’s testimony that on the morning of the arrest the defendants brought the heroin to the house. Both of the Latozas had gone to work that morning and were not present at the house at the time the defendants arrived and the distribution occurred. For these reasons, the Court finds the new evidence will not probably produce acquittals and the motions for new trial should be overruled.

We have examined the transcript and are satisfied that the trial court did not abuse its discretion in the above ruling.

The sentence given defendant, ten years imprisonment plus the statutory special parole provision, was well within the statutory maximum. The trial court has properly exercised its discretion. We will not interfere. See Woosley v. United States, 478 F.2d 139 (8th Cir. 1973).

The questions presented for review do not require further argument. Accordingly, the motion by appointed counsel to withdraw is granted, defendant’s motion for new appointed counsel is denied, and the trial court’s judgment is affirmed.

See 8th Cir. R. 9(a).

      . Appellant has failed to respond to our order to show cause why his appeal should not be dismissed as being without merit.


text:
    UNITED STATES of America, Appellee, v. Betty Parra DE RODRIGUEZ, Appellant.
    No. 74-2072.
    United States Court of Appeals, Ninth Circuit.
    Dec. 23, 1974.

      Paul W. Colarich, Jr., of Laber, Loval-lo, & Colarich, Tucson, Ariz., for appellant.
    Michael B. Scott, Asst. U. S. Atty., Phoenix, Ariz., for appellee.
    Before ELY and WALLACE, Circuit Judges, and TURRENTEME, District Judge.

       Honorable Howard B. Turrentine, United States District Judge, San Diego, California, sitting by designation.

   OPINION

PER CURIAM:

In a jury trial, the appellant was convicted of having imported 410 pounds of marijuana into the United States in violation of 21 U.S.C. § 952(a) and § 960(a)(1). On a second count of the indictment, she was convicted of having possessed the same marijuana with intent to distribute it, a violation of 21 U.S.C. § 841(a) and 21 U.S.C. § 841(b). Of the appellant’s three contentions on this appeal, only one has a semblance of merit. This pertains to the District Court’s refusal, absent a request of the jury, to allow the jury to have a certain exhibit in its possession during the jury’s deliberations. The appellant claimed that the exhibit impeached the arresting officers, inasmuch as it did not record some of the incriminating testimony given by one of the officers. The district judge based his refusal upon the ground that the report contained certain “extraneous matters.” We think the better practice would have been to excise the extraneous material and send the relevant portions of the exhibit, along with the other exhibits, to the jury room. Through the examination of counsel, however, the jury had been made aware of the alleged discrepancy between the testimony of the officer and the official report. This, considered in the light of the whole record, leads us to conclude that if the court’s action constituted error, such error was harmless.

The judgment of conviction is

Affirmed.

      . The appellant complains of one of the court’s instructions, but considering the instructions in their entirety, we hold that the jury was fairly informed.
      It is also contended that the prosecuting attorney made a prejudicially erroneous comment during summation. The record does not reveal that the challenged comment was made nor, if made, that any objection to the alleged comment was made by the appellant’s attorney at the time.


text:
    In the Matter of Jim UHLENHOPP a/k/a James K. Uhlenhopp d/b/a Uh-lenhopp Livestock Buying and Trucking, Bankrupt. Roger JENSEN, Trustee, Appellant, v. Heinie UHLENHOPP, Appellee.
    No. 74-1409.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 10, 1974.
    Decided Jan. 9, 1975.

      John L. Butler, Eldora, Iowa, for appellant.
    Michael W. Rickert, Reinbeck, Iowa, for appellee.
    Before LAY, BRIGHT and WEBSTER, Circuit Judges.
   PER CURIAM.

In this appeal, Roger Jensen, as the trustee in the bankruptcy of Jim Uhlen-hopp, contests an order of the referee in bankruptcy (now bankruptcy judge) entered on November 1, 1972, which the district court affirmed on April 3, 1974. The order in question directs that certain real property owned by the bankrupt and previously used by him in his livestock business be surrendered to Heinie Uhlenhopp, the father of the bankrupt, as the holder of a first mortgage lien on the premises to secure the sum of $45,-000, due from the bankrupt on a promissory note. Upon a review of the record, we affirm the decision of the district court.

This controversy arises out of a transaction between father Heinie and son Jim in which the father sold his son the real property in question and secured the balance due on the sale price by a mortgage, evidenced by a promissory note, against the property. This transaction occurred in October of 1963. Subsequently, in 1965, the father assisted his son in obtaining an indemnity bond for a period of one year, a bond required for livestock dealers under the Packers and Stockyards Act, 7 U.S.C. §§ 181 et seq. (1970). The father executed a bond application and entered into a written partnership agreement to engage in the livestock business with his son. The insurance company underwriting the bond insisted upon the partnership format as a condition of its issuance.

The son renewed this bond annually up to the bankruptcy in 1970, allegedly making renewals without his father’s knowledge or consent. The trustee contended that the bankrupt son and his father held themselves out to creditors as partners and that the father should therefore be estopped from claiming any interest in partnership property ahead of the trustee acting on behalf of the creditors. The trastee raised other contentions, including the following:

1) The mortgage indebtedness, if any, owing by Jim to Heinie was based on an unwritten promise made in October of 1963, and thus became unenforceable after five years under the Iowa statute of limitations. The trustee alleges that the referee erred in permitting Heinie to amend his proof of claim in bankruptcy to show that the mortgage indebtedness was evidenced by a written note. (The limitations period applicable to a real estate mortgage note is 10 years, Iowa Code Ann. § 614.1(5) (1974 Supp.), but the limitations period applicable to a debt represented by an unwritten promise to pay is five years, Iowa Code Ann. § 614.1(4)).
2) Heinie did not establish that the indebtedness exceeded the fair market value of the property subject to the mortgage.
3) The indebtedness had been forgiven by Heinie.
4) Because Heinie released the lien on part of the real estate (the dwelling), that release operates as a discharge of the lien on the stockyards property as well.
5) Heinie should be estopped, under the doctrine of unclean hands, from claiming the property as against the trustee.

The referee found that Heinie was not in fact in partnership with his son and that Jim was not authorized to execute renewals of the livestock dealer’s bond during years subsequent to 1965. The referee also rejected the trustee’s challenge to the amount of the indebtedness and his contention that the debt was oral rather than written. The referee determined that the value of the real property subject to the mortgage was substantially less than the mortgage indebtedness and held that the facts did not give rise to an estoppel against Heinie asserting his secured claim. These determinations rest on substantial evidence in the record.

The assertion that the Iowa statute of limitations barred Heinie’s claim is interrelated with the assertion that the referee committed error in permitting Heinie to amend his proof of claim by attaching the mortgage note of October 2, 1963, to the claim during the hearing. Heinie introduced evidence that the wrong note, one for $15,000, dated March 4, 1969, had been attached to the proof of claim form. Notwithstanding that the mortgage attached to the claim form did not specify the terms of any note evidencing the indebtedness but rather contained blank spaces where the terms of a note could be inserted, the mortgage form did not preclude the existence of a contemporaneously executed promissory note. Hence, we do not think that the referee committed any error in permitting the claimant, Heinie, to prove the existence of the actual mortgage note in lieu of another note which had been attached to the claim form in error. As the referee aptly noted in his memorandum, “[t]o deny the claimant, Heinie Uhlenhopp, permission to- amend his claim because he forgot to append a note, and, in fact, appended the wrong note to his Proof of Claim form would be most inequitable and would be contrary to case law, including that of the Eighth Circuit.” We agree. See, e. g., In re Faulkner, 161 F. 900, 903 — 904 (8th Cir. 1908); accord, e. g., Sun Basin Lumber Co. v. United States, 432 F.2d 48, 49 — 50 (9th Cir. 1970); Fausett v. Murner, 402 F.2d 961, 963 (5th Cir. 1968); Fyne v. Atlas Supply Co., 245 F.2d 107, 108 — 109 (4th Cir. 1957); In re Lipman, 65 F.2d 366, 367-368 (2d Cir. 1933); In re Fant, 21 F.2d 182, 183-184 (W.D.S.C.1927). Compare Tarbell v. Crex Carpet Co., 90 F.2d 683, 685-686 (8th Cir.. 1937). See generally 3 W. Collier, Bankruptcy K 57.11 (14th ed. 1974).

The factual determinations of the referee, ■vfhich the district court approved, are not clearly erroneous and no error of law appears in the record. Thus, we affirm for reasons enunciated in the referee’s unpublished memorandum.

Affirmed.


author: PER CURIAM. EDWARDS, Circuit Judge

text:
    R. E. CRUISE, INCORPORATED and Irving Kleiman, Plaintiffs-Appellants, v. George O. BRUGGEMAN, as Director of the Division of Building and Safety Engineering of the City of Warren, Michigan, and Joseph S. Raich, as City Clerk, Defendants-Appellees.
    No. 74-1309.
    United States Court of Appeals, Sixth Circuit.
    Decided Jan. 10, 1975.
    Gabriel Glantz, Detroit, Mich., for plaintiffs-appellants.
    Sherman P. Faunce, II, Warren City Atty., W. Thomas Marrocco, Jr., Warren, Mich., for defendants-appellees.
    Before EDWARDS, CELEBREZZE and LIVELY, Circuit Judges.
    The Court delivered a per curiam opinion. EDWARDS, J. (p. 416) delivered a separate concurring opinion.
   PER CURIAM.

This action was begun by the owners of real estate in Warren, Michigan who claimed that the defendants, acting under color of law, had refused to issue the plaintiffs a building permit and theatre license in violation of rights guaranteed to them by the Constitution and 42 U.S.C. § 1983. The complaint was filed on April 24, 1973 and on August 17, 1973 the district court granted a motion to dismiss. On August 22, 1973 the plaintiffs made a motion to file an amended complaint and to set aside the dismissal. The motion to set aside the dismissal was granted by the court, and the plaintiffs subsequently filed an amended complaint and an amendment thereto. Although no order was entered specifically permitting the filing of the amended complaint, the final memorandum and order of the court dated December 28, 1973 makes clear that the District Judge considered the amended complaint.

On October 12, 1973, the court entered an order in which it set the matter for oral argument on the plaintiffs’ motion to amend the complaint and the defendants’ motion to dismiss, which the court directed should be treated as a motion for summary judgment. That hearing was held on November 19th and then adjourned to January 29, 1974. Thereafter counsel for both sides indicated to the court that they desired an earlier disposition of the matter. On December 3, 1973, plaintiffs’ attorney wrote the court that he had nothing else to submit beyond his amended complaint and a brief which he had filed on November 14th. On November 30, 1973, the defendants filed a formal motion for summary judgment under Rule 56, Fed.R. Civ.P., accompanied by four supporting affidavits. The affidavit of a city planner of Warren, Michigan stated that the parking lot depicted in the plans filed by plaintiffs with their application for a permit would need variances from the Zoning Board of Appeals and that it failed in four respects described therein to comply with an existing ordinance. The affidavit of a zoning inspector of the City of Warren stated that he reviewed the plans filed by plaintiffs on the same day they were submitted with the application and determined that the parking lot and an addition thereto would need site-plan approval before the matter could be processed further. The affidavit stated that this officer, who was not a defendant in the action, put a Planning Commission “hold” on the plans in reliance on existing ordinances of the City of Warren. An affidavit of the Assistant City Attorney of Warren, Michigan stated that site-plan approval was required for the proposed parking lot in conjunction with the theatre and that the submitted plan did not comply with an existing ordinance of the City of Warren. The affidavit of the defendant Bruggeman recited that the plaintiffs had never sought site-plan approval though informed of the deficiencies of the application. This affidavit further stated that the affiant was unaware of the contents of conversations and meetings between the attorney for the plaintiffs and the Assistant City Attorney of Warren as set forth in the plaintiffs’ pleadings, and categorically denied that the defendant Bruggeman had directed any of the actions taken by the Assistant City Attorney in handling the application of the plaintiffs. These affidavits complied with the provisions of Rule 56(e), Fed.R.Civ.P.

Nothing was filed by the plaintiffs in response to the affidavits. Rule 56(e) provides in part:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

We believe that summary judgment was appropriate and that the court correctly entered it in this case in the absence of any response to the affidavits of the defendants. No further hearing was required because the affidavits set forth in the form required by Rule 56(e) the same matters which had been previously submitted to the court in oral argument and briefs. When the plaintiffs failed to respond to the affidavits filed by the defendants the facts stated therein stood uncontroverted of record, since the plaintiffs could not thereafter rely on the “mere allegations ... of [their] pleading” to establish the existence of a genuine issue of fact. In this posture, the only issue between the parties was whether the plaintiffs had complied with the requirements of an ordinance of the City of Warren, Michigan in attempting to obtain a theatre license and building permit. No issue was presented under the Constitution or any law of the United States. As the district court held, “This matter can be resolved at the state level without litigating constitutional issues.”

The judgment of the district court is affirmed.

EDWARDS, Circuit Judge

(concurring).

Plaintiff’s complaint and amended complaint stated a cause of action for conspiracy to deprive plaintiff of federal constitutional rights under the First Amendment.

As the Court’s per curiam points out, however, the District Judge dismissed this case on the basis of a motion for summary judgment supported by sworn affidavits which gave an entirely different set of reasons for the City’s failure to issue plaintiff a building permit.

Plaintiff has a right under Rule 56 of the Federal Rules of Civil Procedure to respond with sworn affidavits showing, if plaintiff could, that plaintiff’s application did comply with the City’s zoning ordinances. Alternatively plaintiff could have filed affidavits attesting under oath to facts, if they were available, which showed that the City’s reliance upon the zoning ordinance’s parking provisions was a mere pretext to hide an unconstitutional purpose. No such affidavits, however, were filed.

I concur.


author: CUMMINGS, Circuit Judge.

text:
    HAMILTON DIE CAST, INC., Plaintiff-Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Defendant-Appellee.
    No. 74-1077.
    United States Court of Appeals, Seventh Circuit.
    Argued Nov. 6, 1974.
    Decided Jan. 3, 1975.

      Barry T. McNamara, Chicago, 111., for plaintiff-appellant.
    Robert L. Kiesler, Chicago, 111., for defendant-appellee.
    Before SWYGERT, Chief Judge, MARIS, Senior Circuit Judge, and CUMMINGS, Circuit Judge.

       Senior Circuit Judge Albert B. Maris of the Third Circuit is sitting by designation.

   CUMMINGS, Circuit Judge.

In November 1972, plaintiff brought this declaratory judgment action seeking a determination of its rights under a contract of insurance issued by defendant which insured plaintiff against its liability for personal injuries and property damage caused by an “occurrence.” In November 1971, Midland Sporting Goods (“Midland”) sued plaintiff, which had agreed to manufacture for Midland all of its requirements of aluminum die cast tennis rackets. Midland claimed that the tennis racket frames were to be of good and merchantable quality and “porosity and oxide free, of optimum metal density and free of shrinkage.” According to Midland’s complaint, the number of rejects in the lots produced by plaintiff was not to exceed 1% and an implied warranty that the goods would be merchantable attached under Section 2 — 314 of the Uniform Commercial Code (Ill.Rev. Stats, ch. 26, § 2-314 (1973)). Midland sought $2,000,000 in damages from plaintiff for the following reasons set forth in its complaint:

“6. Defendant failed to make timely shipment and delivery of the said tennis rackets.
“7. Defendant failed to furnish to plaintiff all its requirements of said tennis rackets.
“8. The tennis rackets which were manufactured by defendant and sold and delivered to plaintiff were not of good and merchantable quality. The said tennis rackets were not porosity and oxide free, were not of optimum metal density and were not free of shrinkage.
“9. The number of rejects in the lots of tennis rackets manufactured by defendant and sold and delivered to plaintiff exceeded 1%.”

Paragraph 10 of the complaint describes the damages that Midland claims:

“10. As a result of the matters set forth in the foregoing paragraphs 6, 7, 8 and 9, plaintiff’s supply of tennis rackets was not sufficient for it to satisfy the demand for such rackets, plaintiff was required to refund the purchase price of defective tennis rackets which were returned to it, and the reputation of plaintiff and its tennis racket in the market was damaged. By reason of the foregoing, plaintiff has suffered damages to the extent of $2,000,000.”

As a result of the alleged defects Midland withdrew its tennis rackets from the market. As of the time of the oral argument before us, Midland’s suit had not yet been tried.

Plaintiff tendered the defense of the Midland action to defendant under its comprehensive general liability insurance policy, but defendant refused the tender on various grounds. In its answer to the instant complaint, defendant asserted that (1) there was no “occurrence,” as required by the insurance policy; (2) there was no “property damage” within the meaning of the policy; and (3) the so-called “sisterhood” exclusion (Exclusion N of the policy) was applicable. We agree. Since we uphold the validity of these three defenses, we do not reach other defenses asserted in defendant’s answer.

After both parties filed motions for summary judgment, then District Judge Tone issued an unreported memorandum opinion denying plaintiff’s motion and granting defendant’s, holding that “Midland’s claim is essentially one for loss of investment, loss of anticipated profits, and loss of goodwill” and that damages from injury to such intangible property rights were excluded from the policy’s coverage. In a supplemental opinion, he also held that the “sisterhood” exclusion (N) precluded coverage. He did not determine whether there was an “occurrence” within the meaning of the policy.

We affirm.

In pertinent part, the policy covers plaintiff’s liability for “property damage” which is “caused by an occurrence.” In our judgment, the district court correctly held that any sums plaintiff may be obligated to pay as a result of the Midland action will not be a result of “property damage” as defined in the policy. The definition is: “injury to or destruction of tangible property.” As Judge Tone rightly observed, Midland is claiming damages for injury to intangible property, so that coverage does not exist under the policy. See St. Paul Fire & Marine Ins. Co. v. Northern Grain Co., 365 F.2d 361, 367 (8th Cir. 1966); Hartford Accident & Indemnity Co. v. Case Foundation Co., 10 Ill.App.3d 115, 294 N.E.2d 7 (1st Dist. 1973). Since this is a diversity case, Illinois rules on choice of law are applicable because that is the state where the district court is located. Illinois choice of law rules dictate the choice of Ohio law, as the state wherein the insurance contract was apparently executed. However, plaintiff has cited no applicable authority from Ohio that is contrary to the Hartford case.

Using an inventive, if farfetched, approach, plaintiff contends in this Court, that there was “property damage” to the finished product, the racket, by reason of the incorporation of the allegedly defective part, the frame. We do not think that the mere inclusion of a defective component, where no physical harm to the other parts results therefrom, constitutes “property damage” within the meaning of the policy. For example, if an automobile crash results from the failure of its defective tire, the defective component can be said to have caused “property damage” to the finished product. If, however, some of the tires purchased by the automobile manufacturer are found to be defective and the manufacturer therefore withdraws its cars from the market, there has not been “injury to or destruction of tangible property,” which is (as noted) the definition of “property damage” in the policy. We also reject plaintiff’s contention that because Midland’s complaint implicitly seeks compensation for the loss of use of its machinery for finishing the rackets idled by the alleged lack of quality frames, the suit is one for “property damage.” Idled machinery is not injured or destroyed tangible property and, therefore, there is no “property damage” within the coverage of the policy.

Secondly, Exclusion N of the policy applies, as held in the district court’s second memorandum opinion. That clause specifically excludes:

“damages claimed for the withdrawal, inspection, repair, replacement or loss of use of the Named Insured’s products or work completed by or for the Named Insured or of any property of which such products or work form a part, if such products, work or property are withdrawn from the market or from use because of any known or suspected defect or deficiency therein” (emphasis added).

Here Midland withdrew the tennis rackets from the market because the frames “were not porosity and oxide free, were not of optimum metal density and were not free of shrinkage.” As the district judge observed, Exclusion N was “designed to exclude from coverage costs incurred by the withdrawal of goods from the market, the situation presented here.” (See emphasized language of Exclusion N above.) Under the language of Exclusion N, it is immaterial that the withdrawal was not by the insured.

Finally, although it was not a basis for the district court’s decision, we think it is appropriate to note that the damages claimed by Midland were not the result of “an occurrence” as required by the terms of the policy. An “occurrence” is defined as “an accident, including injurious exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the Insured.” Because Midland’s complaint controls the question whether defendant must accept the tender of defense, it is of course immaterial that plaintiff’s declaratory judgment complaint characterizes Midland’s suit as “for property damage arising from an occurrence of alleged negligent manufacture” of aluminum tennis racket frames by plaintiff. If one of the completed rackets had broken during normal use due to the defective frames and a person or an item of property had been harmed, it seems clear that there would have been an “occurrence” and that defendant would have had responsibility for plaintiff’s defense. Such a situation would clearly be “an accident.” The policy does not, however, cover “an occurrence of alleged negligent manufacture”; it covers negligent manufacture that results in “an occurrence.” Plaintiff’s strained interpretations aside, the Midland complaint would not support a reasonable belief that Midland’s damages were the result of “an occurrence” within the definition of the policy in suit.

Plaintiff relies upon Maurice Pincoffs Co. v. St. Paul Fire & Marine Ins. Co., 447 F.2d 204 (5th Cir. 1971), to support its argument that there was an “occurrence” under defendant’s policy. However, in that case, the parties did not disagree on whether an occurrence had in fact transpired. The question before the court was whether there was one occurrence of liability or eight separate occurrences under the policy. The Pin-coffs case is inapplicable because it did not focus upon the issue before us.

Because it was not raised below, we do not consider plaintiff’s argument that since Midland’s suit against plaintiff had not yet been tried, summary judgment in this case was premature.

Judgment affirmed.

      . Although Midland’s complaint refers to “tennis rackets,” it is clear that plaintiff was commissioned to make only the frames. Apparently Midland would then undertake to complete the rackets by adding string, handles, etc. This fact is crucial to plaintiff’s theory of the case before us.

      . The “sisterhood” exclusion is discussed in R. Elliott, New Comprehensive General Liability Policy, Practicing Law Institute XII-QQ-9 (1967).

      . See Paragraph 10 of Midland’s complaint quoted supra.

      . The non-Ohio cases relied upon by plaintiff to show that there was property damage are inapposite because they involve policy provisions differing from the one before us.

      . To the extent that Parker Products, Inc. v. Gulf Insurance Co., 486 S.W.2d 610 (Tex.Civ.App.1972), is to the contrary, we agree with the dissenting opinion. This point, was not discussed when the Parker Products case reached the Supreme Court of Texas. See 498 S.W.2d 676 (1973).


author: STEPHENSON, Circuit Judge.

text:
    PREFERRED RISK MUTUAL INSURANCE COMPANY, Garnishee-Appellant, v. M. Sidney HEDEEN and Farmers Insurance Exchange, Garnishee-Appellees.
    No. 74-1479.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 12, 1974.
    Decided Jan. 2, 1975.
    Rehearing and Rehearing En Banc Denied Jan. 24, 1975.
    Sheldon D. Karlins, Minneapolis, Minn., for garnishee-appellant.
    Thomas J. Battis, St. Paul, Minn., for garnishee-appellees.
    Before MATTHES, Senior Circuit Judge, and ROSS and STEPHENSON, Circuit Judges.
   STEPHENSON, Circuit Judge.

The sole question on this appeal is which of two insurance companies is liable for a judgment entered against a vehicle driver. The trial court, applying Minnesota law, held that appellee insurance company, which withdrew from active defense of the judgment debtor after discovering a policy exclusion, was not estopped from denying liability where actual prejudice was not shown. We affirm.

The genesis of this litigation arose when defendant Floreen, while driving plaintiff Hedeen’s camper, negligently caused an accident resulting in injury to plaintiff Hedeen, who was riding in his own camper as a passenger. Appellee Farmers Insurance Exchange, which had issued a liability insurance policy to plaintiff Hedeen covering the vehicle involved, initially assumed the defense in behalf of defendant Floreen by filing answer on June 15, 1973. A motion to dismiss for lack of jurisdiction over the person of Floreen was also filed and denied by the court on June 25, 1973.

On August 6, 1973 counsel for Farmers sent a certified letter to defendant Flo-reen informing him there was no coverage afforded him under Farmers’ policy because plaintiff Hedeen was a named insured and excluded from coverage under the terms of the policy. The letter further advised Floreen to contact Mr. Sheldon Karlins, attorney for appellant Preferred Risk Insurance Company, and request that he “ * * * undertake to protect you in accordance with the provisions of your own policy” (with Preferred Risk). A copy of this letter was mailed to Attorney Karlins.

On August 7, 1973 the parties received a letter from the clerk of the district court indicating that trial of the case was imminent, discovery would terminate, and all motions would be set for hearing within 21 days. This letter was forwarded by counsel for Farmers to counsel for Preferred Risk. Thereafter correspondence between the insurance companies and their counsel shows that neither company was willing to undertake the defense of Floreen. Counsel for Farmers filed a motion with the court seeking to withdraw, which was denied. The court then entered ■ a default judgment against Floreen for failure to proceed with the defense and awarded judgment in favor of plaintiff and against Floreen in the sum of $6,706.01 plus costs.

After entry of the default judgment plaintiff Hedeen commenced garnishment proceedings against both insurance companies pursuant to F.R.Civ.P. 64 and applicable Minnesota statutes. The two companies stipulated that the court should decide which of the companies was liable to the plaintiff Hedeen for payment of the default judgment against the defendant Floreen.

The trial court ordered that judgment be entered against appellant Preferred Risk, stating in part as follows:

Although it is clear that counsel of record may not withdraw from a case without leave of Court, the Court believes that the record supports the conclusion that judgment debtor’s counsel of record [the Murnane firm] should have been granted leave to withdraw when the policy exclusion was discovered. Furthermore, a review of the file fails to reveal any prejudice to judgment debtor. Therefore, the Court finds that judgment debtor’s counsel [the Murnane firm] was not obligated to defend after discovery of the exclusion and its attempt to withdraw. See Boulet v. Miller’s Mutual Insurance Ass’n, 362 F.2d 619 (8th Cir. 1966).
Nevertheless, the Court recognizes that Preferred Risk has not had an opportunity to defend judgment debt- or under the terms of its policy. Therefore, the Court will enter judgment against Preferred Risk with the qualification that the Court will entertain a motion by Preferred Risk to vacate judgment and afford Preferred Risk an opportunity to defend its insured under the Policy should it desire to do so.

Thereafter Preferred Risk made the motion to vacate invited in the trial court’s above order. The motion was denied. Preferred Risk paid the judgment under an agreement with Floreen, reserving its rights to present this appeal.

Preferred Risk now contends that Farmers, having assumed the defense of the action against Floreen and having continued its defense until trial was imminent and, further, having been denied the right to withdraw from the defense at the same hearing at which default judgment was entered, is now precluded by law from denying insurance coverage to defendant Floreen. In substance, Preferred Risk claims that the manner in which Farmers acted with respect to the defense of defendant Floreen now estops Farmers from relying on its policy defense.

Farmers, on the other hand, contends that it is not estopped to set up its exclusion since it notified the parties when it discovered its exclusion, attempted to withdraw from the case, and no prejudice resulted.

The principles of law governing this matter are stated in Boulet v. Millers Mutual Insurance Ass’n of Illinois, 362 F.2d 619, 622 (8th Cir. 1966), as follows:

The law of Minnesota is clear to the effect that where an insurance company assumes the defense of an action or claim, with knowledge, actual or presumed, of a defense of non-liability under the policy, and conducts the action to final judgment, or the claim to settlement, it is estopped from raising the defense of non-coverage. Prejudice, which is an essential element in an estoppel, is, in such a case, conclusively presumed to have resulted to the insured by the conduct of the insurer. But where, under like circumstances, the insurer disclaims and withdraws prior to final judgment or settlement, prejudice to the insured is not presumed and the insurer is not estopped from raising the defense of non-coverage without proof by competent evidence that the insured was actually prejudiced by its conduct. (Citing cases.)

In the instant case Farmers notified defendant Floreen and Preferred Risk when it became aware of its policy exclusion; requested Preferred Risk to assume the defense, which it refused to do; advised defendant Floreen that it would undertake the defense if he would execute a non-waiver of the conditions of the policy, which he refused to do; and attempted to withdraw from the case.

If Preferred Risk had assumed the defense when notified of Farmers’ no coverage claim in early August, no problem would have been presented. Discovery had not been closed. In fact, Preferred Risk’s counsel was informed of the depositions of defendant Floreen set for August 28 and reset for September 21. (Plaintiff’s motion for default was based on Floreen’s failure to appear at the scheduled depositions and with his counsel at pretrial settlement conferences.) Preferred Risk took a chance that it might prevail because of Farmers’ belated claim of exclusion. The court properly found for Farmers on this issue.

The trial court also gave Preferred Risk the opportunity to show prejudice by inviting a motion to vacate the judgment. No such showing was made. No claim is now made that the judgment was excessive. Under these circumstances the judgment against Preferred Risk must be affirmed. See Minnesota Mutual Fire and Casualty Co. v. Benson, 292 Minn. 314, 195 N.W.2d 446 (1972).

Affirmed.

      . Plaintiffs complaint charged that additional defendants, Camper Conversions, Inc. and Ford Motor Company, were also liable because those two companies installed defective or inadequate equipment on the vehicle. Ultimately judgment was entered against defendant Floreen only.

      . Preferred Risk was not satisfied with the showing Farmers had made with respect to its exclusion under the policy and, in any event, was of the view that Farmers by their actions in the case had waived any right to claim exclusion. Farmers offered to defend under a non-waiver agreement, which Floreen refused to execute.


author: DONALD RUSSELL, Circuit Judge:

text:
    Frank PRITCHARD, Appellant, v. James E. PERRY and H. H. Griffis, Appellees.
    No. 74-1528.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 5, 1974.
    Decided Jan. 10, 1975.

      C. Rauch Wise, Greenwood, S. C., for appellant.
    A. Camden Lewis, Asst. Atty. Gen. of S. C. (Daniel R. McLeod, Atty. Gen., and Donald V. Myers, Asst. Atty. Gen. of S. C., on brief), for appellees.
    Before WINTER, CRAVEN and RUSSELL, Circuit Judges.
   DONALD RUSSELL, Circuit Judge:

The plaintiff in his complaint sought recovery of damages for a violation of constitutional rights arising out of his allegedly wrongful arrest and imprisonment by the defendants, both State police officers. He specifically alleged that the defendants “knew or should have known that the charges [on which his arrest was based] were not true and were not based upon fact” and “[t]hat the arrest and detention of the Plaintiff was completely and totally without legal justification.” The defendants made no motion to dismiss the complaint but filed an answer on the merits. At a pre-trial hearing, plaintiff’s counsel conceded, under questioning from the Court, that the plaintiff, following arrest, had actually been detained for merely a short time and had, during such restraint, suffered no physical injury. At this point, the Court proceeded to dismiss the action on its own motion on the ground that a cause of action for violation of constitutional rights under Section 1983, 42 U.S.C. exists only if the constitutional violation giving rise to the action is “aggravated” or flagrant. In so dismissing the action, the District Court erred.

The defendants assume — as they must under the controlling authorities — that an unjustified arrest and detainer represent an unconstitutional deprivation, violative of an individual’s rights under both the Fourth and Fourteenth Amendments, redressable, at least in certain circumstances even under their argument, by reason of Section 1983. But they urge, and the District Court so ruled, that such a deprivation confers no right of action under Section 1983 unless that deprivation is aggravated by the “use of excessive force, such as beating, or some aggravation by means of detention, [over an] extremely long period of time without making available bond or without allowing the party to make a call to arrange for bond.” They would thus read into Section 1983 what the District Court described as a de minimis rule. The difficulty with the argument, as well as the ruling of the District Court adopting it, is that, as the Court in Joseph v. Rowlen, supra (402 F.2d at 369) remarked in dismissing a similar argument, “there is nothing in the language of sec. 1983, or the fourth and fourteenth amendments as presently construed” to support such a limitation on a right of action under Section 1983, contrary as it is to the broad tone of that section, which, as Justice Harlan described it in his concurring opinion in Monroe v. Pape (1961) 365 U.S. 167, 196, 81 S.Ct. 473, 489, 5 L.Ed.2d 492, is “one of overflowing protection of constitutional rights.” That argument would disregard the fact that it is the constitutional deprivation under color of state law, not the force used in effecting the deprivation or the extent of the injury suffered, that provides the basis for an action under Section 1983. That an infringement of personal liberty such as follows from an unconstitutional arrest has resulted in but a short period of restraint or has involved no physical injury may go in mitigation of damages but it manifestly cannot immunize the constitutional deprivation or abort an aggrieved plaintiff’s right of action under Section 1983. The enabling statute was not so considered at the time of its enactment nor has it since been authoritatively construed. There is no justification for the incorporation of a de minimis rule by way of a limitation on the right of action by an individual for an admitted violation of constitutional rights. There is no warrant for any separation of constitutional rights into redressable rights and non-re-dressable rights, of major and minor unconstitutional deprivations, and Section 1983 makes no such distinction and authorizes no such separation. By its very terms it applies indiscriminately to a “deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” (Italics added)

The defendants would draw upon an analogy with prisoners’ Section 1983 claims as authority for their proposition that not every constitutional deprivation — only those “of constitutional dimensions” — measures up to the type of deprivation cognizable generally under Section 1983. In advancing this contention, the defendants lost sight of the obvious distinction that exists between the ordinary citizen .and the prison inmate. By the very nature of his confinement a prisoner is deprived of certain liberties that are the normal rights of the individual citizen. Deprivation is, to some extent, a necessary part of his confinement. So long as the deprivations of a prison inmate are no more than the “ ‘necessary or reasonable concomitants of [his] imprisonment’ ” they do not rise to a constitutional level or, to use the defendants’ phrase, are not “of constitutional dimensions.” It is only when the deprivation imposed on the inmate goes beyond the reasonable limits of prison administration that it becomes an unconstitutional deprivation. But an individual, not under the disability of prison confinement, on the contrary, has an “incontrovertible” right — a right always “of constitutional dimensions” to be free from unreasonable interference by police officers and to enjoy “security from ‘arbitrary intrusion by the police.’ ” Jenkins v. Averett, supra (424 F.2d at 1231). That was the right the plaintiff, by his complaint, was asserting. It was a right of unquestioned “constitutional dimensions.”

It is true, as we have on several occasions stated, that a police officer, sued in an action for unconstitutional arrest under Section 1983, may defend on the ground that he acted in good faith in a reasonable belief on his part in the validity of the action. But good faith and reasonable belief are matters of defense, the burden of establishing which rests on the defendant-officer. The defendants in this case, by their answer, have raised this defense. That defense has not been ruled on and is open for resolution at trial or by a motion under Rule 56. The only circumstance when it would be appropriate to dismiss an action under Rule 12 without a trial on the merits or in the absence of a motion for summary judgment, would be when the good faith and reasonable belief of the arresting officers appeared incontestably on the face of the plaintiff’s pleading. That is not our case. The dismissal of the action is accordingly reversed.

Reversed.

      . Street v. Surdyka (4th Cir. 1974) 492 F.2d 368, 372; Jenkins v. Averett (4th Cir. 1970) 424 F.2d 1228, 1231-1232; Kerr v. City of Chicago (7th Cir. 1970) 424 F.2d 1134, 1140, cert. den. 400 U.S. 833, 91 S.Ct. 66, 27 L.Ed.2d 64; Joseph v. Rowlen (7th Cir. 1968) 402 F.2d 367, 369; Nesmith v. Alford (5th Cir. 1963) 318 F.2d 110, 124, cert. den. sub nom. Sullivan v. Nesmith, 375 U.S. 975, 84 S.Ct. 489, 11 L.Ed.2d 420; Cohen v. Norris (9th Cir. 1962) 300 F.2d 24, 30-31; Droysen v. Hansen (D.C.Wis.1973) 59 F.R.D. 483.
      Wells v. Ward (10th Cir. 1972) 470 F.2d 1185, cited by the appellees, should be read in connection with the more recent case of Draeger v. Grand Central, Inc. (10th Cir. 1974) 504 F.2d 142, 145, especially n. 2.

      . In discussing the scope of Section 1983, the Court in Monroe v. Pape, supra, quoted from the Congressional debates this description of the section by one of its opponents (365 U.S. at 180, 81 S.Ct. at 480):
      “ ‘The deprivation may be of the slightest conceivable character, the damages in the estimation of any sensible man may not be five dollars or even five cents; they may be what lawyers call merely nominal damages; and yet by this section jurisdiction of that civil action is given to the Federal courts instead of its being prosecuted as now in the courts of the States.’ ”

      . Cf., Weddle v. Director, Patuxent Institution (4th Cir. 1970) 436 F.2d 342, vacated and remanded for further consideration in light of Lynch v. Household Finance (1972) 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424.

      . Johnson v. Glick (2d Cir. 1973) 481 F.2d 1028, cert. den. 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 32; Jones v. Superintendent (D.C.Va.1974) 370 F.Supp. 488; Blakey v. Sheriff of Albemarle County (D.C.Va.1974) 370 F.Supp. 814; Fisher v. Woodson (D.C.Va.1973) 373 F.Supp. 970.

      . See, Breeden v. Jackson (4th Cir. 1972) 457 F.2d 578, 580; Edwards v. Duncan (4th Cir. 1966) 355 F.2d 993, 994.

      . Hill v. Rowland (4th Cir. 1973) 474 F.2d 1374, 1378; Madison v. Manter (1st Cir. 1971) 441 F.2d 537; Bartlett v. Wheeler (D.C.Va.1973) 360 F.Supp. 1051.

      . Cohen v. Norris, supra (300 F.2d at 32).


author: BRIGHT, Circuit Judge. MATTHES, Senior Circuit Judge

text:
    UNITED STATES of America, Appellee, v. Nathaniel BROWN, Appellant.
    No. 74-1418.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 11, 1974.
    Decided Dec. 12, 1974.

      Thomas M. Larson, Asst. Federal Public Defender, Kansas City, Mo., for appellant.
    Anthony P. Nugent, Jr., Asst. U. S. Átty., Kansas City, Mo., for appellee.
    Before MATTHES, Senior Circuit Judge, BRIGHT, Circuit Judge, and TALBOT SMITH, Senior District Judge.

       TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.

   BRIGHT, Circuit Judge.

Nathaniel Brown, a traveler enroute from Kansas City, Missouri, to Philadelphia, Pennsylvania, commenced preflight boarding procedures conducted by Trans World Airlines for passengers intending to board Flight No. 270 at Kansas City, Missouri, on August 13, 1972. Brown presented his flight bag to an employee of TWA for a routine search. The search of the flight bag disclosed a loaded Vanguard tear gas pistol and eight shells (five tear gas and three blank) among numerous items of personal belongings. Brown was arrested and charged with attempting to board an aircraft having “on or about his person a concealed deadly or dangerous weapon * * *” in violation of 49 U.S.C. § 1472(7 ) In a court trial the United States Magistrate for the Western District of Missouri found Brown guilty and sentenced him to five years probation. On appeal, the district court affirmed the conviction, United States v. Brown, 376 F.Supp. 451 (W.D.Mo.1974), and Brown brought this appeal.

Prior to the oral arguments in this case, this court learned that in a recent similar prosecution under § 1472(7) the Solicitor General of the United States had recommended to the Supreme Court that it vacate the defendant’s conviction and remand the case to allow the Government to move for dismissal. The Supreme Court accepted this recommendation. Margraf v. United States, 414 U.S. 1106, 94 S.Ct. 833, 38 L.Ed.2d 734 (1973), vacating and remanding 483 F.2d 708 (3d Cir. 1973). The Third Circuit subsequently remanded the case to the district court for dismissal. United States v. Margraf, 493 F.2d 1206 (3d Cir. 1974).

We believed that the circumstances disclosed in the instant case were sufficiently similar to the facts in Margraf to justify a similar disposition. See discussion, part II, infra. Consequently, at oral argument, we queried whether the Government might wish to move for dismissal in the instant case, and, at our suggestion, Government counsel contacted the Department of Justice for instructions. The Justice Department has declined to seek dismissal. Accordingly, we turn to an examination of the merits.

I.

This case was tried on the testimony of defendant-Brown and on a stipulation of facts between the parties. The defendant testified:

I * * * purchase[d] a tear gas gun some years back for the purpose of scaring dogs away. In Philadelphia we have numerous vicious dogs that are allowed to run loose in the city streets, and I have been chased by a dog before, and I bought it to — the tear — I bought the tear gas gun to scare away dogs. And I usually kept it in a — in a d — blue travel bag that I had with me.

Although Brown was aware that federal law prohibited anyone from carrying a dangerous and deadly weapon aboard an airplane, he was not fully aware that the tear gas pistol was in his carry-on bag when he presented it to airline personnel for inspection.

The parties by stipulation agreed to the following facts:

1. On August 3, 1972, shortly before 5:00 p.m., defendant Nathaniel Brown presented himself at Gate 7-8 for the purpose of boarding Trans World Airlines Flight 270 for a flight from Kansas City, Missouri, to Philadelphia, Pennsylvania. At that time he was screened by the magnetometer for firearms on his person. At the same time a separate and routine search of his flight bag was made by an employee of Trans World Airlines, in the course of which a loaded Vanguard tear gas pistol and eight shells (five tear gas and three blank) were found beneath numerous items of personal belongings.
2. This search of defendant’s flight bag was routine in that a search of the carry-on luggage for all passengers boarding Flight 270 was then being conducted, and the defendant was not the first to be searched.
3. Prior to the search defendant had presented his ticket to the TWA agent and had been furnished with a boarding pass for Flight 270.
4. Defendant at no time herein-mentioned aroused the suspicion of the TWA employees or the U.S. Marshals. Defendant was not stopped and searched because he fit the so-called “profile”. Defendant made no attempt to hide, to use or to reach for the tear gas gun in his flight bag.
5. The tear gas pistol in question is incapable of firing any kind of solid projectile and it is only capable of firing a dose of tear gas in gaseous form, or a blank cartridge. The tear gas gun is incapable of accepting into its chamber a bullet of any calibre and is not amenable to modification to accept such ammunition in that the cylinder is so constructed as to block the insertion of regular ammunition. Moreover, the barrel of the tear gas gun in its present form contains a metal piece which is apparently the bottom part of the sight at the top of the barrel. Finally, the tear gas gun is constructed of such light metal as to be dangerous to the person who might attempt to fire regular ammunition through the barrel if the cylinder could be modified.
6. The defendant’s character is good. He is the assistant pastor of St. Mark’s Christian Methodist Episcopal Church, 1520 N. Marshall St., Philadelphia, Pennsylvania, and pastor of the St. James Station Circuit Mission of the Philadelphia District of the New York-Washington Annual Conference of the Chriátian Methodist Episcopal Church.

At the close of the evidence Brown moved for a judgment of acquittal asserting that the tear gas pistol was not a per se “deadly or dangerous weapon” and that the failure of the Government to introduce any evidence that appellant intended to use the pistol in a dangerous manner precluded, as a matter of law, a finding that the pistol was “deadly or dangerous” within the meaning of § 1472(1). In affirming the magistrate’s rejection of this contention, District Judge Becker concluded that

under the facts presented in the case at bar and considering both the per se (inherent) and use capacities of the weapon in question, the .22 caliber Vanguard tear gas gun loaded with one or more tear gas cartridges was a “dangerous” weapon within the meaning of Section 1472(1) * * *. [376 F.Supp. at 459.]

We agree with this conclusion for the reasons set forth in the district court’s extensive opinion.

Although this agreement with the district court would ordinarily require an affirmance, under the circumstances of this case we deem it necessary to consider whether we should examine sua sponte an issue not raised before the magistrate, the district court, or this court. That issue is whether the tear gas pistol was actually “concealed” as required by § 1472(1). Under limited circumstances, Fed.R.Crim.P. 52(b) authorizes federal appellate courts to examine a critical issue not raised on appeal.

That rule reads:

Plain errors or defects affecting substantial rights may ■ be noticed although they were not brought to the attention of the court. [Fed.R.Crim.P. 52(b).]

As the Supreme Court has observed, this power may be invoked on appeal, sua sponte:

In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings. [United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936).]

See Silber v. United States, 370 U.S. 717, 718, 82 S.Ct. 1287, 8 L.Ed.2d 798 (1962); Brotherhood of Carpenters v. United States, 330 U.S. 395, 412, 67 S.Ct. 775, 91 L.Ed. 973 (1947). See generally 3 C. Wright, Federal Practice and Procedure § 856 (1969).

This power to review issues not raised by the parties must be exercised only with great caution and its use is restricted “to avoid a miscarriage of justice.” Johnson v. United States, 362 F.2d 43, 46 (8th Cir. 1966). See United States v. Atkinson, supra; United States v. Scott, 485 F.2d 576 (8th Cir. 1973), cert. denied, 416 U.S. 941, 94 S.Ct. 1946, 40 L.Ed.2d 292 (1974); United States v. Reed, 446 F.2d 1226, 1230 (8th Cir. 1971); United States v. Robinson, 419 F.2d 1109, 1111-1112 (8th Cir. 1969).

In determining whether to apply the plain error rule, we must consider whether an injustice has been done to defendant-Brown. Additionally, we must consider the effect of the' application of the precedent established by the district court upon the millions of persons in this country who yearly travel in commercial aircraft.

The district court opinion notes that for purposes of Section 1472(7), a deadly or dangerous weapon is measured by the possible or probable use of the weapon to cause death or serious bodily injury * * *. [376 F.Supp. at 458.]

Such a rule of law in the context of the district court opinion carries the implication that an airline passenger violates federal law when carrying any object under cover, such as within a handbag or flight bag, which could potentially be used as a weapon even though that object is readily discoverable on the routine inspection now carried out at all commercial airports. Obviously, such a rule of law carries far-reaching consequences for the unwary and uninformed person who may travel by air. Indeed, the following individuals have already been prosecuted under this statute:

1) a musician-passenger carrying in his pocket a pocketknife used as a “tool,” United States v. Margraf, 483 F.2d 708, 709 (3d Cir. 1973);
2) a passenger carrying in his jacket pocket a starter pistol, United States v. Dishman, 486 F.2d 727, 729 (9th Cir. 1973) (the appellate court reversed the defendant’s conviction holding that a starter pistol was not a “ ‘deadly and dangerous’ weapon per se”);
3) a passenger carrying a tear gas pistol in his flight bag — the instant case.

Additionally, we surmise that under the rationale of the district court the typical airline passengers listed below might be subject to prosecution for carrying the following items under cover: 1) a woman carrying long and sharp knitting needles or a pair of scissors in her flight bag, see United States v. Mar-graf, supra, 483 F.2d at 712; 2) a boy scout carrying a hunting knife or hatchet in his backpack, see id.; 3) a mother accompanied by her child and carrying an authentic-looking toy gun in her purse or in the child’s toy bag, see United States v. Dishman, supra, 486 F.2d at 732. This discussion demonstrates that the precedent established by this case as well as affecting substantial rights of the appellant will also have a far-reaching public effect. The failure of the magistrate to consider the concealment issue was an obvious error. Because of the significance of this case to the public, we believe we should examine all relevant aspects of the case, including, on our own motion under Fed.R.Crim.P. 52(b), the issue of concealment of the tear gas gun.

The statute in question required the prosecution to prove that the defendant (1) attempted to board or did board a commercial aircraft while (2) carrying a “deadly or dangerous weapon” which was (3) “concealed * * * on or about his person.” 49 U.S.C. § 1472(7). See United States v. Dishman, supra, 486 F.2d at 730; United States v. Margraf, supra, 483 F.2d at 709.

The Government has established the first two elements in this case. However, on the concealment issue, the stipulation entered into by the Government and Brown specifically recites that the “[djefendant made no attempt to hide, to use or to reach for the tear gas gun in his flight bag” and that the pistol was “found beneath numerous items of personal belongings.” The magistrate, the factfinder in this case, made no express finding of concealment but merely stated an overall conclusion that the tear gas pistol found in the flight bag “was a concealed dangerous weapon.” The district court, acting in the capacity of an appellate court without de novo factfind-ing powers, relegated the element of concealment to the following parenthetical statement: “(The fact that the handgun was concealed is amply proved.)” United States v. Brown, supra, 376 F.Supp. at 457. In light of the stipulation, we cannot accept this statement as dispositive of the concealment issue.

In examining what constitutes “concealment,” we are cognizant that the circumstances surrounding preflight boarding procedures of aircraft have been drastically altered between the time of the passage of § 1472(7) in 1961 and the time of the incident before us in August 1972. In 1961, prior to the institution of compulsory preflight boarding examination of luggage and person, any nondisclosure to airline personnel of an object considered to be a deadly or dangerous weapon could properly constitute a concealment of the weapon within the purview of the statute. Cf. United States v. Ware, 315 F.Supp. 1333 (W.D.Okl.1970); United States v. Brown, 305 F.Supp. 415 (W.D.Tex.1969). However, by August 1972, according to the stipulation; passengers intending to board commercial aircraft at the Kansas City airport were required, as a precondition for air travel, to present their carry-on luggage to airline personnel for a routine search and to present themselves for magnetometer detection. The history of governmental regulations leading to procedures such as those in operation at the Kansas City airport for the purpose of preventing aircraft piracy and hijacking has been documented and explained in United States v. Davis, 482 F.2d 893 (9th Cir. 1973).

The institution of these preflight boarding procedures, such as those carried out during the incident in question, requires a court to consider whether a passenger who voluntarily tenders his hand luggage to a qualified inspector is concealing any item which will be observed upon routine inspection. Ordinarily, the act of a passenger presenting his hand luggage to responsible airline personnel for inspection suggests an intent to disclose rather than to conceal those items within the bag which will come into view on ordinary inspection.

Here, the parties have stipulated that the search was routine and that the defendant made no attempt to hide the tear gas gun although the pistol and shells were found beneath numerous items of personal belongings. In amplification of the stipulation, the defendant testified that he had not completely unloaded his flight bag during his travels, but merely removed the items he needed and repacked them for his return trip, without being fully aware 'that the tear gas gun had been left in his flight bag.

The circumstances apparent on the record here are more suggestive of a lack of concealment than the facts related in United States v. Margraf, supra, 483 F.2d at 709, where the defendant, upon inquiry, denied carrying “a knife, a weapon, or any other large metallic object,” or in United States v. Dishman, supra, 486 F.2d at 729, where the passenger, who was carrying a starter pistol, initially denied carrying any metal object. Such a denial, which is not present in the instant case, may imply an intent to conceal. Although neither Margraf nor Dishman discussed the concealment issue, the convictions were subsequently vacated or reversed on other grounds.

We recognize that concealment can occur even though an airline passenger tenders his hand luggage for inspection. A potentially dangerous object may be hidden in a false bottom or secret compartment; a knife or gun may be wrapped in a wet diaper; or other evidence may exist indicating concealment. But no such circumstances are apparent from the record before us. Thus, in the absence of an adequate record and a specific finding by the magistrate, we cannot assume that concealment existed here. Accordingly, we hold that the conviction must be set aside and the case remanded. At the new trial, either party should be permitted to introduce further evidence, if any is available, bearing upon this question.

II.

Under the circumstances of this case, we deem it appropriate to comment on our suggestion to Government counsel at oral argument that a dismissal of the prosecution might be appropriate in light of the Government’s action in Margraf v. United States, supra.

The facts in Margraf show that the defendant triggered a positive response in walking through a magnetometer device prior to boarding an airline flight. After Margraf specifically denied that he was carrying a “knife, a weapon, or any other large metallic object” on his person, 483 F.2d at 709, a security officer searched him and discovered a lxh inch-long folding pocketknife with a 3V4 inch blade. As in the case before us, Margraf was charged with attempting to board an aircraft carrying a concealed or dangerous weapon. At his trial Margraf, a member of a rock music band, testified that he had carried the knife for a long time and used it as a tool on various musical instruments. He further stated that he was unaware that it was illegal to carry such a pocketknife aboard a plane and would have willingly surrendered the knife had he realized that the security officer’s inquiry covered such a pocketknife. Margraf was convicted and the Third Circuit Court of Appeals, sitting en banc, affirmed the conviction with three judges dissenting. United States v. Margraf, 483 F.2d 708 (3d Cir. 1973).

The Solicitor General, stating that the prosecution in Margraf “was contrary to the policy of the Department of Justice,” recommended to the Supreme Court that it grant certiorari and vacate Margraf’s conviction because the pocketknife carried by him did not clearly come within the purview of the term “weapon or dangerous object” as defined by guidelines of the Federal Aviation Administration (FAA), promulgated subsequent to the incident. Memorandum for the United States at 3-4, Margraf v. United States, 414 U.S. 1106, 94 S.Ct. 833, 38 L.Ed.2d 734 (1973). The Solicitor General represented to the Court:

Petitioner’s knife could lawfully be possessed and carried by him in both Pennsylvania, where he sought to board the aircraft, and California, his destination * * *. It would thus not be considered a “weapon or dangerous object” under the [FAA] guidelines * * *
The Department of Justice,has therefore concluded that prosecutions under Section 1472(7) should not be undertaken with respect to objects not proscribed under the guidelines, at least in the absence of unusual, aggravating circumstances, or where local law may be unduly lax in regulating the carriage of knives or other objects. Since the present case presents no aggravating circumstances and involves no unduly lax local laws, petitioner should not be subject to prosecution. [Memorandum for the United States, supra, at 4-5 (footnote omitted).]

In examining this same guideline, we observe that a tear gas pistol does not come within the description of items to be “considered as a weapon or dangerous object” but instead is classified as one item among several listed under the heading “Gases and Chemical Agents” which merely are to be “prohibited in the interest of air security.” The guideline calls for notification of law enforcement officers only upon discovery of “an undeclared firearm or other obviously dangerous weapon * * *.” (Emphasis in original). Since a tear gas pistol, such as the one carried by appellant, does not appear to come within the classification of a “weapon or dangerous object” under the guidelines, the rationale of the Solicitor General in seeking a dismissal in Margraf could justify similar treatment for Brown. However, the decision to prosecute is a matter within the discretion of the Government and we do not attempt to supervise the Department of Justice in the exercise of its prosecu-torial discretion. See United States v. Brown, 481 F.2d 1035, 1043 (8th Cir. 1973).

Reversed and remanded.

MATTHES, Senior Circuit Judge

(dissenting).

In disagreeing with the result reached by the majority, I deem it appropriate to emphasize what is not involved in this appeal. Appellant does not claim that he has been deprived of any constitutional right; that he was subjected to an unreasonable search or seizure; that he was illegally arrested, or that he was deprived of his fifth amendment rights. My brethren do not rest their opinion on constitutional grounds.

In searching for a basis to reverse, my brethren have resorted to the “Plain Error” rule and by that vehicle have concluded that prejudicial error resulted from the failure of the magistrate and the district judge to consider the concealment issue. With due deference, I am convinced that this record does not reveal plain error or, for that matter, any error as to concealment or any other element of the offense. Therefore, I dissent.

I recognize that in exceptional circumstances, this court may sua sponte notice error to which no exception has been taken, but as the majority recognizes, this power to review issues not raised by the parties must be exercised only with great caution. Surely the rule does not contemplate reversing simply because the appellate court is disturbed by the initiation of' the prosecution in the first instance and the ensuing judgment of conviction.

The magistrate in this case, the Honorable Calvin K. Hamilton, is faulted for not considering the concealment issue. Page 431, majority opinion. However, consideration of the proceedings before Judge Hamilton demonstrates not only that the concealment issue was not presented to the magistrate, but that in fact the appellant conceded the subject weapon was in the hand luggage when appellant attempted to board the airplane.' This is clear from the first and second paragraphs of the written stipulation filed in the magistrate court, reproduced at pages 429-430 of the opinion of the majority. Moreover, an admission was made by the appellant before the magistrate which to my mind clearly demonstrates that the appellant recognized that the subject weapon was in his hand luggage and for that reason waived any right to consideration of the element of concealment. After the written stipulation had been filed, and during the course of the proceedings, the following occurred:

THE COURT (Magistrate Hamilton): . . . Will the parties stipulate for certain so this record will be clear that the defendant was attempting to board an aircraft that was being operated by an air carrier in trans — in air transportation.
MR. ELDREDGE (Counsel for appellant): We will so stipulate.
THE COURT: And one other thing that I want to clear up with regard to this Stipulation. Perhaps it’ll be cleared up by the defendant’s testimony, but was it — the defendant was carrying the flight bag in which was found the Vanguard tear pistol and the shells in his hand — carrying it in his hand at the time that he was going through the gate — going through the magnetometer.
MR. ELDREDGE: That’s correct, your Honor.
THE COURT: And it was then in his — in or — in his person — I mean the bag itself in which was the — in which was contained the tear gas pistol was being carried by the defendant as he was boarding the — attempting to board the aircraft and in so doing was — went through the magnetometer.
MR. ELDREDGE: That’s correct.

Subsequent to submission of the case to the magistrate, the appellant filed an exhaustive memorandum in support of his motion for judgment of acquittal. The only point raised was

The Government’s proof leaves reasonable doubt as a matter of law that the .22 calibre Vanguard pistol designed to fire only blank and tear gas cartridges as a “dangerous or deadly” weapon within the purview of 49 U.S.C. § 1472(1). (Taken from appellant’s brief before the magistrate.)

As thus posited, it is convincingly clear that the appellant’s only defense before the magistrate focused upon the characteristics of the weapon, that is, whether it was the type proscribed by the applicable statute. And, it is equally clear to me that the appellant implicitly if not explicitly conceded before the magistrate that the weapon was in fact concealed.

Upon due consideration, Judge Hamilton filed findings of fact and conclusions of law and held that “the .22 caliber Vanguard revolver found in the defendant’s hand luggage was a concealed dangerous weapon within the purview of 49 U.S.C. § 1472(1).”

Another undisputed link in the chain of events further dissipates the claim of plain error. On appeal to the district court, Chief Judge Becker afforded appellant an “opportunity to file additional contentions and authorities.” Counsel for appellant declined this offer and the case was submitted on the record of the magistrate court. As reference to Judge Becker’s opinion will disclose, the judge considered two points: 1) the requirement of knowing possession, 376 F.Supp. at 454-458; 2) whether the pistol “was a deadly or dangerous weapon.” 376 F.Supp. at 458-459. In an exhaustive and soundly reasoned opinion, Judge Becker resolved both questions against appellant. Since the element of concealment had never been questioned, Judge Becker made short shrift of that point, but did find that the proof showed the weapon had been concealed. 376 F.Supp. at 457.

Further support for my position that there is no basis for applying the plain error rule, is found in appellant’s brief filed in this court. The brief states, “the defendant concedes that the record sup-, ports the finding that the defendant did know that the tear gas pistol was in his travel bag.” Pp. 15 and 16 of appellant’s brief. Appellant then proceeded to attempt to develop that the district court was wrong in holding that the Government was not required to prove that appellant knew that the tear gas pistol was dangerous.

Notwithstanding all of the foregoing undisputed circumstances, my brethren conclude the magistrate was obviously in error for not considering whether the weapon was concealed.

With all due respect, it is quite evident to me, at least, that the majority has overturned the previous findings of fact of the magistrate and district court without expressly saying so. It is apparent from a reading of the majority opinion that the weapon was in fact concealed from view. But in overturning the findings of fact reached by the magistrate and affirmed by the district court, the majority has injected an element previously foreign to the case; to wit, whether appellant intended to conceal the subject weapon. To me, the magistrate’s holding that the element of intent must be proven is a departure from the plain wording of the Act, and if the opinion stands, the Government will be under a heavy burden in cases where concealment is an issue. As I see it, the Government was required to prove three elements: 1) that appellant was attempting to board an aircraft; 2) that he was in possession of a dangerous or deadly weapon (the majority concedes one and two were proved); 3) the weapon was concealed.

This record satisfies me that all three elements were established. The magistrate and the district court so found and, consequently, I would affirm.

Finally, I am at a loss to understand the purpose of a remand for another trial to resolve the concealment issue. The written and oral stipulations and the testimony of appellant stand undisputed. There is no indication of the existence of additional relevant evidence. Thus, I am constrained to believe the remand for another trial on the one issue will prove to be an exercise in futility and will serve only to further burden an already overworked court. I suspect another trial will produce the same result. Where, as here, the case has been fully explored, tried, and decided on the facts and in accordance with the law, we as the reviewing court should exercise restraint and refrain from sending the case back for another trial.

      . This statute reads in relevant part:
      [W]hoever, while aboard an aircraft being operated by an air carrier in air transportation, has on or about his person a concealed deadly or dangerous weapon, or whoever attempts to board such an aircraft while having on or about his person a concealed deadly or dangerous weapon, shall be fined not more than $1,000 or imprisoned not more than one year, or both.
      We note that the statute was slightly modified in the 93rd Congress. See Air Transportation Security Act of 1974, Pub.L. 93-366, § 203 (Aug. 5, 1974), 1974 U.S.Code & Cong. Admin.News 2482-2483.

      . The statistics on air travel show that 181,-423,433 persons boarded scheduled airlines for domestic travel in the United States during calendar year 1973. [CAB & FAA, Airport Activity Statistics of Certificated Route Air Carriers, Table 6, at 117 (Dec. 31, 1973).]

      . As we understand it, a magnetometer is an electronic device designed to disclose the presence of certain metallic substances typically found in larger weapons. The same metallic substances are found in items which are not weapons, and the magnetometer does not distinguish between them. Nor does it detect small metal items.

      . From our examination of the record, it appears that defendant-Brown’s counsel sought to contest the criminal charge solely on the basis that the tear gas pistol did not fall within the “dangerous or deadly weapon” terms of the statute. Perhaps for that reason the Government did not seek to cross-examine Brown.

      . The FAA guidelines read as follows:
      The following guidelines are furnished to airport operators, air carriers, law enforcement personnel, and others involved in pre-board screening of passengers in making a reasonable determination of-what property in possession of a passenger should be considered as a weapon or dangerous object. FIREARMS — Including starter pistols, compressed air or BB guns and flare pistols. KNIVES — All sabres, swords, hunting knives, and such other knives considered illegal by local law.
      BLUDGEONS — Blackjacks, billy clubs, or similar instruments.
      OTHER DEVICES OR OBJECT — Even though not commonly thought of as a dangerous weapon but the possession of which supports the reasonable presumption that it could be used as weapon, such as ice picks, straight razors, elongated scissors, and the like. Any questionable device or object to include toy or dummy weapons or grenades should be treated as a dangerous article. The following objects should also be prohibited in the interest of air security:
      EXPLOSIVES/AMMUNITION — All types of explosives, ammunition, incendiaries, and fireworks whether commercially manufactured, homemade, or any combination of components to produce same.
      GASES AND CHEMICAL AGENTS — All tear gas, mace, and similar chemicals and gases whether in pistol, pen, canister, or other container.
      In those instances where an undeclared firearm or other obviously dangerous weapon is discovered concealed in a carry-on bag or oh the person of a passenger, appropriate law enforcement authorities must be notified. ATA and AOCI requested to pass info through their channels.
      Original signeu by,
      JAMES T. MURPHY.
      8 February 1973.
      These guidelines are also reproduced in United States v. Margraf, 493 F.2d 1206, 1207 n. 1 (3d Cir. 1974).