author: SPRECHER, Circuit Judge. PELL, Circuit Judge STEVENS, Circuit Judge SWYGERT, Chief Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Harold SILVERN, Defendant-Appellant.
    No. 72-1133.
    United States Court of Appeals, Seventh Circuit.
    Reheard En Banc May 25, 1973.
    Decided Aug. 7, 1973.

      James P. Chapman, Chicago, 111., Thomas P. Sullivan, Peter A. Flynn, Chicago, 111., for defendant-appellant.
    James R. Thompson, U. S. Atty., William T. Huyck, Arnold Kanter, Asst. U. S. Attys., Chicago, 111., for plaintiff-ap-pellee.
    Before SWYGERT, Chief Judge, DUFFY, Senior Circuit Judge, and KILEY, FAIRCHILD, CUMMINGS, PELL, STEVENS and SPRECHER, Circuit Judges.
   SPRECHER, Circuit Judge.

This case has been reheard en banc in an attempt to establish greater certainty in district courts in this Circuit, and to conserve judicial energy by possibly avoiding appeals and retrials, in regard to the giving of the so-called Allen or “dynamite” charge as a supplemental instruction to a deadlocked jury.

The Allen instruction was approved by the Supreme Court in Allen v. United States, 164 U.S. 492, 501-02, 17 S.Ct. 154, 157, 41 L.Ed. 528 (1896) and although no court has held that the' instruction itself is unconstitutional, it has had a stormy career.

From 1963 to 1969, the Allen charge, supplemented by a second paragraph advising the jury that the case “must be retried” if the jury failed to reach a verdict, was generally given in this circuit as part of the Manual on Jury Instructions in Federal Criminal Cases (La Buy Instructions), 33 F.R.D. 523, 611 (1963).

In United States v. Brown, 411 F.2d 930, 933-934 (7th Cir. 1969), we held as follows:

Because the district courts within this Circuit have encountered difficulties in determining what precise language to include in a supplemental charge and when it should be given, it is important for this, court to articulate with specificity our standards. In dealing with supplementary instructions, the primary task of an appellate court is to set the standards for the proper conduct of the trial judge faced with a hung jury. We have reconsidered not only the presently approved form of the Allen charge as set forth in the LaBuy Instructions, but the numerous judicial decisions and scholarly literature in this field critical of the Allen charge. We have concluded that it would serve the interests of justice to require under our supervisory power that, in the future, district courts within this Circuit when faced with deadlocked juries comply with the standards suggested by the American Bar Association’s Trial By Jury publication. These standards specifically provide:
5.4 Length of deliberations; deadlocked jury.
(a) Before the jury retires for deliberation, the court may give an instruction which informs the jury:
(i) that in order to return a verdict, each juror must agree thereto;
(ii) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can he done without violence to individual judgment;
(iii) that each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors;
(iv) that in the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and
(v) that no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.
(b) If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in subsection (a). The court shall not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.
* -X- -X- -X- * -X-
In order to avoid the potential for prejudice and coercion to which we have referred, district courts in this Circuit are required henceforth to charge deadlocked juries in both criminal and civil cases in a manner consistent with the recommended standards.

Although our 1969 language was designed to produce uniform practices within the circuit, it has not had that result, possibly because of the final words that deadlocked juries be charged “in a manner consistent with the recommended standards.” Widespread deviations from and substantial supplements to the ABA standards have been considered to be “consistent with” them and “complying” with them. United States v. DeStefano, 476 F.2d 824 (7th Cir. 1973).

In this case, the supplemental instruction was exceedingly lengthy and went far beyond the ABA standards. A majority of the court agrees with the panel of this court “under the facts of this case that neither the wording of the supplemental charge containing the ABA recommendations nor the timing and circumstances surrounding the charge violated defendant’s constitutional rights” and “no prejudice occurred from the supplemental charge.” United States v. Silvern, No. 72-1133 (7th Cir. February 27, 1973). The majority also agrees with the panel’s disposition of the other issues in the case and we affirm the defendant’s conviction.

However in the interest of judicial economy and uniformity, and under our supervisory power, district courts in this circuit are henceforth required to do the following in both civil and criminal cases.

If a supplemental instruction is deemed necessary and provided that the following instruction has been given prior to the time the jury has retired, it may be repeated:

The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous.
It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.
You are not partisans. You are judges — judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case.

Experience has now shown that variants in language or supplements or additions serve merely to proliferate appeals.

If in any jury trial tried after thirty (30) days from this opinion a supplemental instruction relating to a deadlock is given other than in the above form, a resulting conviction will be reversed and remanded for a new trial.

In addition, we suggest that the district courts consider whether the need for supplemental instructions may be reduced by sending into the jury room at the time the jury retires either a written copy or a tape recording of, together with equipment to enable the jury to hear, the complete instructions as given by the court.

Affirmed.

PELL, Circuit Judge

(concurring in part and dissenting in part).

I concur in the affirmance of the defendant’s conviction; however, since the opinion written by Judge Sprecher and approved by the majority of my brethren does establish new law in the Seventh Circuit, I find myself free to record my disagreement with some of that new law. I do so with some reluctance because of my respect for the good judgment of my brothers and because my opinion with regard to the LaBuy-modified Allen charge apparently runs counter to a considerable body of scholarly thought elsewhere.

In all candor, I do not find myself disturbed by the charge given by Judge Austin in the trial below. Apparently the majority of this court is really not too disturbed either because the charge was held not to violate the defendant’s constitutional rights and not to be prejudicial. Nevertheless, apparently writing section one of a manual of instructions, the court states that deviation from the precise language of that instruction in the deadlocked jury situation is reversible error. I experience conceptual difficulty, even under our supervisory power, in establishing a standard from which no deviation may occur when we do so in the very case in which we hold that a deviation was neither constitutionally impermissible nor otherwise prejudicial.

My basic feeling is that the matter of writing instructions should remain in the hands of the trial judges. They are the ones at the battle site who are best in the position to judge which instructions are appropriate to the factual issues. Likewise they are best in the position to determine the nature, necessity, and verbiage of instructions to be given in connection with the functional aspects of jury deliberation, including those that may be necessary when it reasonably appears that a jury has reached the status of being deadlocked. If in any instruction the court misstates the law and the effect is prejudicial then, of course, a reversal would ordinarily follow. By prescribing the exact language in which a trial judge may instruct in the deadlocked situation we are, it seems to me, substantially circumscribing the discretionary flexibility needed by the trial judge for effective trial administration. It is one thing to find no error in an instruction which has been given in a trial, thereby putting our tacit approval on it, and an entirely different matter to engage in a priori processes of word fixation.

In considering the desirability in our trial procedures of the giving of an instruction such as the one given by Judge Austin, we should look at it in the context of the occasion in which it is utilized. While we probably should not say as an absolute, necessitas est lex tempor-is et loci, because our system of justice does not mandatorily require that every jury should render a verdict, nevertheless it seems to me that it is desirable that a disposition should be reached if it can be without compromise of honest conviction or violence to individual judgment. I find nothing wrong in Judge Austin’s admonition that “[i]t is your duty to decide the case if you can conscientiously do so.” Indeed, the ABA recommendations do not deny the desirability of giving an additional instruction to the deadlocked jury with regard to their duty to deliberate with a view to reaching an agreement.

In the context of the situation of the deadlocked jury it appears tó me that three basic situations might be involved. The first of these is where the jury is evenly or approximately evenly divided. Here, if the deliberations have been of some substantial duration it appears to me that there is not sufficient “dynamite” in the challenged charge to cause the situation to change. As a matter of fact, the challenged charge is primarily concerned with the situation where there is a small minority holding out against a majority. The remaining two basic situations are found in the latter posture. While there may be subcategories, and at the risk of oversimplification, the minority jurors are either reasonable or unreasonable. If the obdurateness of the minority is of the latter type, whether flowing from corruption or from what some trial lawyers inelegantly refer to as pigheadedness, it seems unlikely that the challenged charge will have much blasting effect. If it did, I cannot say that this would necessarily be a bad result, at least as long as reason is to play some part in jury determinations.

Ultimately then we are concerned with those jurors who are reasonable but are conscientiously unconvinced that the majority position is correct. We would all agree, I think, that no juror, but particularly not the type of juror just described, should feel that he is being' pressured by the trial judge to agree to a verdict just for the sake of closing out the case. I do not find such pressure in the challenged charge. It is axiomatic that no one instruction encompasses all of the law in a case. Likewise, each paragraph of a particular instruction should be considered as a part of the whole. Thus, even though the jurors in the challenged instruction are reminded that absolute certainty cannot be expected (which is probably a truism) and that the case will be left open and undecided if a verdict is not reached (also true), on balance the jurors are sufficiently instructed that they do not have to surrender their honest convictions merely for the purpose of returning a verdict.

Looking at the overall impact of the challenged instruction, it appears to me that it advises jurors that as reasonable persons they should take another look at whether their position is reasonable and correct. It also is to be noted that this admonition is directed at the majority as well as the minority.

If we become embroiled in semantical niceties in looking at instructions, niceties which have arguably little impact upon the lay people composing juries, *****8 then I would tend to think that the ABA based instruction (which has been now laid down as the only instruction which can be given to a deadlocked jury) could be interpreted by the average juror as being a “bugle call” for a hung jury. That is no more to be desired than is an instruction which improperly pressures a unanimous decision.

Further, I cannot agree with the majority decision in two other respects. The requirement that the deadlocked instruction can only be given when it is first given as a part of the regular charge exceeds the ABA standard “may give or repeat . . . . ” Secondly, and this follows from what I have already said, I would in any event include in the prescribed instruction the words which were recommended, by the Committee on the Operation of the Jury System of the Judicial Conference of the United States (footnote 7 of the majority opinion):

“(v) that each juror who finds himself in the minority should reconsider his views in the light of the opinions of the majority, and each juror who finds himself in the majority should give equal consideration to the views of the minority.”

The committee’s comments are illuminating :

“This additional paragraph makes it perfectly clear that instructions to take the views of other jurors into account are not directed solely to minority jurors and also reflects the viewpoint of several leading jurists.”

I concur in the suggestion of the majority opinion that consideration be given to letting the jury have the instructions during its deliberation.

STEVENS, Circuit Judge

(concurring) .

Recognizing the importance of an unambiguous statement of the rule to be applied in this circuit in the future, I concur in the clear, straight-forward opinion which Judge Sprecher has written. Candor, however, compels me to add two brief comments.

1. In view of the references to United States v. DeStefano, 476 F.2d 324 (7th Cir. 1973), in both the majority and dissenting opinions, it may be of significance to record the fact that I cast one of the four votes in favor of granting the petition for rehearing en banc in that case. The reason for my vote was my concern that the panel opinion had incorrectly decided that the failure of the district court to subpoena an occurrence witness violated the defendant’s right to compulsory process. Id. at 329-331.

2. I have not yet been able satisfactorily to explain to myself how this circuit can lawfully announce that an instruction to a jury which the Supreme Court has specifically and squarely held is not reversible error in federal criminal trials shall in the future constitute reversible error when given in such trials conducted in the Seventh Circuit. Possibly the answer is confidence that Supreme Court review of a decision such as this would lead to an overruling of Allen. That confidence may well be misplaced, cf. Johnson v. Louisiana, 406 U.S.356, 92 S.Ct. 1620, 32 L.Ed.2d 152; even if warranted, it does not provide a completely satisfactory answer to a difficult question.

SWYGERT, Chief Judge

(dissenting in part, concurring in part).

I am in full agreement with the preservation of our decision in United States v. Brown, 411 F.2d 930 (7th Cir. 1969), and with the majority’s decision that any deviation from it will henceforth result in a reversal. However, I dissent from the majority’s failure to find reversible error by the district judge’s refusal to follow our mandate in Brown. The majority seems to excuse the judge by an allegedly vague sentence in the Brown opinion: “In order to avoid the potential for prejudice and coercion to which we have referred, district courts in this Circuit are required henceforth to charge deadlocked juries in both criminal and civil cases in a manner consistent with the recommended standards.” 411 F.2d at 934. After citing this sentence the majority says: “Although our 1969 language was designed to produce uniform practices within the circuit, it has not had that result, possibly because of the final words that deadlocked juries be charged ‘in a manner consistent with the recommended standards.’ Widespread deviations from and substantial supplements to the ABA standards have been considered to be ‘consistent with’ them and ‘complying’ with them. United States v. DeStefano, 476 F.2d 324 (7th Cir. 1973).” The citation of DeStefano is unfortunate. That case dealt with deviations from the Brown standards closely similar to those seen here and indulged in by the same judge. More important is the fact that a majority of this court agreed but were denied the opportunity to rehear it en banc, since the defendant DeStefano died prior to the rehearing. Therefore, I submit, the holding of the majority of the panel in DeStefano is a questionable precedent. However, if the reference to DeStefano should be interpreted as an assertion that “widespread deviations from and substantial supplements to the ABA standards” have occurred throughout the Circuit since Brown, there is scant support for such an interpretation, According to the appeals that have been heard, only two judges within the Circuit have deviated from the ABA standards mandated by Brown.

That the district judge was confused or had difficulty with the alleged vagueness of the language in Brown is belied by the record. Because the point is important I quote a large portion of the colloquy between the judge and counsel which preceded the jury’s reception of the supplemental instruction.

It is clear from the record that the trial judge — despite the lip service he paid to Brown and its requirement of a jury “charge ... in a manner consistent with the recommended standards”- — deliberately incorporated most of the Allen charge which had been condemned by this court in Brown. If it is true that our mandate in Brown of consistent adherence to the ABA standards is sufficiently ambiguous to authorize a range of equivalent jury charges, the broadest reasonable reading of Brown would not approve what the judge did here. To give, as the judge himself put it, “a modified charge, modified from the Allen charge,” was a clear violation of our direction in Brown (emphasis supplied).

The majority’s opinion on rehearing does not address itself to the coercive elements of the charge given in this case, nor to their likely prejudicial effect. Most of the coercive admonitions contained in the Allen charge were given. See note 5, majority opinion. Moreover, it does not deal with the untimeliness of the supplemental charge. After the jury had deliberated for fourteen hours on two successive days, the trial judge sua sponte advised counsel that he proposed to give the jury a supplemental charge. The jury, however, was deadlocked neither then nor after the judge and counsel had discussed the proposed supplemental charge, for the first opinion in this ease is in error in its assertion that the jury “had informed the judge that they were in fact deadlocked.” Immediately before he put his proposal into effect, the judge asked the jury whether they had “yet arrived at a verdict.” He received a response of “not yet.” This phrase may hardly be taken to justify the elaborate charge which followed. In Brown we repeatedly laid stress on the fact that the ABA recital was to be given to deadlocked juries. It may be true, I admit, that an instruction following Brown is appropriate even if a jury has not deliberated to the point of deadlock, provided it has consumed in unsuccessful deliberation an amount of time which is patently out of proportion to the difficulty of the issues in the case before it and the amount of testimony taken at trial. When the proper time has passed, the trial judge should then make discreet inquiry of the jurors as to the status of their deliberations. If they estimate that a verdict is close at hand, their instruction under Brown is clearly inappropriate. This case — broad in its issues, arguably close on its facts, and lengthy in its trial — fails to fit the first formula after fourteen hours of deliberation, see United States v. Flan-nery, 451 F.2d 880 (1st Cir. 1971), Burroughs v. United States, 365 F.2d 431 (10th Cir. 1966), but cf. Thaggard v. United States, 354 F.2d 735 (5th Cir. 1966), and the failure of the trial judge to ascertain the probable imminence of a verdict is unquestionably clear. The instruction modified from Allen, then, is not the only reason to reverse this case.

      . “ . . . [I]n a large proportion of cases absolute certainty could not be expected; that, although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows, yet they should examine the question submitted witli candor and with a proper regard and deference to the opinions of each other; that it was their duty to decide the case if they could conscientiously do so; that they should listen, with a disposition to be convinced, to each other’s arguments; that, if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, upon the other hand, the majority was for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority.”

      . For a complete history of the Allen charge and attempts by the various circuits to deal with it, see United States v. Thomas, 146 U.S.App.D.C. 101, 449 F.2d 1177 (1971) (on rehearing en bane) and United States v. Bailey, 468 F.2d 652 (5th Cir. 1972), affirmed en banc, 480 F.2d 518 (5 Cir. 1973).

      . “In a large proportion of cases absolute certainty cannot be expected. Although the verdict must be the verdict of each individual juror and not a mere acquiescence in the conclusions of others, yet you should examine the questions submitted with proper regard and deference for the opinions of each other, and you should listen to each other’s opinions with a disposition to be convinced. It is your duty to decide the case if you can conscientiously do so. If a much larger number of jurors favor conviction, a dissenting juror should consider the reasonableness of his doubt when it makes no impression upon the minds of other jurors, equally intelligent and impartial, and who have heard the same evidence. If upon the other hand, the majority favors acquittal, the minority should ask themselves whether they might not reasonably doubt the correctness of their judgment.
      “If you should fail to agree on a verdict the case must be retried. Any future jury must be selected in the same manner and from the same source as you have been chosen, and there is no reason to believe that the ease would ever be submitted to twelve men and women more competent to decide it, or that the case can be tried any better or more exhaustively than it has been here, or that more or clearer evidence could be produced on behalf of either side.”

      . In Brandom v. United States, 431 F.2d 1391, 1399 (7th Cir. 1970), we added: “. . . [W]e reaffirm the future use by the District Courts of this Circuit of the standards and practices set out in Brown.”

      . “In a large portion of cases, absolute certainty cannot be expected. The verdict must be the verdict of each individual juror and not a mere acquiescence in the conclusions of others.
      “You should examine the questions submitted with proper regard and deference for the opinions of each other. You should consult with one another and deliberate with a view to reaching an agreement if it can be done without violence to individual judgment.
      “It is your duty to decide the case if you can conscientiously do so.
      “In the course of deliberations a juror should not hesitate to reexamine his own views and change his opinion, if convinced that it is erroneous, but no juror should surrender his honest conviction as to the weight or the effect of the evidence solely because of the opinion of his fellow jurors or for the mere purpose of returning a verdict. “If a much larger number of jurors favor conviction, the smaller number of jurors should consider the reasonableness of their doubt when it makes no impression upon the minds of other jurors who are equally intelligent and impartial and who have heard the same evidence.
      “If on the other hand, a much larger number of jurors favors acquittal, the smaller number of jurors should ask themselves whether they might not reasonably doubt the correctness of their judgment.
      “Likewise, the jurors in a majority favoring a finding for either party should ask themselves whether they might not reasonably doubt the correctness of their judgment, when it makes no impression upon the minds of the minority jurors equally intelligent and impartial as they are and who have heard the same evidence.
      “If you should fail t'o agree on a verdict, the case is left open and undecided. Like all cases, it must be disposed of some time. Any future jury must be .selected in the same manner and from the same source as you have been chosen, and there is no reason to believe that the case would ever be submitted to twelve men and women more competent to decide it, or that the case could be tried any better or more exhaustively than it has been here, or that more or clearer evidence could be produced on behalf of either side.”

      . In the ABA Commentary to Section 5.4 (a), this instruction which is Instruction 8.11 of Jury Instructions and Forms for Federal Criminal Cases, 27 F.R.D. 39, 97-98 (1961) is suggested as “[i]llus-trative of an instruction consistent with section 5.4(a).”

      . We realize that the ABA standard and illustrative instruction are not ‘‘as graven in stone” (United States v. Thomas, 146 U.S.App.D.C. 101, 449 F.2d 1177, 1188 (1971) and that the Committee on the Operation of Jury System of the Judicial Conference of the United States suggested a variant in paragraph (v) of the ABA standard, but unless and until we suggest any further change in the future, the instruction quoted in this opinion is the only deadlock instruction to be given.

      . See United States v. Fioravanti, 412 F.2d 407, 420 (3rd Cir. 1969): .' . [Hjereafter this court will not let a verdict stand which may have been influenced in any way by an Allen charge.” See also, Judge Goldberg’s opinion concurring in part and dissenting in part in United States v. Bailey, 480 F.2d 518 (5th Cir. 1973) : “I would permit no criminal conviction to stand in any future federal trial in this Circuit that does not strictly comply with the Standards recommended by the American Bar Association.”

      . Although obiter dieta, in the context of the case being appealed, law is nevertheless declared, preumably under the supervisory power of this court.

      . Judge Arterburn, now Chief Judge, of the Indiana Supreme Court put the matter aptly in Hendrix v. Harbelis, 248 Ind. 619, 230 N.E.2d 315 (1967), as follows:
      “Instructing a jury is a most difficult and complex process. It is generally conceded that there has been an overemphasis placed upon the wording and refined meaning of instructions which far exceed their actual effect upon the jury. When an instruction has to be read and reread by a legally trained mind to catch a slight variation or error in its meaning, it is difficult to believe that a jury of laymen could have been misled. Words are mere signs or symbols of meaning and thought, which are never exact. We strive with inexact tools to work out refinements and precise lines in statements of thoughts and ideas, but are never able to reach exact perfection. In the writing of instructions, we are eternally confronted with attempts and failures at exactitude, and we must keep this human frailty in mind when we examine the language of instructions.” 230 N.E.2d at 319.

      . That case, incidentally, suggests a difference between a mandate directing the trial court to take action “consistent with” as opposed to “not inconsistent with” a given standard. In both DeStefano and Silvern instructions which were consistent with the ABA standards were given, as expressly required by Brown. The issue was whether additional instructions, not required by Brown but permitted by Allen, were inconsistent with a lawfully required standard, and if so, whether that inconsistency was reversible error.

      . Judge Fairchild dissented in the De-Stefano opinion and the order of this court dated April 20, 1973 reads in part:
      It is ordered that the appeal is dismissed as moot and the district court is directed to enter an order vacating the judgment of conviction and dismissing the indictment as moot.

      . The trial in Brandom v. United States, 431 F.2d 1391 (7th Cir. 1970), predated the Brown decision. DeStefano and the case at bar were tried by the same judge; one other deviation occurred in United States v. Baranski, No. 71-0-576, (N.D. Ill.).

      . MR. SULLIVAN: With regard to the last part about the — another jury, you should not think that some other group—
      THE COURT: All right.
      MR. SULLIVAN: Now, that is not in the Brown case and I think it harkens back to the very kind of instruction that has been criticized and condemned.
      THE COURT: No, the instruction that lias been criticized and condemned, and I have lifted this from that ease, the one that is condemned states that, “If you should fail to agree on a verdict, the case is left open — another jury must decide it.” That is the way that reads.
      It has been suggested by the Court of Appeals that I use the phrase which I have, “is left open and undecided.”
      MR. SULLIVAN: But all that follows that about other people and other — from the community, and you must not assume it is going to be tried differently or more evidence, in Brandom vs. United States, 431 Fed.2d 1391, decided last year—
      THE COURT: Seventh Circuit?
      See, we have a special rule in the Seventh Circuit. You can give the old Allen Charge in every other Circuit but here but [Brown] says that we are going to be unique ... I wouldn’t be surprised if no other Circuit follows the Seventh Circuit in regard to the Allen Charge. So I am conforming to the revised — you have the balance of this opinion ?
      MR. SULLIVAN: It is all there, Judge. I tore off part of a page that deals with a different case.
      THE COURT: This is the last sentence and this is what I was looking for, “In order to avoid the potential for prejudice and coercion, to which we have referred, the District Courts in this Circuit are required henceforth to charge deadlocked juries in both criminal and civil cases in a manner consistent with the recommended standard.” I have made a determination that this is consistent with the recommended standards and here is your last sentence of the opinion.
      MR. SULLIVAN: Well, in the Brandom case—
      THE COURT: From what Circuit?
      MR. SULLIVAN: The Seventh. And as I understand this opinion, this was the original charge, not a recharge after the jury didn’t agree, the court said many of the same things that you have said; “If you fail to agree on the verdict, the ease is left open and undecided, and like all cases it must be disposed of some time. If the case is retried a future jury must be selected in the same manner and from the same source as you have been chosen.”
      THE COURT: Is that condemned in the Brandom case?
      MR. SULLIVAN: No, not outright condemned. I would like to read it to you so that we can all make a judgment.
      THE COURT: All right.
      MR. SULLIVAN: (Continuing) and from the same source as you have been chosen, and there is no reason to believe that the case would ever be submitted to twelve men or women more competent to decide this case than those of you who compose the present jury. There is no reason to believe that there will be more or clearer evidence produced at a future trial, therefore, I urge you to deliberate in this case with the disposition to be convinced — ”
      THE COURT: I am not going to say that.
      MR. SULLIVAN: All right. “Therefore, I urge you to deliberate in this case with the disposition to be convinced, at the same time directing you that your verdict must be a conscientious decision of each individual juror.”

        % if* s|! S¡! 8¡S
      MR. LAPIDUS: The case was affirmed, your Honor. That instruction was affirmed, by the way, in that case.
      MR. SULLIVAN: Well, here is what they said — they affirmed in Brown, too, but—
      THE COURT: But for the reason that the instruction had heretofore been approved by the Seventh Circuit and then they turned turtle in the Brown ease.

        MR. SULLIVAN: Right, but then as I say, this was not part of the supplemental charge.
      In Brown the court held that “The defendant failed to show that the supplemental court charge was sufficiently prejudicial to warrant reversal. In the instant case the instruction in question was part of the trial court’s general instruction. Even more than in Brown the instruction here given before this court’s decision in Brown contains insufficient interference with the jury’s free deliberation so as to create a prejudicial atmosphere. We reaffirm the position taken in Brown that the Allen type charge may contain elements of potential coercion and is in conflict with the American Bar Association’s recommended instruction. Accordingly, we reaffirm the future use by the District Courts of this Circuit of the standards and practices set out in Brown.” End of Judge Will’s opinion.
      THE COURT: The Court of Appeals, if necessary, will — the record will clearly demonstrate that I have been adequately warned by you of the consequences of the heinous thing that I am about to commit.

      . The defendant was tried on ten counts of mail fraud and one of conspiracy. The trial encompassed ten days of testimony.

      . The pertinent record, in its entirety, is as follows:
      THE COURT: As of this moment, gentlemen, there has been no verdict returned.
      I propose to give them a modified charge, modified from the Allen Charge, and I will tell you what I am going to say to them:
      * * * -!- *
      THE COURT: The Court of Appeals, if necessary, will — the record will clearly demonstrate that I have been adequately warned by you of the consequences of the heinous thing that I am about to commit.
      Get the jury, Mr. Marshal.
      (The following further proceedings were had in open court in the presence and hearing of the jury:)
      THE COURT: You may be seated, ladies and gentlemen.
      Who is the foreman?
      JURY FOREMAN: I am, sir.
      THE COURT: I am going to ask you one question that can be answered yes or no.
      Have you yet arrived at a verdict?
      JURY FOREMAN: Not yet, sir.
      ..THE COURT: I have one further instruction for you ladies and gentlemen.


source: Caselaw Access Project

author: STEVENS, Circuit Judge.

license: Public Domain

text:
    Ada BLEW, Appellee, v. Elliot L. RICHARDSON, Secretary of Health, Education and Welfare, Appellant.
    No. 72-1777.
    United States Court of Appeals, Seventh Circuit.
    Argued June 6, 1973.
    Decided Aug. 23, 1973.

      Harlington Wood, Jr., Asst. Atty. Gen., Edwin E. Huddleson, III, Atty., Dept, of Justice, Washington, D. C., Donald B. Mackay, U. S. Atty., Springfield, 111., Max J. Lipkin, Asst. U. S Atty., Peoria, 111., for appellant.
    H. Reed Doughty, Franklin S. Wallace, Rock Island, 111., for appellee.
    Before SWYGERT, Chief Judge, and FAIRCHILD and STEVENS, Circuit Judges.
   STEVENS, Circuit Judge.

An unexplained absence of over seven years gives rise to a presumption of death for Social Security purposes. The question presented by this appeal is whether an explanation which is found in events preceding the absence may defeat the presumption. The district court, 344 F.Supp. 183, held that the presumption must control unless there is evidence of continued life during the seven-year period. We reverse.

After an evidentiary hearing and an appeal, the Secretary denied a claim for child’s insurance benefits under § 202(d) of the Social Security Act, 42 U. S.C. § 402(d). The child’s mother then brought this action in the district court pursuant to § 205(g), 42 U.S.C. § 405(g). From a summary judgment in her favor, the Secretary has appealed.

At the time of his departure in November, 1958, the wage earner was known as Ernest Ballard. Prior to his marriage to the plaintiff in July, 1955, he had been known as Earl Bullard. The Hearing Examiner found that he was an unstable person with expensive habits. During the marriage, plaintiff’s savings were dissipated and she found it necessary to file bankruptcy proceedings. The family moved several times. In January, 1958, the claimant was born. Ballard failed to provide adequate support for the child. In November, 1958 plaintiff and the child returned to her mother’s home in Kankakee. Advised of Ballard’s intent to visit them, plaintiff arranged to have him arrested upon his arrival at the railroad station and jailed for non-support. At the court hearing, he signed an agreement to support the child and was released. He then expressed an intent to visit his child that afternoon, but in fact left for parts unknown.

In 1966 plaintiff filed an application for widow’s insurance benefits, which was denied and is not before us. In 1969 she applied, on behalf of her son, for a child’s benefit. The claim was rejected on the basis of the Hearing Examiner’s determination that Ballard’s “absence was not unexplained within the meaning of § 404.705.” Although the record contains some hearsay evidence of continued life, the Examiner’s decision rested squarely on the pre-depar-ture facts.

The district court recognized that this is a “case of first impression” in this circuit and described an apparent conflict in other court of appeals decisions. The court concluded that it would be paradoxical to permit the same pre-de-parture evidence both to create the presumption and to destroy it.

In our opinion the same evidence is not self-contradictory. The evidence which raises the presumption is proof that Ballard was absent and unheard of for a period of seven, years after November 15, 1958. The evidence on which the Secretary relies to rebut that presumption concerns events on or before November 15, 1958. The Secretary’s analysis is not paradoxical; it may nevertheless, of course, be erroneous.

To place the legal issue in proper focus, it is useful to differentiate between the character of an explanation and the time when it is made. One may easily posit eases in which a fugitive’s pre-de-parture statements so plainly describe an intent to disappear completely from former associates — such as an estranged spouse, muscular creditors, or a strict commanding officer — that a continued life under a new identity is at least as probable as death even though seven years have elapsed. Pushed to its logical conclusion the rule which the district court has followed would mean that after an absence of seven years death must be presumed no matter how strong the evidence of intent to disappear and to effect a complete change of identity, provided there were no post-departure explanation of his whereabouts. There are four reasons why we believe the Secretary’s regulation did not promulgate such a rule.

First, history teaches us that deliberate desertions do in fact take place frequently. Whatever our personal predilections might be, the statute does not authorize the payment of benefits to deserted victims. A wage earner’s prolonged absence, which is more probably the consequence of deliberate desertion by a living spouse or parent than of death, should not, therefore, create a right to statutory benefits.

Second, the Secretary’s regulation is quite obviously based on the common law presumption. As we read the common law authorities, the presumption of death resting on evidence of an absence for seven years, could be rebutted either by (a) evidence of continued life during that period, or (b) evidence of motivation that created a probability of continued life notwithstanding the lack of any communication from the absentee for a prolonged period. In short, pre-departure evidence was admissible to rebut the presumption.

Third, the text of the regulation itself quite plainly authorizes alternative means of rebutting the presumption. The regulation requires that the individual be “unexplainedly absent” and also “unheard of” for a seven-year period. The presumption then applies “in the absence of any evidence to the contrary.” A fair reading of this language indicates that the Secretary may adduce evidence to contradict either the unexplained character of the absence or the fact that the individual has not been heard of for seven years. If only the latter evidence were admissible, the requirement that the absence be unexplained would be meaningless. For by hypothesis every absence that meets the second requirement will be unexplained during the entire period 'subsequent to the last time anyone had heard of the absentee.

Finally, we are told that the Secretary’s interpretation has been consistently followed in thousands of cases since the regulation was first promulgated in 1951. There is no suggestion that this interpretation is not completely consistent with the governing statute. The Secretary’s interpretation of his own regulation is therefore entitled to great respect. Red Lion Broadcasting Co. v. F. C. C., 395 U.S. 367, 381, 89 S.Ct. 1794, 23 L.Ed.2d 371; Universal Battery Co. v. United States, 281 U.S. 580, 50 S.Ct. 422, 74 L.Ed. 1051.

Having concluded that ' predeparture evidence may support a finding that the wage earner’s absence is not unexplained, the only issue which remains is whether the evidence in this record is sufficient to support that finding. This is a question of fact controlled by the “substantial evidence” standard of review. Under that standard, we are satisfied that the evidence is sufficient to support the Secretary’s determination.

Reversed.

      . “Whenever it is necessary to determine the death of an individual in order to determine the right of another to a monthly benefit or a lump-sum payment under section 202 of the Act, and such individual has been unexplainedly absent from his residence and unheard of for a period of seven years, the Administration, upon satisfactory establishment of such facts and in the absence of any evidence to the contrary, will presume that such individual has died.” 20 C.F.R. § 404.705.

      . A cousin informed a Social Security investigator in 1967 that he had not heard from Ballard “in at least two or three years,” implying that he had heard from him several years after his departure; Ballard’s sister said she had not heard from him for about seven years, again implying a possible communication after 1958. She also indicated that her cousin had told her that Ballard, was living with another woman near Paw Paw Lake, Michigan “about four years ago.” Tr. 115, 116, 119.

      . “Regardless of this fact, the wage earner’s absence for more than seven years does not appear to be an unexplained absence. The family’s many moves, the wage earner’s expensive habits, his instability, a separation in the marriage that occurred before his disappearance, and an arrest brought about by the information that the claimant furnished the police would suggest much domestic discord existing since the marriage of the claimant and the wage earner on July 6, 1955. The wage earner was apparently in good health and may well have found reason to disappear and escape the discord he found in his home.” Hearing Examiner’s decision at 3. The Secretary’s redetermination was, however, based in part on the evidence of continued life. Tr. 12.

      . Even if there is a conflict between the important decisions of other courts of appeals, it does not seem as grave to us as it did to the district court. In Dowell v. Gardner, 386 F.2d 809 (6th Cir. 1967) and Miller v. Richardson, 457 F.2d 378 (3rd Cir. 1972), the courts accepted the factual determination of the Secretary that pre-departure evidence effectively explained the insured’s absence and, thus, rebutted the presumption that he was dead. In Gardner v. Wilcox, 370 F.2d 492 (9th Cir. 1966), the court similarly held that pre-departure evidence was relevant to deciding whether the insured’s absence was explained or not, and that there was not insufficient evidence for such a finding on the facts presented. Since the Hearing Examiner had not weighed the evidence, however, but had maintained that if any explanatory evidence were forthcoming, the absence could not, as a matter of law, be “unexplained,” the court remanded the case to him to make a specific finding of fact. The district court, and Judge Chambers dissenting in Wilcox, thought the decision inconsistent with the Ninth Circuit’s prior ruling in Secretary v. Meza, 368 F.2d 389 (1966). In that case, plantiff’s husband had left her in 1948. As late as 1954, Social Security records showed him employed in another jurisdiction. More than seven years after 1954, plaintiff applied for benefits. The court held that 1954 constituted a second disappearance and that the Secretary’s conclusion that there was ' an explanation for that disappearance was not supported by substantial evidence. If the case cannot be reconciled with Wilcox, as Judge Chambers thought,' the inconsistency lies in the application of the substantial evidence test, which does not concern us here. We cannot agree with the district court that Meza held that pre-departure evidence was not relevant, for in that case, Judge Duniway said, “The presumption [of death] can . be dissipated in two ways. One would be by presenting evidence that the missing person is alive .... The other showing would he hy proof of facts that rationally explain, the anomaly of the disappearance in a manner consistent with continued life.” 368 F.2d at 392 (emphasis added). Aubrey v. Richardson, 462 F.2d 782 (3rd Cir. 1972) may, however, be different, though it does not squarely contradict our holding. The court said that it disagreed with the Secretary’s position that “no affirmative evidence that the insured is alive is necessary.” 462 F.2d at 784. As we read the opinion, the court does not foreclose reliance upon pre-departure evidence. It felt, however, that more “than mere conjecture” as to possible explanations is necessary, quoting Judge Duniway’s language, supra, but adding the gloss that the facts must be those “which do — not merely may” rationally explain the absence. 462 F. 2d at 785. The court concluded that the facts before it — including the Departmental Appeals’ Council’s reversal of the Hearing Examiner’s award of benefits — did not amount to more than conjecture. Judge Van Dusen dissented, maintaining that facts not dissimilar to those before us, did constitute substantial evidence.

      . “At best, the uncontradicted evidence, as hereinabove summarized, indicates that there did exist a motive for Ballard’s possible desertion of the family on November 15, 1958. There is no evidence of the continued life of Ballard after that date, unless the same evidence of disappearance, which raises the presumption of death, will support an overriding inference of continued life. In the view of this court, the regulation will not permit interpretation which produces such such a paradoxical result.” Decision of the District Court at 188.

      . Seven years is an arbitrary period, adopted by English courts confronted with absences of men who had run off to sea, by analogy from the statutes governing bigamy, 1 Jac. I ch. 11 (1604) and estates for life, 19 Car. II ch. 6 (1667). The origin of the rule appears to be Doe v. Jesson, 6 East 80, 102 Eng.Rep. 1217 (1805). It is said that after the elapse of seven years, the ordinary presumption of ongoing life ceases, and that of death arises. J. Thayer, A Preliminary Treatise on Evidence at the Common Law 323 (1898). See generally Frances T. Freeman Jalet, Mysterious Disappearance: The Presumption of Death and the Administration of the Estates of Missing Persons or Absentees, 54 Iowa L. Rev. 177, 181-185 (1968).

      . “Congress has not provided for benefits to children of an insured parent who has deserted them but only for children of an insured parent who is dead." Dowell v. Gardner, stipra, 386 F.2d at 810 (emphasis in original) .

      . It has been plain since the presumption of death was first firmly established that evidence concerning the circumstances of depart-ture are relevant to deciding whether, in any particular case, death will be presumed. Writing for the Supreme Judicial Court of Massachusetts in 1840, Chief Justice Shaw said: “The presumption is greatly strengthened when departure of an individual was from his native place, the seat of his ancestors, and the home of his brothers and sisters, and family connections; and still further, when it was to enter upon the perilous employment of a seafaring life and when he has not been heard of, by those who would be most likely to know him, for upwards of thirty years.” Loring v. Steineman, 1 Metcalf 204, 211 (emphasis added). It is also clear that evidence concerning the motive for desertion may tend to rebut the presumption: “The strength of this presumption varies with the circumstances; its force depends on the character of the person, his attachment to his home, and the circumstances under which he left. . . . Evidence tending to show the desire of the absent person to conceal his identity, . . . that he was a fugitive from justice, or any other fact or circumstance surrounding his disappearance, tending to support or rebut the presumption is admissible.” Wachovia Bank & Trust Co. v. Deal, 227 N.C. 691, 44 S.E.2d 73, 75 (1947). See also Shaw v. Prudential Ins. Co. of America, 158 Wash. 43, 290 P. 694 (1930).

      . The Common Law authorities do not appear to differentiate between “explanations” concerning the circumstances of departure, and “explanations” tending to show that the disappeared is still alive, 25A C.J.S. Death § 7, Shaw v. Prudential Ins. Co. of America, supra, 158 Wash, at 45-46, 269 P. at 695. It appears to us that the regulation is an attempt to state the distinction between the two kinds of evidence more precisely.

      . “We are advised by the Social Security Administration that 20 C.F.R.. 404.705, the Secretary’s regulation governing the presumption of death in Social Security cases, controls the disposition each year of at least 2,000 claims for survivors’ insurance benefits under the Act.” Brief for Appellant at 9.


author: FAIRCHILD, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Frank Peter TERESI, Defendant-Appellant,
    No. 73-1354.
    United States Court of Appeals, Seventh Circuit.
    Argued June 8, 1973.
    Decided Aug. 28, 1973.
    See also, 7 Cir., 474 F.2d 759.

      Sherwood L. Levin, Chicago, 111., for defendant-appellant.
    James R. Thompson, U. S. Atty., William T. Huyck and Theodore T. Scudder, Asst. U. S. Attys., Chicago, 111., for plaintiff-appellee.
    Before FAIRCHILD, STEVENS and SPRECHER, Circuit Judges.
   FAIRCHILD, Circuit Judge.

This is an appeal from orders of the district court entered April 17, 1973, Judge Austin, presiding. On March 28, 1973, an order had been entered by the district court, Judge Perry presiding, suspending a sentence previously imposed and placing defendant on probation. One of the April 17 orders vacated the order of March 28. The other reduced the three year sentence previously imposed by one month, leaving it for the most part in effect. This appeal presents the question whether the March 28 order was void, and if not, whether the April 17 orders have any effect. Several subsidiary questions must also be resolved.

We conclude that the March 28 order was not void, although it requires correction; that its substance is controlling; and the April 17 orders, appealed from, must be reversed.

On November 9, 1971, defendant was convicted in the district court for the northern district of Illinois of refusal to submit to induction, and was sentenced to three years imprisonment. On appeal this court affirmed. United States v. Teresi, 474 F.2d 759 (1973). Our mandate was filed in the district court March 23, 1973, and, apparently by arrangement with the marshal, defendant was to surrender at noon March 28, 1973 to begin his sentence.

During the morning of March 28, defendant came to the district court with a motion to reduce sentence. Because Judge Napoli, who had imposed sentence, had died July 12, 1972, defendant presented his motion to Judge Parsons, then emergency judge. Judge Parsons declined to rule upon the motion, but referred the matter to the Executive Committee for reassignment.

The Executive Committee assigned defendant’s case to Judge Austin. Judge Austin, who was away for several days’ vacation, had made arrangements with Senior District Judge J. Sam Perry to hear emergency motions, and defendant sought to bring his motion before Judge Perry.

Judge Perry agreed to hear the motion. Thereafter, following notice to the government, a hearing was conducted at which defendant presented several witnesses on his behalf. During this proceeding the government pointed out that defendant had originally asked for probation and Judge Napoli had denied it, but the government did not ask for a continuance or otherwise object to Judge Perry’s decision to consider the motion. The government must be deemed to have waived non-jurisdictional challenges.

At the conclusion of the hearing, Judge Perry entered the following order:

“It is hereby ordered that the motion of defendant to reduce the sentence is denied, and motion to place defendant on probation is hereby granted. It is further ordered that the three year sentence of defendant to the custody of the Attorney General of the United States is hereby suspended and defendant is placed on probation for a period of three years upon the following conditions: First that he seek custody of his minor daughter and support her during the period of probation ; second that he shall spend six months in the custody of the Attorney General of the United States beginning on such date as this Court shall fix and determine during said period of probation provided however that if this Court is satisfied with defendant’s conduct while on probation and does not order defendant to be so committed for six months period before September 27, 1975, then on that date defendant’s probation shall be terminated and the condition of spending 6 months in the custody of the Attorney General of the United States shall automatically be waived and become null and void.”

Defendant’s efforts to obtain a hearing extended well beyond the hour he was to report to the marshal. The marshal was apprised of defendant’s presence in the federal building and his motivations for not reporting by noon. The marshal made no effort to take defendant into custody and, after the hearing, the defendant reported to a probation officer.

On April 4, 1973, the government presented to Judge Austin a motion to vacate Judge Perry’s March 28 order. A hearing was conducted April 17. At this proceeding Judge Austin indicated that defendant’s motion was not an emergency. He expressed his belief that since he had been assigned defendant’s case he only could properly deal with the matter and Judge Perry’s order was void. Judge Austin vacated Judge Perry’s order and entered an order reducing defendant’s sentence from three years to two years and eleven months to reflect the one month defendant had served on probation. Aside from the adjustment for the one month, the April 17 orders purported to leave the original sentence in force and unstayed.

The orders directly before us on appeal are those entered April 17. It will be seen, however, that because of our view with respect to double jeopardy resulting from imposition of sentence of imprisonment after service of a period of probation had begun, the critical question is whether the March 28 order was void.

Neither the lapse of time nor the affirmance of the original judgment deprived the district court of jurisdiction to suspend the execution of sentence and place the defendant on probation. Kriebel v. United States, 10 F.2d 762 (7th Cir., 1926); White v. Steigleder, 37 F.2d 858 (10th Cir., 1929).

Such jurisdiction would have been lost had defendant begun service of his sentence. Cook v. United States (United States v. Murray), 275 U.S. 347, 48 S.Ct. 146, 72 L.Ed. 309 (1928). Although the government argues that execution of sentence had begun before the March 28 order was entered, the record does not support the claim. Under the circumstances already described with respect to the arrangements between the marshal and defendant, it cannot be said, that defendant was in the marshal’s custody and had begun to serve his sentence at the time that the order granting probation was entered.

Thus the district court had jurisdiction on March 28 to stay execution of the sentence and place defendant on probation.

The March 28 order is ambiguous. 18 U.S.C. § 3651, second paragraph, would authorize a sentence of imprisonment for three years, with confinement for six months, execution of two and one-half years suspended, and defendant placed on probation for such period, subject to the condition stated with respect to defendant’s daughter. The sentence expressed in the order, however, conflicts with this paragraph. It does not provide unconditionally for confinement for six months, and leaves it to the discretion of the court at some later date to order the beginning of confinement for six months, and confinement never to occur if the court does not order it within two and one-half years. Hence the sentence ordered on March 28 cannot rest on the second paragraph of § 3651.

Two other constructions of the sentence appear to be possible and lawful: (A) Portions of the order indicate the court’s intention that defendant remain on probation for two and one-half years, subject to a term of imprisonment of six months if probation be revoked. This could have been more clearly expressed as a sentence of imprisonment for six months, execution suspended, and defendant placed on probation for two and one-half years. The express denial of reduction of the original (three year) sentence and the references to three years as the extent of the sentence being suspended and as the period of probation are inconsistent with the intent just suggested. (B) Giving paramount effect to the references to three years as the term of imprisonment and as the term of probation, the sentence could have been expressed as a sentence of imprisonment for three years, execution suspended, and defendant placed on probation for three years.

In any event, the court’s intention that defendant need not necessarily be confined at all, and that he be placed on probation is manifest and paramount. Although the ambiguities require that the sentence prescribed on March 28 be corrected, they did not render it void.

The claim of voidness of the March 28 order most vigorously pressed by the government is that by reason of the assignment of the case to Judge Austin and the local rules, Judge Perry had no authority on March 28 to exercise the jurisdiction of the district court in this case.

We deem it irrelevant for this purpose that Judge Perry is a senior judge, who had retired from regular active service under 28 U.S.C. § 371(b). For the period in question Judge Perry was designated and assigned by the chief judge of the circuit to perform the duties of district judge in the northern district of Illinois. 28 U.S.C. § 294(e), and § 292(b).

“[J jurisdiction is lodged in a court, not in a person. The judge, exercising the jurisdiction, acts for the court.” In re Brown, 346 F.2d 903, 910 (5th Cir., 1965). An application of this principle to suspension of sentence and grant of probation is found in Ackerson v. United States, 15 F.2d 268 (2nd Cir., 1926). In any particular matter, Judge Perry could exercise the jurisdiction of the court to the same extent as any judge in regular active service.

The government, citing 28 U.S. C. § 137, suggests that because defendant’s motion to reduce was assigned to Judge Austin in accordance with the rules of the district, Judge Perry was without authority to act. Section 137 provides: “The business of a court havinig more than one judge shall be divided among the judges as provided by the rules and orders of the court.”

This argument is, however, seriously undermined on its own terms by the broad language in Rule 36, subd. 1 of the General Rules for the northern district of Illinois. This rule provides:

“1. Temporary Absence of Assigned Judge. Cases on the Bankruptcy, Criminal, and Civil calendars of a judge who is temporarily absent because of illness or otherwise may be heard by a judge selected by the absent judge or a judge designated by the Executive Committee.”

Because of the arrangement between the judges that Judge Perry should hear matters during Judge Austin’s absence, we find no merit in the proposition that action in this matter by Judge Perry contravened the rules of the district court.

The government appears to suggest that the rule is to be construed as authorizing the substituting judge only to pass upon “mechanical matters such as orders granting extensions of filing deadlines, granting leave to file papers and the like.” Such a narrow construction is not readily suggested by the language of the rule. It may well be that the substituting judge will exercise restraint in deciding how far to- go in dealing with a matter arising in the assigned judge’s absence, but we think that whatever the extent to which he does exercise the jurisdiction of the court, his action has the same effect as if the assigned judge had taken the same action.

The government has called our attention to a general order of the district court, reciting that Judge Perry had indicated a wish to be included in the assignment of new cases, and directing the assignment clerk to assign newly filed civil cases to his calendar. The most this implies with respect to criminal eases is that new ones are not to be routinely assigned to him. We do not view the order as implying any restriction upon his authority in a criminal case which comes before him by arrangement with an absent judge to whom the case had been assigned.

We conclude' that the March 28 order was not void.

Once it has been determined that the March 28 order was not void, the propriety and effect of the April 17 orders must be considered.

Judge Perry had reconsidered Judge Napoli’s original denial of probation and had chosen a different result. Any restraint with which one judge approaches reconsideration of a decision made in the same case by another judge of his court is a principle of comity and not a limitation upon jurisdiction. ' Bowles v. Wilke, 175 F.2d 35, 37 (7th Cir., 1949). Could Judge Austin reconsider Judge Perry’s decision, and impose a more onerous sentence? We think no more onerous sentence could be imposed once defendant began to serve his period of probation under the March 28 order.

“It is a well settled general rule that increasing a sentence after the defendant has commenced to serve it is a violation of the constitutional guaranty against double jeopardy.” United States v. Sacco, 367 F.2d 368, 369 (2nd Cir., 1966), and cases cited therein.

Of course probation is subject to revocation, and actual confinement may result therefrom. 18 U.S.C. §§ 3651, 3653. Such confinement as a result of revocation does not violate the fifth amendment. But we think that, short of revocation, a change from probation, once service thereof has been commenced, to an unsuspended sentence of imprisonment, must, logically, be a violation of the guaranty against double jeopardy.

In deciding that an order of probation without sentence is appealable, the Supreme Court noted that a probation order is an abridgement of the defendant’s liberty in the public interest, and a mode of punishment, though mild and ambulatory. Korematsu v. United States, 319 U.S. 432, 435, 63 S.Ct. 1124, 87 L.Ed. 1497 (1943). Probation has been held to constitute punishment, though lenient, for the purpose of determining the question of double jeopardy. Oksanen v. United States, 362 F.2d 74, 80 (8th Cir., 1966); Commonwealth v. Vivian, 426 Pa. 192, 231 A.2d 301, 305 (1967). Defendant began to serve the period of his probation when he reported, apparently March 28, to the probation officer and the officer accepted technical custody. Pugliese v. United States, 353 F.2d 514, 516 (1st Cir., 1965).

Reversing the April 17 orders would restore the March 28 order to force. The ambiguities of that order, however, call for correction. On remand, the district court should correct it so that its terms are clear and it is consistent with 18 U.S.C. § 3651. It should be no more onerous than a sentence of imprisonment for three years with execution suspended and defendant placed on probation for a period of three years, with the conditions concerning defendant’s daughter as now provided. It may be made less onerous.

The orders of April 17, 1973, appealed from, are reversed and the cause is remanded for correction of the sentence contained in the order of March 28, 1973, consistent with this opinion.

      . Rule 36, subd. 3 of the General Rules for the northern district provides :

        “Vacancies. Oases on the calendar of a Judge who dies, resigns or retires shall be reassigned as soon as possible under the direction of the Executive Committee, pro-rata by lot to the remaining Judges.”

      . See the suggestion of this court that a marshal not be over-zealous in a situation of this type. Trant v. United States, 90 F. 2d 718 (7th Cir., 1937).


author: BRUCE R. THOMPSON, District Judge:

text:
    Frances E. MORENO, as guardian for Ernest R. Moreno, Jr., a minor, Plaintiff-Appellant, v. Elliot L. RICHARDSON, Secretary of Health, Education, and Welfare, Defendant-Appellee.
    No. 71-2039.
    United States Court of Appeals, Ninth Circuit.
    Aug. 21, 1973.

      Loren E. Buckey (argued), Sacramento, Cal., for plaintiff-appellant.
    William B. Shubb, Chief Asst. U. S. Atty. (argued), Dwayne Keyes, U. S. Atty., Sacramento, Cal., for defendant-appellee.
    Before BARNES and TRASK, Circuit Judges, and THOMPSON, District Judge.

       Hon. Bruce R. Thompson, United States District Judge, District of Nevada, sitting by designation.

   BRUCE R. THOMPSON, District Judge:

This action was brought in the District Court under Section 205(g) of the Social Security Act, hereinafter called “the Act” [42 U.S.C. § 405(g)], to review a final decision of the Secretary of Health, Education and Welfare disallowing the plaintiff’s application, on behalf of her son, for child’s survivor’s insurance benefits under Section 202(d) of the Act [42 U.S.C. § 402(d)],

Both plaintiff and defendant moved in the District Court for summary judgment. The plaintiff’s motion was denied and the motion of the defendant was granted.

On September 5, 1967, plaintiff filed an application for surviving child’s insurance benefits on behalf of her son based on the earnings record of the child-claimant’s natural father, Ernest Moreno. The claim was initially denied and denied again after reconsideration upon the ground that the child was not the wage-earner’s “child” under the definitions in the Social Security Act.

Plaintiff requested a hearing. This was held on August 30, 1968, and resulted in pertinent findings by the hearing examiner quoted in the margin. Benefits were denied.

After the District Court action to review the decision was commenced, the parties stipulated that it be remanded to the Secretary for further action. The new evidence included a statement by plaintiff’s mother that plaintiff and Moreno had in fact lived together continuously since July 1965 and Moreno had supported plaintiff. Also included was a judgment declaring paternity entered by the Superior Court of the State of California, in and for the County of Sacramento, on March 4, 1969, in an action by Frances E. Moreno against the Administrator of the Estate of Ernest Moreno. The judgment was entered pursuant to Section 230 of the California Civil Code. The findings of fact in support of the judgment are copied in the margin.

The final decision on reconsideration was entered February 6, 1970, denying the claim. The following extract explains the basis for the decision:

“Although at the outset of this claim for child’s benefits the wage earner’s mother also asserted that the wage earner was not living with the claimant’s mother (Exhibit 9), she and the claimant’s mother have now recanted this assertion.
“It is not disputed that at the time the claimant’s mother met the wage earner she was separated from her husband, Larry R. Price, and needed assistance in supporting herself and their two children. She and the wage earner were aware that if she lived with the decedent she would not be eligible for welfare assistance. In view of the fact that the wage earner stated he was not permanently employed but only had a temporary part time job, and would not be able to assume responsibility until they married in February, it is doubtful that they would jeopardize her welfare assistance by living together especially since the welfare department was aware that she was now pregnant. Furthermore, although several other disinterested parties testified that the wage earner verbally acknowledged the claimant as his unborn child; that they knew the wage earner and the claimant’s mother ; and that they knew that the wage earner stated that he intended to marry her, not one of these witnesses stated that the parties lived together.
“The initial statement by the wage earner’s mother asserting that the wage earner lived with her and not with the claimant’s mother more accurately represents the truth in this case. This statement was made at the time this claim was being initially developed and before she was aware of the effect on the child’s entitlement.
“The record as a whole shows that the decedent’s address was that of his mother, although he spent a great part of his time with the claimant’s mother. The restrictions laid down by welfare for continued assistance were that the wage earner not stay overnight with the claimant’s mother no more than 3 visits a week, no cash to claimant’s mother but gifts of pots and pans were allowable. That the decedent and claimant’s mother elected to accept these restrictions is not disputed, and actions to conform therewith are verified by the statements of parties and evidence in general. The fact that the parties may have exceeded the restrictions set forth by the Welfare department as to visits or overnight stays does not establish that the parties were ‘living together’ within the purview of the Social Security Act. The current allegations that the decedent and claimant’s mother ‘lived together’ are not supported by the evidence.
“The record does not show allegations or evidence that the decedent contributed to the claimant’s support. The claimant’s mother stated that the wage earner only infrequently gave her small sums of money and on two occasions brought her small gifts. This assertion is consistent with the wage earner’s admittedly poor financial condition and the welfare imposed restrictions.
“The evidence of record is persuasive that the decedent and the claimant’s mother were not living together at the time of his death, and he was not contributing to the unborn child’s support, and the Appeals Council so finds. Thus, the claimant is not deemed a child under section 216(h)(3) (C) (ii) of the Act.”

• There are two principal issues on appeal. First, the plaintiff contends that the record supports the claim under Section 216(h) (3)(C)(ii) of the Social Security Act [42 U.S.C. § 416(h)(3)(C) (ii)]:

“An applicant * * * shall nevertheless be deemed to be the child of such insured individual if * * * in the case of a deceased individual * * * such insured individual is shown by evidence satisfactory to the Secretary to have been the father of the applicant, and such insured individual was living with or contributing to the support of the applicant at the time such insured individual died.”

Plaintiff argues that the facts found support entitlement under this section. Compare: Wagner v. Finch, 413 F.2d 267 (5th Cir. 1969). We disagree. “The scope of our review in this case is limited: ‘The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive * * *.’ 42 U.S.C. § 405(g). Dean v. Gardner, 393 F.2d 327 (9th Cir. 1968); Mark v. Celebrezze, 348 F.2d 289 (9th Cir. 1965).” Rhinehart v. Finch, 438 F. 2d 920 (9th Cir. 1971). This principle applies to determination of credibility and to reasonable inferences to be drawn from the evidence found to be true. Foss v. Gardner, 363 F.2d 25 (8th Cir. 1966); Beane v. Richardson, 457 F.2d 758 (9th Cir. 1972).

The Appeals Council, acting for the Secretary, chose to believe the evidence that Moreno and the child’s mother were not living together and that decedent infrequently gave her small sums of money and on two occasions gave her small gifts. They inferred and found that decedent wage-earner was not contributing to the unborn child’s support. This is a fair and reasonable inference from one view of the evidence which has substantial support in the record, and this Court is not authorized to find to the contrary.

The second ground asserted for reversal is that the Secretary misinterpreted and misapplied California law respecting legitimation of children. We have more sympathy with this contention. The Appeals Council forthrightly denounced the absence of respect for the truth exhibited by plaintiff and decedent’s mother. But irrespective of their juggling of the facts to suit what appeared to be their best position at the particular moment, if, under both statements of what occurred, the child of decedent wage-earner is the legitimated child of decedent under California law, the claim should be allowed. The revised statement of facts on remand to the Secretary was that Moreno did, in fact, live with plaintiff for several months and he contributed substantially to her support while she was pregnant. This was the evidence which, presumably, was presented to the California Superior Court in the 1969 legitimation proceeding resulting in the finding No. 5 (see Fn. 2, supra). The Appeals Council chose to believe the first story, that is, that Moreno had freely acknowledged paternity, had paid for the divorce, intended to marry plaintiff and buy a home as soon as the divorce became final, but that Moreno and plaintiff did not live together and he .made only insignificant contributions to her support because the restrictions laid down by welfare were that Moreno not stay overnight, visit no more than three times a week and make only small gifts.

The Social Security Act adopts state law respecting the legitimation of children:

“(2) (A) In determining whether an applicant is the child or parent of a fully or currently insured individual for purposes of this subchapter, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death, or, if such insured individual is or was not so domiciled in any State, by the courts of the District of Columbia. Applicants who according to such law would have the same status relative to taking intestate personal property as a child or parent shall be deemed such.” 42 U.S. C. § 416(h)(2)(A).

Section 230 of the California Civil Code governs this case.

“The father of an illegitimate child, by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such; and such child is thereupon deemed for all purposes legitimate from the time of its birth. The foregoing provisions of this Chapter do not apply to such an adoption.” California Civil Code § 230.

The final decision of the Appeals Council, although mentioning this section, gave no real consideration to it and cited no California cases on the legitimation by a father of his illegitimate child. The fact found by the Trial Examiner was: “The evidence establishes that Ernest Moreno did publicly acknowledge that he was the father of Ernest R. Moreno during gestation, but the evidence fails to establish that he received it into his family and otherwise treated it as his legitimate child.” While the reasons are not explicitly clear, we infer that the Social Security Administration denied the claim under Section 230 of the California Civil Code because Moreno had not received the child into his family.

Such a literal reading of the statute is not supported by the decisions of the California courts. Despite some early language to the contrary (see Estate of Baird, 193 Cal. 225, 279, 223 P. 974 (1924)), current California authority has minimized the element of receipt by the father. Thus, in Estate of Abate, 166 Cal.App.2d 282, 333 P.2d 200 (1958), the Court ruled that the element of receipt into the family is applicable only where the father has a family other than the illegitimate child. In another case, with facts quite similar to the instant situation, the Court held that Section 230 legitimation can be accomplished prior to birth. To do so, the unborn child must be treated as legitimate so far as the father is able. Lavell v. Adoption Institute, 185 Cal.App.2d 557, 8 Cal.Rptr. 367 (I960).

In other California developments, quite consistent with the state policy favoring legitimation, infra, the courts have held that making plans to live together satisfied Section 230 where a pending divorce decree prohibited doing more. Hurst v. Hurst, 227 Cal.App.2d 859, 39 Cal. Rptr. 162 (1964). In Estate of Peterson, 214 Cal.App.2d 258, 29 Cal.Rptr. 384 (1963), mere weekend visits by the father were sufficient to meet the requirement of acceptance into the father’s home, given actual paternity and public acknowledgment.

In Rodriguez v. Rodriguez, 329 F. Supp. 597 (N.D.Cal.1971), the Court said:

“With respect to a child bom out of wedlock to an unmarried, single father, a clear public acknowledgment of paternity, plus the performance of such other acts as are reasonably sufficient under the circumstances of the particular case to constitute a ‘treating [the child] as if it were a legitimate child’, accomplishes a complete legitimation of the child. Such a child may be legitimated prior to its birth. Lavell v. Adoption Institute, 185 Cal.App.2d 557, 8 Cal.Rptr. 367 (1960). If the father, in addition to acknowledging the paternity, indicates an intention and desire to treat the child as his own, considering the circumstances, the requirements of the statute are satisfied and it is not essential that the father have and maintain a home and family into which the child is received. Estate of Abate, 166 Cal.App.2d 282, 333 P.2d 200 (1958); Darwin v. Ganger, 174 Cal.App.2d 63, 344 P.2d 353 (1959); Blythe v. Ayres, 96 Cal. 532, 31 P. 915 (1892); In re Jessup’s Estate, 81 Cal. 408, 21 P. 976 (1889).”

In the Rodriguez case, the father was prevented from receiving the child into his family by the fact that he was in the United States Army on active duty in Viet Nam where he was killed.

The “circumstances” present in this ease which prevented Moreno from doing more to recognize the child as his own were the requirements of the Sacramento Welfare Department. If we accept the Secretary’s resolution of the conflicts in the evidence, under his view of the situation that obtained before Moreno’s death, Moreno had legitimated his unborn son under California law. Thus the child applicant is an insured claimant under 42 U.S.C. § 416(h)(2)(A) and the defendant’s motion for summary judgment should be denied and the plaintiff’s motion should be granted.

The judgment of the District Court is reversed and the case remanded to the Secretary with instructions to grant the application for benefits.

      . “(4) The evidence establishes that Frances E. Moreno received $165 per month as welfare and/or aid from the County of Sacramento for rent, food and clothing from 1965 through August 1, 1966, the date of claimant’s birth.
      “(5) The evidence establishes that the deceased, E'rnest Moreno, orally admitted that he was the father of Ernest R. Moreno prior to the child’s birth and prior to the death of Ernest Moreno.
      “(7) The evidence establishes that there has been no court decree indicating that the deceased, Ernest Moreno, was the father of the applicant.
      “(9) The evidence establishes that Ernest Moreno (now deceased) visited with claimant, Frances Moreno, three times a week during the child’s gestation period, but does not establish that he was living with the claimant and her son.
      “(10) The evidence fails to establish that Ernest Moreno (deceased) was living with or contributing to the support of the applicant at the time that he (Ernest Moreno, deceased) died.
      “(12) The evidence establishes that Ernest Moreno did publicly acknowledge that he was the father of Ernest R. Moreno during gestation, but the evidence fails to establish that he received it into his family and otherwise treated it as his legitimate child, nor did Ernest Moreno acknowledge the child as his in writing signed in the presence of competent witnesses.
      “(13) The evidence fails to establish that Ernest R. Moreno is entitled to devolution of intestate property of Ernest Moreno, deceased ; nor that he is the child of the deceased worker as determined under the laws of the State of California.
      “(14) The evidence fails to establish that Ernest R. Moreno is the child of Ernest Moreno, deceased, under the criteria of the Social Security Act.”

      . “1. ERNEST RENO MORENO was born on August 1, 1966.
      “2. Ernest R. Moreno, deceased, is and was ■ the father of said minor child.
      “3. Plaintiff and the deceased Ernest R. Moreno are not now and never were married to one another.
      “4. The deceased Ernest R. Moreno publicly acknowledged that he was the father of said minor child.
      “5. The deceased Ernest R. Moreno was an unmarried man who lived with plaintiff and said unborn minor child as a family in her home and said father received said minor child into his family.
      “6. The deceased Ernest R. Moreno otherwise treated said child as if it were a legitimate child.”

      . “After careful consideration of the entire record, the Appeals Council is of the view that the claimant’s mother and the deceased wage earner’s mother have been less than candid with respect to the welfare claim and the claim for social security benefits on behalf of the claimant. It appears that in order to come within the purview of the regulations of the Welfare Department of Sacramento County they found it necessary to circumvent the provisions of the California Code relating to legitimation of a child born out of wedlock. Thus, their subsequently recanted statements in the instant case are subject to very close scrutiny and their veracity is subject to considerable doubt. If it was expedient to take a devious course of action in order to obtain welfare assistance, it would be just as expedient to employ similar means to obtain social security benefits.”

      . If a transcript of the testimony offered to the Superior Court of the State of California, in and for the County of Sacramento, in the 1969 legitimation action had been made a part of this record and it should disclose that the evidence there presented was the same as the evidence before the Secretary in support of the claim, we would be inclined to hold the Secretary to be bound by the paternity declaration of the California Court. Cf. Legory v. Finch, 424 F.2d 406 (3rd Cir. 1970) : “While the Social Security Administration may ignore a decision by a lower state court, particularly one entered ex parte, when the decision was demonstrably inconsistent with the general law of the state * * *, such a course is improper when the lower court decision is fair and logical and no authoritative decision to the contrary exists.”

      . It is also true that a father may be living with or contributing to the support of an unborn child under 42 U.S.C. § 416(h)(3) (C) (ii). Wagner v. Pinch, 413 F.2d 267 (5th Cir. 1969).