author: DYER, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Carlton Ellis ALLISON et al., Defendants-Appellants.
    No. 72-2828.
    United States Court of Appeals, Fifth Circuit.
    July 13, 1973.

      Arthur J. Hanes, Sr., Birmingham, Ala., for Allison and Perry.
    J. Terry Huffstutler, Jr., Guntersville, Ala., for Holladay.
    Robert B. French, Jr., Fort Payne, Ala., for Ralph Marquez.
    James R. Venable, Atlanta, Ga., for Bryant and Robinson.
    Larry L. Debus, Phoenix, Ariz., for Michael Marquez.
    Wayman G. Sherrer, U. S. Atty., Albert C. Bowen, Jr., Asst. U. S. Atty., Birmingham, Ala., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and COLEMAN and DYER, Circuit Judges.
   DYER, Circuit Judge:

The defendants were tried and convicted of substantive violations of the Dyer Act, 18 U.S.C.A. §§ 2312 & 2313, and of conspiracy in violation of 18 U. S.C.A. § 371. The only issue on appeal deserving in depth consideration is whether a new trial is required because the district court allowed an alternate juror, who had been carefully instructed not to participate in any way in the jury’s deliberations, to accompany the twelve regular members of the jury to the juryroom and to remain with them during the first portion of their deliberations until the court could ascertain whether one member of the jury who had been ill the previous night was well enough to continue throughout the jury’s entire deliberations. We remand for an evidentiary hearing to determine if there is a reasonable possibility that the presence of the alternate juror during the jury’s deliberations affected the jury’s verdict.

On August 3, 1972, after the conclusion of evidence and argument of counsel in this three-week trial, the court recessed until 9:00 A.M. on August 4. Upon reconvening it was brought to the court’s attention that one of the regular jurors, Finch, had been ill the night before and that his ability to continue was uncertain. Counsel for the defendants and the United States Attorney were called into chambers and informed of the situation. The court explained the alternatives:

I can excuse him [the alternate] and hold him away from everybody and away from the jury just in case we need him. And I think this is maybe the best procedure. I can instruct him and the jury that he is going to sit in the juryroom just in case he is needed. But that he is not to in any way participate in any of the deliberations. That he is to have nothing to say. Just sit there. Or I can get a stipulation out of all the lawyers that they will agree to proceed or allow the jury to proceed with their deliberations so long as eleven jurors remain in the juryroom.

The United States Attorney then suggested that the court excuse Finch and replace him with the alternate, Henry. But the trial judge discarded this suggestion because he did not believe that Finch’s “illness right at this time is such that it would justify me substituting the alternate for him.”

All of the defendants’ attorneys agreed that the best procedure would be to allow the alternate to accompany the jury to the juryroom. No one saw any harm in this procedure since the jury had not been sequestered and since Henry had been with the jury during the entire three-week trial. Indeed, the defense counsel emphasized that they preferred this solution. Additionally, the procedure to be followed was carefully explained a second time by the trial judge in open court in the presence of all of the defendants and their attorneys. The jury and Henry were instructed that Henry was “not to participate in any way. You are not to make any suggestion or you are not to help them in any way. Just be there in ease we need you. . . . And, of course, you realize that you would not participate in any vote or do anything other than just be available.” The jury retired and after 1 y2 hours of deliberations took a break for lunch. After lunch it became apparent that Finch was feeling somewhat better and was “going to make it,” whereupon the alternate juror was immediately discharged. The jury then returned to the juryroom and deliberated another 3 hours before rendering a verdict of guilty.

Never, throughout all of the proceedings in chambers, in open court, and after the verdict was rendered, did any of the defendants or their attorneys voice the slightest objection to the jury procedure. The issue was raised for the first time on appeal. Before this Court the defendants now contend that the district court’s allowing the alternate juror to retire to the juryroom and remain there with the twelve Regular jurors during part of the deliberations violated their Sixth Amendment right to a trial by a jury of twelve. We disagree.

The defendants do not question that the procedure to be followed was fully explained to them and to the jury in open court, nor do they deny the fact that their attorneys expressly consented and stipulated to, even indicated a preference for, the procedure adopted by the district court. Rather they contend that the stipulation entered into on their behalf by their counsel did not constitute a waiver of their Sixth Amendment rights because they did not personally assent to the procedure. Furthermore, they argue that even if their silence during and after the court’s explanation of the procedure coupled with the affirmative approval of their attorneys in chambers would in other circumstances constitute a waiver, they were powerless under the Sixth Amendment’s mandate to agree to a jury of more than twelve — i. e., that a jury in excess of twelve, even if expressly approved by the defendants, their attorneys, the prosecution and the court, is per se unconstitutional. We need not and do not pass upon the defendants’ constitutional arguments. In our view, the defendants were not tried by a jury of thirteen, but rather by a jury composed of twelve members with an alternate observing a portion of the deliberations. The district court expressly instructed the alternate and the jury that the alternate was not to help the jury in any way, not to make any suggestions, not to participate in any vote, and not to do anything except be available in ease he was needed. In no sense did Henry have standing as a member of the jury. Indeed, he was discharged after 1 /% hours of deliberation and a full 3 hours before the jury rendered its verdict. This analysis of the jury procedure also renders moot the defendants’ argument that reversal is required because the mandatory twelve-member jury provision of Fed.R.Crim.P. 23(b) was violated.

The critical issue before us is whether the failure of the district court, in violation of Fed.R.Crim.P. 24(c), to discharge the alternate juror before the jury retired for deliberations and the presence of the alternate during the first one-quarter of the jury’s deliberations constitute plain error requiring reversal and a new trial. Admitting that their counsel expressly consented to the alternate observing the jury deliberations and conceding that counsel had every opportunity to object to this procedure both in chambers and in open court when the procedure was explained to the defendants and to the jury, the defendants nevertheless contend that any departure from Rule 24(c) automatically requires a new trial. We not only are of the view that such an automatic rule is an improper standard to apply to the situation here at issue, but also find the authority, upon which the defendants so heavily rely, for this proposition — United States v. Beasley, 10 Cir. 1972, 464 F.2d 468, and United States v. Virginia Erection Corp., 4 Cir. 1964, 335 F.2d 868 — to be factually distinguishable from the case sub judice.

In Virginia Erection, a new trial was necessitated by a combination of procedural irregularities which are not present in the instant case. First of all the alternate was instructed “to say nothing unless one of the regular jurors should become ill or ‘disqualified.’ ” 335 F.2d at 870. The Fourth Circuit reasoned that the district court by this instruction had apparently delegated to the alternate and to the ill juror the strictly judicial functions of “determining disqualification of a regular juror and ordering replacement by an alternate.” Id. at 871-872. Additionally, when it came to the attention of the trial judge that one of the jurors might be unduly prejudiced, he called the juror into his chambers and, “in the presence of all counsel, the court reporter, a deputy marshal and a notary public,” id. at 872, extensively interrogated her. After reviewing these proceedings, the Fourth Circuit concluded that “[tjhere exists the grave danger that the interrogation of Miss Furr may have operated as a restraint upon her freedom to function as a juror.” Id. at 873.

Unlike the present case, no one in United States v. Beasley consented to the alternate accompanying the jury during deliberations. After the trial to the jury had been concluded and the jury instructed, the court simply failed to discharge the alternate. Without the parties’ or the court’s knowledge, the alternate went along with the jury as it retired for deliberations, “participated in the vote to elect a foreman, and voted to go to lunch.” 464 F.2d at 469. After the trial judge realized that the alternate had not been discharged, the court was reconvened and the attorneys were advised of what had happened. Immediately, the defense counsel moved for a mistrial. “The court then held a brief hearing to determine the extent the alternate had participated. At the conclusion of this hearing the motion for mistrial was denied.” Id. The Tenth Circuit reversed, holding that “[o]nce the prescribed number of jurors becomes ‘the jury,’ then, and immediately, any other persons are strangers to its proceedings. Their presence destroys the sanctity of the jury and a mistrial is necessary.” Id. at 470.

While we might agree that under the circumstances of Beasley and of Virginia Erection a mistrial was necessary, we are not persuaded that the alternate’s presence during deliberations in the limited circumstances of the present case automatically requires the granting of a new trial. In Beasley counsel had not stipulated to the procedure and the alternate had not been instructed not to participate in any way. On the contrary, the alternate did participate in electing the foreman and counsel made a timely motion for a mistrial. In Virginia Erection, the alternate had not been instructed not to say anything or to do anything other than “just be there in case we need you.” Instead, the court’s instruction apparently gave the alternate and ill juror the authority to decide when the alternate was needed. Furthermore, regardless of the presence of the alternate during jury deliberations, the new trial was, in the circumstances of that case, required by the trial court’s interrogation of one of the jurors.

The provision of Rule 24(c) that an alternate juror who does not replace a regular juror “shall be discharged after the jury retires to consider its verdict” is a mandatory requirement that should be scrupulously followed. Because any benefit to be derived from deviating from the Rule is unclear and the possibility of prejudice so great, it is foolhardy to depart from the explicit command of Rule 24. Moreover, there is no rule providing that the parties, or the district court, may stipulate that an alternate be present during the jury’s deliberations. Nevertheless, given the unique posture of the present case — where the parties stipulated and urged upon the court that the alternate be allowed to sit-in on the jury deliberations, and the. alternate was expressly instructed not to participate in any way, not to say anything, not to vote, or otherwise do anything except be available in case the court found it necessary to substitute him for the ill juror — we are convinced that a new trial is not required unless on remand it is shown that there is a reasonable possibility that the presence of the alternate affected the jury’s verdict. See United States v. Nash, 2 Cir. 1969, 414 F.2d 234, cert. denied, 396 U.S. 940, 90 S.Ct. 375, 24 L. Ed.2d 242; United States v. Hayutin, 2 Cir. 1968, 398 F.2d 944, cert. denied, 393 U.S. 961, 89 S.Ct. 400, 21 L.Ed.2d 374; see also Leser v. United States, 9 Cir. 1966, 358 F.2d 313.

Given the peculiar facts of this case, if the alternate in fact abided by the court’s instructions to remain orally silent and not to otherwise indicate his views or attitude — in writing, by facial expressions, gestures, or the like — and if the presence of the alternate did not operate as a restraint upon the regular jurors’ freedom of expression and action, we see little substantive difference between the presence of a mute (orally and otherwise) alternate during jury deliberations and the presence in the jury-room of an unexamined book which had not been admitted into evidence. See Paz v. United States, 5 Cir. 1973, 473 F.2d 662; Paz v. United States, 5 Cir. 1972, 462 F.2d 740; United States v. Staples, 5 Cir. 1971, 445 F.2d 863, cert. denied, 1972, 404 U.S. 1048, 92 S.Ct. 710, 30 L.Ed.2d 739; Farese v. United States, 5 Cir. 1970, 428 F.2d 178. On the other hand, sufficient prejudice and effect on the jury’s verdict would be shown and, therefore, a new trial required if the alternate disobeyed the court’s instructions and in any way participated in the jury deliberations, or if any regular juror was deterred .in the free exercise of his independence of thought, expression, or action by the mere presence of a non-participating alternate during deliberations.

In framing relief “which will give due regard to the rights of the appellant, will likewise accord to the government an opportunity to preserve a fair conviction if no prejudice is shown, and which may thus avoid the necessity of another trial,” we follow the procedure outlined in United States v. Barson, 5 Cir. 1970, 434 F.2d 127, 131, and in Paz v. United States, 5 Cir. 1972, 462 F.2d 740, 746. We remand to the court below with directions to conduct an evidentiary hearing to determine whether the alternate participated in any way in the deliberations ; whether he took part in any votes of the jury; whether he indicated his views regarding any of the defendants in any way- — orally or otherwise; and whether the mere presence of the alternate restrained any of the regular jurors in expressing his views or in exercising his independence of thought and action. The district court shall make and certify to this Court findings of fact and conclusions of law together with a transcript of the proceedings. Our determination whether to affirm the judgments of conviction or to reverse for a new trial will follow such certification. Jurisdiction of the appeal is retained in this Court during the limited remand for the purpose stated.

At oral argument counsel for defendants obliquely raised the issue whether the absence of the defendants from chambers when the stipulation regarding the alternate juror was entered into violated the defendants’ right, under the Sixth Amendment and Fed.R. Crim.P. 43, to be present at every stage of their trial. Although many conferences in chambers may be regarded as a stage of the trial at which defendants have the right to be present, see, e. g., McKissick v. United States, 5 Cir. 1967, 379 F.2d 754, the meeting here in question was not such a stage: (1) it was in the nature of a conference on a point of law; (2) the jury procedure adopted by the court as a result of the conference was urged by defense counsel and agreed to, without objection, by the defendants through their attorneys; and (3) in any event, no prejudice resulted from the defendants’ absence since after the conference the procedure was fully explained to the defendants, accompanied by their attorneys, in open court with ample opportunity for objection. See United States v. Sinclair, 5 Cir. 1971, 438 F.2d 50; United States v. Gradsky, 5 Cir. 1970, 434 F.2d 880, cert. denied, 1971, 401 U.S. 925, 91 S.Ct. 884, 27 L.Ed.2d 828; United States v. Lewis, 5 Cir. 1970, 420 F.2d 686; Pope v. United States, W.D.Tex.1967, 287 F.Supp. 214, aff’d per curiam, 5 Cir. 1968, 398 F.2d 834, cert. denied, 1969, 393 U.S. 1097, 89 S.Ct. 886, 21 L.Ed.2d 787; cf. United States v. Garafolo, 7 Cir. 1967, 385 F.2d 200, vacated on other grounds, 1968, 390 U.S. 144, 88 S.Ct. 841, 19 L. Ed.2d 970.

Finally, we have carefully reviewed the record and find to be without merit the contentions of defendant Michael Marquez regarding (1) the denial of his motions in limine, for severance and for a continuance, (2) the misconduct on the part of the United States Attorney, (3) the admission, without objection, of statements of the co-conspirators, and (4) the sufficiency of the evidence.

The cause is remanded for the limited purpose of holding an evidentiary hearing as directed herein. Jurisdiction of the appeal is otherwise retained.

Remanded with directions.


source: Caselaw Access Project

author: TRASK, Circuit Judge:

license: Public Domain

text:
    Oma Belle DAY, Plaintiff-Appellant, v. Walter J. HICKEL, Secretary of the Interior of the United States, et al., Defendants-Appellees.
    No. 71-1866.
    United States Court of Appeals, Ninth Circuit.
    April 10, 1973.

      W. C. Arnold (argued), Anchorage, Alaska, for plaintiff-appellant.
    Bradford F. Whitman, Washington, D. C. (argued), G. Kent Edwards, U. S. Atty., Anchorage, Alaska, Shiro Kashiwa, Asst. Atty. Gen., Edmund B. Clark, Dept, of Justice, Washington, D. C., for defendants-appellees.
    Before MERRILL, DUNIWAY and TRASK, Circuit Judges.
   TRASK, Circuit Judge:

The district court by summary judgment upheld a decision of the Secretary of the Interior which rejected appellant’s application for certain lands near Valdez, Alaska, made under the Color-of-Title Act, 43 U.S.C. § 1068. Review by the district court was properly made pursuant to 5 U.S.C. § 704 and this court eyes it under 28 U.S.C. § 1291. We affirm.

On the south side of Port Valdez and to the west of the town of Valdez, Alaska, a spit of land which looks to be less than twenty acres in area extends north-westerly into the waters of the port. A narrow neck of earth connects it with the mainland. The tip of this arm of land which is Jackson Spit, is called Jackson Point.

The mainland near the spit was formerly an army post, Fort Liscum, and since its abandonment has been public domain subject to the patent applications herein described.

In 1929, Andrew S. Day, deceased husband of Oma Belle Day, appellant herein, filed a homestead claim in the District Recording Office at Valdez, Alaska, pursuant to the Act of March 3, 1903, ch. 1002, 32 Stat. 1028, as amended 48 U.S.C. § 371 (1970). This claim included a 50-acre corridor of land to the west of appellant’s present homestead, but the claim was never perfected.

The Day family carried on canning operations at Jackson Point for a number of years and constructed a road across the neck, from their mainland holding to the point. Walter Day, son of Andrew, began patent proceedings on the land constituting the western half of Jackson Spit, but abandoned them when he learned the parcel had been patented to one Green or Greenbaum. He later purchased that patent covering the western half of the spit.

Mrs. Day cultivated a garden on the eastern half of the spit and the Days operated a small sawmill there. This eastern half of approximately nine acres is a part of the land claimed in this proceeding and is referred to as Tract One.

In 1950, Andrew Day refiled his homestead claim (160 acres) in the Anchorage Land Office. Appellant contends that this refiling was intended to extend west to a point where appellant’s refiled claim would have coincided with the western boundary of the unperfected 1929 patent application and would have given access along the road to Jackson Spit. In fact, it left a corridor of land consisting of 50 acres between the westerly boundary of the new homestead claim and the westerly boundary of the claim as originally filed. This is the other parcel of the land to which appellant has laid claim under the Color-of-Title Act and is referred to as Tract Two. The total claim involved is some 59 acres. Appellant contends that she was unaware of the discrepancy in the western boundary of the later homestead claim although its boundaries were clearly marked, until the state filed an application for a selection of it. She then filed a color-of-title application under 43 U.S.C. § 1068, and in a separate case, a protest to the state selection.

This application for patent was perfected and a patent issued to Mrs. Day for 160 acres.

The Color-of-Title Act, as amended, 43 U.S.C. § 1068, provides in part:

“The Secretary of the Interior (a) shall, whenever it shall be shown to his satisfaction that a tract of public land has been held in good faith and in peaceful, adverse, possession by a claimant, his ancestors or grantors, under claim or color of title for more than twenty years, and that valuable improvements have been placed on such land or some part thereof has been reduced to cultivation issue a patent for not to exceed one hundred and sixty acres of such land .” (Emphasis added.)

The Code of Federal Regulations provides in part:

“A claim is not held in good faith where held with knowledge that the land is owned by the United States. . . .” 43 C.F.R. § 2540.0-5(b)

In the administrative proceeding which was lodged with the trial court, the Director of the Bureau of Land Management noted that the claims of adverse possession asserted by appellant in support of her color-of-title application were (1) a homestead location made by her deceased husband but never perfected; (2) a trade and manufacturing site location notice filed by Walter Day for land west of Tract One; and (3) a revised homestead application upon which a patent was issued for 160 acres to appellant for United States Survey No. 3328, and lying east of Tract Two. Physical acts of possession asserted consisted of cultivation of a small garden on Tract One, and use of a sawmill there which was later removed to the patented portion of Jackson Spit. Color-of-title possession was also asserted by the construction of a road across Tract One to appellant’s cannery on Jackson Point.

The Director of the Bureau of Land Management determined that the unperfected patent of Mr. Day could not, establish rights and that the subsequent patent to Mrs. Day for 160 acres which did not include Tract Two would constitute a bar to any claim based upon a prior unperfected patent entry. The trade and manufacturing site location was entirely within the land already patented on Jackson Spit, and thus no rights could be based upon it. No proceedings were taken to include the lands used for a sawmill or garden outside the patented land at Jackson Spit and the trade and manufacturing location was closed for failure to take action. The patent for the 160 acres under United States Survey No. 3328 was clearly monumented on the ground and there was, therefore, no basis or merit to the claim of appellant that she believed her patent to include the adjacent Tract Two. Finally, the use of a public domain right-of-way to construct an access road to one’s patented land does not constitute a use adverse to the United States because it was in recognition of the government ownership. The Secretary approved the Director’s findings and denied the col- or-of-title application.

In the trial court the appellee filed a motion for summary j'udgment recognizing the factual claims of Mrs. Day but asserting that they did not create a genuine issue of fact and that appellee was entitled to judgment as a matter of law. The only opposing affidavit was that of the appellant and was not sufficient in form or content to raise an issue of fact. The court found the facts as the plaintiff asserted them to be, but concluded, as a matter of law, that the appellee should have judgment. The appellant’s mistaken beliefs as to boundary could not. fulfill the requirement of good faith possession where the boundaries of her patent were clearly marked and there was no evidence of actual occupancy of Tract Two.

The history of the Act discloses that as originally enacted in 1928 (Act of December 22, 1928, ch. 47, § 1, 45 Stat. ,1069), the Color-of-Title Act provided that when the proper conditions existed “the Secretary may, in his discretion . ” issue a patent.

As indicated by S.Rep. No. 732, 70th Cong., 1st Sess. (1928), accompanying the bill, the purpose of the Act was to authorize the Secretary to deal with “eases . . . where lands have been held and occupied in good faith for a long period of time under a chain of title found defective . . . .” (Emphasis added). No mention was made of eases of possession of land where there was no such chain of title. Thus, the history would indicate that there should be excluded from the intent of the Act, land adversely possessed by one who knew that the title was in the United States, but who had no chain of title to it.

The 1928 Act was amended in 1953 to read as it now does. The legislative history of the amendment indicates that its purpose was to make mandatory what had been discretionary with the Secretary.

“Existing law permits the Secretary of the Interior to issue a patent at his discretion for not more than 160 acres of public land, upon payment of not less than $1.25 per acre, if he is satisfied that the land has been held in good faith and in peaceful, adverse possession by the claimant, his ancestors, or grantors, under claim or color of title for more than 20 years, and that valuable improvements have been placed on the lands or some part thereof has been reduced to cultivation. This bill would make mandatory the issuance of patents in such cases and create a vested right in the land on the part of the setter with a genuine eolor-of-title claim which meets the requirements.” S.Rep. No. 588, 83rd Cong., (1953), 1953 U.S.Code Cong. & Adm.News at pp. 2014, 2015.

There having been no change in the claim or color of title requirements, it is not an unreasonable interpretation by the Secretary that possession of lands by one who knows the title is in the United States does not constitute a claim of title which is sufficient under the Act. The Secretary’s decisions have followed that interpretation. Lester J. Hamel, 74 I.D. 125, 129 (1967); Nora Beatrice Kelley Howerton, 71 I.D. 429, 434 (1964). In Howerton, the Secretary stated:

“Further, even though land may have been occupied, improved, and held by someone else in good faith for more than 20 years under color of title, if a person acquiring the land is aware that title is in the United States, it has been held that he is lacking in good faith and has no right to a patent under the Color of Title Act. Anthony S. Enos, 60 I.D. 106 (1948) and 60 I.D. 329 (1949); Clement Vincent Tillion, Jr., A-29277 (April 12, 1963).” 71 I.D. at 434.

The Supreme Court has held that great deference should be given to the construction of a statute by an administrative agency, Udall v. Tallman, 380 U. S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). That seems particularly apposite in this case.

Appellant relies heavily on Coleman v. United States, 363 F.2d 190 (9th Cir. 1966), reversed on other grounds, 390 U.S. 599, 88 S.Ct. 1327, 20 L.Ed.2d 170, rehearing denied, 391 U.S. 961, 88 S.Ct. 1834, 20 L.Ed.2d 875 (1968).

“It has long been established that a qualified entryman upon public lands of the United States, whether as a locator of a mining claim, as a homesteader, or as one asserting rights under others of the multifarious laws governing entries on public lands, who perfects his entry by compliance with the applicable Act of Congress, thereby acquires a right to the land as against the sovereign itself, as well as third persons.” 363 F.2d at 196.

The Court says nothing in particular about the Color-of-Title Act. It does say that one “who perfects his entry by compliance with the applicable Act of Congress” acquires a right to the land. Appellant’s difficulty is that she has not established her compliance with any applicable Act of Congress.

Under her color of title application Mrs. Day stated she was also making application pursuant to 43 U.S.C. § 1431 (Sale of Lands Subject to Unintentional Trespass); 43 U.S.C. § 1171 (Sales of Isolated Tracts); 43 U.S.C. § 682a (Sale of Small Tracts for Residence, Recreation, Business or Community Site Purposes) ; and 48 U.S.C. § 461 (Purchases for Trade or Manufacture). The Director in his decision of December 3, 1969, which was approved by the Secretary, referred to a trade and manufacturing site location notice which described a parcel of land entirely within United States Survey No. 348 which was already patented and subsequently acquired by the Days from the patentee. That claim would lend no support to the contentions made here.

However, the color of title application also was based upon umbrella claims encompassing several of the other statutory provisions for sales of public lands including a trade and manufacturing claim. The trial court in its Amended Memorandum of Decision and Order disposed of these claims by stating in its Conclusion of Law No. 8:

“8. Applications to purchase public land pursuant to 43 U.S.C.A. §§ 682a, 1171 and 1431 (1964) are not raisable in a Color of Title application and the validity of the Director’s decision is in no way affected by his failure to discuss the merits of those claims.” C.T. at 123.

No authority is cited to either statute or regulation for this conclusion. Certainly as a matter of the orderly filing and processing of claims, an application under a color of title claim is not the place to tuck in an omnibus claim based on four other unrelated sections.

The Secretary’s regulations in many cases require separate applications for each type of entry (43 C.F.R. § 2562.-1(b) for trade and manufacture), specifying in the form the particular information required to support that individual application. Here the information to support the catch-all claims was designated by the reference “see attachment.” The attachment was a lengthy statement directed to the color of title application. A review of appellant’s statement in the light of the statutory requirements for each of the four claimed entries raises substantial doubt as to its sufficiency. The trial court did not consider these claims bn their merits, and found that the Director and Secretary did not either. We therefore decline to pass upon them until they have been properly presented and considered below.

The record indicates there is a competing state selection for a part or all of the lands in controversy. Whether another application or applications under the four collateral sections would be timely, is a matter we also do not reach.

Appellant claims an interest in a right-of-way for road purposes. It is undisputed that she or her husband constructed a road between their mainland patent over the neck, across public domain to Jackson Point. No reference was made to this claim in the color of title application which has ripened into this litigation. No charge has been made that the United States has closed or threatened to close the portion of the road over public land. Should it do so, appellant might then complain. United States v. 9,947.71 Acres of Land, 220 F. Supp. 328 (D.Nev.1963). We express no opinion on that question here.

A sketch not drawn to scale is attached for purposes of illustration.

The judgment is affirmed.

      . The validity of this protest is not before us in this proceeding.


author: JOHN H. PRATT, District Judge:

text:
    Robert BUSTOS, and Lupe Murquia, Appellants, v. John MITCHELL, Attorney General of the United States, et al. Robert BUSTOS et al., United Farm Workers Organizing Committee, Appellant, v. John MITCHELL, Attorney General of the United States, et al. Robert BUSTOS et al., Cristobal Cardona et al., Appellants, v. John MITCHELL, Attorney General of the United States, et al.
    Nos. 72-1178, 72-1179 and 72-1200.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 26, 1973.
    Decided April 16, 1973.

      Bruce J. Terris, Washington, D. C., with whom Joseph Onek, Washington, D. C., was on the brief for appellants. John W. Karr, Washington, D. C., also entered an appearance for appellants.
    Ralph Farb, Atty., Immigration and Naturalization Service, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of Court, with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry, and Gil Zimmerman, Asst. U. S. Attys., were on the brief for appellees.
    Before GEORGE C. EDWARDS,* Jr. , Circuit Judge for the Sixth Circuit, LEVENTHAL, Circuit Judge, and JOHN H. PRATT, United States District Judge for the United States District Court for the District of Columbia.

       Sitting by designation pursuant to 2.8 U. S.O. § 291(a).

       Sitting by designation pursuant to 28 U. S.C. § 292(a).

   JOHN H. PRATT, District Judge:

This ease challenges the legality of the system whereby the Immigration and Naturalization Service for many years has permitted and continues to permit Mexican aliens to commute either daily or seasonally from their place of residence in Mexico to employment in the United States. Plaintiffs-appellants Robert Bustos, an American citizen, and Lupe Murquia, a Mexican national permanently residing in the United States, are farm workers in California. The United Farm Workers Organizing Committee is an organization of farm workers whose purpose is to secure higher wages and better working conditions for its members. The defendant-appellees are the Attorney General, the Commissioner of the Service, and the Regional Commissioner of the Service for the Southwest Region. The defendants have the statutory responsibility of enforcing the immigration and naturalization laws of the United States.

Plaintiffs filed a class action in the United States District Court for the District of Columbia on behalf of all citizens and alien permanent residents of the United States engaged in farm labor in California. The complaint sought declaratory and injunctive relief against the practice of the Service in admitting daily and seasonal commuters into the United States to perform agricultural labor. Five farm workers in Texas were permitted to intervene as plaintiffs for themselves and on behalf of all farm workers in Texas. There is no dispute 'as to any material facts. Acting on cross-motions, the District Court, on December 21, 1971, granted the motion for summary judgment of the defendants, denied the motions of plaintiffs and intervenor-plaintiffs, and dismissed the action. This appeal followed.

The issues raised by the parties on appeal are three. (1) Can aliens commuting daily or seasonally to work in the United States without maintaining residences in this country enter the United States without immigrant visas and without a certification by the Secretary of Labor that (a) there is a shortage of domestic labor of the kind the aliens are to perform, and (b) their employment will not affect wages and working conditions of American workers? (2) Are most commuters properly classifiable as non-immigrants who therefore may not be admitted into the United States unless the Secretary of Labor determines that no domestic labor is available? (3) Does 8 C.F.R. § 211.1(b)(1) (1972) permit commuters to enter the country to take employment where a labor dispute exists even if they previously have been employed there? Plaintiffs contend that the plain language of the statute and the lack of a consistent administrative practice regarding commuters dictate a decision in their favor. The defendants join the issues by contending that the alien commuter system is the product of a long-standing consistent administrative application of the immigration laws and that Congress has repeatedly ratified the existence of this practice.

The Court is convinced that the parties have drawn the issues too broadly and consequently have not focused upon a vital distinction in the history of daily and seasonal commuters. The distinction between these two types of commuters coupled with their relevant histories dictate the differing treatment We have given each of these classes of commuters.

I.

The administrative treatment by the Service of the seasonal commuter aspect of this overall problem makes appropriate a brief reference to the origin and history of the bracero program. Due to the unusual farm labor shortage in the United States during World War II, the United States and Mexico in 1943 initiated the bracero program to provide for the seasonal importation of Mexican agricultural workers. In 1951, when Congress renewed the bracero program in Public Law 78, it strengthened provisions in the agreement in order to protect domestic labor. Growers were required to make reasonable efforts to attract domestic workers prior to certification by the Department of Labor of the need for foreign labor. During the 1950’s and early 1960’s, the importation of Mexican agricultural workers under the bracero program increased markedly. Despite the added safeguards to protect American labor, there arose a growing concern in the country over the program’s adverse impact on domestic labor. Congress in 1964 therefore decided to allow the program to lapse.

Soon after Congress ended the bracero program, it amended in 1965 the Immigration and Nationality Act of 1952, the basic statute, to provide “safeguards to protect the American economy from job competition and from adverse working standards as a consequence of immigrant workers entering the labor market.” The most important change was to strengthen the labor certification process. Section 212(a) (14) of the Immigration Act of 1952 had proved ineffective because an alien only could be excluded if the Secretary of Labor previously had certified that admittance of the alien would have an adverse effect on American labor. The Secretary had no way of knowing those who had applied to immigrate to the United States or their prospective occupations, residences, or employers. The 1965 amendments radically changed the certification procedure by reversing the burden of initiating the certification process. Under the new provision, an alien laborer cannot enter the United States unless the Secretary of Labor has certified that there is not enough domestic manpower available to perform such tasks and that his employment would not adversely affect the wages of American workers similarly employed. 8 U.S.C. § 1182(a)(14) (1970).

Despite this background, the Service after the termination of the bracero program in 1964 created a new class of commuter — a “new immigrant,” the seasonal worker. The Service has admitted that the “seasonal worker is a person who came into being largely after the repeal of the bracero law,” and that “many of them are former braceros who have been admitted to the United States temporarily for employment under” the Act. Thus, while the daily commuter can work only within a relatively short automobile drive of the border, the seasonal commuter works in areas far inland in competition with a depressed and economically deprived work force of this country.

The metamorphosis of the bracero to seasonal commuter is directly inconsistent with Congress’s purpose in ending the bracero program in order to eliminate its adverse impact on American workers. While the bracero program had many protections designed to protect domestic labor, the ex-bracero as a seasonal commuter enters and leaves the United States freely, subject to none of the many safeguards for domestic labor which characterized the bracero program prior to its termination in 1964. The fact that Congress has approved the continued existence of the daily commuter program is no indication that it has approved a program which circumvents explicit expressions of Congressional concern for American labor, is a short-lived invention of the Service and which flies in the face of traditional Congressional concern for the American working man.

More specifically, the Service, in order to reach this result, has interpreted seasonal commuters as “returning resident aliens,” a class of immigrant not required upon re-entry to obtain immigrant visas. 8 U.S.C. § 1181(b) (1970). A returning resident alien is defined in the same Act as an “immigrant, lawfully admitted for permanent residence who is returning from a temporary visit abroad.” 8 U.S.C. § 1101 (a)(27)(B) (1970). The regulations amplify this definition by describing returning resident aliens as persons “returning to an unrelinquished lawful permanent residence in the United States after a temporary visit abroad.” 8 C.F.R. 211.1(b)(1) (1972). As Judge Wright so persuasively pointed out in his dissenting opinion in the Gooch case, the construction of “lawfully admitted for permanent residence” as including commuters “makes nonsense of the Congressional policy embodied in no fewer than five sections of the Act entirely apart from § 1101(a)(27)(B), and is contrary to the plain meaning of two others.” In short, seasonal commuters are improperly classified as “returning resident aliens” and are not entitled to the benefits of such classification. The Service’s practice is in violation of the clear and plain language of the statute.

Aside from Congressional purpose and intent, we also find that seasonal commuters are properly to be classified as non-immigrants under the Act. Section 101(a) (15) of the Immigration and Nationality Act defines an immigrant as an alien not coming within ten categories of non-immigrants. 8 U.S.C. § 1101(a)(15) (1970). A non-immigrant is there defined as—

“[A]n alien having a residence in a foreign country which he has no intention of abandoning . . . (ii) who is coming temporarily to the United States to perform temporary services or labor . . . .” (emphasis added) 8 U.S.C. § 1101(a)(15)(H) (1970).

This provision reflects the intention of Congress in the Act of 1952 to differentiate carefully between immigrants coming to the United States for permanent residence and non-immigrants coming temporarily. Congress, therefore, in Section 101(a) (15) (H) created a new class of non-immigrants coming temporarily to perform services or labor. The purpose of the provision was to allow the admission of certain workers to alleviate “labor shortages as they exist or may develop in certain areas or certain branches of American productive enterprises, particularly in periods of intensified production.”

Subsection (H) explicitly covers a person coming to this country to perform services or labor if both the visit and the service are temporary. Seasonal commuters reside in a foreign country which they have no intention of abandoning, and they come only temporarily to the United States. All commuters who work as agricultural laborers only during the agricultural season provide only temporary services or labor. Seasonal commuters involved in this case come clearly within that section. The Service’s practice of classifying seasonal commuters as “returning resident aliens” thus has no statutory warrant, is contrary to the intent of Congress, and is illegal.

II.

On the other hand, the daily commuter system dates from 1927, more than 45 years ago. Its historical origin stems from a border crossing system of the nineteenth and early twentieth centuries as a result of which aliens living in Canada and Mexico, as well as United States citizens living in the United States, were able to travel freely into the adjoining country for pleasure, for business or for employment. This border crossing system in its legal aspect can best be described as an informal reciprocal arrangement between the Government of the United States and the Governments of Canada and Mexico. In 1917, pursuant to a directive in the Immigration Act of that year to expedite travel to the United States from Canada and Mexico, the Service prescribed an identification card for the use of those who resided on either side of the border and habitually crossed the boundary for legitimate purposes. Between 1917 and 1927, aliens to whom identification cards had been issued enjoyed border crossing privileges as long as they were not barred by any qualitative exclusion provision of the 1917 Act. These rules for border erossers continued unchanged until April, 1927.

The 1924 Act did not repeal or modify the basic 1917 Act but was expressly declared to be an addition to and not a substitution for the 1917 law. The 1924 Act classified all arriving aliens as either immigrants or non-immigrants. An immigrant was defined as any alien destined to the United States except one within any of the six enumerated non-immigrant classes. As a result, by 1927 the Service in General Order No. 86, had decided that aliens residing in foreign contiguous countries and entering the United States to engage in employment would thereafter be considered “immigrants” who must first be admitted for permanent residence. Those who achieved such admission within a grace period were permitted to enjoy the border crossing privilege. Paragraph Five of the General Order provided that “[a]liens who have complied with the requirements .of this General Order governing permanent admission will be considered as having entered for permanent residence.” Thus, the daily commuter was born.

General Order No. 86 rested on the implied premise that the adaptation of the border crosser system to the Immigration Act of 1924 and its continued existence as the daily commuter system was in accord with the will of Congress. The 1924 Act had made no mention of border erossers as such. In the contemporaneous view of the administrative authorities it was plain, however, both from the statute itself and from its history, that Congress did not attempt to deal with the already long-standing border crossing system, and must not have intended to disturb it. In the 1924 Act, Congress was wholly preoccupied with restricting overseas immigration, particularly from certain countries in eastern and southern Europe. Meanwhile, the directive of the 1917 Act to facilitate border crossing remained on the statute books. Since then the Service has maintained control over the daily commuter system through administrative practice.

In 1952 the organic statute, the Immigration and Nationality Act, became law. This Act brought together the elements of both the 1917 and 1924 Acts and at the same time enacted certain new provisions. Daily commuters were not mentioned in the new law and its text and legislative history are silent on the subject. From this, the Service might well have concluded that it was the intent of Congress in the Act to permit alien commuters to continue- to come to the United States in the same status they had enjoyed under the prior laws. Certainly, if Congress had intended with one stroke to outlaw the commuter system, thereby taking away the longstanding right of entry of aliens who had been admitted for permanent residence, there would have been some indication of such intent.

In the light of the above history and administrative practice, it is fair to assume that the historic daily commuter practice known to Congress was expected to continue unchanged in the 1952 law. Where an' administrative practice has continued in existence for over 45 years and has consistently been extended in the light of various immigration Acts which have never expressed any mention or disavowal of the practice, efforts to .change or eliminate such a practice should be addressed to the Congress, not to the Courts.

The Court is also mindful that the plaintiffs place reliance on the plain language of 8 U.S.C. §§ 1181(b), 1101(a)(27)(B), and 1101(a)(20) (1970). The majority opinion in Gooch v. Clark, 433 F.2d 74, 78-81 (9 Cir. 1970), answers some of these contentions. It should suffice to say that the statutory language is not as plain and unambiguous as plaintiffs contend. Plaintiffs, for instance, make much of the contention that one living in a foreign contiguous country cannot be a “resident” of the United States. But the concept of permanent “residence” can be taken to include the place of work of a daily commuter crossing international boundaries, in the same sense that a person commuting daily to his business in New York City, where he has a permanent commitment and interest in the on-going vitality and soundness of the city, and where he may have, for example, fraternal and cultural associations, may well consider himself a New Yorker even though his home in the suburbs is located in New Jersey or Connecticut. Daily commuters are often fully integrated into the United States economy,. including- — particularly in the case of commuters from Canada — membership in United States unions, and supervisory positions in United States business enterprises. Thus, a daily commuter could be a resident of the United States within the plain language of the Act.

Finally, we are aware that the perpetuation of the daily commuter system is vital to the lives of thousands of daily commuters on both sides of our land borders. These individuals make important contributions to the economies of their respective cities, such as Windsor-Detroit, and reversal of the present practice would cause severe dislocation and hardship. In seeking an answer to the economic competition of ex-braceros who operate under the seasonal commuter system, plaintiffs seek the wholesale expulsion or exclusion from the United States of daily commuters who entered this country in reliance upon the immigration law as interpreted by the Service, and despite the fact that they may have worked in this country for many years.

Plaintiffs’ request for relief is broader than is necessary to meet the burden of their complaint; they have used a broadsword, when a rapier would have been more appropriate. We are unwilling to disregard this long-standing administrative practice by ordering a change of such far-reaching consequences and affirm the action of the District Court as it relates to daily commuters.

Our disposition differs from that proposed in Gooch by either the majority or dissent. While we have rooted our disposition in the statute as it stands, we have been particularly mindful of the need for construction in the light of a genuinely long-standing administrative practice in regard to daily commuters, a practice that we are convinced Congress did not mean to scrap, so far as concrete results of admittance of daily commuters are concerned. As to the post-1964 practice of the Service in regard to seasonal commuters, it is not only recent in origin, but is so patently a jerry-built patchwork, a synthetic construct hastily assembled after the termination of the bracero program in obvious contradiction to the legislative intent, that it cannot be given serious consideration as a meaningful guideline for the interpretation of the statute.

Accordingly, this case is remanded for proceedings consistent with this opinion.

It is so ordered.

      . Hereinafter referred to as the “Service.”

      . Although the gravamen of the Complaint is directed solely toward the Mexican aspect of this problem, there is no gainsaying the fact that the same considerations are applicable to commuters from Canada.

      . Daily commuters are persons, whose actual dwelling place in fact, without regard to intent, is in a foreign contiguous country, and who commute daily to work in the United States. Seasonal commuters are persons, whose actual dwelling place in fact, without regard to intent, is in a foreign contiguous country, and who come to the United States for extended periods to perform seasonal work. See generally 8 Ü.S.C. § 1101(a) (S3) (1970).

      . Agreement between the United States of America and Mexico respecting the temporary migration of Mexican agricultural workers, effected August 4, 1942, 56 Stat. 1759.

      . Act of July 12, 1951, 65 Stat. 119.

      . H.Rep.No.745, 89th Cong., 1st Sess. 18 (1965) ; S.Rep.No.733, 89th Cong., 1st Sess. 10 (1965).

      . The Government at oral argument admitted that at least until the 1952 Act, the number of commuters who arguably could be called seasonal was “inconspicuous.”

      . Statement by James S. Hennessy, Executive Assistant to the Commissioner of the Service, at the Hearings on H.R. 12667, Employment of “Green Card” Aliens During Labor Disputes Before the Special Subcomm. on Labor of the House Comm, on Education and Labor, 91st Cong., 1st Sess. 73 (1969).

      . The Court does not read the Secretary of State’s affidavit as directed to the seasonal commuter system. See infra footnote 26.

      . Gooch v. Clark, 433 F.2d 74, 83 (9 Cir. 1970).

      . See H.Rep.No.1365, 82d Cong., 2d Sess., 36-37 (1952) U.S.Code Cong. & Admin. News 1952, p. 1653.

      . Id. at 45, U.S.Code Cong. & Admin. News 1952, p. 1698.

      . Subsection (H) does not apply to daily commuters who come to the United States to a steady job throughout the year. While such a commuter comes temporarily to the United States each day, the services he provides are not temporary.

      . In view of our holding that seasonal commuters coming to the United States for the first time today must be considered as non-immigrants under Section 101(a) (15) (H), it is also plain that seasonal commuters who have previously come to the United States as immigrants admitted for permanent residence must now be considered as non-immigrants. The Service’s error in considering them as immigrants cannot convert non-immigrant into immigrant status. The law is plain that each and every time an alien enters the United States, his entry must be legal as of that time. It is no longer sufficient that the alien legally entered the United States on prior occasions. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 213, 73 S.Ct. 625, 97 L.Ed. 956 (1953) ; Bonetti v. Rogers, 356 U.S. 691, 698, 78 S.Ct. 976, 2 L.Ed.2d 1087 (1958). Consequently, when a seasonal commuter enters the United States today, the legality of his entry must be determined as of that time. Even if the seasonal commuter entered legally one or a score of times before as an immigrant his entry must be reevaluated. Since he is a non-immigrant, he must conform with the laws relating to non-immigrants.
      For the purpose of identifying the class, which will be affected by our ruling re seasonal commuters, the Court notes that the Service considers seasonal workers who are present in the United States for over six months each year to be permanent' alien residents of the United States despite the fact that their actual dwelling place in fact may be in a foreign contiguous country. Matter of Hoffman-Arvayo, - I. & N. - No. 2095 (Sept. 7, 1971) ; 1 Gordon & Rosenfield, Immigration Law and Procedure, § 2.19 (1972 Supp.). The Government appears to have conceded that all commuters — with the exception of those commuters who live and work in the United States for more than six months each year — do not reside in the United States. This concession covers the large majority of seasonal commuters since most seasonal commuters stay in this country only for the harvest season, a period of four to six months depending on the crop. However, some commuters do stay over six months in the United States. It must be observed that these commuters also may be affected by the Court’s ruling since the position of the Service in equating mere physical presence over the six months with residence in this country is without statutory or logical basis.
      The definition of residence received its present form in the 1952 Act. 8 U.S.C. 1101(a) (33) (1970). Prior to the 1952 Act, the Nationality Act of 1940 provided that “the place of general abode shall be deemed the place of residence.” § 104, 54 Stat. 1138. The 1952 Act tightened this definition by defining “the place of general abode” as a person’s “principal, actual dwelling place in fact, without regard to intent.” 8 U.S.C. § 1101(a) (33) (1970). Actual residence is not then synonymous with physical presence but is a question of fact to be determined in each case. See In Re Olan, 257 F.Supp. 884, 893 (S.D.Cal.1966) ; Petition for Naturalization of Castrinakis, 179 F.Supp. 444, 446 (D.Md.1959) ; Toy Teung Kwong v. Acheson, 97 F.Supp. 745, 747 (N.D.Cal.1951). If it is determined that workers coming seasonally to the United States for periods of over six mouths do in fact reside in a foreign contiguous country, they are seasonal commuters who fall within the framework of this decision.

      . See Act of February 5, 1917, §§ 3, 23; 39 Stat. 875, 892.

      . Immigration Act of 1924, § 25; 43 Stat. 166.

      . Id. § 3, 43 Stat. 154-155.

      . General Order No. 86, Bureau of Immigration, April 1, 1927.

      . No mention of commuters is made in the 1965 amendments of the 1952 Act. Act of October 3, 1965, Pub.L. No. 89-236, 79 Stat. 911, amending 8 U.S.C. § 1101 et seq. (1970).

      . See S.Rep.No.1515, 81st Cong., 2d Sess., 535-536, 616 (1950).

      . See Massachusetts Trustees of Eastern Gas & Fuel Associates v. United States, 377 U.S. 235, 84 S.Ct. 1236, 12 L.Ed.2d 268 (1964). There concerning the reenactment rule, Mr. Justice Harlan, for a unanimous Court noted:
      “Some weight is due to the consistent interpretation of the Maritime Commission, the agency entrusted witli administration of the statute. The successive extensions by Congress of the Commission’s authority . are certainly not controlling, particularly since it does not appear that Congress ever advertently addressed itself to the claim of invalidity . . . ; they do, however, strengthen to some extent the Commission’s conclusions ....
      Needless to say, these ‘interpretative aids’ neither singly nor in conjunction, could lead to an affirmance here if it were clear that the Commission’s action contradicted the requirements of the . Act . . . However, they are consistent with, and lend support to, what we believe to be the most sensible view of the statutory framework.”

        Id. at 241-242, 84 S.Ct. at 1241-1242. See also 1 Davis Administrative Law Treatise § 5.07 (1958).

      . Legislation was introduced into the 92nd Congress which would profoundly affect the commuter system. See, e. g., S. 1373, 92d Cong., 1st Sess. (1971) ; S. 1488, 92d Cong., 1st Sess. (1971) ; H.R. 8746, 92d Cong., 1st Sess. (1971) ; H.R. 14831, 92d Cong., 2d Sess. (1972).

      . The Court in Gooeh did not sharply distinguish daily from seasonal commuters.

      . E. g., 433 F.2d at 78-79.

      . See Texas State AFL-CIO v. Kennedy, 117 U.S.App.D.C. 343, 345, 330 F.2d 217, 219, cert. den. 379 U.S. 826, 85 S.Ct. 54, 13 L.Ed.2d 36 (1964).

      . Also involved are the Governments of Canada and Mexico. The Secretary of State, in an affidavit before the Court, has voiced the concern of these two neighboring countries at the possibility of a sudden judicial termination of the commuter system. In his considered judgment, such a change of policy would have “a serious deleterious effect” and “adversely affect” our relations with our two neighbors. Appendix at 52-54, Affidavit of Honorable William P. Rogers, Secretary of State of the United States, filed October 13, 1970. Although the Secretary for obvious reasons made no mention of the likelihood of an adverse response by Canada and Mexico against American nationals commuting daily to work in those two countries, the strong possibility of retaliatory measures by these countries requires no elaboration by us.


author: PER CURIAM:

text:
    UNITED STATES of America v. Gary E. CALDWELL, Appellant.
    No. 72-1926.
    United States Court of Appeals, District of Columbia Circuit.
    Argued June 6, 1973.
    Decided June 22, 1973.

      Howard Monderer, Washington, D.C., (appointed by this court), for appellant.
    John C. Lenahan, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and Richard L. Cys, Asst. U. S. Attys., and Herbert B. Hoffman, Asst. U. S. Atty., at the time the brief was filed, were on the brief, for appellee.
    Before: McGOWAN and LEVEN-THAL, Circuit Judges, and GESELL United States District Judge for the District of Columbia.

       Sitting by designation pursuant to Title 28 TJ.S.Code Section 292(a).

   PER CURIAM:

The circumstances giving rise to this appeal are set forth in the opinion issued when the case was before us earlier. United States v. Caldwell, 151 U.S.App.D.C. 84, 465 F.2d 669 (1972). At that time we expressed concern about the fact that the trial court had apparently denied appellant’s pretrial motion to hold a lineup upon a misconception of what the facts were. Accordingly, we remanded the case in order that the trial court might make “a fresh determination as to what action should be taken in the interest of justice.” In making that remand, we noted that “[i]t is not now possible to provide a lineup providing the same assurance as that which would have been furnished on the granting of defendant’s motion, especially since the trial itself added some suggestiveness, with the defendant conspicuous at the defense table.” We thought, however, that a new lineup might possibly be of some value, although we left the trial court very much at large with respect to what might feasibly be done.

The hearing on remand consisted entirely of a colloquy between defense counsel, the prosecutor, and the court. This culminated in an agreement by counsel to the effect that the holding of a lineup at this remote point in time would serve no useful purpose. If the witnesses identified appellant at such a lineup, the defense would be able to make a very persuasive argument that such an identification would be fatally tainted by the fact that the witnesses had observed appellant throughout the trial. If, contrarily, the witnesses failed to identify appellant at the lineup, the Government could urge that this was not significant in view of the fact that three years had elapsed since the robbery. Counsel for both sides, accordingly, joined in urging the court to let the matter of the ultimate disposition of this appeal rest with us.

The trial court, in its Memorandum and Order issued upon remand, followed this advice. In the course of so doing, the court said, with respect to its denial of the motion for a lineup, that “[a] lineup proceeding may have and probably would have been preferable in light of the information we now possess.” It was not disposed to believe that the interests of justice required reversal for a new trial but it felt obliged to “defer to the Court of Appeals on the ultimate question of whether failure to order a lineup on July 7, 1970 was erroneous and so prejudicial to the defense offered by the accused that it warrants a new trial.” It said in this connection that “while its retrospective preferences may be for an alternate course of action on that date, [it] does not believe they can be implemented at this juncture by the prospective remedies available to it.” Finally, the District Court reported its regrets that “it is unable to assure the Court of Appeals that a new trial, should it follow, would better serve the interests of justice than the old.”

We agree with the District Court that the time has long since passed when the holding of a lineup, would be a meaningful step. As we pointed out in our earlier opinion (at p. 671 of 465 F.2d), the court clearly had power to order such a lineup, and we have considerable difficulty in understanding why the prosecution chose to resist appellant’s motion. The one eyewitness who had been present at both robberies, Mrs. Ethridge, had failed to identify appellant at a formal lineup held shortly after his arrest. Mrs. Millard had been present at one of the robberies, and Mrs. Body at the other. Their view of appellant after his arrest had been taken under less than ideal circumstances several weeks after the robberies themselves. We see no justification for their not having been summoned to a formal lineup, in the same way as was Mrs. Ethridge. In any event, since they were not, there was every reason why the pretrial request by appellant for such a lineup made sense.

We have no quarrel with the District Court’s finding on remand that the situation is beyond repair in that tribunal, either on the present record or on one to be made in a new trial. Thus, we think that the interests of justice require that the conviction be set aside and the case remanded to the District Court with directions to dismiss the indictment.

It is so ordered.

      . The court purported to be concerned about unnecessary inconvenience to the witnesses, and in this regard it remarked: “Well, if it were a one-witness case and there were some doubt about the identification, but this is a two-eyeball witness identification.” The trouble with this statement is that the prosecution had only one effective eyewitness to each of the two robberies of the same store with which appellant was charged, Mrs. Millard and Mrs. Body. A third eyewitness, Mrs. Ethridge, had been present at both robberies, but had failed to identify appellant at a formal lineup.
      The robberies in question occurred on January 22 and February 2, 1970; and appellant was arrested on March 18, 1970. The formal lineup attended by Mrs. Ethridge was held on March 24, 1970. Appellant’s motion to hold a lineup for Mrs. Millard and Mrs. Body was heard and denied on July 7, 1970; and the trial commenced 'one week later.

      . Bee, pp. 670-71 of 465 F.2d. At a hearing out of the presence of the jury at the beginning of the trial, the District Court ruled that Mrs. Millard could not testify about her identification of appellant when he was in custody shortly after his arrest, for the reason that that confrontation was of a highly suggestive nature. The court did rule that Mrs. Millard could make an in-court identification because of what the court considered to be an independent source for such an identification in the observation Mrs. Millard had of appellant at the time of the crime itself. Mrs. Body’s identification after the arrest was apparently assumed to have fallen within Russell v. United States, 138 U.S.App.D.C. 77, 408 F.2d 1280, cert. denied, 395 U.S, 928, 89 S.Ct. 1786, 23 L.Ed.2d 245 (1969). This last is a dubious proposition at best, since the confrontation in question, unlike that in Russell, occurred several weeks after the robbery. Appellant continues to challenge the basis of the court’s finding of independent source in the case of Mrs. Millard, but we do not pursue the question because such an in-court identification would still leave only one eyewitness in the case of each robbery — the very circumstance which gave force to appellant’s motion 'for a lineup.