author: BOREMAN, Senior Circuit Judge: CRAVEN, Circuit Judge

text:
    UNITED STATES of America, Appellee, v. John R. PARK, Appellant.
    No. 73-1953.
    United States Court of Appeals, Fourth Circuit. ■
    Argued Nov. 7, 1973.
    Decided July 2, 1974.

      Gregory M. Harvey, Philadelphia, Pa. (J. Cookman Boyd, Jr., Rob Ross Hendrickson, Báltimore, Md., on brief), for appellant.
    Leonard M. Linton, Jr., Asst. U. S. Atty. (George Beall, U. S. Atty., on brief), for appellee.
    Before BOREMAN, Senior Circuit Judge, and CRAVEN and FIELD, Circuit Judges.
   BOREMAN, Senior Circuit Judge:

John R. Park, President of Acme Markets, Inc. (hereafter Acme), was tried and convicted by a jury of violating 21 U.S.C. § 331 (k)- — causing the adulteration of food which had traveled in interstate commerce and which was held for sale. The evidence is undisputed that an inspector of the Food and Drug Administration (F.D.A.) made an inspection of Acme’s Baltimore warehouse in November and December of 1971 and again in March of 1972. On both of these occasions the inspector found evidence of rodent infestation of food stored in the warehouse. As a result of these inspections an informal hearing was held in June 1972 at the F. D.A.’s Baltimore office. Although Park was not present, he was invited to attend the hearing and was represented by Robert W. McCahan, Baltimore Divisional Vice President of Acme.

In March of 1973, a five-count information was filed charging Acme and Park with the offenses cited above; four counts stemmed from the 1971 inspection and the fifth count from the 1972 inspection. Prior to trial Acme pleaded guilty to all counts. Park was tried on the theory that he “was a corporate officer who, under law, bore a relationship to the receipt and storage of food which would subject him to criminal liability under United States v. Dotterweich, 320 U.S. 277 [64 S.Ct. 134, 88 L.Ed. 48] (1943).” The jury found Park guilty on all counts and he was fined a total of $250.

Park appeals his conviction alleging (1) the court erred in its instructions to _ the jury and (2) prejudicial evidence of warnings of alleged prior violations of the Act was improperly admitted.

The court charged the jury that the sole question was “whether the Defendant held a position of authority and responsibility in the business of Acme Markets”; that Park could be found guilty “even if he did not consciously do wrong” and even though he had not “personally participated in the situation” if it were proved beyond a reasonable doubt that Park “had a responsible relation to the situation.” We conclude that this charge does not correctly state the law of the case, that the conviction of Park on all counts must be reversed and a new trial awarded.

The Government asserts that this case is controlled by the decision of the Supreme Court in United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48 (1943), and contends that Dotterweich specifically held that the Federal Food, Drug, and Cosmetic Act (Act), 21 U.S.C. §§ 301-392, “dispenses with the conventional requirement for criminal conduct — awareness of some wrongdoing.” 320 U.S. at 281, 64 S.Ct. at 136. From this the Government argues that the conviction may be predicated solely upon a showing that the defendant, Park, was the President of the offending corporation. The error here is that the Government has confused the element of “awareness of wrongdoing” with the element of “wrongful action”; Dotterweich dispenses with the need to prove the first of those elements but not the second.

As a general proposition, some act of commission or omission is an essential, element of every crime. For an accused individual to be convicted it must be proved that he was in some way personally responsible for the act constituting the crime. The Supreme Court recognized this in Dotterweich: “The offense is committed ... by all who do have such a responsible share in the furtherance of the transaction which the statute outlaws . . . .” 320 U.S. at 284. The criminal* acts which were the subject of Acme’s conviction cannot be charged to Park without proof that he participated directly or constructively therein or that the acts were done to further some criminal conspiracy in which he took part. To use the language of Dotterweich, “under § 301 [21 U.S.C. § 331] a corporation may commit an offense and all persons who aid and abet its commission are equally guilty.” 320 U.S. 284, 64 S.Ct. at 138 (emphasis added). It is the defendant’s relation to the criminal acts, not merely his relation to the corporation, which the jury must consider; 21 U.S.C. § 331 is concerned with criminal conduct and not proprietary relationships.

In sum, the court told the jury that Park would be guilty if it were shown' that he “had a position of authority and responsiblity in the situation out of which these charges arose.” This instruction, taken in combination with the other parts of the charge related above, might well have left the jury with the erroneous impression that Park could be found guilty in the absence of “wrongful action” on his part.

Upon a subsequent trial the jury should be instructed that a finding of guilt must- be predicated upon some wrongful action by Park. That action may be gross negligence and inattention in discharging his corporate duties and obligations or any of a host of other acts of commission or omission which would “cause” the contamination of the food. “Whether an accused shares responsibility in the business process resulting in unlawful distribution depends on the evidence produced at the trial and its submission — assuming the evidence warrants it — to the jury under appropriate guidance.” Dotterweich, supra, 320 U.S. at 284, 64 S.Ct. at 138.

It is argued by the prosecution that the requirement of such proof will make enforcement more difficult. Nevertheless, the. requirements of due process are intended to favor fairness and justice over ease of enforcement. We perceive nothing harsh about requiring proof of personal wrongdoing before sanctioning the imposition of criminal penalties.

We find another ground for reversal of Park’s conviction. He contends that the admission in evidence of a warning by F.D.A. as to conditions alleged to have existed in 1970 in Acme’s Philadelphia warehouse was prejudicial error requiring reversal. There was no evidence of prosecution of either Acme or Park following F.D.A.’s warning. In the recent case of United States v. Woods, 484 F.2d 127 (4 Cir. 1973), this court examined in detail the admissibility of evidence relating to prior alleged offenses not the subject of conviction and we will not attempt to elaborate here.

The Woods majority adopted a modern and liberal approach concerning the admissibility of such evidence. This court refused to decide the issue by “pigeonholing” the evidence under one of a number of recognized exceptions to the general rule that such evidence is inadmissible. Opting for a more flexible balancing test the court cited McCormick on Evidence § 190, p. 453 (Cleary Ed.1972).

“[T]he problem is not merely one of pigeonholing, but one of balancing, on the one side, the actual need for the other crimes evidence in the light of the issues and the other evidence available to the prosecution, the convincingness of the evidence that the other crimes were committed and that the accused was the actor, and the strength or weakness of the other crimes evidence in supporting the issue, and on the other, the degree to which the jury will probably be roused by the evidence to overmastering hostility.” United States v. Woods, 484 F.2d 127, 134 (4 Cir. 1973) (emphasis added).

In determining the admissibility of “prior crimes” evidence the Woods majority balanced the relevancy, persuasiveness and need for such evidence against the prejudice resulting to the defendant because of its admission. In a dissenting opinion in Woods Judge Widener favored the application of a traditional and less liberal balancing test. Regardless of the balancing test applied, we are convinced that the evidence concerning the Philadelphia incident was inadmissible under the theory-on which the ease was tried.

Initially we conclude that there was no actual need for the Philadelphia evidence. In his jury charge the district judge stated that:

“[Y]ou need not concern yourselves with the first two elements of the case. The main issue for your determination is only with the third element, whether the Defendant held a position of authority and responsibility in the business of Acme Markets.”

Thus, as this case was submitted to the jury and in light of the sole issue presented, need for the Philadelphia evidence is not apparent. Absent a showing of such need we are of the opinion that, even under the liberal balancing test of Woods, the prejudicial effect of this evidence outweighed any possible relevancy or persuasiveness it might have had.

We note in passing, without deciding, that in light of our comments above evidence of “prior crimes” might become sufficiently necessary and relevant to warrant its admission on retrial. Our conclusion that the prosecution must show some wrongful act by the accused may affect the result of the balancing test as prescribed in Woods by increasing the need for “prior crimes” evidence. Whether the need for and the persuasiveness and relevance of such evidence may outweigh its prejudicial effect will, in large part, depend on the prosecution’s new approach to the presentation of its case. ■ Thus, on retrial, it will be incumbent upon the district court to determine the admissibility of this “prior crime” evidence in light of developments.

Reversed and remanded for a new trial.

CRAVEN, Circuit Judge

(dissenting) :

I would affirm because I believe this case is controlled by United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48 (1943). To express my viewpoint, it is enough to quote from Mr. Justice Frankfurter writing for the Court in Dotterweich:

The Food and Drugs Act of 1906 was an exertion by Congress of its power to keep impure and adulterated food and drugs out of the channels of commerce. By the Act of 1938, Congress extended the range of its control over illicit and noxious articles and stiffened the penalties for disobedience. The purposes of this legislation thus touch phases of the lives and health of people which, in the circumstances of modern industrialism, are largely beyond self-protection. Regard for these purposes should infuse construction of the legislation if it is to be treated as a working instrument of government and not merely as a collection of English words. . The prosecution to which Dotterweich was subjected is based on a now familiar type of legislation whereby penalties serve as effective means of regulation. Such legislation dispenses with the conventional requirement for criminal conduct — awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger. . And so it is clear that shipments like those now in issue are “punished by the statute if the article is misbranded [or adulterated], and that the article may be misbranded [or adulterated] without any conscious fraud at all.

Id. at 280-281, 64 S.Ct. at 138 (citations omitted).

In Dotterweich the Supreme Coui't reversed a Second Circuit decision that was said to be motivated by “fear that an enforcement of § 301(a) as written might operate too harshly by sweeping within its condemnation any person however remotely entangled in the proscribed shipment.” 320 U.S. at 284, 64 S.Ct. at 138. But defendant Park was not just “remotely entangled” in the proscribed adulteration. Like Dotterweich, he was president of the corporation with full power to control its operations and to take measures to prevent rat infestation of food. Although he had delegated the day-to-day supervision of sanitation to subordinates, Park retained both the power and responsibility to see that the system of rodent control was effective, and if it didn’t work, to change it.

As Mr. Justice Frankfurter said about Dotterweich:

The offense is committed by all who '. . . have such a responsible share in the furtherance of the transaction which the statute outlaws, namely, to put into the stream of interstate commerce adulterated or misbranded drugs [or food]. Hard-' ship there doubtless may be under a statute which thus penalizes the transaction though consciousness of wrongdoing be totally wanting. Balancing relative hardships, ’ Congress has preferred to place it upon those who have at least the opportunity of informing themselves of the existence of conditions imposed for the protection of consumers before sharing in illicit commerce, rather than to throw the hazard on the innocent public who are wholly helpless.

Id. at 284-285, 64 S.Ct. at 138.

The trial judge made it perfectly clear to the jury that “the fact that the Defendant is present and is a chief executive officer of the Acme Markets does not require a finding of guilt. Though, he need not have personally participated in the situation, he must have had a responsible relationship to the issue. The issue is, in this case, whether the defendant, John R. Park, by virtue of his position in the company, had a position of authority and responsibility in the situation out of which these charges arose.”

Thus, again in the language of Mr. Justice Frankfurter, “the District Court properly left the question of the responsibility of [Park] for the shipment to the jury, and there was sufficient evidence to support its verdict.” 320 U.S. at 285, 64 S.Ct. at 138.

Moreover it is clear from examining the prosecutor’s argument to the jury that there was no effort to equate the presidency of the corporation with the responsibility. Instead, the government argued that Mr. Park was responsible because he had established a system of rodent control that did not work in March 1970, November 1971 and March 1972 and that even so he made no effort to change or improve the system. The government’s contention was not that the jury should convict if they found that Mr. Park was president (that was undisputed) but that they should convict if they found it to be his responsibility for setting up a system of sanitation and of delegating responsibility in a way that does the job in a sanitary way.

I am sympathetic with my brothers’ sense of justice that prompts them, it seems to me, to write into the statute some small degree of mens rea or scienter as a prerequisite to liability, but I share the government’s fear that today’s decision will undermine the congressional purpose of protecting “the innocent public who are wholly helpless” to protect themselves from contaminated food.

Because there will be a new trial, I want to align myself with the majority’s suggestion that evidence in the nature of “prior offenses” may be admissible. Indeed, I would go further. If an additional burden of proof is to be put upon the government to show that Mr. Park acted wrongfully, then it would seem to me that evidence would clearly be admissible that Park’s system o'f rodent control did not work in March 1970 in Philadelphia, or in November 1971 or March 1972 in Baltimore. If the rule is otherwise, I think the government cannot possibly sustain its new burden.

      . 21 U.S.C. § 331 provides, in part:
      The following acts and the causing thereof are prohibited:
      (k) The alteration, mutilation, destruction, obliteration, or removal of the whole or any part of the labeling of, or the doing of any other act with respect to, a food, drug, device, or cosmetic, if such act is donfe while such article is held for sale (whether or not the first sale) after shipment in interstate commerce and results in such article being adulterated or misbranded.

      . Park stated that a controlling factor in his decision to appeal this conviction was the fact that a second conviction under 21 U.S. C. § 331 is a felony, punishable by a term of imprisonment up to three years. Although violations of food and drug laws are punishable without regard to proof of scienter, the Supreme Court has indicated that it is an open question whether, in the absence of proof of scienter, an accused could be incarcerated for violating a “regulatory” statute. Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952) ; see also United States v. International Minerals & Chemical Corp., 402 U.S. 558, 564, 91 S.Ct. 1697, 29 L.Ed.2d 178 (1971). We note that due process standards with respect to the loss of liberty appear to be higher than those with respect to loss of property. Cf. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). We, too, consider this to be an open question and intimate no opinion on it.

      . As Dotterweich was postured when it reached the Supreme Court the primary question was whether “only the corporation was the ‘person’ subject to prosecution” under the Act. Therefore, the Supreme Court’s opinion reveals very little about the factual setting in that case. Mr. Dotterweich was President and General Manager of Buffalo Pharmaeal Company, Inc. The company was small, employing only twenty-six employees, all of whom worked on one upper floor of the building. Mr. Dotterweich was responsible for “general overseeing” of the Company operations; he was the direct supervisor of all employees. The trial transcript establishes that Mr. Dotterweich personally made every executive decision and had direct personal supervisory responsibility over the physical acts which resulted in the interstate shipment of misbranded and adulterated drugs. In the instant case Park is the chief executive officer of Acme, a multistate corporate giant. See note 5, infra. It is clear that his supervisory responsibility over most of the employees is indirect. There is no allegation or proof that Park was responsible for the executive decisions which resulted in contamination of the food. The facts of Dotterweich established the personal responsibility which we find lacking in the case before us.

      . The Federal Food, Drug, and Cosmetic Act § 331 (k) prohibits “causing” the adulteration of food which has traveled in interstate commerce and is held for sale. We would define “wrongful action” in this context as acts of the accused which cause the adulteration of such food.

      . Acme maintained its principal corporate offices and headquarters in Philadelphia, .Pennsylvania. As president, Park also maintained principal executive offices there. As Acme’s president and chief executive officer, Park was theoretically in charge of approximately 36,000 employees in 874 retail outlets, 12 main warehouses and 4 special warehouses located on the east and west coasts of the United States. To hold Park criminally liable for the wrongful actions of each and every one of these employees by merely showing his position with the corporation is manifestly unjust, unfair and beyond the realm of reasonableness.

      . See note 4, supra.

      . It would appear that the question of causation will be a principal issue upon a retrial. The question of causation is to be distinguished from that of intent. United States v. Sheridan, 329 U.S. 379, 67 S.Ct. 332, 91 L.Ed. 359 (1946). Some guidance with respect to the question of causation can be found in cases construing “aid and abet” which phrase appears in United States v. Dotterweich, 320 U.S. 277, 284, 64 S.Ct. 134, 88 L.Ed. 48 (1943). See also United States v. Peoni, 100 F.2d 401 (2 Cir. 1938).

      . In the case of United States v. Woods, supra, the defendant was convicted of first-degree murder of an eight-month-old infant. At trial evidence that other children in defendant’s care had died or suffered respiratory difficulties was admitted to prove the commission of the crime charged. On appeal this court held that the evidence was admissible in general and also admissible to prove corpus delicti. Although Woods was decided in a completely different factual setting, the legal principles enunciated therein are clearly applicable to the present case.

      . In applying a balancing test, the considerations confronting the district court may be summarized succinctly: assuming an exception to the rule is applicable, before admitting evidence of prior acts of crimes, the court should determine, first, whether the evidence is relevant; secondly, whether the evidence is unduly prejudicial notwithstanding its relevancy; and, thirdly, having met both prior tests, whether the evidence is truly needed by the prosecution.
      United States v. Woods, 484 F.2d 127, 141 (4 Cir. 1973) (Widener, J., dissenting opinion).

      . Such a conclusion is consistent with the result reached in Woods. Throughout the opinion in Woods the court emphasized the overriding need for “prior .crimes” evidence because of the particular and peculiar nature of infanticide cases.
      Indeed, the evidence is so persuasive and so necessary in case of infanticide . . . if the wrongdoer is to be apprehended, that we think that its relevance clearly outweighs its prejudicial effect on the jury.
      United States v. Woods, 484 F.2d 127, 135 (4 Cir. 1973) (emphasis added).

      . Park’s testimony indicated the system was established before he became president, but he conceded that if it didn’t work, and needed changing, it was his responsibility to change it. In addition, Park acknowledged having received a letter from the FDA in 1970 outlining unsanitary conditions an inspection team had found in the Philadelphia warehouse.


source: Caselaw Access Project

author: SWYGERT, Chief Judge. STEVENS, Circuit Judge

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Kirk BAKER et al., Defendants-Appellants.
    Nos. 73-1440-73-1443.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 27, 1974.
    Decided July 9, 1974.

      Timothy J. Connor, Stephen H. Shambaugh, Fort Wayne, Ind., for defendants-appellants.
    John R. Wilks, U. S. Atty., Fort Wayne, Ind., for plaintiff-appellee.
    Before SWYGERT, Chief Judge, STEVENS and SPRECHER, Circuit Judges.
   SWYGERT, Chief Judge.

Defendants were charged and convicted after a jury trial of violating 21 U.S. C. § 846 by conspiring to distribute sodium secobarbital, a controlled substance, in violation of 21 U.S.C. § 841(a)(1). Rick Felts was sentenced to imprisonment for four years, Kirk Baker to three years, Vera Felts to two years, and Ralph Vela to one year. All have appealed. Defendants raise five contentions on appeal.

I

Each of the defendants contends that there was insufficient evidence to support a finding of guilty. The evidence viewed in the light most favorable to the Government establishes the following. Joseph Hale,, a Government informer working for the Bureau of Narcotics and Dangerous Drugs in Fort Wayne, Indiana, was making his daily report by telephone to Special Agent Melvin O. Sehabilion when Rick Felts initiated a conversation with Hale in which he offered to obtain and sell to Hale 50,000 “reds” (sodium secobarbital pills). Hale expressed interest, and they proceeded to an apartment at which Ralph Vela was present. Although the United States Attorney states in his brief that all three “discussed the purchase and the dealing in narcotics and dangerous drugs in general,” there is no evidence that Vela participated in the discussion. The evidence merely shows that Vela was present (he lived there) and engaged in small talk. The next evening Hale returned to the apartment with Sehabilion and introduced him to Rick Felts and Vela. Felts told Hale and Schabilion that he would like them to go with him to the Ely Motel and meet his partner, Kirk Baker, who could obtain the 50,000 pills. There is no evidence that Vela participated in this second conversation, in fact, the evidence shows that he was seated with five to ten other people in an adjoining room of the apartment.

Rick Felts, Hale, and Schabilion left and met Baker at the Ely Motel where Baker stated that he would be able to get the 50,000 pills and that he would obtain a sample for them the next day. Later that evening, unindicted co-conspirators Allen Burns and Kathy Perriguey arrived and Burns advised the earlier group that he could obtain a sample of 1000 pills. Burns, Perriguey, and Baker left and returned with a bag of about 100 “reds.” Burns took fifteen pills out of the bag and sold them to Schabilion for $5.00. Baker then said that he could obtain 1000 “reds.”

On the following day, Vela drove Rick Felts and a man named Hans to Hale’s motel room at the Holiday Inn where Schabilion was already present. Schabilion paid Rick Felts $150 for 500 “reds.” There was no evidence that Vela participated in either the conversation or the transaction. After the sale Vela, Rick Felts, and Hans left in a car again driven by Vela.-

Later the same day, Rick Felts returned with his wife, Vera, and a woman named Debbie. Vera Felts advised Hale and Schabilion that the 500 pills sold to them earlier in the day had come through her from a man named Steve and that she was negotiating for the purchase of 50,000 pills. Rick Felts told Hale and Schabilion that his wife would meet Steve that evening to determine a reasonable price and then meet Hale and Schabilion at the Zig Zag Club. Vera and Rick Felts met with Hale and Schabilion at the Zig Zag Club. Vera told them that she had met her supplier and that the deal could go through in a couple of days. The deal was never consummated because Schabilion could not get the authority to make the purchase.

Defendants rely on dicta in United States v. Hysohion, 448 F.2d 343, 347 (2d Cir. 1971), to the effect that the telling of a willing buyer of heroin how to make contact with a willing seller does not necessarily imply an agreement between the seller and the information giver. Regardless of how we would decide that issue, the facts are different here. The evidence showed (1) that Rick Felts told the Government agents that Baker was his partner and (2) that his wife said that the 500 pills purchased from her husband had been obtained by her. There was sufficient evidence for the jury to find that Rick and Vera Felts and Kirk Baker conspired to distribute sodium secobarbital.

Defendants also argue that the evidence at best showed a series of conspiracies and not the conspiracy as charged in the indictment. We disagree. The evidence establishes one conspiracy by the Felts and Baker to sell sodium secobarbital pills to Hale and Schabilion.

We turn next to the sufficiency of the evidence as it relates to Vela. The only evidence of participation in the conspiracy on the part of this defendant was his driving of Rick Felts and Hans to the Holiday Inn where Rick Felts sold 500 pills. The Government argues that since Vela lived at Rick Felts’ apartment, since he was present during the first conversation with Rick Felts at the apartment, and since he drove Rick Felts and Hans to the Holiday Inn and was present when Rick Felts sold 500 pills, he participated in the conspiracy. The testimony of Hale about this first conversation, however, was that Vela engaged only in “small talk” and did not participate in the conversation on drug dealing. At the time of the second conversation at the apartment when Schabilion was also present, Vela was sitting in the next room with five to ten other persons. Allen Burns, unindicted co-conspirator, testified at trial for the Government that he had no knowledge of Vela being connected with the conspiracy. The United States Attorney at oral argument admitted that without Vela’s driving of the car, there would be insufficient evidence to convict him.

We have previously said with respect to the crime of conspiracy in United States v. Hickey, 360 F.2d 127, 138 (7th Cir.), cert. denied, 385 U.S. 928, 87 S.Ct. 284,17 L.Ed.2d 210 (1966):

A conspirator need not participate in all the activities of the conspiracy, nor is it necessary that he become a member of the conspiracy at its inception. United States v. Lipsky, 309 F.2d 521, 522 (3d Cir. 1962), cert. denied, 371 U.S. 953, 83 S.Ct. 510, 9 L.Ed.2d 501 (1963). It is only necessary that he knowingly contribute his efforts in furtherance of it. McManaman v. United States, 327 F.2d 21, 25 (10th Cir.), cert. denied, 377 U.S. 945, 84 S.Ct. 1351, 12 L.Ed.2d 307 (1964).

The United States Attorney at oral argument argued that Vela “shouldn’t associate with these people.” The answer is supplied by the Second Circuit: “But mere association with conspirators is insufficient basis for a finding of participation.” United States v. Stromberg, 268 F.2d 256, 267 (2d Cir.), cert. denied, 361 U.S. 863, 80 S.Ct. 119, 4 L.Ed.2d 102 (1959). See also United States v. Di Re, 332 U.S. 581, 593, 68 S.Ct. 222, 92 L.Ed. 210 (1948), and United States v. Hickey, 360 F.2d at 139.

In Bailey v. United States, 135 U.S.App.D.C. 95, 416 F.2d 1110 (1969), the District of Columbia Circuit reversed a conviction for robbery because the evidence was insufficient to find that the defendant participated in the crime. Although that case dealt with aiding and abetting, we think that it is equally applicable to the question whether Vela participated in the conspiracy. In Bailey, Judge Robinson delineated the criteria other than presence or association which was necessary to establish participation in the crime.

Appellant’s conduct, as portrayed in the view most favorable to the Government, amounted to presence at the scene of the crime, slight prior association with the actual perpetrator, and subsequent flight. A sine qua non of aiding and abetting, however, is guilty participation by the accused. “In order to aid and abet another to commit a crime it is necessary that a defendant ‘in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.’ ” The crucial inquiries in this case relate to the legal capabilities of the evidence to sustain a jury determination that appellant collaborated to that degree in the robbery.
An inference of criminal participation cannot be drawn merely from presence; a culpable purpose is essential. In Hicks v. United States (150 U.S. 442, 14 S.Ct. 144, 37 L.Ed. 1137), the Supreme Court recognized that the accused’s presence is a circumstance from which guilt may be deduced if that presence is meant to assist the commission of the offense or is pursuant to an understanding that he is on the scene for that purpose. And we have had occasion to say that “[m]ere presence would be enough if it is intended to and does aid the primary actors.” Presence is thus equated to aiding and abetting when it is shown that it designedly encourages the perpetrator, facilitates the unlawful deed — as when the accused acts as a lookout — or where it stimulates others to render assistance to the criminal act. But presence without these or similar attributes is insufficient to identify the accused as a party to the criminality. . . . 416 F.2d at 1113-1114. See also United States v. Kelton, 446 F.2d 669, 671 (8th Cir. 1971).

The case before us is distinguishable from United States v. Cardi, 478 F.2d 1362, 1368 (7th Cir.), cert. denied, 414 U.S. 1001, 94 S.Ct. 355, 38 L.Ed.2d 237 (1973), where Cardi’s own words were evidence of his knowing participation in the conspiracy to unlawfully sell narcotics. Here we only have a single act of Vela — the driving of a car. Although Vela was in the apartment and in the Holiday Inn when , purchases of pills were discussed, both Government agents testified that they never had any conversation with him about the sale of drugs. The driving of a car in which one of the conspirators as well as another party rode was insufficient evidence from which a jury could reasonably infer that Vela intended to participate in the conspiracy or “ ‘knew of the conspiracy and associated himself with it.’ United States v. Bentvena, 319 F.2d 916, 927-928 (2d Cir. 1963).” United States v. Cardi, 478 F.2d at 1369.

II

Defendánts allege that it was error for the trial judge to deny their request for additional challenges which were made on the morning of trial after the jury panel had been called. The defendants asked ten peremptory challenges each. The judge denied the motion after pointing out to counsel that if the motion had been filed earlier, he could have called additional jurors. The judge did grant the defendants a total of twelve peremptory challenges, but later reduced that to ten, the required number under Rule 24(b) of the Federal Rules of Criminal Procedure.

There was no objection by defense counsel to the reduction, and one defense attorney stated that he understood the reason for the reduction. After the defendants had used all their peremptory challenges, there were eleven jurors in the jury box. The judge told counsel that he could either have the clerk call additional jurors or counsel could stipulate to go to trial with eleven jurors. The Government and defense counsel so stipulated. Under these circumstances, the trial judge did not err in denying the request for additional peremptory challenges.

III

Since defense counsel agreed to the presence of Special Agent Schabilion at the Government counsel table and did not object during the trial to his being called after listening to Hale testify, the defendants do not have cause to raise this issue for the first time on appeal.

IV

We have reviewed the record and we find no erroneous limitation on the cross-examination of Joseph Hale. Hale admitted to his having used marijuana and to a conviction for possession of marijuana and denied use of any narcotics or other dangerous drugs. The trial judge allowed wide leeway in the cross-examination. We are at a loss to understand the relevance of any further questions defense counsel could have asked on use of drugs or narcotics.

V

The last contention of defense counsel is that the trial judge by repetition erroneously gave undue emphasis in his instructions to the effect that the Government did not need to prove a violation of 21 U.S.C. § 841(a)(1) (distribution of a controlled substance) in order to prove that the defendants were guilty of conspiring to violate section 841(a)(1). The given instruction was:

Each defendant in this case has been charged in the indictment with conspiring to violate Section 841(a)(1) of Title 21 of the United States Code. No defendant, however, has been charged with actually violating Section 841(a)(1). Therefore, the Government need not prove beyond a reasonable doubt that any defendant violated Section 841(a)(1). The Government, however, must prove beyond a reasonable doubt as to a particular defendant now on trial that he was knowingly a member of a conspiracy and that an object of such conspiracy was, as charged in the indictment, to violate Section 841(a)(1).
The elements of the crime set forth in Section 841(a)(1) so far as here relevant are that an individual or individuals
(1) Distributed a Schedule III controlled substance and was not authorized by law to so distribute;
(2) That such distribution was done knowingly and intentionally and with specific intent.
However, I again remind you that no defendant is here charged with personally violating Section 841(a)(1). Rather, each defendant is here charged with knowingly and wilfully conspiring with others to violate Section 841(a)(1) as outlined above. The Government need not prove that any defendant or any other alleged co-conspirator actually violated Section 841(a)(1).

Defendants argue without any authority that this repetition unduly emphasized the point and may have prejudiced their ease. We fail to perceive any prejudice.

We affirm the convictions of Rick Felts, Vera Felts, and Kirk Baker; we reverse the conviction of Ralph Vela.

STEVENS, Circuit Judge

(concurring in part and dissenting in part).

The mere performance of an act, such as driving a car making a delivery of narcotics, does not make the actor a conspirator if he does not know the character of his cargo. Conversely, mere knowledge that a crime is being committed in one’s presence does not make the bystander responsible for the actions of his associates. But if the evidence establishes both (a) knowledge of the criminal character of an enterprise and (b) affirmative conduct which contributes to the consummation of the transaction, a jury may properly infer deliberate participation in a conspiracy.

In this case, proof that Vela was fully informed about the character of the narcotics transaction is overwhelming; for he was present on two occasions when negotiations for the sale of drugs took place at his residence, and he was also present when the actual sale was made at the Holiday Inn. It is also perfectly clear that his conduct in driving Felts to and from the Holiday Inn where the “reds” were delivered was affirmative conduct which furthered the consummation of the illegal transaction. The act of driving the car may have made only a minor contribution to the criminal enterprise. However, since it was performed with full awareness of its significance, it provides a sufficient basis for the jury’s finding of guilt.

The fact that neither Vela’s knowledge, taken by itself, nor his conduct, taken by itself, is sufficient to prove his participation in the conspiracy, is of no significance because it is the combination of knowledge and conduct disclosed by the record that must be appraised. I would therefore affirm the conviction of Vela as well as the convictions of his co-defendants.

      . 21 U.S.C. § 846 provides :
      Any person who attempts or conspires to commit any offense defined in this subchapter is punishable by imprisonment or fine or both which may not exceed tlie maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

      . 21 U.S.C. § 841(a) (1) provides:
      [T]o manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance;

      . See United States v. Stromberg, 268 F.2d 256, 267 (2d Cir. 1959), cert. denied, 361 U.S. 863, 80 S.Ct. 119, 4 L.Ed.2d 102, which is distinguished in United States v. Cardi, 478 F.2d 1362, 1369 (7th Cir. 1973), cert. denied, 414 U.S. 1001, 94 S.Ct. 355, 38 L.Ed.2d 237, on the ground that Cardi’s knowledge of the illegal transaction provided the element that was lacking with respect to the defendant Snyder in the Stromberg case.

      . See Bailey v. United States, 135 U.S.App.D.C. 95, 416 F.2d 1110, and cases cited at 1113-1114 (1969).

      . In United States v. Greer, we identified the two general components of aiding and abetting as (1) an act on the part of a defendant which contributes to the execution of a crime, and (2) the intent to aid in its commission. See 467 F.2d 1064, 1069 (7th Cir. 1972). Evidence sufficient to prove those two components may perform the “double duty” of supporting a conspiracy charge as well. See Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 93 L.Ed. 919. In Greer, although the evidence was insufficient to support the count charging Greer with aiding and abetting the substantive violation of transporting stolen copper, it was sufficient to sustain his conviction under the conspiracy count. See 467 F.2d at 1071. In this case I believe the evidence would be sufficient to establish either (a) that Vela aided and abetted the sale of the “reds” or (b) that he knowingly contributed his efforts in furtherance of the conspiracy to sell them. See United States v. Hickey, 360 F.2d 127, 138 (7th Cir. 1966), cert. denied, 385 U.S. 928, 87 S.Ct. 284, 17 L.Ed.2d 210.

      . Concerning the first occasion, Joseph Hale testified:
      Q At that location of 3509% Indiana Avenue, did you have further discussion with Rick Felts in the presence of Ralph Vela about drugs or anything like that?
      A Yes, we did.
      Q What was the conversation?
      A Rick said that he mainly dealt in marijuana, but he had a friend who handled a lot of reds and, you know, the different kinds of downers, and he had made several trips up to Detroit to buy some cocaine and bring back to town, and that he had just come back from the west coast with about 60 pounds of marijuana.
      Q On that visit with Rick Felts and Ralph Vela at 3509% Indiana, did you observe any drugs at that location at that time?

        A Yes, sir, he had a suitacase with about six bags of marijuana in that that looked like, you know, about what I would say weighed about a pound each, and he had a little bag of cocaine.
      Tr. 59. See also Tr. 93-95.
      Concerning the second occasion, Hale testified :
      Q Was the Defendant Ralph Yela also present?
      A Yes, he was.
      Q Did you introduce those two individuals to Agent Schabilion?
      A Yes, I did.
      Q Did the Defendant Rick Felts have a discussion with you and Agent Schabilion at that time?
      A Yes, lie did.
      Q What did he say to you?
      A He said that in order to get these reds that he had to get hold of his other man that he done the business with, which was Kirk Baker, and he wanted us to go over there to Baker’s residence with him at that time.
      THE COURT: Just a minute. I again want to point out at this point that this witness has testified that this conversation occurred in the presence of two of the Defendants.
      Tr. 61. Although Schabilion testified that he “believed” Vela was seated in another room during this conversation, Tr. 127, the jury was entitled to credit Hale’s version as quoted above.

      . Hale testified as follows:
      Q Who came to your room?
      A Rick Felts, Ralph Vela, and another man named Hans. .
      Q What happened on that occasion when they came to see you?
      A They came over about 1:35 in the afternoon, and Rick got out the five bags of reds, out of his coat pocket, which • contained 100 each, and he sold these reds to the Agent for one hundred and a half.
      Q $150.00?
      A Yes.
      Q Did Agent Schabilion give him $150 in cash?
      A Yes, he did.
      Q Those three individuals left the apartment then?
      A Yes. They left about 1:50 in the afternoon.
      Q Did you see what vehicle they left in?
      A Yes. See, they arrived and left in a ’66 Pontiac and Ralph was driving it.
      Q Defendant Ralph Vela was driving it?
      A Yes.
      Tr. 69-70. See also Tr. 108-109; 138-39; 186-87; 197-98; 279-80.


author: WEIS, Circuit Judge.

text:
    UNITED STATES of America v. Eqbal AHMAD et al. Appeal of Elizabeth McALISTER. William Davidon, Intervenor.
    No. 73-2094.
    United States Court of Appeals, Third Circuit.
    Argued April 3, 1974.
    Decided June 26, 1974. .

      Jack J. Levine, Philadelphia, Pa., William J. Bender, Newark, N. J., for appellant and intervenor.
    Henry E. Petersen, Asst. Atty. Gen., Edward C. Christenbury, Garvin L. Oliver, Larry L. Gregg, Dept, of Justice, Washington, D. C., S. John Cottone, U. S. Atty., for appellee.
    Before VAN DUSEN, WEIS and GARTH, Circuit Judges.
   OPINION OF THE COURT

WEIS, Circuit Judge.

The difficulties that may be encountered when litigation is divided between courts of concurrent jurisdiction is illustrated by this Tale of Two Districts — an appeal generated by civil suit fallout from a closed criminal proceeding.

During the pretrial stages of a criminal case in the Middle District of Pennsylvania in which she was a defendant, Elizabeth McAlister, now Mrs. Philip Berrigan, learned, that she may have been overheard by electronic surveillance. Judge R. Dixon Herman, who presided over the case, found that there had been an unauthorized and illegal wiretap. A taint hearing was held in May, 1972, after the criminal trial had been concluded. Transcripts of two conversations were made available to two of the then defendants, McAlister and Philip Berrigan, as well as counsel of record, in accordance with a protective order to which the parties agreed. The stipulation and order read:

“It is stipulated by and between counsel for the parties that the contents of or information contained in any tapes or transcripts thereof relating to any overhearing of conversations by means of electronic surveillance, shall not be disclosed to persons other than defense counsel of record or defendants Philip Berrigan and Elizabeth McAlister.
[signature of counsel]
IT IS SO ORDERED.
/s/ R. Dixon Herman
United States District Judge
May 1, 1972”

On October 10, 1972, a suit was filed in the Eastern District of Pennsylvania by McAlister and one William Davidon against Richard D. Kleindienst, then Attorney General of the United States, L. Patrick Gray, then Acting Director of the FBI, John N. Mitchell, former Attorney General, and several named and Unnamed agents of the FBI. The complaint alleged in essence that Mrs. Berrigan and Davidon were the subjects of illegal wiretaps and that they claimed damages in accordance with, inter alia, the provisions of 18 U.S.C. § 2520, which permits recovery of civil damages and counsel fees in such situations.

The civil case was assigned to Judge E. Mac Troutman for disposition. The defendants then asserted that they were unable to answer all of the allegations of the complaint because they were bound by the protective order and the stipulation filed in the criminal case in the Middle District. To resolve the impasse, Mrs. Berrigan and Davidon jointly filed a petition with Judge Herman in the Middle District seeking to vacate the protective order. After consideration of briefs filed by the parties, Judge Herman on October 24, 1973 refused to lift the protective order. Mrs. Berrigan filed a notice of appeal in the district court on November 15, 1973, after having been granted an extension of time by Judge Herman.

Davidon did not file a notice of appeal but on January 18, 1974, requested leave to intervene as an appellant in this court. The motion was granted, and Davidon adopted the brief filed by Mrs. Berrigan.'

Since Davidon did not appeal the order as it applied to him, we consider the merits of this case only as applied to Mrs. Berrigan. In the peculiar circumstances here, Davidon’s intervention is necessarily limited. He cannot circumvent the requirements for taking an appeal in his own right by a later petition for intervention in an effort to present contentions applicable only to him.

Mrs. Berrigan asserts that the practical effect of Judge Herman’s order is that the plaintiffs in the civil suit will be unable to proceed because it is unlikely that Judge Troutman will order the defendants in his court to file an answer which would be in violation of the protective order previously filed in the Middle District.

However, at oral argument on this appeal, counsel for the defendants conceded that they could answer the complaint of Mrs. Berrigan to admit that she was overheard as a result of a surveillance conducted without the authority of court order. Since Judge Herman found there were two such conversations intercepted in the period from November 24, 1970 to January 6, 1971 and that they were illegal, there is nothing to prevent such admissions by the defendants. These facts were reported in the written opinion of the district court after the taint hearing had been concluded, and thus, there is no disclosure problem.

At this stage of the litigation, therefore, there has been no need-shown to have the protective order lifted as to Mrs. Berrigan. The concession of the defendants in this court that they can, and therefore must, file an answer, will enable her to present a prima facie case of an illegal overhearing on two separate occasions. Thus, Judge Herman’s order will be affirmed on the basis that no need exists at this point to vacate the protective order.

We recognize, however, that there may well be further requests to dissolve or modify the protective order and think it appropriate, therefore, to comment on the grounds relied on by the Middle District in its Memorandum of October 24, 1973.

The district court took judicial notice of an affidavit filed by then Attorney General Mitchell on May 13, 1971 which asserted that the surveillance was “one deemed necessary to protect against a clear and present danger to the structure or existence of the Government of the United States” and that “. it would prejudice the national interest to disclose the particular facts contained in the sealed exhibit.” The court took no position on the justification for the government’s desire for secrecy but accepted the Attorney General’s affidavit at face value.

The difficulty with this position is that what may have been justified in May of 1971 (on the record of this case we are unable to pass any judgment on that point) is not necessarily so today. The passage of time has a profound effect upon such matters, and that which is of utmost sensitivity one day may fade into nothing more than interesting history within weeks or months. Any considerations of national security interests therefore must be viewed in the light of circumstances as they exist at the time the request for disclosure is made — not when the affidavit was prepared or the material filed with the court.

When governmental privilege is invoked to prevent disclosure of information during the course of litigation and a need for the data is shown, disposition of the dispute requires a balancing of the interests. The needs of a party to secure information necessary to the prosecution or defense of a civil remedy expressly granted by Congress must be weighed against the government’s position that it should not divulge that which would be injurious to the public security. Obviously, such a process requires a careful inquiry into the pertinent facts.

The government’s privilege is a necessary one, but it is one which may be overcome by a citizen’s right to secure desired information. In determining whether the privilege is to prevail, a court is faced with a delicate task. As the Supreme Court pointed out in United States v. Reynolds, supra, at 8:

“The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing the disclosure of the very thing the privilege is designed to protect.” (footnotes omitted)

In carrying out such an assignment, the in camera techniques employed in Jabara v. Kelly, 62 F.R.D. 424 (E.D.Mich., 1974), and Philadelphia Resistance v. Mitchell (Civil No. 71-1738, E.D.Pa., August 3,1972), may be helpful.

It is difficult to set out adequate guidelines in advance ' for such an inquiry as proposed here because the facts loom so large. All that can be said is that the necessities of the civil litigation and the policy of the Federal Rules of Civil Procedure favoring broad disclosure require that there be serious and well-founded concern about national security before all disclosure is prohibited. In United States v. Reynolds, supra, at 11, the court said:

“In each case, the showing of necessity which is made will determine how far the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate. Where there is a strong showing of necessity, the claim of privilege should not be lightly accepted, but even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake. A fortiori, where necessity is dubious, a formal claim of privilege . . . will have to prevail.”

It may well be that the defendants in the civil case will be those who next seek to have the order lifted because of the possibility that the Eastern District will exercise the broad default powers conferred by Fed.R.Civ.P. 8(d) and 37(b)(2). See the procedures followed . in United States v. Reynolds, 10 F.R.D. 468 (E.D.Pa.1950), aff’d. 192 F.2d 987 (3d Cir. 1951). Indeed, we feel it should have been the defendants who presented the petition to the Middle District in the first instance. The plaintiffs’ proper posture was to insist upon a default being entered in the Eastern District, thereby shifting the burden to the defendants to secure a relaxation of the Middle District protective order.

The order of the district court will be affirmed.

      . See United States v. Ahmad, 347 F.Supp. 912 (M.D.Pa.1972), modified sub nom., United States v. Berrigan, 482 F.2d 171 (3d Cir. 1973); United States v. Ahmad, 335 F.Supp. 1198 (M.D.Pa.1971); and United States v. Ahmad, 329 F.Supp. 292 (M.D.Pa.1971).

      . See 335 F.Supp. 1198 (M.D.Pa.1971). The electronic surveillance apparently had been performed without a court order in accordance with a Presidential determination that national security was involved. Judge Herman relied on the decision of the Court of Appeals in United States v. United States District Court, 444 F.2d 651 (6th Cir. 1971), later affirmed by the United States Supreme Court at 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972) in deciding that the wiretap was illegal.

      . “Any person whose wire or oral communication is intercepted, disclosed, or used in violation of this chapter shall (1) have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use such communications, and (2) be entitled to recover from any such person—
      (a) actual damages but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher;
      (b) punitive damages ; and
      (c) a reasonable attorney’s fee and other litigation costs reasonably incurred.
      “A good faith reliance on a court order or legislative authorization shall constitute a complete defense to any civil or criminal action brought under this chapter or under any other law.”

      . It is questionable whether such an extension was required. Although the petition was filed under the criminal case caption, the order really applied to a civil, collateral matter. See Olympic Refining Co. v. Carter, 332 F.2d 260 (9th Cir. 1964) ; Fed.R.App.P. 4.

      . Nor did Davidon utilize a petition for mandamus, the procedure followed in Ex parte Uppercu, 239 U.S. 435, 36 S.Ct. 140, 60 L.Ed. 368 (1915) and in Olympic Refining Co. v. Carter, supra.

      . On September 12, 1973, Judge Troutman signed an order granting the motion of the plaintiff to compel the defendants to answer within 30 days. By agreement of counsel at a later date, that order was stayed pending the determination of this appeal.

      . See 347 F.Supp. at 934.

      . See discussion infra on the balancing of a litigant’s need for information against the government’s desire to protect it. As the Supreme Court noted in United States v. Reynolds, 345 U.S. 1, 11, 73 S.Ct. 528, 534, 97 L.Ed. 727 (1953), “ . . . where necessity is dubious, a formal claim of privilege . . . will have to prevail.”

      . If in the future any need should arise for a modification of the stipulation, another application can be presented to Judge Herman.

      . The sealed exhibit contained a description of the premises and transcripts of overheard conversations. (Appendix at 10A)

      . For discussion of the privilege, see Wright & Miller, 8 Federal Practice and Procedure: Civil § 2019.

      . The case was reversed on its merits, not on the procedures employed, by the Supreme Court in 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953).

        See note 6, supra.


author: SAMUEL P. KING, District Judge:

text:
    Joseph Luis DUNN, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee.
    No. 72-2463.
    United States Court of Appeals, Ninth Circuit.
    June 27, 1974.
    Rehearing Denied Aug. 15, 1974.
    William A. Herreras (argued), Ghitterman, Eskin & Herreras, Santa Barbara, Cal., for petitioner-appellant.
    William D. Keller, U. S. Atty., Alan W. Peryam, Asst. U. S. Atty. (argued), Los Angeles, Cal., for respondent-appellee.
    Before CHAMBERS and SNEED, Circuit Judges, and KING, District Judge.

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

   OPINION

SAMUEL P. KING, District Judge:

Petitioner seeks review of a final order of deportation and of the determination of the Board of Immigration Appeals denying his Motion to Reopen the deportation proceedings. Review is authorized by Section 106 of the Immigration and Nationality Act (hereinafter the Act), 8 U.S.C. § 1105a. The Board held that petitioner, a native of the Western Hemisphere, was statutorily ineligible for discretionary relief from deportation as provided in § 245 of the Act, 8 U.S.C. § 1255(c).

The decision of the Board of Immigration Appeals is affirmed.

Two basic questions are raised by the Petitioner. First: whether he is statutorily eligible for relief under § 212(c) of the Act, 8 U.S.C. § 1182(c). Second: whether the statutory authority and administrative practice of providing discretionary relief from deportation, in the form of adjustment of status pursuant to § 245 of the Act, to natives of the Eastern Hemisphere and denying such relief to natives of the Western Hemisphere is Constitutional.

Petitioner is a male alien twenty-six years old, a native arid citizen of Mexico, who entered the United States as a permanent resident in 1959. He is married to a United States citizen and has a minor child who was born of this marriage.

On April 30, 1969, in a state court of California, Petitioner was convicted of the unlawful possession of marihuana, in violation of § 11530 of the California Health and Safety Code. A judgment was entered on May 23, 1969, committing him to the Director of Corrections for placement. He was sent to the California Rehabilitation Center from which he was released on November 25, 1970.

Subsequently, proceedings were instituted to deport Petitioner pursuant to § 241(a) (11) of the Act, 8 U.S.C. § 1251(a)(11), as an alien convicted of any law relating to the illicit possession of marihuana. In an order of the Special Inquiry Officer dated August 7, 1969, Petitioner was found deportable as charged and was ordered to be deported to Mexico.

On September 12, 1969, the Special Inquiry Officer again having the case before him on a Motion for Reconsideration, affirmed his original order. An appeal from the order was dismissed on December 31, 1969, by the Board of Immigration Appeals. Petitioner then made a Motion for Review of the order of deportation to this Court, which was denied on August 30,1970.

Thereafter, a private bill, on behalf of Petitioner was introduced in the United States Congress. The Immigration Service advised him on March 2, 1972, that Congress had taken adverse action on the bill and granted him until March 20, 1972, to present himself for deportation to Mexico.

On March 9, 1972, Petitioner filed a Motion to Reopen arid Stay Deportation .Proceedings, which was denied by the B.oard of Immigration Appeals on May 15, 1972. The Petitioner subsequently filed the instant Petition for Review of the denial by the Board of his Motion to Reopen. He has never left the United States since his original entry.

Petitioner urges that he should be eligible for discretionary relief from deportation under § 212(c) of. the Act, 8 U.S.C. § 1182(c), even though he is not technically “returning to the United States after a voluntary departure.” In effect Petitioner is requesting advance permission to return to an unrelinquished domicile, despite the fact that otherwise he would be ineligible for admittance under § 212(a) (23), 8 U.S.C. § 1182(a) (23), as an “alien who has been convicted of a violation of . any law or regulation relating to the illicit possession of or traffic in narcotic drugs or marihuana.”

As petitioner recognizes in his brief, this precise contention was rejected by this court in Arias-Uribe v. Immigration and Naturalization Service, 466 F.2d 1198 (9th Cir. 1972). We remain persuaded that that case properly interprets the statute.

Petitioner further contends that it is unconstitutional to deny eligibility for an adjustment of alien status under § 245 of the Act, 8 U.S.C. § 1255, to natives of the Western Hemisphere, while no such restriction is placed on natives of the Eastern Hemisphere.

In Harisiades v. Shaughnessy, District Director of Immigration and Naturalization Service, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586 (1952) the Court stated that the government’s power to terminate its hospitality towards any class of aliens has been asserted and sustained as an essential element of international relations since the question first arose.

Mr. Justice Frankfurter in his concurring opinion in Harisiades notes:

But whether immigration laws have been crude and cruel, whether they may have reflected xenophobia in general or anti-Semitism or anti-Catholicism, the responsibility belongs to Congress. . . . But the underlying policies of what classes of aliens shall be allowed to enter and what classes of aliens may be allowed to stay, are for Congress exclusively to determine even though such determination may be deemed to offend American traditions. ... (at page 597, 72 S.Ct. at page 523)

It is firmly established that Congress has the power to exclude aliens of a particular race from the United States, prescribe the terms and conditions upon which certain classes of aliens may come to the country, establish regulations for sending out of the country such aliens as come here in violation of law and commit the enforcement of such provisions to the appropriate executive officers. See Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); Carlson v. Landon, 342 U.S. 524; 72 S.Ct. 525, 96 L.Ed. 547 (1952); Takahashi v. Fish and Game Commission, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948); Fong Yue Ting v. United States, 149 U.S. 698, 13 S.Ct. 1016, 37 L.Ed. 905 (1893); Uribe-Temblador v. Rosenberg, 423 F.2d 717 (9th Cir. 1970); Talanoa v. Immigration and Naturalization Service, 397 F.2d 196 (9th Cir. 1968).

The Immigration and Nationality Act of 1952 originally provided in § 101(a) (27) (C) that a nonquota immigrant included:

(C) an immigrant who was born in Canada, the Republic of Mexico, the Republic of Cuba, the Republic, of Haiti, the Dominican Republic, the Canal Zone, or an independent country of Central or South America, and the spouse or child of any such immigrant, if accompanying or following to join him;

This section conferred a benefit on the majority of Western Hemisphere countries in that they were free from immigration quotas imposed on most other countries.

Section 245 of the Act of 1952 was a method of balancing the equities between quota and nonquota countries by withholding benefits of adjustment of status from those entitled to nonquota status as natives of Western Hemisphere countries.

Legislation enacted in 1958 eliminated preclusion of adjustment of status for Western Hemisphere natives and instead withheld this remedy from natives of contiguous countries and adjacent islands.

In 1960 expansion of statutory benefit was accomplished by an amendment which made adjustment of status available to all aliens, except those entering as alien crewman, who were inspected by immigration officers and admitted or paroled into the United States.

Section 245(e) of- the Act takes its present form from the 1965 Amendment restoring the original bar of adjustment of status for natives of Western Hemisphere countries and adjacent islands. Congress was concerned that the Immigration and Naturalization Service had serious recurring problems in processing an increasing number of natives of Central and South America, who came to the United States as nonimmigrant visitors and promptly sought permanent residence under § 245 of the Act.

As noted above, the provision presently under attack is well within the power of Congress. There is a rational basis for the distinction between aliens from the Eastern Hemisphere and aliens from the Western Hemisphere for purposes of relief from deportation pending adjustment of status. Further inquiry into the rationale of § 245 of the Act by this Court is not required.

Affirmed.

      . Section 241(a) (11) provides in relevant part:
      “(a) Any alien in the United States . . . shall, upon the order of the Attorney General, be deported who—
      “(11) is or hereafter at any time after entry has been . . . convicted of a violation of . . . any law or regulation relating to the illicit possession or traffic in narcotic drugs or marihuana.”

      . Section 212(c) of the Act provides in relevant part:
      “aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to paragraphs (l)-(25) . . . of subsection (a) of this section.”

      . Section 245 of the Act provides in relevant parts:
      “(a) The status of an alien, other than an alien crewman, who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available at the time of his application.
      (c) The provisions of this section shall not be applicable to any alien who is a native of any country of the Western Hemisphere. . . . ”

      . Section 245(c), Act of 1952, 8 U.S.C. § 1255(e) as amended by the Act of August 21, 1958, 72 Stat. 699.

      . Section 245(c), Act of 1952, 8 U.S.C. § 1255(c) as amended by the Act of July 14, 1960, 74 Stat. 505.

      . Section 245(c), Act of 1952, 8 U.S.C. § 1255(c) as amended by the Act of October 3, 1965, 79 Stat. 919.

      . S.Rep.No.748, 89th Cong., 1st Sess., p. 3343 (1965).


author: SWYGERT, Chief Judge.

text:
    James D. HODGSON, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. GREYHOUND LINES, INC., Defendant-Appellant.
    No. 73-1214.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 18, 1974.
    Decided April 23, 1974.
    Rehearing Denied July 25, 1974.

      L. Norton Preddy, Miami, Fla., Edward J. Wendrow, Chicago, 111., for defendant-appellant.
    Robert J. Corber, Washington, D. C., amicus curiae.
    Carin Ann Clauss, Atty., U. S. Dept, of Labor, Washington, D. C., Herman Grant, Dept, of Labor, Chicago, 111., for plaintiff-appellee.
    Before SWYGERT, Chief Judge, PELL, Circuit Judge, and ESCHBACH, District Judge.

      . District Judge Jesse E. Eschbach of the Northern District of Indiana is sitting by designation.

   SWYGERT, Chief Judge.

Defendant-appellant, Greyhound Lines, Inc., appeals from a finding that its maximum hiring age policy for applicants for the position of driver of intercity passenger buses violates the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. Pursuant to that policy Greyhound declines to consider applications for intercity bus drivers from those individuals thirty-five years of age or older.

The Government contends that Greyhound’s hiring policy violates section 4(a)(1) of the Act, 29 U.S.C. § 623(a)(1), which makes it unlawful “to fail or refuse to hire . . . any individual . . . because of such individual’s age.” In addition the Government charges that Greyhound’s maximum hiring age violates section 4(a) (2) of the Act, 29 U.S.C. § 623(a)(2), which prohibits efforts “to limit, segregate, or classify . . . employees in any way which would deprive . . . any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.” Also the Government claims that Greyhound’s advertisements indicating age differentiation in employment is forbidden by section 4(e) of the Act, 29 U.S.C. § 623(e).

Greyhound, although admitting the employment and advertising practices charged by the Government, denies that such practices violate the Act in that it is contended that Greyhound’s actions are exempted from the Act’s proscriptions. Under section 4(f)(1) of the Act, 29 U.S.C. § 623(f)(1), an employer may differentiate as to age without violating the Act if age is shown to be a “bona fide occupational • qualification reasonably necessary to the normal operation of the particular business. . . ” Greyhound contends that its maximum age hiring policy is premised on considerations of public safety and as such constitutes a “bona fide occupational qualification.”

At trial Greyhound urged that abolition of its maximum age hiring policy with respect to intercity bus drivers would increase the likelihood of risk of harm due to driver failure and thereby concomitantly impede Greyhound’s efforts for safety. The trial judge held that Greyhound had failed to meet its “burden of demonstrating that its policy of age limitation is reasonably necessary to the normal and safe operation of its business.” In making this determination the trial judge stated:

[T]he defendant’s policy is not founded on the “factual basis” for its belief that “all or substantially all [applicants over age 40] . . . would be unable to perform safely and efficiently the duties of the job involved.”

In appealing from this holding Greyhound presents two issues for our review. Greyhound contends: (1) that the district court imposed an improper burden of proof on it; and (2) that as a matter of law the evidence demonstrates that Greyhound’s hiring policy is a bona fide occupational qualification reasonably necessary to the normal operation of its business. We agree.

I.

The standard for the burden of proof placed on Greyhound by the trial judge was taken from, the Fifth Circuit’s decision in Weeks v. Southern Bell Telephone & Telegraph Co., 408 F.2d 228 (5th Cir. 1969). In that case the telephone company was faced with a charge of sex discrimination for refusing to consider the application of a woman for the position of switchman. As an affirmative defense the telephone company claimed that the sex of an applicant for the position of switchman was a bona fide occupational qualification because of the allegedly strenuous activity of lifting of weights in excess of thirty pounds occasionally required in fulfilling the job of switchman. In discussing the burden of proof cast upon the telephone company the court stated:

[W]e hold that in order to rely on the bona fide occupational qualification exception an employer has the burden of proving that he had reasonable cause to believe, that is, a factual basis for believing, that all or substantially all women would be unable to perform safely and efficiently the duties of the job involved. 408 F.2d at 235.

The court denied the telephone company a bona fide occupational qualification exemption, holding that the company had failed to meet its burden of proof. The court declined to indulge in an assumption, “on the basis of a ‘stereotyped characterization’ that few or no women can safely lift 30 pounds, while all men are treated as if they can.” 408 F.2d at 235, 236.

Although the standard for the burden of proof annunciated in Weeks may properly be applicable to the circumstances of that sex discrimination case, we find its application inappropriate in the instant action. Unlike Weeks, our concern goes beyond that of the welfare of the job applicant and must include consideration of the well-being and safety of bus passengers and other highway motorists. In fashioning the standard of proof in Weeks, the Fifth Circuit was not confronted with a situation where the lives of numerous persons are completely dependent on the capabilities of the job applicant. Accordingly, we find that decision is of no avail in formulating the standard of proof to be imposed in the instant case.

A more pertinent case is the Fifth Circuit’s decision in Diaz v. Pan American World Airways, Inc., 442 F.2d 385 (5th Cir. 1971). In Diaz Pan American airline was charged with a violation of the 1964 Civil Rights Act because of its refusal to hire male flight cabin attendants solely because of their sex. As an affirmative defense Pan American argued that being a female was a “bona fide occupational qualification” for the position of flight cabin attendant. In an effort to carry its burden of proof, Pan American produced evidence demonstrating: that females were superior in performing the nonmechanical aspects of the job such as reassuring anxious passengers and providing personalized service; that passengers preferred female attendants (the basic psychological reasons for such preference); and that the actualities of the hiring process would make it more difficult to find those few males suitable to attend to the psychological needs of passengers.

In analyzing the standard of proof required of Pan American to establish a “bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise,” the Fifth Circuit construed the word “necessary” in the Act to require :

[Tjhat we apply a business necessity test, not a business convenience test. That is to say, discrimination based on sex is valid only when the essence of the business operation would be undermined by not hiring members of one sex exclusively. (Emphasis in original.) 442 F.2d at 388.

The court proceeded to characterize the essence of the normal operation of an airline stating that: “The primary function of an airline is to transport passengers safely from one point to another.” 442 F.2d at 388. In the court’s view Pan American could not establish that the employment of male cabin attendants would have any impact on its ability to provide safe transportation and accordingly the court rejected Pan American’s defense of bona fide occupational qualification. Pan American’s basis for excluding male applicants, that they could not cater to the psychological needs of the passengers as adequately as females, was found to be merely “tangential to the essence of the business involved.” 442 F.2d at 388.

Similar to the airline industry, the essence of Greyhound’s business is the safe transportation of its passengers. Thus we deem it necessary that Greyhound establish that the essence of its operations would be endangered by hiring drivers over forty years of age. To that end we note the decision in Spurlock v. United Airlines, Inc., 475 F.2d 216 (10th Cir. 1972), where, in addressing itself to the validity of preemployment job qualifications for the position of airline pilot alleged to discriminate against Blacks, the Tenth Circuit stated:

When a job requires a small amount of skill and training and the consequences of hiring an unqualified applicant are insignificant, the courts should examine closely any pre-employment standard or criteria which discriminate against minorities. In such a case, the employer should have a heavy burden to demonstrate to the court’s satisfaction that his employment criteria are job-related. On the other hand, when the job clearly requires a high degree of skill and the economic and human risks involved in hiring an unqualified applicant are great, the employer bears a correspondingly lighter burden to show that his employment criteria are job-related. Cf. 29 C.F.R. § 1607.-5(c) (2) (iii). The job of airline flight officer is clearly such a job. United’s flight officers pilot aircraft worth as much as $20 million and transport as many as 300 passengers per flight. The risks involved in hiring an unqualified applicant are staggering. The public interest clearly lies in having the most highly qualified persons available to pilot airliners. The courts, therefore, should proceed with great caution before requiring an employer to lower his pre-employment standards for such a job. 475 F.2d at 219.

As reflected in the Spurlock decision, a public transportation carrier, such as Greyhound, entrusted with the lives and well-being of passengers, must continually strive to employ the most highly qualified persons available for the position of intercity bus driver for the paramount goal of a bus carrier is safety. Due to such compelling concerns for safety, it is not necessary that Greyhound show that all or substantially all bus driver applicants over forty could not perform safely. Rather, to the extent that the elimination of Greyhound’s hiring policy may impede the attainment of its goal of safety, it must be said that such action undermines the essence of Greyhound’s operations. Stated differently, Greyhound must demonstrate that it has a rational basis in fact to believe that elimination of its maximum hiring age will increase the likelihood of risk of harm to its passengers. Greyhound need only demonstrate however a minimal increase in risk of harm for it is enough to show that elimination of the hiring policy might jeopardize the life of one more person than might otherwise occur under the present hiring practice.

II.

In an effort to satisfy its burden of proof, Greyhound produced an array of evidence to substantiate its claim for a bona fide occupational qualification. That evidence included testimony by transportation industry officials, former high-ranking officials of the Interstate Commerce Commission, and Greyhound officers. The testimony of these officials, although persuasive in view of their accumulated experience in the transportation industry, is not of itself sufficient to establish a bona fide occupational qualification. In our view we find more compelling Greyhound’s evidence relating to: the rigors of the extra-board work assignments; the degenerative physical and sensory changes in a human being brought on by the aging process which begins in the late thirties in the life of a person; and the statistical evidence reflecting, among other things, that Greyhound’s safest driver is one who has sixteen to twenty years of driving experience with Greyhound and is between fifty and fifty-five years of age, an optimum blend of age and experience with Greyhound which could never be attained in hiring an applicant forty years of age or over. This compelling evidence in combination with the general testimony of the transportation industry officials adequately demonstrates that Greyhound has a rational basis in fact to believe that elimination of its maximum hiring age will increase the likelihood of risk of harm to the well-being of its passengers and others.

At the outset we note that the thrust of Greyhound’s contention and supporting evidence is that the human body undergoes physical and sensory changes beginning around age thirty-five and that these degenerative changes, caused by aging, have a detrimental impact on driving skills. Moreover, these changes are not detectible by a physical examination. The Government admits that these degenerative changes do occur, but contends that they do not affect driving skills because the driver between forty and sixty-five years of age compensates for these changes through increased maturity and driving experience. In addition the Government claims that even though a physical examination of applicants between forty and sixty-five might not detect degenerative changes impairing driving ability, any such infirmities will be detected during the course of the other elaborate functional and psychological examinations conducted by Greyhound in screening intercity driver applicants.

The medical testimony on behalf of the Government reflects the gravamen of the Government’s challenge to Greyhound’s hiring practice. According to the Government’s medical witnesses an applicant forty to sixty-five years of age should be judged on the basis of his “functional age,” that is, his ability and capacity to do the job, rather than his chronological age. When the testimony of the medical experts on both sides is considered, however, it is not clear that functional age is readily or practicably determinable. Moreover, the Government’s medical witnesses seemingly admit that chronological age is at least an indicator of driving ability. Even assuming that Greyhound’s examinations of driving skills other than the physical examination can adequately screen out degenerative disabilities occasioned by age in the forty to sixty-five age bracket, it is questionable whether Greyhound could practicably scrutinize the continued fitness of such drivers on a frequent and regular basis.

We come now to the nub of Greyhound’s contention that its maximum hiring age policy is a bona fide occupational qualification reasonably necessary to mainstay the safety of its operations. Greyhound urges that the impact of the aging process will be magnified by the rigorous physical and mental demands of the extra-board work assignment system to which all new drivers between the ages of forty to sixty-five would be assigned under its- seniority system. There are two work categories into which Greyhound bus drivers are classified. The first is the regular run driver who operates those schedules published in Greyhound’s timetables. The regular runs are generally regarded by the drivers as more desirable and require the least strenuous work. These runs are bid by the drivers on the basis of a seniority system established in collective bargaining agreements. The remaining work is performed by the group of drivers referred to as extra-board drivers. A newly hired driver, regardless of age or prior experience, goes to the bottom of the seniority list where he is available for assignments from the extra-board. In general the new driver will remain on the extra-board for a period of ten to forty years depending upon the seniority list in the territory in which he is employed.

While on the extra-board the driver is on call twenty-four hours a day, seven days a week with as little as two hours’ notice, to take runs that the more senior regular run drivers do not operate. Often these operations involve odd and irregular hours and, frequently, long charter trips outside the territory served by the regular routes of Greyhound, that may last up to thirty days.

At trial there was testimony to the effect that Greyhound’s extra-board work is particularly physically and mentally demanding and that it places an unusual amount of emotional stress on the driver and is often disruptive of the driver’s routine of living. One of the redeeming aspects of the operation of the extra-board and the seniority system, however, is that it rewards the driver by giving him an opportunity, as he grows older, to solicit the work that he feels he is best qualified to perform. In the earlier years of a driver’s employment he is not able to do that for he must accept whatever work is not performed by the regular drivers. The seniority system is highly advantageous as presently constituted for it allows the older, more experienced driver to compensate for his aging by selecting the more attractively and easily performed work.

Greyhound contends that even though an applicant between age forty and sixty-five may satisfactorily perform on the driver qualification examinations so that at the outset he would be entitled to employment, there is no way of telling how safely he will perform for a sustained period of time given the fact that he will be assigned to the arduous tasks involved on the extra-board at a time when his body begins to undergo degenerative changes due to the aging process. The statistical evidence produced by Greyhound lends support to its belief that elimination of the maximum hiring age will increase the risk of harm to its passengers. That evidence demonstrates that the rigors of the extra-board are such that extra-board drivers, even with the advantage of youth, experience twice as many accidents per million miles driven than that incurred by regular run drivers, namely, 9.79 accidents per million miles as compared with 4.3 accidents per million miles for regular run drivers. With respect to the effect of the aging process on the safety records of Greyhound’s drivers, the statistical evidence establishes that despite the offsetting benefits derived through increased experience as a Greyhound driver, the driver accident rate begins to increase at age fifty-five. Likewise, the statistical evidence isolating driver experience illustrates that as a driver’s experience with Greyhound increases his accident rate correspondingly decreases, but that this rate reverses and begins to increase after twenty-six years of experience concomitant with the period during which the aging process is operative. In addition, the statistical evidence establishes that Greyhound’s safest driver is fifty-five years of age and has sixteen years of experience as a Greyhound driver — two qualities which newly hired drivers between ages forty and sixty-five would never be able to attain during their tenure at Greyhound.

Besides the foregoing statistical evidence, Greyhound directs our attention to a 1972 study sponsored by the Bureau of Motor Carrier Safety of the United States Department of Transportation which supports certain of Greyhound’s claims regarding the likely physical and mental capabilities of newly hired drivers age forty to sixty-five on the extra board. The study indicates that its testing results “are consistent with the hypothesis that older drivers become fatigued more quickly and consequently experience [a] greater proportion of accidents after prolonged driving than younger drivers.” Similar to Greyhound’s experience, the study showed that the percentage of accidents decreased substantially as the bus or truck driver’s age increased from age thirty to the age group forty-one to forty-five but then generally increased from the forty-one to forty-five age group to fifty-six years of age. The study’s accident analysis indicated that older drivers tend to experience proportionally more of their accidents after about five hours on the road than do younger drivers. The study summary concludes that the “adverse effects of prolonged driving were evidently more pronounced for older drivers (aged forty-five or more) than for younger drivers” and that “older drivers generally showed an earlier decline in psychophysiological arousal than the younger ones and dropped to a lower absolute level of arousal.”

With respect to the evidence adduced by Greyhound the Government argues that it constitutes mere conjecture and generalized opinion testimony and is not objective data, demonstrating the inability of newly hired drivers between age forty and sixty-five to cope with the demands of the extra-board. The Government concurs in the district court’s holding that Greyhound has failed to establish a “factual basis” for its position. We cannot agree. In our view Greyhound's position as to the potential increase of risk of harm which would be incurred by the elimination of its maximum hiring age is well-founded and grounded on an adequate factual basis. Greyhound need not establish its belief to the certainty demanded by the Government and the district court for to do so would effectively require Greyhound to go so far as to experiment with the lives of passengers in order to produce statistical evidence pertaining to the capabilities of newly hired applicants forty to sixty-five years of age. Greyhound has amply demonstrated that its maximum hiring age policy is founded upon a good faith judgment concerning the safety needs of its passengers and others. It has established that its hiring policy is not the result of an arbitrary belief lacking in objective reason or rationale.

The judgment of the district court is reversed.

      . The Act prohibits age discrimination with respect to those persons age forty to sixty-five. 29 U.S.C. § 631.


author: PER CURIAM:

text:
    Colleen Therese MILLS et al., Plaintiffs-Appellees, v. Robert TUCKER et al., Defendants, and United States of America, Defendant-Appellant. Colleen Therese MILLS et al., Plaintiffs-Appellants, v. Robert TUCKER et al., Defendants-Appellees.
    Nos. 72-2702, 72-2811.
    United States Court of Appeals, Ninth Circuit.
    June 10, 1974.
    Judith S. Feigin (argued), Walter H. Fleischer, Eloise E. Davies, Civil Div., Dept, of Justice, Washington, D. C., Robert K. Fukuda, U.S. Atty., Honolulu, Hawaii, for the United States.
    Burnham H. Greeley, Honolulu, Hawaii (argued), for Colleen Therese Mills et al.
    "Kenneth S. Robbins (argued), Jeffrey N. Watanabe, Honolulu, Hawaii, Walter S. Kirimitsu, Wahiawa, Hawaii, Hoken Seki, Chicago, 111., Robert K. Fukuda, U.S. Atty., Honolulu, Hawaii, for Robert Tucker et al.
    Before DUNIWAY, CHOY and SNEED, Circuit Judges.
   OPINION

PER CURIAM:

Griffith Mills was killed in a 1969 traffic accident which occurred on West Loch Access Road on Oahu, Hawaii, a roadway maintained by the United States Navy and adjacent to the West Loch Naval Ammunition Depot. Mills, who was a petty officer in the Navy stationed at Hickam Air Force Base, was riding his motorcycle when he was struck head-on by a car driven by Robert Tucker, which was attempting to pass another automobile. Mills’ widow, children and personal representative sued Tucker, the Government for negligently maintaining the road, and Accessory Distributors, the distributor of the helmet Mills was wearing, alleging the helmet was defective and contributed to the severity of the head injuries that caused Mills’ death. After a non-jury trial, the district court found both Tucker and the Government liable and apportioned damages of $153,149.91 between them. Accessory Distributors, however, was held not to be liable. The Government has appealed contesting its liability, while the plaintiffs have appealed contending that the damages awarded were inadequate and that it was error to hold the helmet distributor harmless. We affirm.

The Feres Doctrine

The Government urges that it was immune under the doctrine of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). There, the Court held that the Government is not liable under the Tort Claim Act, 28 U.S. C. §§ 1346(b), 2674, to a military serviceman “where the injuries arise out of or are in the course of activity incident to service.” Id. at 146.

Though the Feres doctrine has been the source of much confusion, this case presents no such difficulties. The Government, although sued by a serviceman, is not immune where the “injuries [are] not caused by [the plaintiff’s] service except in the sense that all human events depend upon what has already transpired.” Brooks v. United States, 337 U.S. 49, 52, 69 S.Ct. 918, 920, 93 L.Ed. 1200 (1949); accord, United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954). In the words of the Feres Court, there is no immunity where the injury does not arise out of a course of activity incident to service. In Brooks two servicemen were involved in an accident with an Army truck while on furlough and riding off base in a private vehicle. The Court held the Government could not escape liability.

Here, Mills was on furlough on the day of the accident; he.was returning from a civilian job, in which he was “moonlighting” as a fry cook, to his Navy-owned quarters where he was to attend his son’s birthday party. He was thus in the same situation as the serviceman in Brooks — only in the remotest sense subject to military discipline. Compare Callaway v. Garber, 289 F.2d 171 (9th Cir.), cert. denied, 368 U.S. 874, 82 S.Ct. 120, 7 L.Ed.2d 76 (1961) (Government immune where serviceman traveling under orders between duty posts) with Herreman v. United States, 476 F.2d 234 (7th Cir. 1973) and Archer v. United States, 217 F.2d 548 (9th Cir. 1954), cert. denied, 348 U.S. 953, 75 S.Ct. 441, 99 L.Ed. 745 (1955) (both: servicemen’s deaths occurred in crashes of military aircraft while decedents were not on duty; Government held immune).

True, as the Government correctly argues, the fact that a serviceman was off duty or on leave is not always dispositive. See, e. g., Chambers v. United States, 357 F.2d 224 (8th Cir. 1966); Coffey v. United States, 324 F.Supp. 1087 (S.D.Cal.1971), aff’d per curiam, 455 F.2d 1380 (9th Cir. 1972); Gursley v. United States, 232 F.Supp. 614 (D.Colo.1964). But such cases involve on base accidents where the serviceman is at least subject to ultimate military control. Coffey v. United States, supra at 1088. Here, the roadway was not part of' the Naval depot. Bounded on one side by privately owned farmland and fenced off from the base on its other side, the road is publicly used. Drivers need not pass through a gate to reach it, and it connects different civilian areas. This case, thus controlled by Brooks, falls on the other side of the line of Henninger v. United States, 473 F.2d 814, 816 (9th Cir.), cert. denied, 414 U.S. 819, 94 S.Ct. 43, 38 L.Ed.2d 51 (1973). The Feres doctrine does not apply.

Damages

The plaintiffs complain that the damages were inadequate in a number of respects. The Hawaii statute applicable to a survivors’ action specifies that “such damages may be given as under the circumstances shall be deemed fair and just compensation, with reference to the pecuniary injury and loss of love and affection. . . . ” Haw. Rev.Stat. § 663-3 (1968). The damages awarded consisted of pain and suffering, loss of love and affection, and loss of support. While the trial judge may not have been entirely accurate in computing retirement benefits, in failing fully to account for inflation and job promotion, and in discounting the award to the date of death instead of judgment, it is the total award, not its particulars, which is significant under this statute, and, as the fairness objective of the statute would indicate, the total need only be reasonably certain. Ginoza v. Takai Electric Co., 40 Haw. 691, 704-707 (1955); cf. Nakagawa v. Apana, 52 Haw. 379, 390, 477 P.2d 611, 617-618 (1970); Lima v. Tomasa, 42 Haw. 478, 482-484 (1958). That was precisely this court’s holding in United States v. Furumizo, 381 F.2d 965, 970-971 (9th Cir. 1967), a survivors’ action governed by the same Hawaii law.

[W]e must remember that the ultimate total damage figure awarded is the sum of a series of predictions, none of which involves mathematical certainty, and that it is the reasonableness of the ultimate figure that is really in issue....

Id. at 970. As in Furumizo, we cannot say the trial judge clearly erred under this standard.

Liability of Helmet Distributor

On this point the district judge concluded, inter alia, that any assumed deficiencies in the helmet were not proximate causes of Mills’ injuries. That finding was not clearly erroneous.

Affirmed.

      . See Hale v. United States, 416 F.2d 355 (6th Cir. 1969); Garsley v. United States, 232 F.Supp. 614 (D.Colo.1964).

      . State law, of course, controls this point under the Tort Claims Act. See 28 U.S.C. §§ 1346(b), 2674.

      . At the same time, income taxes were not deducted from the award. See United States v. Furumizo, 381 F.2d 965, 971 (9th Cir. 1967); but cf. Greene v. Texeira, 54 Haw. 231, 244-246, 505 P.2d 1169, 1177-1178 (1973) (Levinson, J., dissenting).