author: MANSFIELD, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Theron CLARK, Appellant.
    No. 527, Docket 72-2147.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 12, 1973.
    Decided March 8, 1973.

      Michael Young, New York City (Rob-, ert Kasanof, The Legal Aid Society, New York City, of counsel), for appellant.
    Joan S. O’Brien, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty., E. D. N. Y., L. Kevin Sheridan, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for appellee.
    Before LUMBARD, KAUFMAN and MANSFIELD, Circuit Judges.
   MANSFIELD, Circuit Judge:

Theron Clark appeals from a judgment of conviction in the Eastern District of New York, following a jury trial before Judge Mark A. Costantino on two counts of an indictment charging that Clark knowingly and intentionally possessed, with intent to distribute (1) 211 grams of heroin, and (2) 18 grams of cocaine, both in violation of 21 U.S.C. § 841(a)(1) (1972). He was sentenced to two concurrent seven-year terms and an additional special parole term of three years, and is presently incarcerated at the Federal Penitentiary in Petersburg, Virginia. Because Clark and the public were excluded from the entire pretrial suppression hearing held to determine whether the drugs were lawfully seized from him as he was attempting to board an aircraft at LaGuardia Airport, we remand for another suppression hearing. And since the trial judge failed to give adequate and comprehensible instructions to the jury, we reverse the conviction and remand for a new trial.

This case arises in the context of a system of precautions taken by airline authorities and the Federal Aviation Administration to prevent the hijacking of commercial aircraft by identification of potential skyjackers through use of a “profile” screening method. See United States v. Bell, 464 F.2d 667 (2d Cir. 1972); United States v. Lopez, 328 F.Supp. 1077, 1082-1084 (E.D.N.Y.1971). Under the system a passenger who, at the time of his ticket purchase, fits the established profile criteria receives a specially marked ticket or envelope which identifies him as a “selectee.” When a “selectee” is designated, the ticket agent alerts other appropriate airline personnel and;/or one or more United States Marshals of the impending arrival of the “selectee” at the appropriate boarding gate. At the boarding gate, all passengers are required to pass through a magnetometer which detects the presence of metal objects.

If a “selectee” activates the magnetometer, he is informed of this and asked for his ticket and identification. If he produces satisfactory identification, he will normally be allowed to board the aircraft, but if he cannot do so he will be “interviewed” by an airline representative or a marshal or both in an attempt to determine the source of the magnetometer’s reaction. Failing a satisfactory explanation, the “selectee” will be asked to submit to a patdown of his person and, if necessary, to a search of any articles he may be carrying, in order to determine whether whatever object activated the magnetometer presents a danger to the other passengers and crew members boarding the flight. It does not appear whether he is advised that he has a right to refuse to submit to the search if he decides not to board the plane. Nor is it clear that if he refuses to allow himself or his baggage to be searched, he will simply be turned away without a search and not be allowed to board the plane. If a marshal observes a bulge in his outer clothing which the marshal reasonably suspects may be a weapon, the marshal apparently conducts a protective frisk of the “selectee” anyway.

In the present case, a Deputy United States Marshal, Vincent LaRosa, searched a small handbag carried by appellant as he was proceeding to board a plane bound for Raleigh, North Carolina, and seized from within it the illicit drugs which formed the basis for appellant’s prosecution and subsequent conviction. Clark moved to suppress the drugs as the product of an unconstitutional search, and a pretrial hearing was held on the motion.

The Suppression Hearing

At the commencement of the suppression hearing appellant was not present. The government made a formal motion, at the instance of the court, that Clark be excluded from the proceedings and that the hearing be conducted in camera “to insure that the [hijacker] profile will remain secret in order to deal with potential skyjackers.” The motion, to which defense counsel voiced no objection, was granted. Clark and the public were excluded from the entire suppression hearing, though appellant was represented throughout the course of the hearing by counsel.

Only two witnesses, Marshal LaRosa and an Eastern Airlines Supervisor, Brian O’Neil, testified at the hearing. Except for a very brief description of the “profile” criteria by Mr. O’Neil, the testimony given in the defendant’s absence was wholly concerned with the circumstances leading up to and following the seizure of the drugs. In essence, the witnesses testified that they had been alerted that a passenger on the flight to Raleigh had been designated a “selectee.” When Clark appeared at the boarding gate for that flight bearing the distinctively marked boarding pass which identified him as a selectee, O’Neil asked him for it, ascertained that the ticket inside also indicated appellant was a selectee, and verified himself that Clark met the profile criteria. After Clark passed through the magnetometer and activated it, indicating the presence of metal, O’Neil introduced himself and Marshal LaRosa and requested identification. The testimony at the suppression hearing (at which Clark did not testify) indicated without dispute that Clark did not present any identification, and LaRosa consequently asked Clark if he would submit to a pat-down, to which appellant reportedly replied, “Go ahead.” Finding nothing which would have activated the magnetometer as a result of the frisk, LaRosa told Clark to open the locked bag he was carrying. Clark complied and LaRosa searched the bag looking for weapons. Noticing a bulky object wrapped in a towel, he unwrapped it and uncovered a box which he opened with the thought that it might contain explosives. Instead, the box was found to contain substances which later testing showed to be heroin and cocaine. The handbag also contained a medallion, a tie clip, and a can of shoe polish which would have triggered the magnetometer.

It is readily apparent and not surprising that the suppression hearing covered a wide range of testimony besides the profile criteria in order to determine the validity of the search. At the conclusion of the in camera hearing, the district court found that “the method in which defendant was stopped and frisked was reasonable under the circumstances and in accordance with the profile that has been established a reasonable search was conducted and the finding of the contents should not be suppressed.” What was surprising and wholly improper was the exclusion of the appellant and the public from the course of an entire pretrial proceeding designed to determine, from evidence of events in which the appellant participated, whether his constitutional right to be free from an unreasonable search and seizure was violated.

In United States v. Bell, 464 F.2d 667 (2d Cir. 1972), we recently upheld the exclusion of a defendant and the public from that limited portion of a suppression hearing restricted to the testimony of Ralph Whitfield, an airlines ticket agent, which concerned a description of the criteria of the “hijacker profile,” against the contention that the partial in camera procedure employed in that case denied the defendant his right to confront the witnesses against him, to have the effective assistance of counsel, and to have a public trial. We laid stress, however, on the persuasiveness of the “government’s justification for the barring of the public and the defendant, while permitting his counsel to participate,” namely, “the compelling urgency of protecting the confidentiality of the profile which has been devised as a method to reduce the threat of hijacking.” Id. at 669. We found “protection of the air travelling public” to be sufficient “justification for the limited exclusion” of the public. Id. at 670. Although the claim that exclusion of the defendant denied him his constitutional right to confrontation was found to be of “substance,” it was rejected after a searching analysis of the testimony of the sole witness heard in camera, which was restricted to a description of the essential elements of the secret “profile.” In particular, we noted that his testimony “bore no relationship at all to the question of Bell’s guilt or innocence of the crime charged. He could not identify the defendant and had no independent recollection of the transaction. Whitfield simply testified to the fact that he knew the criteria of the profile (which he delineated), that the ticket to the flight in question was sold by him, that his identifying number was on the ticket which was introduced into evidence, as well as the envelope distinctively marked to indicate to ramp personnel that the passenger was a selectee, that a passenger who purchased a ticket fit the profile, and that no personal exercise of judgment on his part in determining selectees was involved.” Id. at 671. We specifically observed that “Bell was present and represented by counsel who cross-examined the marshal and the ramp ticket agent who were present at the time of the stop and frisk, which revealed the contraband which led to his arrest,” and ultimately concluded that “the circumstances attending the exclusion [of the defendant], limited as it was, in our opinion did not jeopardize his ability to confront the witnesses testifying as to his guilt and the incidents surrounding his frisk, or hinder the effectiveness of his counsel’s assistance.” Id. at 672.

The case now before us presents a wholly different set of circumstances. The government frankly concedes that “there was testimony adduced from its two witnesses at this in camera suppression hearing which did not require the protection from disclosure that their testimony concerning the profile required and, in addition, that had appellant been present in court during the testimony of these witnesses he might conceivably have been able to assist defense counsel in her cross-examination of these witnesses.” And indeed there was an abundance of testimony concerning such non-secret matters. The 45-page transcript of the testimony of Marshal La-Rosa and of Eastern Airlines Supervisor O’Neil reveals that O’Neil’s testimony regarding the characteristics of the FAA profile was limited to a few sentences and that LaRosa was not questioned at all on the subject. For the most part the testimony of these two witnesses was concerned with the circumstances surrounding Clark’s activation of the magnetometer, the interrogation and frisking of him, the search of his bag which led to the discovery of the drugs, and his arrest. This proof bore directly on such questions as whether Clark produced identification before the search of his bag (if he had done so he apparently would have been permitted to board without being searched), and whether he voluntarily and intelligently consented to the search of his bag, in which the narcotics were found.

Without having the benefit of Clark’s presence at her elbow to point out potential inaccuracies in the testimony of the two witnesses and to furnish factual information for' use in cross-examining them, Clark’s counsel was handicapped. Moreover, while we do not know what the record would have revealed if a proper suppression hearing had been held, testimony given later at trial indicated that she may have been unaware of facts that could conceivably have led a court to conclude that the search of Clark’s bag was unlawful. At trial, for instance, it was brought out that La-Rosa, who testified that Clark did not identify himself prior to the search of his bag, had testified before the grand jury that prior to the search Clark had produced a driver’s license at the loading ramp in response to O’Neil’s request for identification. Clark also testified at trial that he had earlier given the ticket agent his driver’s license. See notes 2 and 3 supra. Furthermore, Clark testified that at the time of his arrest he was 21 years old, he had been an addict since he was 15 or 16 years of age, and he was under the influence of drugs, from which he was beginning to suffer withdrawal.

The government makes a valiant but vain effort to save the hearing by suggesting that references to the operation of the antihijacking program were made throughout the hearing and that the risk of an inadvertent disclosure of the profile criteria in appellant’s presence was sufficient to justify the broad exclusion ordered by the trial judge in this case. Moreover, it suggests that even if the wholesale exclusion was error it was harmless because the same testimony was given at trial when appellant was present, and that any error was waived because appellant’s counsel indicated prior to her cross-examination of O’Neil at the suppression hearing that it was not “going to be necessary for me to speak to my client.”

We cannot treat the matter of appellant’s constitutional right of confrontation so cavalierly. The exclusion of the defendant permitted in Bell, supra, was a carefully limited one. It represented an exception to the general right of a defendant “to be present at a suppression hearing where testimony is to be taken, see 8A J. Moore, Federal Practice ¶ 43.03 [1] (2d ed. 1969); 3 C. Wright, Federal Practice & Procedure § 721 (2d ed. 1968),” United States v. Dalli, 424 F.2d 45, 48 (2d Cir.), cert. denied, 400 U.S. 821, 91 S.Ct. 39, 27 L.Ed.2d 49 (1960). It was justified solely by the need to protect the secrecy of the hijacker profile which is used to protect the air travelling public. Here any such persuasive justification is lacking, except for the description of the profile criteria, which represented but a minute portion of the hearing testimony. Except for this secret profile criteria, the operation of the hijacking program is a matter of public knowledge. Nor does the remote possibility of an unsolicited, spontaneous disclosure of the elements of the profile justify such a broad policy of exclusion. Since the witnesses were well aware of the government’s desire to maintain the secrecy of the profile, the risk of inadvertent disclosure was negligible. Indeed, the same witnesses testified at lengh at trial in the presence of Clark and the public regarding the same circumstances without disclosing the profile. A precautionary instruction by the court to the witnesses would have sufficed. The remote risk of disclosure did not justify exclusion of the defendant and of the public.

The Sixth Amendment’s guarantee that “[i]n all criminal prosecutions, the accused shall enjoy the right . to be confronted with the witnesses against him” has been held so fundamental as to be applicable to the states by the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 406-407, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The defendant’s presence, unless waived by him, United States v. Tortora, 464 F.2d 1202, 1208-1210 (2d Cir. 1972), is required when a jury is empanelled, see Hopt v. Utah, 110 U.S. 574, 579, 4 S.Ct. 202, 28 L.Ed.2d 262 (1884); Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892); United States v. Crutcher, 405 F.2d 239, 242-244 (2d Cir. 1968), cert. denied, 394 U.S. 908, 89 S.Ct. 1018, 22 L.Ed.2d 219 (1969), and when the trial judge gives additional instructions to the jury, Evans v. United States, 284 F.2d 393, 394 (6th Cir. 1960). The Supreme Court has indicated also that in a collateral proceeding under 28 U.S.C. § 2255 “[w]here . . . there are substantial issues of fact as to events in which the prisoner participated, the trial court should require his production for a hearing.” United States v. Hayman, 342 U.S. 205, 223, 72 S.Ct. 263, 274, 96 L.Ed. 232 (1952). No less should be required at a pretrial suppression hearing held to determine the constitutionality of a seizure of evidence from an accused, where witnesses are to be questioned, cf. Snyder v. Massachusetts, 291 U.S. 97, 106-107, 54 S.Ct. 330, 78 L.Ed. 674 (1934).

Barring the public from the entire hearing was likewise an error of constitutional magnitude. Without the justification of “protection of the air travelling public,” or other compelling reasons, see United States v. Bell, supra 464 at 670, there was no reason to deprive the accused of his right to a public trial, see Estes v. Texas, 381 U.S. 532, 538-539, 583, 85 S.Ct. 1628, 14 L.Ed.2d 543 (Warren, C. J., concurring), 588 (Harlan, J., concurring) (1965). Cf. United States ex rel. Bennett v. Rundle, 419 F.2d 599, 605-608 (3d Cir. 1969) (exclusion of public from Jackson v. Den-no hearing held after a jury was selected and was sent from the courtroom denied right to public trial without need to show prejudice). Moreover, because of the importance of providing an opportunity for the public to observe judicial proceedings at which the conduct of enforcement officials is questioned, the right to public trial should extend to suppression hearings rather than permit such crucial steps in the criminal process to become associated with secrecy. See United States ex rel. Bennett v. Rundle, supra at 606; United States v. Lopez, supra, 328 F.Supp. at 1087. In many criminal prosecutions the disposition of the motion to suppress is as important as the trial itself, since granting of the motion may require entry of a judgment of acquittal for lack of other proof sufficient to convict. Certainly that was the case here.

We are wholly unpersuaded by the government’s suggestion that appellant’s inability to confront the witnesses at the suppression hearing and to assist his counsel in his defense was harmless error. In Bell the search of the defendant’s person leading to discovery of “hard objects” in his raincoat pockets which could have been gunpowder or explosives used by a hijacker on the plane but turned out to be narcotics was justified because (1) he met the criteria of the hijacker profile, (2) he activated the magnetometer, (3) he had no personal identification, and (4) he volunteered that he “had just been released from the Tombs and that he was out on bail for attempted murder and narcotics charges,” 464 F.2d at 669. Absent proof of similar compelling circumstances or that Clark voluntarily and intelligently consented to the search, the opening and examination of Clark’s bag would in our view be justifiable only upon a showing that he was aware that he had a right to refuse to be searched if he should choose not to board the aircraft. See United States v. Bell, supra, 464 at 675, 676 (concurring opinions of Chief Judge Friendly and Judge Mansfield); United States v. Meulener, 351 F.Supp. 1284 (C.D.Cal.1972); cf. United States v. Slocum, 464 F.2d 1180 (3d Cir. 1972). Clark was surely entitled to assist his counsel in cross-examining these witnesses and in developing these matters further at the suppression hearing.

Nor is the government helped by the fact that Clark had an opportunity later at trial to confront and cross-examine the witnesses who had testified at the suppression hearing. Manifestly the trial focuses on the issue of guilt or innocence, while the suppression hearing centers upon the validity of the search for and seizure of evidence which the government plans to use later in seeking to prove guilt. The defendant's participation in his defense may take different forms at each stage. Cf. Simmons v. United States, 390 U.S. 377, 389-394, 88 S.Ct. 967, 19 L.Ed. 1247 (1968). Even assuming that the harmless error principle applies to such basic rights, but see United States v. Crutcher, supra, 405 F.2d at 244, the possible prejudice to Clark was too great to permit invocation of the principle here. By the time of trial Judge Costantino had already denied Clark’s motion to suppress. While the court might conceivably have reversed itself upon development of additional proof, it is most unlikely that Clark would have been permitted to reopen the issue and for that purpose to examine witnesses out of the presence of the jury. Indeed we have only recently directed that such suppression hearings should be concluded prior to trial. United States v. Birrell, 470 F.2d 113 (2d Cir. 1972).

Equally unconvincing is the suggestion that appellant waived his Sixth Amendment rights when his counsel told the district judge that it would not be necessary for her to speak to her client prior to her cross-examination of O’Neil. Even if counsel intended to waive appellant’s presence at the hearing, which we doubt, by making that statement and failing to object to his exclusion, appellant’s silence in absentia could certainly not be said to have amounted to “an intentional relinquishment or abandonment of a known right,” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), by him. See United States v. Crutcher, supra, 405 F.2d at 243; Evans v. United States, supra, 284 F.2d at 395.

Under the circumstances the exclusion of the defendant and of the public from that portion of the suppression hearing which did not deal directly with the characteristics of the secret antihijacking “profile” constituted plain error. Rule 52(b), F.R.Cr.P.

The Trial Judge’s Instructions to the Jury

We turn to the trial judge’s instructions regarding the legal principles which the jury was required to apply in determining whether Clark should be convicted or acquitted of the two charges against him. If justice is to be done in accordance with the rule of law, it is of paramount importance that the court’s instructions be clear, accurate, complete and comprehensible, particularly with respect to the essential elements of the alleged crime that must be proved by the government beyond a reasonable doubt, see Holland v. United States, 348 U.S. 121, 138, 75 S.Ct. 127, 99 L.Ed. 150 (1954); United States v. Lodwick, 410 F.2d 1202, 1204 (8th Cir. 1969). Unfortunately in this ease the judge, in what appears to have been an extemporaneous charge, not only failed clearly to identify and accurately define the elements of the offense, but he also gave the jurors improper and misleading instructions concerning the use of circumstantial evidence, the drawing of inferences, and the method by which the jurors might judge the credibility of witnesses.

The indictment contains two counts, each of which charged appellant with a violation of 21 U.S.C. § 841(a)(1) (1972) based on his alleged knowing and intentional possession of narcotic drug controlled substances (Count I, heroin; Count II, cocaine) with the intent to distribute them.

At the beginning of his charge, and long before he read or described the contents of the indictment and relevant statutes, the trial judge launched into an abortive and confusing description of the two elements of each alleged offense. “Knowledge” and “intent” were differentiated at first and then confusingly lumped together without explanation and without any attempt to define in a meaningful manner what must be proved to establish the two distinct and crucial elements of each alleged offense. Although the court referred to the necessity of proving “specific intent,” that term, which presumably referred to the intent to distribute the narcotics, was never defined, though it was later stated to be an essential element of the alleged crime. Absent clarification this would have required a new trial, since the effect was almost surely to confuse or to leave an erroneous impression in the minds of the jury. See United States v. Gillilan, 288 F.2d 796, 797 (2d Cir. 1961) (L. Hand, J.) (“certainly the-statute requires some definition of the meaning of the words which may not be left to the jury”); cf. United States v. Byrd, 352 F.2d 570, 572-574 (2d Cir. 1965). There followed a discussion by the court of a series of matters unrelated to the essential elements of the crimes charged, some of which, according to the record before us, is incomprehensible. After alluding to the “two elements” of the offenses the court read the counts of the indictment and pertinent statutes to the jury, following which it again referred to the elements. However, the key terms remained undefined. Viewed from the standpoint of fairness to the accused there is a strong probability that the court's references to the alleged offenses “taken as a whole [were] such as to confuse or leave an erroneous impression in the minds of the jurors,” Perez v. United States, 297 F.2d 12, 16 (5th Cir. 1961). Under the circumstances we cannot ascertain and should not speculate as to the basis upon which the jury reached its conclusion of guilt. See Smith v. United States, 230 F.2d 935, 939 (6th Cir. 1956); Patterson v. United States, 183 F.2d 687, 690 (5th Cir. 1950).

The government’s effort to minimize the effect of the error by suggesting that the defendant’s entire defense was “lack of knowledge of the contents of the suitcase,” is insufficient to shoulder its appointed burden. Whatever defense appellant chose to stress for his part, the government retained the burden of proof beyond a reasonable doubt of each element of the offense, including intent to distribute narcotics. Moreover, that burden had to be met on the basis of proper instructions.

Further errors appear in other portions of the court’s charge. Circumstantial evidence was vaguely defined as evidence that “would indicate” proof of such essential elements- as guilty knowledge and intent. Despite references elsewhere in the charge to the government’s burden of establishing guilt according to the reasonable doubt standard, the jury was not entitled to infer proof of guilty knowledge and intent merely on the basis that circumstantial evidence “would indicate” such crucial elements. See United States v. Fields, 466 F.2d 119, 120 (2d Cir., 1972). Since there was no direct evidence that appellant knew that the contents of the handbag included the narcotics, and he in fact testified that he did not, it was especially important that the jury be properly instructed on how to evaluate circumstantial evidence. The court’s instruction on the subject cannot, therefore, be treated as harmless error.

The trial judge’s instruction on inferences not only failed to define what an inference is, see, e. g., Mathes, Jury Instructions and Forms for Federal Criminal Cases, 27 F.R.D. 39, 51 (1960) (“An inference is a deduction or conclusion which reason and common sense lead the jury to draw from facts which have been proved”), but it improperly barred the jury from drawing more than a single inference from a material fact. Finally, the judge, possibly through inadvertence, authorized the jurors to disregard or reject testimony of a witness on the basis of their personal dislike of him. A juror, although disliking a witness, may still believe his testimony. The danger of improper bias entering a juror’s evaluation of credibility as a result of the instruction was substantial here, since the appellant took the stand in his own defense.

We must regretfully conclude that, despite the surprising absence of objection by appellant’s counsel, the trial judge’s charge, viewed as a whole, is so deficient and defective in material respects as to amount to “plain error affecting substantial rights” within the meaning of Rule 52(b), F.R.Cr.P., United States v. Fields, supra. The error is one that we feel bound to consider on appeal not only to assure appellant of a fair trial but to protect the integrity of our administration of the criminal justice system, see United States v. Vaughan, 443 F.2d 92, 94-95 (2d Cir. 1971); Screws v. United States, 325 U.S. 91, 107, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945).

We recognize that the task of delivering an accurate and truely instructive charge to a jury is a demanding one. Of foremost importance is the necessity for organizing and outlining governing legal principles in a logical sequence that will fairly inform the jurors of the essential rules to be applied by them in reaching their verdict. Certain principles, of course, are of such a standard and recurring nature that they should present no serious problem for the court in the average case. Others require more preparation and thought on the judge’s part. Complex legalisms must be translated into simple prose that will be understandable by the average layman. The essential elements of the alleged crime or crimes and of any defenses raised by the defendant should be clearly described. Terms of legal significance should be defined in a way that will be understood. If illustrations are to be given, and they are often instructive, they should be furnished in addition to, not in substitution for, plain explanations of those criteria that are to govern the jury’s deliberations. In a factually complicated or protracted case, where the jury may have difficulty recalling the evidence, the judge may find it advisable to marshal the parties' contentions and proof. A nice balance must be struck between brevity and verbosity. A clear delivery in a tone that will command and retain the jury’s attention can be of considerable aid to the jury in understanding the legal principles by which it is to be governed.

A few gifted jurists, aided by extensive experience on the bench, are capable of extemporaneously delivering instructions to the jury which meet these demanding standards, at least in cases where the issues are relatively simple or recurring and the governing principles well established. But most trial judges, particularly those of limited experience, find it advisable to prepare in advance at least a rough written outline, if not a fully developed text, of the instructions to be given to the jury. Although additional time and effort is required in this process, it insures a logical and orderly organization and the avoidance of error. We are persuaded that if that procedure had been followed in the present case most if not all of the errors could have been avoided.

The Supreme Court observed in Bollenbach v. United States, 326 U.S. 607, 612, 66 S.Ct. 402, 405, 90 L.Ed. 350 (1946), a case considerably more complex than the case here, that “[discharge of the jury’s responsibility for drawing appropriate conclusions from the testimony depended on discharge of the judge’s responsibility to give the jury the required guidance by a lucid statement of the relevant legal criteria.” Cf. United States v. Persico, 349 F.2d 6 (2d Cir. 1965). We are compelled to Conclude in the present case that the guidance given the jury did not approach that standard required to enable it to fulfill its function properly, and that consequently a new trial must be had. In view of the trial judge’s past ruling and decision with respect to the suppression issues, a hearing before another member of the court is advisable.

Reversed and remanded.

      . The system has recently been changed. Under new FAA airport security regulations, airport operators are required to provide facilities and procedures “to prevent or deter persons and vehicles from unauthorized access to air operations areas,” and must prepare and submit a written master security plan which must be approved by the Administrator, 14 O.F.R. § 107.3 (1973), and then implemented, § 107.7. The plan must now provide for the continuous presence of a law enforcement officer “at the point of, and prior to and throughout, the final passenger screening process prior to boarding, for each flight. . . . ” § 107.4. It appears that the passenger screening process presently in use includes a search of the “carry-on” baggage, of all passengers who may, in addition to passing through the magnetometer, be asked to disclose objects on their person which have activated it. .

      . At trial, however, Clark took the stand and testified that he produced his driver’s license when first asked for identification. At the suppression hearing and at trial, Marshal LaRosa testified that the license was not presented until appellant was interviewed in the Marshal’s office after the narcotics had been seized. Upon cross-examination at the trial, however, it appeared that LaRosa had told the grand jury that appellant “came up with an expired operator’s license” when first asked for identification. He explained the discrepancy by stating the grand jury testimony was incorrect.

      . LaRosa, however, observed at the suppression hearing that when O’Neil asked appellant for identification, appellant “seemed to be in a fog.” At trial, he observed that appellant “appeared to be stupefied. He didn’t know if he was going or coming.” Appellant testified at trial that he had “shot up some dope” prior to his unsuccessful attempt to board the flight to Raleigh. He did not testify at the suppression hearing, however, and his physical condition at the time of the search was not explored.

      . Appellee’s Brief 9.

      . While we took some comfort in Bell from the fact that the exclusion there was from the suppression hearing and not from the trial, that was only in the context of a necessary, limited exclusion from testimony of uncontested facts and not, as here, in the context of a total exclusion from all the testimony, some of which might have been controverted, see notes 2 and 3 supra, concerning the search and seizure.

      . Under the circumstances an objection may have appeared to her to be futile, as would effective consultation with her client in the midst of the hearing, cf. United States ex rel. Negron v. New York, 310 F.Supp. 1304, 1307 (E.D.N.Y.), aff’d., 434 F.2d 386 (2d Cir. 1970).

      . That section provides:
      “§ 841. Prohibited acts A — Unlawful acts

      “(a) Except as authorized by this sub-chapter, it shall be unlawful for any person knowingly or intentionally—
      (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance;....”

      . “And each count, of course, in order to convict this defendant, and I’ll give you the rule of reasonable doubt a little later on in my charge.
      “Each count must be proven to your satisfaction to the principle beyond a reasonable doubt and involves two elements : One is a question of knowledge and the second a question of intent, and I’ll tell you first what knowingly to do an act means or have a knowledge of it, or what intent means.
      “An act is done knowingly, done voluntarily and intentionally, not because of mistake or extent or other reasons. As I’ve said to you, the specific intent in this case must be proven beyond a reasonable doubt, otherwise it cannot be a conviction.”

      . “To constitute the crime charged in the indictment, there must be the joint operation of two essential elements; an act forbidden by law and an act in an attempt to do that act.
      “Before a defendant may be found guilty of a crime, the prosecution must establish beyond a reasonable doubt that under the statute described in which I’ll read to you a little later on in these instructions, defendant was forbidden to do the act number one, and the charge in the indictment, and number two, that he’s intentionally admitted the act as stated before.”

      . “[A]nd if you notice, I gave you the definition of knowingly and intentionally and you must now find, if you are going to convict this defendant under that section, you must find those two elements that I have described to you, knowingly and intentionally, was going to violate this law that I have read to you, including the next section, 841 (a) 1 which reads as follows: ....
      “As I’ve said to you, both of these sections require two elements to be proven by the Government in this case; one is that the act of knowingly, intentionally possessing a controlled substance and the second, the intent to distribute it, and I’ve told you what they were, and these two items and these two essential elements must be proven by the Government by the principle of a reasonable doubt as to each essential element.”

      . Appellee’s Brief 12.

      . “Now, circumstantial evidence is that evidence is not directly proven to you. For instance, direct evidence would be like the suitcase, and the items of the suitcase, that’s direct evidence, that’s something they have knowledge of and you can see circumstantial evidence is that evidence that surrounds, and because of the inability to have evidence that would tend to be relative to it, it comes in circumstantially.
      “You may consider both types of evidence ; circumstantial evidence would be, for instance, whether or not all of the evidence taken together would indicate whether or not this defendant had knowledge or intent or both to commit this crime to which he’s been charged.”

      . “At this point, the Court would like to tell you you can also draw inferences from a material fact in the case.
      “Now, a material fact in the case would be the bag, and the contents of that bag. You may draw an inference from that material fact, but only one inference that you may draw.
      “To give you an example, if I had a glass of water on my bench and I tip it over, you can drawn an inference the water will fall to the floor. If I tip over the same glass of water, you cannot draw an inference that it will be caught in another glass on the floor, so you can only draw one inference in a material fact in a case. Any material fact in a case and any fact that you think you can deduce and draw an inference.”

      . “Sometimes one statement from the person, you look at the person and they said something to you, and you may have been with your friends. ¡Somehow or other you don’t either like that person or you don’t believe what they told you. That’s your good common sense working.” (Emphasis supplied)

      . Because the conviction is reversed, we need not consider appellant’s contention that errors were committed in the sentencing proceeding. We do note, however, that a district judge is obligated to exercise his discretion as to treatment or imprisonment under the Narcotics Addict Rehabilitation Act, 18 U.S.C. § 4251 et seq., for eligible defendants. United States v. Williams, 407 F.2d 940 (4th Cir. 1969); United States v. Phillips, 403 F.2d 963 (6th Cir. 1968). See also United States v. Hollis, 450 F.2d 1207, 1209 (5th Cir. 1971).


source: Caselaw Access Project

author: PELL, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Anthony MAENZA, Defendant-Appellant.
    No. 72-1019.
    United States Court of Appeals, Seventh Circuit.
    Argued Dec. 6, 1972.
    Decided March 28, 1973.

      Julius Lucius Echeles, Carolyn Jaffe, Chicago, Ill., for defendant-appellant.
    James R. Thompson, U. S. Atty., William T. Huyck, Robert A. Filpi, Asst. U. S. Attys., Chicago, Ill., for plaintiffappellee.
    Before SWYGERT, Chief Judge, and PELL and STEVENS, Circuit Judges.
   PELL, Circuit Judge.

Anthony Maenza appeals from his conviction by a jury of violating 18 U.S.C. § 1010. The district court denied his motions for judgment of acquittal notwithstanding the verdict and for a new trial. Maenza was sentenced to one year in prison and was fined $500.

On July 5, 1966, defendant and his wife made arrangements with a salesman for a construction company to obtain a garage for their home. The salesman entered information supplied by Maenza onto a credit application form of the American National Bank and Trust Company of Chicago. Maenza, his wife, and the salesman then signed the form. In addition to eliciting information for the credit application, the salesman explained to the couple that “a FHA application would also need to be signed because the bank might require that the loan be made on a FHA basis . . . .” The Maenzas then signed a form, which was blank except for the date, entitled “Credit Application for Property Improvement Loan.” The salesman further stated “that in the event of the approval of a FHA loan . a notice would be sent out to the buyers informing them that the loan had been approved . . . .”

Immediately under the title of the second, or blank, form were the words “This application is submitted to obtain credit under the provisions of Title I of the National Housing Act.” The form contained several references to the Federal Housing Administration (FHA) and had space for data such as that requested in the bank’s credit application that defendant had first signed. Above the signature line was a warning:

“Any person who knowingly makes a false statement or a misrepresentation in this application or causes such a false statement or misrepresentation to be made shall be subject to a fine of not more than $5,000 or by imprisonment for not more than 2 years, or both, under provisions of the United States Criminal Code.”

The construction company then forwarded the two forms to the bank, which made the loan and insured it with the FHA.

Maenza was later indicted for having willfully and knowingly made false statements to the American National Bank in the FHA credit application. The one-count indictment charged that defendant had made false statements concerning his employment and monthly salary “for the purposes of obtaining a loan” from the bank “with the intent that such loan would be offered to and accepted by the [FHA] for insurance

On this appeal, the defendant concedes that the statements concerning his employment and salary were false and that he had known they were false.

Maenza’s primary contention is that the statutory language “with the intent that such loan . . . shall be offered to or accepted by the [FHA] for insurance” required the Government to show not only that Maenza knew that the loan would be offered to the FHA but also that he knew it would be offered to the FHA for insurance. He further claims that the evidence was insufficient to establish this knowledge.

Maenza also emphasizes that the FHA form he signed was in blank. We are unsure what argument, if any, he intends to develop from this fact. A fair inference from the evidence is that he knew that the approval of the FHA might be sought and that the false information he had given the salesman would be transferred to the appropriate blanks in the FHA application. The crime charged centers on the making of false statements for the purpose of obtaining a loan.

As the Government points out, the statutory construction Maenza proposes would lead to a peculiar result: a person who knowingly made false statements for the purpose of obtaining a loan and who signed an FHA application which warned the signer that he was committing a federal offense would be judged not guilty because he did not know that the FHA insures loans rather than acts on loan applications in some other manner. The defendant cites no opinion which adopts his interpretation of 18 U.S.C. § 1010, that is, which expressly requires a specific finding on the “for insurance” phrase.

Our reading of the full statute and the cases involving it persuades us that the words “for insurance” do not refer to the intent needed for conviction of the crime charged here. The evidence proved that Maenza knowingly made false statements with the intent that the loan he sought would be submitted to the FHA for some purpose. This was sufficient; the Government did not need to establish the defendant’s knowledge of the FHA’s functions, and we decline to attach the claimed talismanic significance to “for insurance.” See United States v. Lee, 422 F.2d 1049, 1051 (5th Cir. 1970), where the Fifth Circuit stated:

“An FHA credit application, as was used here, prominently states on its face that it is submitted to obtain credit under Title I of the National Housing Act and contains a warning that the making of a false statement or misrepresentation constitutes a federal crime. Where such an FHA form is used the jury may infer the existence of an intent that the loans should be sought from the Federal Housing Administration .... Thus, the fact that the loan applications were made on FHA forms provided sufficient evidence to support the jury’s finding as to Lee’s intent.”

See also Brilliant v. United States, 297 F.2d 385 (8th Cir. 1962), cert. denied, 369 U.S. 871, 82 S.Ct. 1140, 8 L.Ed.2d 275; United States v. Pesano, 293 F.2d 229, 231 (2d Cir. 1961). Cf. the statutory interpretations adopted in United States v. Schaar, 437 F.2d 886 (7th Cir. 1971), and United States v. Bolin, 423 F.2d 834 (9th Cir. 1970), cert. denied, 398 U.S. 954, 90 S.Ct. 1882, 26 L.Ed.2d 297.

The defendant also complains that the prosecutor, in his closing argument, made two erroneous and prejudicial statements: (1) “The fact that [the defendant] knew [that this loan was insured] has been testified to”; and (2) “[The salesman’s explanation for having someone sign an FHA application in blank] included . .' . telling that [the loan] was federally insured.” Defense counsel had unsuccessfully sought a mistrial on the basis of these remarks.

The Government interprets the first statement as a permissible inference from the evidence. The form of the statement causes us to have some doubts about this explanation. However, we find no reversible error. Defense counsel strenuously and repeatedly denied the accuracy of the comment, and the trial judge supported those objections by saying that he did not recall such testimony and that he relied on the jury to remember what had actually been said. Also, in his charge to the jury, the judge stated that the attorneys’ closing arguments were not evidence. Finally, in light of our disposition of Maenza’s main argument, the statement did not affect a central issue in the case and cannot be deemed prejudicial. For these same reasons, the prosecutor’s second remark, which did misstate the evidence, was not reversible error.

Maenza also contends that the court erred in refusing his tendered instruction that if two inferences can be drawn from the evidence, one of innocence and one of guilt, the jury should draw the conclusion of innocence. Defendant cites the La Buy Manual on Jury Instructions § 6.01-4, 33 F.R.D. 523, 567 (1963).

The court’s refusal to give the two-inference instruction was not error. The court adequately discussed the Government’s obligation to prove Maenza guilty beyond a reasonable doubt. United States v. Lewin, 467 F.2d 1132, 1141 (7th Cir. 1972); United States v. Alexander, 415 F.2d 1352, 1358 (7th Cir. 1969), cert. denied, 397 U.S. 1014, 90 S.Ct. 1246, 25 L.Ed.2d 427 (1970).

Accordingly, we affirm the judgment of conviction of Anthony Maenza.

Affirmed.

      . At the time of the crime, 18 U.S.C. § 1010, “Federal Housing Administration transactions,” provided:
      “Whoever, for the purpose of obtaining any loan or advance of credit from any person, partnership, association, or corporation with the intent that such loan or advance of credit shall be offered to or accepted by the Federal Housing Administration for insurance, or for the purpose of obtaining any extension or renewal of any loan, advance of credit, or mortgage insured by such Administration, or the acceptance, release, or substitution of any security on such a loan, advance of credit, or for the purpose of influencing in any way the action of such Administration, makes, passes, utters, or publishes any statement, knowing the same to be false shall be fined not more than $5,000 or imprisoned not more than two years, or both.”

      . The statements of the district court regarding the jury’s ability to recall the testimony illustrate the difficulties of reviewing words on paper without the emphases, tones, and inflections of the human voice and without the facial expressions of the speaker. We venture to suggest that there are very few experienced trial lawyers who at some time have not in this situation heard these or similar words — and everyone in the courtroom knew that the judge was saying in effect, “Of course, this wasn’t in the evidence, give the jury credit for knowing it wasn’t, and let’s get on with the argument.”


author: THORNBERRY, Circuit Judge:

text:
    Ramon M. RIVAS, Plaintiff-Appellant, v. Caspar W. WEINBERGER, Secretary of Health, Education and Welfare, Defendant-Appellee.
    No. 72-2804
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 21, 1973.

      Frank R. Southers, San Antonio, Tex., for plaintiff-appellant.
    William S. Sessions, U. S. Atty., C. J. Calnan, Asst. U. S. Atty., San Antonio, Tex., for defendant-appellee.
    Before THORNBERRY, COLEMAN and INGRAHAM, Circuit Judges.

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

   THORNBERRY, Circuit Judge:

Appellant first applied for Social Security disability benefits under 42 U.S. C.A. §§ 416(i), 423, on August 4, 1970, alleging the onset of disability on April 10, 1970. The application was denied initially and on reconsideration. A Hearing Examiner considered the case de novo and, agreeing with the earlier determinations, found on August 20, 1971, that appellant was not under a disability on or before that date. The Hearing Examiner’s decision became the final decision of the Secretary when the Appeal Council approved it on April 13, 1972, and appellant filed this action below under 42 U.S.C.A. § 405(g) for review of the Secretary’s determination. Concluding that the Secretary’s finding of no disability was supported by substantial evidence, the district court affirmed the administrative decision. We affirm as to part of the period covered by the Secretary’s determination, and reverse as to the remainder.

Appellant is a fifty-year-old Army veteran with a sixth grade education. He worked as a barber from 1951 until February 1970, when, he has alleged, arthritis prevented him from working further. At the administrative hearing on his claim appellant and his wife testified that since that time he had been unable to move about “seventy-five percent of the time” due to arthritic pain, swelling, and stiffness in his ankles, feet, hands, neck, and right shoulder; that he had difficulty walking over two or three blocks; and that he frequently had difficulty dressing himself and signing his name. When he stopped barbering in February 1970, his wife took over management of his shop and arranged for an outside barber to work there and give a share of his income to appellant as the shop owner.

The medical evidence available to the Hearing Examiner consisted of four reports and summaries submitted to the Secretary by physicians who had treated appellant. Dr. R. E. Garza, who treated him during February, March, and April of 1970, for arthritis in his hands and ankles, stated in a medical report to the Secretary, “The patient is a barber and has been unable to work since February because of his arthritic condition.” In the following eight months appellant underwent three periods of hospitalization in the Veterans Administration Hospital at Kerrville, Texas, because of arthritic joint pain and other ailments not relevant to the disability inquiry. Dr. L. W. Scheckles, the treating physician for the initial hospitalization period from May 12 to August 18, diagnosed appellant’s medical problems at that time as “anxiety and depressive reaction” and “early rheumatoid arthritis”; as Dr. Garza had done, he prescribed pain medication. Dr. Y. C. Smith was the principal treating physician for the second and third periods of hospitalization from July 24 to August 18 and from September 8 to December 4, 1970. Dr. Smith’s hospital summary reflects that appellant was admitted to the hospital the second time for treatment of pain in his right shoulder, his arms, and in the joints of the fingers in both hands; that “rheumatoid arthritis, mild” and “anxiety-neurosis” were again diagnosed as his major medical problems; and that pain medication was again prescribed. In an apparent effort to bring about an improvement in appellant’s neurotic condition, Dr. Smith advised him during the second hospitalization “to return to his work, barbering, and to continue at this at the best of his ability, that if he got tired, to discontinue his work till he rested, and then continue working again, and advised [him] that we do not feel it was good for him to discontinue working altogether.” Dr. Smith’s hospital summary covering the third hospitalization read in part:

This veteran was admitted because of severe pain in the right shoulder, wrist and hand. . . . [H]e developed severe pain in the right shoulder and he was unable to abduct the arm. The pain was so severe that it kept him awake at night. His symptoms in re his arthritis are much worse, however, his neuroses have improved. ... He walked with a shuffling gait and a limp due to pain and swelling of his right ankle. There was point tenderness along the course of the long head of the biceps. The right ankle was swollen and tender. The right wrist was. swollen and tender and painful on pronation and suppination.
. The right shoulder showed early improvement and full motion was restored. He was given a short course of steroid for his multiple joint symptoms and was temporarily helped in regards his pains; however, pain recurred when steroids were discontinued.
. . . With the diagnosis of rheumatoid arthritis the outlook is not good as these cases usually get progressively worse, which has been the case with him. He was advised to work up to the point of tolerance, however, it is doubtful that he will be able to work more than a few hours a day due to the arthritis in his hands, fingers and feet.

Dr. D. R. Marth, a vocational expert, answered two hypothetical questions at the hearing. First, he concluded that if appellant’s testimony were taken as true, appellant would be “precluded from competitive employment.” Secondly, Dr. Marth opined that if only the information contained in the medical summary covering the second hospitalization were taken as true and all other evidence disregarded, this information alone would indicate that appellant could not return to barbering but did not indicate inability to engage in various forms of light work found in the economy. On cross-examination he made a further statement, “By observance and reviewing the objective evidence coupled with the subjective evidence presented here, from my own opinion and observations, I would have to agree with the first hypothetical and say that I would not think he would be employable.”

On the basis of this evidence — the testimony of appellant, his wife, and the vocational expert and the four medical reports — the Hearing Examiner found that appellant was not under a disability before August 20, 1971, the date of the decision, and that he could “return to employment as a barber,” or “function as (1) a retail salesman for a barber or beauty supply company, (2) a general cashier, (3) a cashier for a self-service station, or (4) a parking lot attendant.”

Our function in reviewing fact findings of the Secretary is limited to determining whether there is substantial evidence in the record, considered as a whole, to support them. 42 U.S.C.A. § 405(g); see Ward v. Celebrezze, 5th Cir. 1963, 311 F.2d 115, 116. Substantial evidence is “more than a scintilla, and must do more than create a suspicion of the existence of the fact to be established. ‘It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,’ and it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.” Breaux v. Finch, 5th Cir. 1970, 421 F.2d 687; see 4 K. Davis, Administrative Law Treatise § 29.02 (1953).

“Disability” is defined in the Social Security Act as “(A) inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months or (B) blindness.” 42 U.S.C.A. §§ 416(i)(1), 423(d)(1). Ability to work only a few hours a day or to work on an intermittent basis is not ability to engage in a “substantial gainful activity”; the latter term means “performance of substantial services with reasonable regularity in some competitive employment or self-employment.” Prevette v. Richardson, D.S.C.1970, 316 F.Supp. 144, 147, quoting Foster v. Ribicoff, W.D.S.C.1962, 206 F.Supp. 99; see also McDowell v. Richardson, 6th Cir. 1971, 439 F.2d 995.

Viewing the record as a whole we believe that appellant conclusively established the onset of disability at the beginning of his third period of hospitalization on September 8, 1970. It appears, as the district court observed, that the Secretary in making his determination gave “little or no credibility to the testimony of plaintiff and his wife, or to the testimony of the vocational expert” and that he relied primarily on the medical evidence. As trier of fact the Hearing Examiner was fully entitled to single out and accord greater weight to those portions of the evidence which he considered particularly persuasive, but we do not believe that the medical reports supply the requisite substantial evidence to support the Secretary's decision for the whole period under consideration in this ease.

The four medical reports and summaries in the record present a history of steadily worsening multiple-joint rheumatoid arthritis. Dr. Garza’s report recited that appellant had been unable to work as a barber since February 1970; the summaries covering the first and second periods of hospitalization contain diagnoses of “early rheumatoid arthritis” and “rheumatoid arthritis, mild,” respectively. These diagnoses and Dr. Marth’s expert opinion that the information in the second hospitalization summary did not indicate inability on the part of the patient to work in certain light jobs afford substantial evidence for the finding of no disability before September 8, 1970. Dr. Smith’s advice to his patient to return to barbering to the extent of his ability to do so does not indicate a medical opinion that the arthritis condition would permit substantial work as a barber, for such work was clearly intended as therapy for appellant’s psychological condition and not for his arthritis; the report contains no estimation of the extent of appellant’s ability to barber.

Once evidence has been presented which supports a finding that a given condition exists it is presumed in the absence of proof to the contrary that the condition has remained unchanged. Hall v. Celebrezze, 6th Cir. 1963, 314 F.2d 686, 688; Prevette v. Richardson, supra. In this case, however, Dr. Smith's summary covering the third hospitalization expressly withdraws any medical basis for finding appellant not disabled within the meaning of the Social Security Act. It reflected that appellant’s “symptoms in re his arthritis are much worse” and concluded “it is doubtful that he will be able to work more than a few hours each day due to the arthritis in his hands, fingers and feet.” Although appellant was advised to “work up to the point of tolerance,” we do not believe these statements can be fairly construed as evidence that appellant could engage in substantial gainful activity; rather, they indicate inability to do so. As noted above, the testimony of all three witnesses would also indicate that appellant was disabled at the time of the third hospitalization. Since we have found in the record no contrary evidence relating to the period after September 8, 1970, we conclude the Secretary’s determination as to disability on and after September 8, 1970, is not supported by substantial evidence and must be reversed and rendered.

Affirmed in part; reversed and rendered in part.

Costs are assessed against the Secretary.


author: JONES, Circuit Judge:

text:
    Tom BOLACK, Appellant, v. SOHIO PETROLEUM COMPANY, a corporation, Appellee.
    No. 72-1222.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Sept. 14, 1972.
    Decided March 28, 1973.

      Thomas F. McKenna, Albuquerque, N. M. (Thomas F. McKenna and James E. Sperling, Modrall, Sperling, Roehl, Harris & Sisk, Albuquerque, N. M., on the brief), for appellant.
    William Briggs, Albuquerque, N. M. (Rodey, Dickason, Sloan, Akin & Robb, P.A., William C. Briggs, Albuquerque, N. M., on the brief), for appellee.
    Before JONES, SETH and DOYLE, Circuit Judges.

       Of the Fifth Circuit, sitting by designation.

   JONES, Circuit Judge:

Tom Bolack, joined by his wife, Alice Bolack, on September 2, 1959, sold and assigned to Sohio Petroleum Company a producing Federal oil and gas lease, reserving a limited term carried working interest. The working interest was to become effective after seven-eighths of the production subsequent to the sale and transfer amounted to 1,500,000 barrels. A,t the time of this happening Bolack was to be deemed the owner of one-third of seven-eighths of the oil saved and produced from the leased lands until the happening of the first to occur of two conditions set forth in the instrument. The second of these conditions and the one with which the Court is concerned in this controversy is set forth in the instrument in this language: “Until the reasonably estimated quantity of oil that is recoverable from said lands has declined to four hundred thousand (400,000) barrels, as such estimated quantity and the time of such occurrence shall be established in accordance with the subsequent provisions hereof. This condition may be referred to herein as ‘Condition Two’.”

The instrument provided that in the making of a determination of the time when the 400,000 barrel level had been or would be reached Sohio should submit to Bolaek the date ascertained by it as to the time when such level had been or would be reached with all supporting data. Within sixty days after receiving Sohio’s date determination Bolack was required to advise Sohio as to whether or not he agreed with such determination. In the event of disagreement the question was to be determined by a petroleum engineer of their joint selection, and, as provided in Paragraph 4.4(c) of the instrument, “if the parties are then unable to agree on the selection of a disinterested petroleum engineer or engineering firm for the purpose of resolving their difference, either party-may request the then president of the American Institute of Mining and Metallurgical Engineers to appoint a petroleum engineer or engineering firm for that purpose. The engineer or firm so selected or appointed shall determine the reasonably estimated quantity of oil then recoverable from said lease; if such engineer or firm determines that said quantity has declined to 400,000 barrels he or it shall also determine the date on which such decline occurred. . The determination of such engineer or engineering firm shall be made in writing, a signed copy of which shall be furnished to each party hereto, and shall be final and binding on both parties hereto.”

Sohio determined that the 400,000 level would be reached on October 21, 1969, and so advised Bolack by letter dated September 3, 1969. Bolack did not agree to Sohio’s determination of the date nor did he and Sohio agree upon an engineer or firm to whom the question should be submitted and by whom it should be determined. He advised Sohio, by a letter from his attorneys dated September 11, 1969, that if the matter was not concluded to his satisfaction, “further proceedings specified in” Section 4.4(c) of the instrument would “presumably be the next order of business to be followed herein.” Sohio proposed an engineering firm pursuant to the terms of the agreement. Bolack expressly refrained from agreeing or disagreeing with Sohio’s proposed designation of an engineering firm. He proposed that any determination of the crucial date be deferred for a year. He advised Sohio that he did not acquiesce in any request by it that the president of the American Institute of Mining and Metallurgical Engineers appoint an engineer or firm to make the determination. He notified Sohio that he would not pay any of the charges of any engineer so appointed. An engineering firm was appointed as provided in the agreement. Again communicating through his counsel, Bolack transmitted to the engineers information and stated his views as to the proper method of determining the recoverable reserves. In a letter to the engineers Bolack stated that he disagreed “with Sohio as to any responsibility on his part for the costs but that is probably something between him and Sohio.”

The engineering firm fixed the time when the reserve declined to 400,000 barrels as the end of June 21, 1969, four months earlier than the Sohio date of October 21, 1969. If the royalty payments to Bolack had been cut off as of June 21 rather than October 21 he would have received $27,028.13 less than that which was paid to him. He refused to refund this to Sohio. He also refused to pay his pro rata share of the charges and expenses of the engineering firm in the amount of $1,247.60. Sohio sued. The jurisdiction is diversity of citizenship. The law of New Mexico governs. Sohio recovered judgment in the district court and Bolack has appealed.

Bolack contends that the question of when the recoverable reserves declined to the 400,000 barrel level was not properly submitted to the engineers for their determination. This is primarily a factual question. There is no ambiguity in the agreement and the provision for submission to an engineer or engineering firm in the event of a disagreement is clear. These provisions of the agreement were not nullified by the refusal of Bolack to conform to its terms. He recognized that a resort to these contract provisions would “presumably be the next order of business.” Although protesting that he would assume no liability for the cost of the determination by the engineering firm, he recognized the submission by giving to the engineers his views as to how their determination should be made. The agreement provided for the procedures which were followed. Bolack will not be heard to assert a contrary contention.

The agreement fixed the liability of the parties for the payment of the engineers as well as for the determination to be made by them. It is urged by Bolack that he has no liability for the cost and charges made by the engineers for the services which they rendered in making the determination contemplated by the agreement. No reasons sufficient to relieve Bolack of his contractual obligations have been advanced. The liability is clear and the amount of the charge is properly included in the judgment.

In its complaint Sohio sought judgment in the amount of the overpayment “as restitution of the monies paid under mistake of fact” and for the amount paid to the engineers. Bolack contends that this is not a proper “mistake of fact” case. At the beginning of the development of the common law there were certain writs which might be issued and if the facts of the plaintiff’s case did not fall within the express terms of one of these writs, he was without a remedy. Much more than time has brought us from the Year Books to the Federal Rules of Civil Procedure. The time has long ago passed since it was necessary to fit the facts of a claim within a particular procedural pigeonhole in order to recover. 5 C. A. Wright and A. R. Miller, Federal Practice and Procedure 114 et seq., § 1216 (1969). Whether Sohio’s claim for its overpayment was quasi contractual and based on mistake of fact, for money had and received^ or founded on the express provisions of the agreement between the parties, need not be here resolved. It should be enough to say that the parties stipulated as to the manner of determining the factual question as to when the 400,000 barrel level was reached. That method was followed. The determination of the fact question made pursuant to the terms of the contract should be made the basis of enforcement by a judgment giving effect to it.

The appellant Bolack contends that the payment by Sohio precludes it from recovering on the theory that the amount paid exceeded the amount which was owing. With respect to this assertion, it is enough to say that Bolack declined to treat the payment made as sufficient to discharge Sohio’s obligation to him. Since he declined to be bound by Sohio’s determination of the pertinent date, it follows that the question was open so far as Sohio was concerned as well as being open to Bolack. The agreement provided that if there was disagreement the factual question should be answered by engineers. The answer determined in accordance with the contract is binding on both parties. 17A C.J.S. 724, 727 Contracts §§ 496(1), 497(1).

In making their determination the engineers construed the phrase “oil that is recoverable” as meaning oil that is economically recoverable. Bolack asserted in the district court and contends on this appeal that this standard is improper. None of the canons of construction would permit a standard different from that which the engineers used. See Greer v. Salmon, 82 N.M. 245, 479 P.2d 294. It is impossible to see how the parties could have intended a different standard of measurement than that which the engineers used.

No error is demonstrated in the proceedings before the district court. Its judgment is

Affirmed.

      . The working interest consists of oil and gas in place on the leased property subject to the royalty, interest and burdened with the cost of development and operation of the leased property. The carried interest is an arrangement between two or more co-owners of a working interest whereby one agrees to advance all or some part of the development costs on behalf of the other or others, and to recover such advances from future production. The interest of the one who makes the advances is known as the carrying interest. The interest of the one for whom advances are made is known as the carried interest. O. W. Breeding and A. G. Burton, Income Taxation of Oil and Gas Production, §§ 204, 208 (1961).


author: PER CURIAM.

text:
    WARNER BROS. RECORDS, INC., et al., Plaintiffs-Appellants, v. R. A. RIDGES DISTRIBUTING CO., INC., a corporation, et al., Defendants-Appellees.
    No. 72-1883.
    United States Court of Appeals, Tenth Circuit.
    March 6, 1973.

      L. R. Gardiner, Jr., of Christensen, Gardiner, Jensen & Evans, Salt Lake City, Utah, for plaintiffs-appellants.
    Kenneth W. Yeates, of Prince, Yeates, Ward, Miller & Geldzahler, Salt Lake City, Utah, for defendants-appellees.
    Before BREITENSTEIN, MC-WILLIAMS and DOYLE, Circuit Judges.
   PER CURIAM.

Plaintiffs-appellants, phonograph record manufacturers, filed suit in the District Court for the County of Salt Lake, Utah seeking equitable relief against defendants who were alleged to have been copying and selling without authority the tapes and records which had been made by the plaintiffs. The state district judge granted a temporary restraining order and subsequently conducted a hearing following which he made extensive findings of fact and conclusions of law and entered a preliminary injunction. Subsequently, the cause was removed by the defendants to the United States District Court for the District of Utah. The judge of that court summarily dissolved the state court injunction, at the same time issuing an order denying the motion to remand the case to state court.

This is a repeat of a case which was presented to us approximately one year ago. We heard that case on an emergency basis also and, as in the present case, we granted relief. See Tape Head Company v. R C A Corporation, 452 F.2d 816 (10th Cir. 1971).

Plaintiffs have appealed the judgment dissolving the injunction and have applied for a stay of proceedings pending the appeal. We accelerated the hearing of the case and following oral arguments we have concluded that there was and is a complete lack of federal jurisdiction and that the action should have been remanded to state court.

Plaintiffs’ complaint does not invoke any federal laws. It makes no mention of a federal law nor does it allege that the cause arises under any such law. Instead, it alleges that plaintiffs have made contracts with recording artists; that they have property rights in the resultant recorded compositions; and that the defendants have interfered with their property rights by pirating the compositions and selling the same. The complaint also alleges that apart from the pirating, the plaintiffs’ good will was injured because of the poor quality of the recordings or the tapes.

The preliminary injunction issued by the state district court follows the pattern of the complaint and grants relief on the basis of invasion of plaintiffs’ common law rights.

Defendants also allege in the petition for removal that the action may be removed pursuant to 28 U.S.C. § 1441(b).

It is obvious that neither of these provisions applies to the case at bar since the action does not directly or indirectly arise under the patent or copyright laws of the United States. Secondly, it does not arise under the Constitution, treaties or laws of the United States in accordance with the requirements of § 1441(b), supra. Accordingly, on the face of the papers, there was no right to remove.

But the terms and conditions of the complaint furnish a clearer basis for holding that the trial court lacked jurisdiction to entertain the case. It is for the plaintiffs to design their case as one arising under federal law or not, and it is not within the power of the defendants to change the character of plaintiffs’ case by inserting allegations in the petition for removal. It is fundamental that the action is not one arising under federal law where the federal question is supplied by way of defense. See Louisville & N. R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908); State of Tennessee v. Union & Planters’ Bank, 152 U.S. 454, 14 S.Ct. 654, 38 L.Ed. 511 (1894); Metcalf v. City of Watertown, 128 U.S. 586, 9 S.Ct. 173, 32 L.Ed. 543 (1888). See also Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194 (1950). In this latter case the Supreme Court through the late Justice Frankfurter summarized the law as follows;

If Phillips sought damages from petitioners or specific performance of their contracts, it could not bring suit in a United States District Court on the theory that it was asserting a federal right. And for the simple reason that such a suit would “arise” under the State law governing the contracts. Whatever federal claim Phillips may be able to urge would in any event be injected into the case only in anticipation of a defense to be asserted by petitioners. “Not every question of federal law emerging in a suit is proof that a federal law is the basis of the suit.” Gully v. First National Bank in Meridian, 299 U.S. 109, 115, 57 S.Ct. 96, 99, 81 L.Ed. 70; compare 28 U.S.C. § 1257, 28 U.S.C.A. § 1257, with 28 U.S.C. § 1331, 28 U.S.C.A. § 1331. Ever since Metcalf v. City of Watertown, 128 U.S. 586, 589, 9 S.Ct. 173, 174, 32 L.Ed. 543, it has been settled doctrine that where a suit is brought in the federal courts “upon the sole ground that the determination of the suit depends upon some question of a federal nature, it must appear, at the outset, from the declaration or the bill óf the party suing, that the suit is of that character.” But “a suggestion of one party that the other will or may set up a claim under the Constitution or laws of the United States does not make the suit one arising under that Constitution or those laws.” State of Tennessee v. Union & Planters’ Bank, 152 U.S. 454, 464, 14 S.Ct. 654, 657, 38 L.Ed. 511. The plaintiff’s claim itself must present a federal question “unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose.” Taylor v. Anderson, 234 U.S. 74, 75-76, 34 S.Ct. 724, 58 L.Ed. 1218; Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126.

339 U.S. at 672, 70 S.Ct. at 879.

The Court goes on to point out that the cited decisions reflect the current of jurisdictional legislation going back to the Act of 1875, and that these cases plainly show that federal jurisdietion not only must appear on the face of the complaint, but further that some indirect relationship to a federal law will not serve to furnish a basis for federal jurisdiction nor is it sufficient that a federal law may emerge in the suit. See Gully v. First National Bank of Meridian, 299 U.S. 109, 115, 57 S.Ct. 96, 81 L.Ed. 70, supra.

It is undisputed that the recordings which were here copied predated the passage of the federal statute creating a limited copyright in sound recording. 85 Stat. 391; 17 U.S.C. § 1 et seq. Because of this, defendants seek to create federal jurisdiction here by spinning a theory that federal jurisdiction is exclusive. This theory is based on the decisions of the Supreme Court in Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964) and Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964). The defendants are not saying that the plaintiffs’ case is in truth federal. This is plain from the fact that defendants maintain that according to federal law the plaintiffs’ recordings are in the public domain— that they are not protected. It follows that defendants are in truth asserting a federal question as a defense. They are attempting to use it as a shield. As has been shown, jurisdiction cannot come about by way of the removal route where the federal question is supplied by the defendant in an effort to protect himself.

The removal character of the present case seriously restricts the scope of the district court’s authority. Thus, the court cannot exercise anything resembling appellate authority since its jurisdiction is original. See Wright, Law of Federal Courts (2d ed.), pages 132-33.

Tested in still another manner, removal jurisdiction is derivative; if the state court lacked jurisdiction the federal court acquired none. Therefore, even if we were to accept defendants-appellees’ argument that the state court lacked jurisdiction and that the federal court’s power in this case is exclusive, it would be self-defeating. See General Investment Company v. Lake Shore & M. S. Ry. Co., 260 U.S. 261, 43 S.Ct. 106, 67 L.Ed. 244 (1922); Martinez v. Seaton, 285 F.2d 587 (10th Cir. 1961), cert. denied, 366 U.S. 946, 81 S.Ct. 1677, 6 L.Ed.2d 856. In Crow v. Wyoming Timber Products Co., 424 F.2d 93 (10th Cir. 1970), the derivative nature and the legal consequences of this were clearly pointed out.

One final matter: Since the cause is devoid of a federal question, the United States District Court lacked power to deal with it in any manner, and hence the motion to remand to the District Court of Salt Lake County should have been granted. See American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 36 S.Ct. 585, 60 L.Ed. 987 (1916).

The judgment of the district court is reversed and the cause is remanded with directions to vacate and set aside its order dissolving the preliminary injunction and to remand the case to the District Court of Salt Lake County, State of Utah.

      . This provision gives the district courts original jurisdiction of civil rights arising under an Act of Congress relating to patents, copyrights and trademarks, and it says that such jurisdiction shall he exclusive in patent plant variety protection and copyright cases.
      Subsection (b) gives the district courts original jurisdiction when an unfair competition claim is joined with the suit under the copyright or patent laws.

      . This provision is as follows:
      (b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

      . This Supreme Court decision (a Justice Holmes opinion) is closely analogous. The decision revolved around a patent problem which the Court held arose under state law. The U. S. District Court dismissed following removal. The Supreme Court reversed.


author: McWILLIAMS, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. John Francis Arthur SANDOVAL, Defendant-Appellant.
    No. 72-1395.
    United States Court of Appeals, Tenth Circuit.
    Argued Nov. 14, 1972.
    Decided March 20, 1973.

      Don J. Svet, Asst. U. S. Atty. (Victor R. Ortega, U. S. Atty., on the brief), for plaintiff-appellee.
    Paul A. Phillips, Albuquerque, N. M., for defendant-appellant.
    Before LEWIS, Chief Judge, McWILLIAMS, Circuit Judge, and CHRISTENSEN, District Judge.
   McWILLIAMS, Circuit Judge.

Sandoval was convicted by a jury of refusing to submit to induction into the Armed Forces in violation of the provisions of 50 U.S.C. Appendix § 462. Sandoval now appeals his conviction, contending that the trial court committed error in the conduct of his trial.

This is the second time this particular case has been before this court. See United States v. Sandoval, 449 F.2d 1338 (10th Cir. 1971), for a more detailed statement of background information. Brief reference at this point to our prior decision is necessary, however, if the present appeal is to be placed in focus.

At the heart of the controversy is the letter which Sandoval sent his local draft board on January 29, 1970. In response to the indictment, Sandoval first filed a motion to dismiss on the ground that he had been denied procedural due process in that his claim of conscientious objection had been ignored by his local draft board. It was Sandoval’s position that his letter of January 29 constituted a claim to be classified as a conscientious objector under the provisions of 50 U.S.C. Appendix § 456(j). In this connection, Sandoval argues that in response to his letter the draft board should have sent him a Form 150 or should have otherwise recognized his claim to objector status and that since his draft board did not in anywise answer his letter, he had been denied due process. The trial court granted the motion to dismiss and the Government appealed that ruling.

As indicated, on appeal, we reversed. United States v. Sandoval, supra. In reversing and remanding with direction that the indictment be reinstated, we held in so many words that the letter of January 29 “was not a statement of conscientious objection, it was instead an expression of opposition to the legality of the Selective Service System.”

At trial of the matter after remand, the Government through the clerk of Local Board 34 introduced into evidence Sandoval’s selective service file and then called as a witness Master Sergeant Rasmussen, who testified as to the failure of Sandoval to submit to induction at the induction station by taking the symbolic “step forward,” even though warned that there was a penalty for failure to submit. In this latter connection, as was noted in our earlier opinion, Sandoval, in response to a question asked him at the induction station, answered as follows: “My personal and moral beliefs make it impossible for me to accept the legality of the S.S.S. and the U.S. Military.”

The Selective Service file reflects, as indicated in our earlier opinion, that the only response of the local draft board to Sandoval’s letter of January 29, 1970, was to once again reclassify him I-A on February 26, 1970, and to send Sandoval notice of such reclassification, which notice Sandoval returned without comment to the board on March 5, 1970. There was no further communication between Sandoval and the draft board other than the board’s order under date of June 29, 1970, that Sandoval report for induction on July 27, 1970. On the latter date, Sandoval reported, was found qualified for induction, but refused to be inducted.

In this court, Sandoval’s various grounds of alleged error will be grouped as follows: (1) Error in excluding certain proffered evidence; (2) error in refusing to submit to the jury the question as to whether Sandoval had made out a claim of conscientious objection; and (3) error by the trial court in refusing to direct a verdict for Sandoval. We will consider each of these matters.

At trial, counsel sought to show what Sandoval “really meant” in his letter of January 29, 1970. This the trial judge refused to let him do, the judge being of the view that our earlier opinion had specifically held that the letter in question, as written, was not a claim for objector’s status, but was an expression of outright opposition to the “legality” of the entire Selective Service System, and that by our opinion we had foreclosed such line of proposed inquiry. In so doing, the trial court properly construed and applied our prior decision. By that decision it became the law of the case that the letter of January 29 did not, as such, constitute a claim to be classified as a conscientious objector. Accordingly, the trial court did not err in refusing to let Sandoval go behind the letter in question by testifying as to what meaning he intended to convey in his January 29 letter. The letter speaks for itself.

In like vein, upon trial, counsel tried to elicit from Sandoval his ethical and moral beliefs in an effort, presumably, to show that as of the time of trial, if not before, he was in fact entitled to a conscientious objector’s status even though he had- made no such claim to the draft board. Again, the trial court did not err in refusing to permit such testimony to be brought before the jury. There having been no communication between Sandoval and the draft board subsequent to his letter of January 29, the only real issue is the effect of the January 29 letter, and by our prior opinion we have held that it was only a protest against the system. Under these circumstances, Sandoval’s ethical and moral beliefs uncommunicated to his draft board are not material. Sandoval’s failure, then, to exhaust his administrative remedies, i. e., make claim for a conscientious objector’s classification and appeal any adverse ruling by the local board in connection therewith, bars any defense at trial that Sandoval was erroneously classified I-A. See McGee v. United States, 402 U.S. 479, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971).

In this court Sandoval suggests that in composing his letter of January 29, he did not have the benefit of Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970), which was announced on June 15, 1970, and that, as we understand it, had he known of Welsh he would have couched the language in his letter differently. Or, alternatively, the draft board itself would have handled his letter differently had it the benefit of Welsh. This argument is not sound. We are only concerned with the language which was in fact used in the January 29 letter and whether such required the draft board to treat it as a claim for objector’s status. This has been resolved by our prior opinion.

Further comment regarding Welsh is perhaps advisable in order to fully understand Sandoval’s argument on this phase of the case. Sandoval at one time was deeply religious in the traditional sense and was an active member of an organized, recognized church. However, he then dropped out of the church. It was because of his disassociation from his church that Sandoval, according to his counsel, was disinclined to seek an objector’s status since his opposition to war was, as he viewed it, not “prompted by orthodox or parochial religious beliefs.”

In Welsh, the Supreme Court held that a registrant’s conscientious objection to war is “religious” within the meaning of the statute if the opposition stems from registrant’s moral, ethical or religious grounds about what is right or wrong and these beliefs are held with the strength of traditional religious convictions. We need not here get involved in any extended discussion as to whether Welsh represents “new law” on this particular matter. See United States v. Fargnoli, 458 F.2d 1237 (1st Cir. 1972). At least four members of the Supreme Court deemed Welsh to be controlled by the rule previously announced in United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965). And whether Welsh be regarded as an extension of Seeger or only a clarification thereof, the fact of the matter is that in Seeger, which was a case in which the three appellants did not belong to any orthodox religious sect, the Supreme Court held in 1965 that the test to be applied in determining whether a conscientious objection is religious oriented is whether the claimed belief occupies the same place in the life of the objector, even though not belonging to an orthodox religious sect, as an orthodox belief in God holds in the life of one clearly qualified for exemption.

Suffice it to say then, we do not regard Welsh as injecting any new element into the present case. When Sandoval sent his January 29 letter to his draft board, he did have the benefit of Seeger, which was in itself adequate to put him on notice that a claim of conscientious objection based on nonreligious grounds was not necessarily foreclosed by the then existing law. But he made no such claim; rather, he rejected the system and declared that he was ready to accept the consequences. See Gee v. United States, 452 F.2d 849 (5th Cir. 1971), cert. denied, 407 U.S. 909, 92 S.Ct. 2432, 32 L.Ed.2d 683 (1972).

Counsel was also precluded from attempting to show that sometime after the date of Sandoval’s induction proceeding the local draft board changed its operating procedures. In this connection the clerk of the local draft board testified by way of an offer of proof that as of the date of the trial, i. e., February 9, 1972, though she would not automatically send a Form 150 in response to a letter of the tenor of Sandoval’s letter of January 29, she would perhaps contact the registrant and “ask him what he meant.” We do not see how this subsequent change in procedure, if such it be, inures to Sandoval’s benefit.

In our earlier opinion in the instant case, we noted that Sandoval’s letter of January 29 was quite similar in content to the letter under consideration in United States v. Stoppelman, 406 F.2d 127 (1st Cir. 1969). In the latter ease it was suggested that some “thoughtful probing” of the registrant’s views might have resolved the matter to the end that subsequent events, i. e., indictment and prosecution, could have been avoided. Notwithstanding this pointed suggestion as to better practice, the First Circuit in Stoppelman went on to hold that it was “all too clear” that the letter there in question was not a request for a reclassification but was a complete rejection of the system, and that neither the local board nor the clerk thereof was under any duty to make inquiry of the registrant as to any hidden meaning in his letter. Assuming that the local board in the instant case at a time subsequent to the events which form the basis for the present prosecution did determine as a matter of policy to make inquiry of a registrant who sends a letter of the tenor as that of Sandoval’s letter of January 29, we do not see just how such would work to Sandoval’s advantage. As in Stoppelman, Sandoval’s letter was a complete rejection of the system and under such circumstances the local board was under no duty to make inquiry of Sandoval and the fact that the local board may have later changed its procedure in this regard is of no moment.

For the reasons above stated, we also held that the trial court did not err in refusing to submit to the jury the question as to whether Sandoval was entitled to conscientious objector’s status. Under the circumstances, Sandoval was foreclosed from raising as a defense a claim of erroneous classification. McGee v. United States, supra. In this general connection we perceive no error in instructions given, or refused, by the trial court.

Finally, the evidence amply supports the verdict. The only real issue ever in this case was the effect of the January 29 letter. Having determined that it was not a request for conscientious objector’s status, there remains little more that was in anywise in dispute. Sandoval admittedly received a notice to report for induction and, pursuant thereto, he did report but then refused to submit to induction. Such is in violation of 50 U.S.C. Appendix § 462.

Judgment affirmed.

      .
      “Jan. 29,1970
      Washington D. C.
      “Dear Sirs:
      “Enclosed find my ‘draft card’ — the latest one given me by your office. I feel very strongly that the moral commitments & beliefs I possess make it impossible for me to ‘go along’ or accept your legality.
      “I return this card with a full knowledge of what the consequences of my act are or will be. I will not shirk those consequences by running away to Canada or trying to fail any pre-induction physicals.
      “I feel that I must confront what I believe is the basic immorality of your system if I would be truthful with myself and those people I love.
      “X am presently Regional Coordinator for the Western TJ. S. of Environmental Action here in Washington. We are organizing a national day of awareness about the problems we all face because of pollution, etc.
      “My mailing address until April 22, 1970 is:
      “Arturo Sandoval Rm. 200
      2000 P St., N. W.
      Washington, D. C. 20036
      “Sincerely yours, /s/ Arturo Sandoval”