author: BUTZNER, Circuit Judge: ALBERT V. BRYAN, Senior Circuit Judge

text:
    UNITED STATES of America, Appellee, v. John Charles WAINSCOTT, Appellant.
    No. 72-1988.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 5, 1973.
    Decided April 25, 1974.

      George S. Daly, Jr., Charlotte, N. C. [court-appointed counsel] for appellant.
    David B. Sentelle, Asst. U. S. Atty., W. D. N. C. (Keith S. Snyder, U. S. Atty., and Hugh J. Beard, Jr., Asst. U. S. Atty., on brief) for appellee.
    Before HAYNSWORTH, Chief Judge, BRYAN, Senior Circuit Judge, and WINTER, CRAVEN, BUTZNER, RUSSELL, FIELD, and WIDENER, Circuit Judges, sitting in banc.
   BUTZNER, Circuit Judge:

The principal question raised by this appeal is whether a selective service order of induction, issued before the Draft Extension Act of 1971, is valid when an appeal board has assigned the reason for its decision, but the local board has failed to state why it denied the registrant’s claim. In United States v. Broyles, 423 F.2d 1299 (4th Cir. 1970), we held that when a registrant establishes a prima facie case for classification as a conscientious objector, the local board must disclose why it rejected the registrant’s claim. Disclosure of the reasons for the board’s decision, we concluded, was essential to effective judicial review. We now hold that the local board’s failure to state the basis of its decision casts such a flaw on administrative review that the omission cannot be remedied by the appeal board’s statement of its reasons for denying the claim. Accordingly, we find the order of induction to be invalid and reverse the conviction of John Charles Wainscott for refusing to submit to induction.

I

Wainscott registered with the Selective Service System- on July 21, 1966, and was given a student, II-S, classification six months later. After receiving a series of student deferments, his II-S classification expired on October 15, 1969. On January 5,1970, he was reclassified available for induction, I-A, and on January 15 was informed of his right to a personal appearance before his local board and his right to appeal, neither of which he exercised. After undergoing a physical examination on February 13, he was notified on March 9 that he was acceptable for service. A month later he requested SSS Form No. 150 for conscientious objectors, which he submitted on May 8.

In his conscientious objector questionnaire, Wainscott described his religious beliefs as follows:

“I believe that to harm or destory any human being is to endanger any hope for peace; more important, it is morally unpardonable and, for me, impossible. Therefore I cannot and will not participate in any form of combat. This is a fundamental part of my entire moral code.”

In response to a question concerning the source of his religious beliefs, he replied:

“I began thinking along these lines at the age of 13 or 14 when, after studying and discussing various religious aspects, I reasoned that man — not a supreme being — controls his own actions. Thus it was apparent that with no god and no fate, man must himself maintain peace, and to do so he must not destroy any fellow man. Any action against another human being endangers any hope for peace and is therefore unpardonable. Aside from my own private thinking, I was influenced toward this decision by discussions with many people and by reading such works as the Bible, the Bhagavad Gita, and readings from Ghandi.”

To the question, “To what extent does your religious training and belief restrict you from ministering to the sick and injured, either civilian or military, or from serving in the Armed Forces as a noncombatant without weapons ?” Wainscott replied:

“I have never been opposed to helping another human being. A noncombatant position would not be in opposition to my beliefs — provided that it would be truly noncombatant in every sense of the term.”

He noted that he had expressed his views to acquaintances and that he had started a thesis on the subject while attending college. He also submitted letters from his parents and two other persons attesting to the nature and sincerity of his beliefs.

Shortly after Wainscott applied for classification as a conscientious objector, the board requested an interview. From the executive secretary’s notes it appears that when a member of the board observed that Wainscott was requesting noncombat status, Wainscott replied that he must have made a mistake as he thought noncombat meant no service at all. Asked when the change in status occurred, he stated no change had occurred — that he didn’t read the forms very carefully and that the statement he made with regard to serving as a noncombatant meant no service of any kind.

With respect to Wainscott’s religious beliefs, the secretary’s notes reflect that he claimed no strong religious background and added that he thought religion was just a code of ethics; that he does not believe there is a Supreme Being, and that in order to prevent chaos you should treat people as you want them to treat you. He added that the worst thing to do to start chaos was killing and that he couldn’t conceive of killing. He reiterated that he thought it was morally wrong to go to war. This, he said, involved a personal code. On being questioned about his conclusion that there was no “hereafter,” he stated that he started to think about this when he was twelve and he came to the conclusion when he was' about eighteen or nineteen years of age. He acknowledged that he did not attend church now, although formerly he did.

During the interview, he ascribed his delay in filing his application to advice from friends that he need not seek classification as a conscientious objector when he held a II-S deferment. When the board sought to plumb the depth of his beliefs by confronting him with the alternative of induction or jail, he stated that he guessed it would have to be jail.

Without stating its reasons, the board refused to classify Wainscott as a conscientious objector. Wainscott filed an administrative appeal, which was denied with the following statement:

“This appeal board is of the opinion that the record shows registrant’s beliefs lack sufficient sincerity to constitute the necessary elements of conscientious objection. Attention is invited to conflicts in statements by registrant to the record. Accordingly, he is continued in Class I-A.”

After Wainscott refused to be inducted into the army, he was convicted of violating 50 U.S.C. App. § 462 (1972). On appeal, his principal assignment of error is that the failure of the local board to disclose the reasons for rejecting his claim invalidated the underlying order of induction. A panel of this court, assuming that Wainscott had presented a prima facie case for conscientious objection and. deeming a statement of the appeal board’s decision sufficient to validate the order, held that there was a basis in fact for Wainscott’s classification and affirmed his conviction. We granted rehearing in banc principally to consider whether the appeal board’s statement remedied the local board’s silence.

II

The government, pointing out that an appeal board can classify de novo, argues that an appeal board’s statement of reasons for the registrant’s classification is sufficient to enable a court to review the registrant’s claim. This contention, however, addresses only the necessity of an adequate record for judicial review. It overlooks the important function of administrative review.

Judicial review of selective service classifications is extremely limited. If the board’s order has a basis in fact, it must be sustained. 50 U.S.C. § 460(b)(3) (1972); Estep v. United States, 327 U.S. 114, 122, 66 S.Ct. 423, 90 L.Ed. 567 (1946). On the other hand, an appeal board is not so narrowly restricted. It can classify anew. 50 U.S.C. § 460(b)(3) (1972); 32 C.F.R. § 1626.4(h) (1973); United States v. Verbeek, 423 F.2d 667, 668 (9th Cir. 1970). The fair operation of the system, therefore, depends in no small part on “the opportunity for full administrative review.” Mulloy v. United States, 398 U. S. 410, 416, 90 S.Ct. 1766, 1771, 26 L.Ed.2d 362 (1970). Recognizing that in the usual case an appeal board’s classification is final, the Supreme Court held under procedures formerly in effect, that a registrant was entitled to a copy of the Department of Justice’s recommendation so he could effectively present his case to the appeal board. Gonzales v. United States, 348 U.S. 407, 75 S.Ct. 409, 99 L.Ed. 467 (1955).

Although the Department of Justice no longer presents its recommendation in conscientious objector appeals, the need for the registrant to know the basis of the ruling against him has not lessened. Under regulations in effect at the time of Wainscott’s appeal, a registrant could submit a written statement “specifying the matters in which he believes the local board erred.” Without being informed of the local board’s reasons for denying his claim, a registrant’s opportunity for filing an effective statement on his administrative appeal has been aptly described as “no more than a stab in the dark.” United States v. Edwards, 450 F.2d 49, 52 (1st Cir. 1971). Furthermore, the local board’s silence compels the appeal board to speculate about the basis of the local board’s decision. This, too, impedes administrative review. Cf. Smith v. United States, 157 F.2d 176, 182 (4th Cir. 1946) (dictum). In sum, the reasons that have persuaded a majority of the courts of appeals to require local boards to articulate the basis of their decisions for the purpose of facilitating judicial review apply as cogently to administrative review. See United States v. Speicher, 439 F.2d 104, 108 (3d Cir. 1971).

Although the Supreme Court has not expressly decided the issue before us, it vacated a judgment of conviction in Lenhard v. United States, 405 U.S. 1013, 92 S.Ct. 1296, 31 L.Ed.2d 477 (1972), and remanded the case for consideration in the light of a memorandum of the Solicitor General that addressed the problem. Lenhard’s local board never disclosed its reasons for denying his classification as a conscientious objector to the appeal board. However, his conviction was affirmed by the court of appeals after the local board ultimately disclosed its reasons to the district court. In response to the petition for certiorari, the Solicitor General informed the Court that in his opinion the failure of the local board to disclose its reasons to the appeal board had denied Lenhard effective administrative review. The Court then vacated the judgment, and the court of appeals reversed the conviction. The factual aspects of Lenhard differ, but the principles expressed by the Solicitor General are fully applicable to Wainscott’s case.

We conclude, therefore, that the failure of a local board to state why it rejected a registrant’s prima facie claim denies the registrant the opportunity for full administrative review. This procedural defect is of sufficient importance to invalidate the order of induction notwithstanding the appeal board’s assignment of reasons for its rejection of the claim.

III

Until the passage of the Draft Extension Act of 1971, a local board did not need to articulate its reasons for denying a registrant’s claim unless the registrant proved a prima facie entitlement to the classification he sought. Relying on the pre-1971 rule, the government contends that the silence of the local board is of no import because Wainscott did not prove a prima facie case. He does not meet the statutory qualifications, the government says, because his emphasis on peace evidences a political, not a religious, basis for his objection to war.

We cannot ascribe such a narrow interpretation to Wainscott’s beliefs. The search for peace is not universally deemed to be a peculiarly secular venture. Moreover, one who is morally opposed to war is quite likely to express his belief affirmatively by using the antonym of war, which is peace. Wainscott, however, does not rest his opposition to war on his hope for peace. More important than this hope, he avers, is his conviction that destruction of human life is “morally unpardonable.” Wainscott’s opposition to war is neither equivocal nor selective. His disavowal of belief in God and immortality does not disqualify him. Describing the nature of his belief, he wrote his local board:

“I believe that to harm or destroy any human being is to endanger any hope for peace; more important, it is morally unpardonable and, for me, impossible. Therefore I cannot and will not participate in any form of combat. This is a fundamental part of my entire moral code.”

United States v. Seegar, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965), prescribes a means for determining whether a registrant’s beliefs are religious within the meaning of the Act:

“The test might be stated in these words: A sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption comes within the statutory definition.” 380 U.S. at 176, 85 S.Ct. at 859.

In Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970), the Court was called upon to apply this test to a registrant who had struck from his application the statement that his belief was based on “religious training,” but who nevertheless had affirmed that he believed killing was morally wrong. The Court reversed Welsh’s conviction and, amplifying Seegar, said:

“What is necessary under Seegar for a registrant’s conscientous objection to all war to be ‘religious’ within the meaning of § 6(j) is that this opposition to war stem from the registrant’s moral, ethical, or religious beliefs about what is right and wrong and that these beliefs be held with the strength of traditional religious convictions.” 398 U.S. at 339, 90 S.Ct. at 1796.

Wainscott’s statement that the destruction of a human being is “morally unpardonable” affirms that he believes the taking of human life is morally wrong. An act that is “morally unpardonable” is indeed an ultimate moral wrong. His assertion that such an act is “impossible” for him to perform is consistent with his resolution to accept jail rather than induction. Wainscott’s acknowledgment that his belief involves a personal code does not disqualify him. Welsh requires us to equate a personal moral code with a religious belief if the “individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content but that nevertheless impose upon him a duty of conscience to refrain from participating in any war at any time . . . .” 398 U.S. at 340, 90 S.Ct. at 1796. Wainscott’s beliefs accord, therefore, with the tests prescribed by Seegar and Welsh.

Finally, as Welsh, 398 U.S. at 342, 90 S.Ct. 1792 also explains, a registrant is not ineligible for classification as a conscientious objector if, in addition to beliefs which qualify under the statute, he expresses his views on political affairs. Therefore, even if Wainscott’s discussion of peace discloses a desire for an absence of war in the political sense, as the government suggests, he has nevertheless established a prima facie case for exemption.

The appeal board, apparently satisfied with the nature of Wainscott’s beliefs, disqualified him because he lacked “sufficient sincerity.” It premised this conclusion on unspecified conflicts in his statements. In the absence of any indication of the statements which the appeal board considered inconsistent, the government suggests that Wainscott’s position on noncombatant service depicts his insincerity. In his application, Wainscott wrote “a noncombatant position would not be in opposition to my beliefs — provided that it would be truly noneombatant in every sense of the term.” However, at his personal appearance, he stated that he was not requesting noncombatant status. Queried, he explained that he must have made a mistake as he thought noncombat meant no service at all.

To support its charge of insincerity, the government relies on Witmer v. United States, 348 U.S. 375, 382, 75 S. Ct. 392, 99 L.Ed. 428 (1955), where the Court, in rejecting a claim for classification as a conscientious objector said:

“[Ijnconsistent statements in themselves cast considerable doubt on the sincerity of petitioner’s claim . it goes to his sincerity and honesty in claiming conscientious objection to participation in war.”

In Witmer, however, the Court was not dealing with the elements of a prima facie case. The Department of Justice, acting under procedures then in existence, had given its reasons, including inconsistencies in the registrant’s position, for recommending denial of the claim. Thus, the Court was concerned solely with determining whether there was a basis in fact for the board’s decision.

Here, if the local board had specified the reasons why it rejected Wainscott’s claim, the record might well present a basis in fact that would sustain its decision. But this is not the issue now before us. The difficulty with the government’s position is that neither the registrant, the government, the appeal board, nor this court knows whether the local board considered Wainscott to be insincere. The board may have thought that he was sincere but misguided in the nature of his beliefs. We do not even know whether the local board considered his remarks about noncombatant service to be inconsistent. The board, noting his education, may have thought his explanation was not credible, that his remarks were inconsistent, and that he was therefore insincere. On the other hand, realizing that a noncombatant may be, according to one definition in common usage, “a person who is not a combatant; a civilian in time of war,” the local board may have accepted his explanation that he was thinking of a noncombatant in terms different from those commonly used by the selective service system. Since Wainscott’s remarks are susceptible of conflicting interpretations, we cannot rule as a matter of law that they destroy the prima facie case which he otherwise established. Whether his explanation was sincere or deceptive depends on the inferences that one draws from the facts. It was, however, the province of his local board, not the appeal board or the courts, initially to assay the facts and the inferences that reasonably • can be drawn from them. Regardless of how carefully this procedure was conducted, the local board’s failure to articulate its finding frustrated review. Indeed, this is precisely the type of case to which Judge Winter referred in United States v. Broyles, 423 F.2d 1299, 1304 (4th Cir. 1970), when he said:

“Where it is clear that a prima facie case was established, we conclude that in conscientious objector cases, it is essential to the validity of an order to report that the board státe its basis of decision and the reasons therefor, i. e., whether it has found the registrant incredible, or insincere, or of bad faith, and why.”

We conclude, therefore, that the board’s order of induction was invalid and Wainscott’s judgment of conviction must be reversed.

ALBERT V. BRYAN, Senior Circuit Judge

(dissenting):

I. I question the proposition laid out immediately and explicitly in the majority opinion as: “The local board’s failure to state the basis of its decision casts such a flaw on administrative review that the omission cannot be remedied by the appeal board’s statement of its reasons for denying the claim”. Forthrightly, too, the opinion concedes that the Supreme Court has not decided the issue.

Reliance is rested by the majority upon inference from the remand of Joseph v. United States, 438 F.2d 1233 (3 Cir. 1973), 405 U.S. 1006, and United States v. Lenhard, 437 F.2d 936 (2 Cir. 1970), 405 U.S. 1013, 92 S.Ct. 1296, 31 L.Ed.2d 477 by the Supreme Court “for consideration” on the Solicitor General’s anatomizing memorandum, which is set out in United States v. Stewart, 478 F.2d 106, 112 (2 Cir. 1973). Also cited is United States v. Broyles, 423 F.2d 1299 (4 Cir. 1970, en banc). Interestingly, unlike the case at bar, in none of these precedents were any reasons given for the appeal board’s decision. Nor did the Solicitor’s memorandum refer to the weight to be accorded the opinion given on the review. Hence I do not feel presumptuous in engaging the majority’s proposition.

To begin, the purpose of the appeal board is seemingly overlooked by the majority; indeed, it is treated as an impotent entity. Its predominant function is, of course, to scan the proceedings of the local boards for illegalities in the classification of registrants. 32 CFR § 1626.23 (1969 Supplement). It is tbie place for complaints of the local board’s actions. Otherwise it would have no reason for being. To this end, the appeal board is empowered to classify or reclassify a registrant. Id. § 1626.26.

This power, in my judgment, authorized the appeal board to correct the local board’s omission of its reasons for the classification of Wainscott by itself classifying him. Particularly is this so under the majority’s view that the omission had the ultimate effect of nullifying the classification by the local board. Further indication of the breadth of the appeal board’s remedial supervision of the first classification is found in § 1626.23, directing appeal boards to check carefully “whether the record is complete” and, if necessary, to return the file to the local board for completion.

But Wainscott protests, and the majority holds, that the omission impairs his appeal right and thus vitiates the local level classification. The argument, first, is that absent reasons the appellant cannot counter the local’s decision —that the right of appeal is then no longer “meaningful” (by now a fatigued adjective). Additionally, it is said that without knowledge of the reasons the appellant cannot exercise the privilege of attaching to his appeal a statement— important because he cannot appear in person — specifying wherein he believes the local board erred.

These assertions, though plausible, are not sound. Wainscott had intimately known all the material that went before the local board and the questions to be resolved. The entire case is made up of only a brief record, readily carried in mind. He clearly demonstrated he was perfectly capable of prosecuting his claim in that tribunal. Nothing not then known to him could be included by the appeal board in its consideration. It was forbidden by the regulations to go beyond what he had placed or knew was before the local board. Id. § 1626.24. As for his statement, it would necessarily embrace all the assertions he had already put in the record by letters or had said on occasion. He was, of course, altogether aware of his contentions from the very beginning and throughout. What the absence of reasons could amount to in imagined circumstances is merely academic. It was an elementary and uncomplex proceeding and only by suppositions can a deprivation of rights or privileges be imposed upon it.

Finally, it is pressed that even if permissibly remedial, the appeal board’s statement of reasons was insufficient. It said:

“This Appeal Board is of the opinion that the Record shows registrant’s beliefs lack sufficient sincerity to constitute the necessary elements of conscientious objection. Attention is invited to conflicts in statement by the registrant in the Record. Accordingly, he is continued in class I-A.”

For me this is a plain, understandable statement. Its entire content is reasons. All reasons embody some conclusions, but the board’s summary cannot be denied legitimacy under the brand of “conclusions”. The suppositions advanced of what basis the board could possibly have used are nothing but imageries. There is no occasion for pondering the board’s ratio decidendi; it speaks for itself. Such surmises are banished by the board’s stark, bold, explicit characterization of Wainscott’s claims. There is no doubt or equivocation about the conflicts. They are obviously comprised of the two outstanding contradictions in the administrative proceedings: The first was that (1) “non-combatant position would not be in opposition to my beliefs — provided that it would be truly non-combatant in every sense” and (2) later that his principles would not permit of non-combatant service. I find no other conflicting “statements”. Certainly the expositions of his religious beliefs, while uncommon, are not inconsistent inter se.

Criticism is directed to the quotations in our first opinion from Witmer v. United States, 348 U.S. 375, 75 S.Ct. 42, 99 L.Ed. 640 (1955), on the destructive impact of conflicting statements upon the sincerity of a registrant’s candidacy for CO classification. The reproof is that the Supreme Court was speaking in a different context. However, its words read impressively on the present circumstances. At all events, they are credibility precepts of the Supreme Court, classic in any situation.

II. As the majority notes, in the original opinion the decision was conditioned on the assumption that Wainscott had tendered a prima facie case and, so assuming, the opinion concluded that the appeal board’s finding that the registrant’s beliefs lack sincerity was sufficient to justify denial of CO classification to him. Inasmuch as the majority now overrules this conclusion, complete consideration of this case requires exploration, as the majority does, of the assumption’s correctness.

Section 6(j) of the Selective Service Act, 50 U.S.C.A. App. § 456(j), so far as pertinent here, provides:

“Nothing contained in this title [sections 451, 453, 454, 455, 456 and 458-471 of this Appendix] shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. As used in this subsection, the term ‘religious training and belief’ does not include essentially political, sociological, or philosophical views, or a merely personal moral code ff

In regard to his conscientious objections to war, the majority recalls, Wainscott stated:

“I began thinking along these lines at the age of 13 or 14 when, after studying and discussing various religious aspects, I reasoned that man — not a supreme being — controls his own actions. Thus it was apparent that with no god and no fate, man must himself maintain peace, and to do so he must not destroy any fellow man. Any action against another human being endangers any hope for peace and is ’ (Accent therefore unpardonable/ added.)

In his interview with the board, he said “that he had no strong religious background and that he thought religion was just a code of ethics — he stated that he did not believe that there was a Supreme Being — and in order to prevent chaos that you should treat people as you wanted them to treat you — he stated that the worse thing to do to start chaos was killing — and that he couldn’t conceive of killing”.

Obviously, he did not hold any “religious conviction” as that phrase is traditionally used. The next inquiry is whether he claimed CO status on moral or ethical beliefs equivalent, for him, of a religion — a tenet of faith as strong as the guide of deity-worship in others. This equation is accepted in Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970), but that is not the present registrant’s basic and dominant manifestation. His overriding motivation is the desire for peace. True, he believes that “to harm or destroy any human being” is “morally unpardonable and impossible” for him. This creed rests, he avers, on the wish to help another human being.

His thesis is not an inward personal peace but, rather, public tranquility. Incidentally, in this connection, to repeat, at first he averred he would accept non-combatant service as not offending his beliefs — later he explained he meant by that no service at all. In my view his objection “rests solely upon considerations of policy” which is not a basis for exemption. Welsh, supra, at 342-343, 90 S.Ct. at 1798. Consequently, I do not think he made out a prima facie case before the local board.

I would affirm the conviction.

WIDENER, Circuit Judge, joins in this dissent.

      . Other cases reaching the same conclusion include: United States v. Edwards, 450 F.2d 49 (1st Cir. 1971); United States v. Stewart, 478 F.2d 106 (2d Cir. 1973); United States v. Speicher, 439 F.2d 104 (3d Cir. 1971); United States v. James, 417 F.2d 826 (4th Cir. 1969); United States v. Stetter, 445 F.2d 472 (5th Cir. 1971); United States v. O’Bryan, 450 F.2d 365 (6th Cir. 1971); United States v. Lemmens, 430 F.2d 619 (7th Cir. 1970); United States v. Abbott, 425 F.2d 910 (8th Cir. 1970); United States v. Jamison, 463 F.2d 1219 (9th Cir. 1972); cf. United States v. Pacheco, 433 F.2d 914 (10th Cir. 1970). But Cf. Gruca v. Secretary of the Army, 141 U.S.App.D.C. 85, 436 F.2d 239 (1970), cert. denied, 401 U.S. 978, 91 S.Ct. 1207, 28 L.Ed.2d 328 (1971).

      . As an alternative assignment of error, Wainscott asserts that the statement of the appeal board is conclusory and thus insufficient. In view of our disposition of the case, we need not consider this issue.

      . 32 C.F.R. § 1626.12 (1970).
      The Draft Extension Act of 1971 and regulations promulgated to implement it significantly extend the registrant’s procedural rights on administrative appeal. The registrant is now entitled to appear before the appeal board, and the appeal board may consider both oral statements and written evidence submitted by the registrant during his personal appearance. 50 U.S.C. App. § 471a(b) (1) (1972); 32 C.F.R. §§ 1626.3(c), 1626.4(g)(3) (1973).

      . Extracts from the Solicitor General’s memorandum are published in United States v. Stewart, 478 F.2d 106, 112 (2d Cir. 1973). The memorandum was not called to our attention until after the panel’s decision in Wainscott’s case was announced. Stewart narrates the history of the Lenhard litigation. See also, United States v. Lenhard, 437 F.2d 936 (2 Cir. 1970); 455 F.2d 1406, 2 Cir.; and 461 F.2d 1268 (2d Cir. 1972).

      . See United States v. Wood, 454 F.2d 765, 767 (4th Cir. 1972).
      The Draft Extension Act of 1971 codified the rule of decision pertaining to a statement of the reasons for the decision of the local board, but in doing so it eliminated the necessity for the registrant to establish a prima facie case in order to obtain the statement. Title 50 U.S.C. App. § 471a (b) (4) provides: "
      “In the event of a decision adverse to the claim of a registrant, the local or appeal board making such decision shall, upon request, furnish to such registrant a brief written statement of the reasons for its decision.”
      The regulations place an unconditional duty on the board to state its reasons after a personal appearance or when the board has refused to reopen and reconsider the registrant’s classification. 32 C.F.R.. §§ 1624.6 and 1625.4 (1973). The appeal board is also unconditionally required to record its reasons for denying a registrant the classification he requested. 32 C.F.R. § 1626.4 (1973).

      . Title 50 U.S.C. App. § 456(j) (1972) provides in part:
      “Nothing contained in this title . . . shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. As used in this subsection, the term ‘religious training and belief’ does not include essentially political, sociological, or philosophical views, or a merely personal moral code.”
      This statute was construed in Clay v. United States, 403 U.S. 698, 700, 91 S.Ct. 2068, 2070, 29 L.Ed.2d 810 (1971) as follows:
      “In order to qualify for classification as a conscientious objector, a registrant must satisfy three basic tests. He must show that he is conscientiously opposed to war in any form. Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168. He must show that this opposition is based upon religious training and belief, as the term has been construed in our decisions. United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733; Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 D.Ed.2d 308. And he must show that this objection is sincere. Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428.”

      . Local Board Memorandum No. 107 [4 SSLR 2200:16], issued July 6, 1970, provides in part:
      “The term ‘religious training and belief’ as used in the law may include solely moral or ethical beliefs, even though the registrant himself may not characterize these beliefs as ‘religious’ in the traditional sense, or may expressly characterize them as not ‘religious.’
      “The registrant need not believe in a traditional ‘God’ or a ‘Supreme Being’ to be considered favorably.”

      . Local Board Memorandum No. 107 [4 SSLR 2200:16], issued July 6, 1970, provides in part:
      “11. A registrant who is eligible for conscientious objection on the basis of moral, ethical, or religious beliefs is not excluded from the exemption simply because those beliefs may influence his views concerning the nation’s domestic or foreign policies.”

      . Random House Dictionary of the English Language 972 (unabridged ed. 1971). Bee also, Webster’s International Dictionary 1535 (3d ed. 1964).


source: Caselaw Access Project

author: RONEY, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Samuel Franklin VALE, Defendant-Appellant.
    No. 73-3682.
    United States Court of Appeals, Fifth Circuit.
    June 21, 1974.

      Ralph L. Alexander, Edinburg, Tex., Roberto Yzaguirre, McAllen, Tex., Homero M. Lopez, Brownsville, Tex., for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., Mary L. Sinderson, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
    Before BROWN, Chief Judge, and GODBOLD and RONEY, Circuit Judges.
   RONEY, Circuit Judge:

This appeal involves an alleged broken plea bargain in which Samuel Franklin Yale received a maximum ten year sentence for violating the Marijuana Tax Act, 26 U.S.C.A. § 4744(a)(2), instead of a hoped for five year sentence. Vale alleges that the assistant United States attorney failed to fulfill the plea bargain by not recommending to the District Court that Vale receive only a five year sentence to run concurrently with a five year sentence previously received for jumping bond, 18 U.S.C.A. § 3150. The District Court found that the prosecutor promised to make such a recommendation and that the promise was not kept. The reconsideration of the sentence by the same judge, however, was not consistent with the rule in this Circuit in eases of this kind, and therefore necessitates a remand for resentencing by a different judge.

Vale was arrested for conspiring to smuggle, smuggling, transporting and concealing some 1300 pounds of marijuana in violation of 21 U.S.C.A. § 176a. Although he was released after posting a $30,000 bond, his subsequent failure to appear for arraignment precipitated an indictment for bond jumping, 18 U.S.C. A. § 3150, and resulted in the forfeiture of his bond. Discovered by the Mexican authorities, he was extradited to the United States, tried, and found guilty by a jury on the bond jumping offense. A five year sentence was imposed.

Prior to Vale’s trial on the marijuana indictment, the District Court made inquiry as to the status of any plea negotiations. Conversations were had with the defense counsel, the' United States Attorney’s office, and another United States District Court judge who was familiar with the case and the parties involved. The upshot of these conversations was to clarify some misunderstandings and revive the plea negotiations. On the day of trial, Vale agreed to plead guilty to one count charging a violation of the Marijuana Tax Act, 26 U.S.C.A. § 4744(a)(2), provided the other counts under 21 U.S.C.A. § 176a were dropped. The tax act violation was chosen because both government and defense attorneys were under the mistaken belief that it carried a maximum five year sentence. It was agreed that the sentence was to run concurrently with the bond jumping sentence.

Before court was convened for arraignment, however, counsel discovered that a violation of the Marijuana Tax Act carried a maximum ten year sentence. Vale was informed of this fact but decided to plead guilty as planned. The District Court accepted his plea after making abundantly clear that the sentence to be imposed was the sole responsibility of the Court, and in no sense subject to an understanding between counsel. Thereafter Vale was sentenced to ten years for violation of the Marijuana Tax Act to run concurrently with the five years imposed for bond jumping.

The only bargain Vale alleges to have been broken is the Government’s promise to recommend a five year sentence for the tax act violation. The District Court found that the assistant United States attorney did promise to make such a recommendation, and that this promise was not carried out. The District Court then considered Vale’s motion for reduction of sentence as if the Government had made the recommendation, reconsidered the sentence and denied the reduction.

The District Court’s findings as to the existence of a bargain and its breach are not clearly erroneous. The record reveals the Government promised Vale that it would recommend a reduced sentence and then failed to do so. Having made this determination, the District Court was faced with the question of what remedy to apply. Its decision to reconsider Vale’s sentence as if the Government’s recommendation were made, however, does not comport with recent precedent in cases of this kind.

In Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), the Supreme Court delineated the proper procedure for rectifying a broken plea bargain:

The ultimate relief to which petitioner is entitled we leave to the discretion of the state court, which is in a better position to decide whether the circumstances of this case require only that there be specific performance of the agreement on the plea, in which case petitioner should be resenteneed by a different judge, or whether, in the view of the state court, the circumstances require granting the relief sought by petitioner, i.e., the opportunity to withdraw his plea of guilty.

404 U.S. at 263. The Fifth Circuit has followed this procedure, thereby limiting the District Court’s alternatives. United States v. Ewing, 480 F.2d 1141 (5th Cir. 1973); Johnson v. Beto, 466 F.2d 478 (5th Cir. 1972). The same procedure has been followed in other Circuits. United States ex rel. Culbreath v. Rundle, 466 F.2d 730 (1st Cir. 1972); United States v. Brown, 470 F.2d 285 (2d Cir. 1972); Macon v. Craven, 457 F.2d 342 (9th Cir. 1972).

Our review of the record indicates that resentencing by a different judge taking into consideration the Government recommendation for five years is sufficient to dispose of the matter as law and justice require. Vale was not promised a five year concurrent sentence for his guilty plea. He was promised that the Government would merely recommend such a sentence. See Degaglia v. Stack, 490 F.2d 472 (5th Cir. 1974). Vale fully understood that the Court might or might not follow that recommendation. Consideration by a different judge is necessary “both for the judge’s sake, and the appearance of justice.” Mawson v. United States, 463 F. 2d 29, 31 (1st Cir. 1972); See United States v. Ewing, 480 F.2d 1141, 1143 (5th Cir. 1973). “We emphasize that this is in no sense to question the fairness of the sentencing judge; the fault here rests on the prosecutor, not on the sentencing judge.” Santobello v. New York, 404 U.S. 257, 263, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971).

There is no merit to Vale’s contention that he is entitled to withdraw his guilty plea. Vale has not shown that the plea was given in exchange for the promised recommendation. Roberto Yzaguirre, one of Vale’s four defense attorneys, testified that the Government’s promise to recommend a five year sentence came after Vale had entered his guilty plea. The Assistant United States Attorney verified this chronology. The promise to recommend was not given until after the plea was entered because “everybody thought that the maximum range, prior to two minutes before the Judge’s entering the courtroom, was a maximum of five . . . .” The record is clear, however, that Vale was informed of the maximum ten year sentence prior to pleading, that he discussed it with his attorneys, and that he understood the District Court was free to impose that maximum.

This case is thus different than White v. Gaffney, 435 F.2d 1241 (10th Cir. 1971), upon which Vale relies. In White v. Gaffney, supra, the Court granted habeas corpus relief to a state prisoner who was promised by the. prosecutor that he would recommend a sentence for a term of years in exchange for the prisoner’s guilty plea. The recommendation was not made. In finding that the plea was the quid pro quo for the recommendation, the Court stated the question as “whether [the recommendation] influenced White in making his decision to plead guilty.” 435 F.2d at 1245. From the record in this case, it appears that the recommendation was not the quid pro quo for the plea and did not influence Vale in making his decision to plead guilty. Out of an abundance of caution and fairness, however, the District Court held that the promise having been made, the recommendation must be considered by the sentencing judge. We find this decision well within the trial judge’s discretion.

Vale’s sentence under the tax act conviction is vacated, and the case is remanded for further proceedings consistent with this opinion.

Vacated and remanded.


author: EDWARDS, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Willie B. O’NEAL, Defendant-Appellant.
    No. 13-1712.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 6, 1973.
    Decided May 2, 1974.

      James R. Willis, Cleveland, Ohio, for defendant-appellant.
    Nancy C. Schuster, Asst. U. S. Atty., Cleveland, Ohio, for plaintiff-appellee; Frederick M. Coleman, U. S. Atty., Cleveland, Ohio, on brief.
    Before PHILLIPS, Chief Judge, and EDWARDS and MILLER, Circuit Judges.
   EDWARDS, Circuit Judge.

This is a direct appeal from appellant’s conviction after jury trial on two counts of bank larceny, in violation of 18 U.S.C. § 2113(a) and (b) (1970). Appellant was sentenced to eight years on each count under 18 U.S.C. § 4208(a)(2) (1970), with the terms to run concurrently.

The indictment charged that appellant was one of two men who entered a bank in Mentor, Ohio, on September 12, 1972, at 11:15 a. m. dressed in Brinks messenger uniforms and received the polite assistance of bank employees in removing a shipment of $316,500 worth of cash destined for the Federal Reserve Bank and two department stores. The fake messengers thereupon made off with this cash hoard and little (if any) of it has ever been recovered.

There were eight people who saw the two fake messengers, one of whom was black and nne white. After appellant’s arrest all eight of these witnesses were present at properly conducted line-ups where appellant was in the line-up and was represented by a lawyer. None of them selected appellant on the first line-up. Two of the witnesses (female tellers who arguably had the best opportunity to observe him at the bank) did identify him positively at a second lineup as the black bogus Brinks man. Each of these tellers testified that, after picking another person from the first line-up, she had, on her own initiative, sought another opportunity to view the line-up and then had identified appellant. This positive identification was repeated at appellant’s trial where, of course, the prior misidentification was thoroughly aired.

Other than the disputed identification evidence, there is strong circumstantial evidence in this case. One of appellant’s girlfriends, Kathleen Lipchek, testified that appellant had told her sometime before the robbery that he was going to come into a large sum of money. He mentioned $400,000. He also told her that he was in “a big job” with several others, that he wished he could get out but it was too late. This witness also testified that appellant had a moustache and a goatee which he shaved off shortly before the robbery. She also testified (albeit we and presumably the jury noted that her assertion was weakened on effective cross-examination) that she saw a uniform in appellant’s apartment. On the day of the robbery she said appellant told her he was taking his children to Chicago or Mississippi; that she might not see him again; that he might be dead.

In fact, appellant left town immediately after the happening of the crime. He was arrested in Mississippi with approximately $3,500 cash on his person in denominations (mostly $50 and '$100 bills) similar to those which had been stolen. These bills were, however, unidentifiable, since no numbers had been kept. Appellant had not worked for eight months before the trip to Mississippi. One of the FBI Agents who arrested appellant testified that he had a several days’ growth of beard and a “light” moustache when arrested.

Appellant took the stand and denied being in the bank. He explained his possession of $3,500 in cash on the basis of a numbers hit. He called as a witness a male relative who had been caring for appellant’s children and who testified that appellant was at his house at the time when the bank robbery was taking place.

Of the six persons (other than the two female tellers) who had been in the bank at the time of the larceny, three were unable to make any identification. The District Judge refused to allow the defense to call these witnesses to testify before the jury. But the District Judge allowed the remaining three who identified as “familiar” persons in the line-up other than appellant to be called by the defense for examination before the jury.

Appellant claims reversible error in the District Judge’s admission of the in-court identification of appellant by the two female tellers and in the District Judge’s refusal “to specially instruct the jury as to the possible perils involved in personal identification evidence.”

Appellant also asserts that the admission into evidence of the $3,500 in cash which appellant had on his person was reversible error and that he was entitled to acquittal because the government’s evidence was insufficient to allow a jury finding of guilty beyond reasonable doubt.

We shall take the last two appellate issues first.

This court has repeatedly held that it is permissible for the prosecution to show unusual wealth in the hands of a previously impecunious defendant immediately subsequent to the happening of a theft of money. United States v. Amerine, 411 F.2d 1130 (6th Cir. 1969); United States v. Daniels, 377 F.2d 255 (6th Cir. 1967); See also United States v. Gornick, 448 F.2d 566 (7th Cir.), cert. denied, 404 U.S. 861, 92 S.Ct. 161, 30 L.Ed.2d 103 (1971). Here when appellant was arrested he had 16 $100 Federal Reserve Notes and 37 $50 Federal Reserve Notes, plus a few smaller bills on his person. The bank shipment had encompassed 200 $50 bills and 110 $100 bills. Appellant had testified that he had not held a job for six to eight months in the period immediately preceding the happening of this crime.

Appellant, however, also testified to his activities as a gambler during that period and claimed to have hit the numbers for $6,000 just before he left Cleveland. We believe that the conflict of evidence and inferences here involved was for the jury’s determination.

Nor do we agree with appellant’s contention that the District Judge erred in failing to grant his motion for acquittal. The government’s evidence (assuming for the moment that it is all admissible) was sufficient to make a prima facie case for the jury.

The real problem of this appeal pertains to the identification evidence. Here appellant accurately contends:

1) That eight witnesses saw the two bogus Brinks men;

2) None of the eight identified appellant’s picture when they were shown it by the FBI;

3) At the first line-up none of the eight identified appellant, although he was in the line-up;

4) Three of them identified another party, one Eli Felder, while two other witnesses identified still other parties; and

5) The only two witnesses who did identify appellant as one of the bogus Brinks men had previously misidentified another party.

Absent other facts, such a set of circumstances might well warrant striking from the record the proffered subsequent identification of the defendant. This, however, was no ordinary bank robbery where a sudden threat of death focuses all of the senses of those threatened upon the one who by words or action says, “The money or your life!”

Our instant crime was committed not by force, but by ruse. The bogus Brinks men appeared to bank employees and customers to be engaged in operations normal to the bank’s routine. There was no special circumstance for six of the witnesses to focus on the persons or the faces of the “Brinks Messengers.” On these grounds alone we dismiss concern about three of the witnesses (all bank customers) who never asserted either before or after the show-up that they could identify the culprits.'

As to the failure of any of the witnesses to identify a picture of appellant when shown it by the FBI, we note that the picture employed showed appellant with a full moustache and a goatee. The witnesses at the bank were unanimous in describing the black bogus Brinks man as clean-shaven. In addition, the jury had before it the testimony of Kathleen Lipchek (appellant’s girlfriend) who asserted that appellant shaved off his moustache and goatee just before the happening of the crime. They also had before them appellant’s statement that he didn’t shave it all off but that three or four days before he left Cleveland he “cut it down with clippers.” They also had before them the statement of an FBI Agent who arrested appellant in Lexington, Mississippi, 10 days after the crime th.at appellant had a several days’ growth of beard and a “light moustache.” On these facts the jury had a right to find that the black bogus Brinks man was clean shaven at the time of the crime. On this assumption it would have been remarkable had any eye-witness been able to identify appellant’s picture with a full moustache and goatee.

As to the misidentifications, some facts must be added. The line-up consisted of six young black men of the same general age. One had been added at the insistence of appellant’s lawyer. The picture of the second line-up which was introduced in evidence shows a considerable ' similarity of appearance between appellant and Felder. None of the eye-witnesses at the first line-up made any positive identification.3

The District Judge allowed appellant’s counsel to call all of those witnesses who misidentified and examine them thoroughly before the jury.

What we have said leaves the question of whether or not the District Judge should have striken the testimony of Mary Lou Grentz and Terri Kinkaid, the two women tellers who did positively identify appellant. Both of these tellers had direct contact with the two bogus guards. Both of them were kept apart from each other at all times. Both of these witnesses identified another person at the first line-up, albeit not positively. Both of them asked for a second line-up and at it positively identified appellant. Both of them positively identified appellant at trial. Although the question is not without difficulty, we conclude that the jury was entitled to and did have all the relevant evidence as to identification and misidentification. The initial misidentification on the part of these eye-witnesses to a crime did not completely destroy the value of their testimony or render it inadmissible. The jury was fully advised of the original mistake and had it as well as the subsequent testimony identifying appellant before them' to weigh. The weight to be given this evidence was for the jury to determine. United States v. Black, 412 F.2d 687 (6th Cir. 1969), cert. denied, 396 U.S. 1018, 90 S.Ct. 583, 24 L.Ed.2d 509 (1970).

We believe that there is no evidence in this case of any deviation from the lineup standards enunciated in the Wade, Gilbert and Stovall trilogy. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The testimony indicates that meticulous attention was paid by the FBI Agents who conducted the line-ups to the standards enunciated in the cases cited above.

The District Court did not commit reversible error in refusing to suppress the testimony of witnesses Grentz and Kinkaid. See United States v. Cairns, 434 F.2d 643 (9th Cir. 1970).

Finally, appellant claims that even if the eye-witnesses’ testimony was admissible, the District Judge should have cautioned the jury about the dangers of misidentification and instructed the jury about how to weigh that evidence. We agree with these propositions, but on review of Judge Green’s careful 30-page instruction, we are compelled to conclude that this is what he did. Perhaps in devising a model instruction on eye-witness identification some additional cautionary language might be added. See Model Instructions in United States v. Zeiler, 470 F.2d 717, 720 n. 4 (3rd Cir. 1972); United States v. Telfaire, 152 U.S.App.D.C. 146, 469 F.2d 552, 558-559 (1972). But if so, appellant has a duty to assist the court in providing appropriate requested instruction and a review of those submitted leads us to agree with the District Court’s refusal to give them on the grounds that they were essentially arguments of appellant’s case.

The judgment of the District Court is affirmed.

      . Lipcliek’s testimony included tlie following:
      “Q Calling your attention to the later part of August of 1972, did the defendant, O’Neal, say anything unusual about what might be happening in the future? A I-Ie said he would be coming—
      MR. WILLIS: Objection.
      THE WITNESS : Pardon me?
      A He said he would be coming into — •
      THE COURT: I will overrule the objection.
      Q Yes?
      A He said he would be coming into some money.
      S¡! •!• 'll
      Q Did he mention anything about amount?
      A Yes. $400,000.
      :¡s * * * *
      Q During this conversation where he said he would be coming into this $400,000, did he mention anything else?
      A He said he would be working with a few people and he said he would be coming into the money rather quickly.
      Q Now, lie said ‘a few people.’
      Did he say anything more relative to these people?
      A Oh, he said not to remember the names or any faces that I saw, you know, around the apartment and the people he was talking to.
      Q And did you see people at the apartment?
      A Well, people came and went. Yes, I did.
      Q And what were the race of these people?
      A White.
      Q Now, when he said not to- remember these people, did he say anything else? A Yes. He said if I remembered them— he said not to remember anything I saw or I might end up in the lake.”

      . Appellant also contends that the court order these funds returned to appellant. We agree with the District Judge that this issue should be determined in another proceeding than this criminal trial.


author: WISDOM, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Billy Lafayette BURKE, Defendant-Appellant.
    No. 73-3581
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 21, 1974.

      R. Thomas Jarrard, Gainesville, Ga. (Court-appointed), for defendant-appellant.
    John W. Stokes, U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
    Before WISDOM, GOLDBERG and GEE, Circuit Judges.

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

   WISDOM, Circuit Judge:

Billy Lafayette Burke appeals from his conviction for unlawfully carrying on the business of a distiller without giving bond, a violation of Title 26, United States Code, Sections 5601(a)(4) and 5173(a). He (1) challenges the sufficiency of the evidence to support the verdict, (2) alleges that an in-court identification of him as the lessee of the house where an illegal still was located was inadmissible because it was the product of an improper photographic identification, and (3) urges that because of a colloquy among a juror, the court reporter, and a government witness, his motion for a mistrial should have been granted. These grounds are without, merit. We affirm.

On December 19, 1972, agents of the Alcohol, Tobacco, and Firearms Division of the United States Treasury Department and Georgia Revenue Department agents began surveillance of a six-room house on the property of Thomas London in White County, Georgia. London had rented the house in November to Burke who had used the fictitious name “Larry Justice”. The agents undertook the surveillance on information that there was a non-registered distillery on the premises. The agents observed the defendant working on a water line running between a near-by creek and the house and, later, carrying firewood and large butane gas bottles into the house. When it grew darker that day, the agents moved closer to the house and were able to see enough to conclude that the distillery was being operated that night. They smelled the odor of cooking mash and heard the sound of a boiler being run. No one left the house until, apparently, the liquor run was completed in the early morning hours.

The agents kept the house under periodic surveillance for the next seven days. Probably because of cold weather, there was no further activity until December 27th. On that day the agents saw an unknown person unloading what appeared to be plastic jugs from a car parked near the house. After obtaining a search warrant, the agents conducted a raid on the house the following evening. They arrested Douglas Davis, Burke’s codefendant. Burke was arrested when he and another individual, who escaped, arrived at the house several hours later. Inside the house the agents discovered a large distillery, fueled by butane gas, as well as plastic jugs containing 801 gallons of whiskey on which no tax had been paid.

After an initial mistrial, Burke was convicted by a jury upon his plea of not guilty, and was sentenced to two years imprisonment.

I.

In evaluating Burke’s assertion that the evidence was insufficient to sustain the verdict, the evidence must be viewed in the light most favorable to the Government. If, so viewed, there is substantial evidence to support the verdict, it must be affirmed. Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, 704.

Four agents testified that they observed Burke working in and about the house where the still was discovered, on a day when a “run” of illegal whiskey was made. London identified Burke as the person to whom he had rented the house in which the illegal distillery was discovered. The defendant was apprehended at the house, getting out of an automobile that had been observed at the scene several times by the agents conducting the surveillance of the suspected distillery. Although the defendant offered an alibi defense, the jury was entitled to disbelieve it and to accept the testimony of the Government’s witnesses. Considering these circumstances and the record as a whole, the evidence adduced in support of the Government’s case was clearly sufficient to sustain the conviction. See United States v. Hendrix, 5 Cir. 1973, 487 F.2d 893 (per curiam).

II.

Burke challenges the method of pretrial identification by which London identified him from photographs in the possession of the investigating agents. He contends that the method was unnecessarily suggestive, in that each of four photographs shown to London contained two pictures of the individual depicted, whereas the photograph of Burke had him depicted but a single time.

The standard by which such challenges must be judged is outlined in Simmons v. United States, 1968, 390 U. S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253:

[W]e hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

We have examined the photographs in question.’ We cannot agree that the single depiction of the appellant, when his picture is viewed with the other photographs, is impermissibly suggestive to such an extent as to give rise to any likelihood of misidentification. First, London had two opportunities to see Burke before he was shown the photographs, once for a period long enough to conclude a rental agreement for the house in which the illegal distillery was discovered. This, of course, reduced the impact of the photographs on London’s in-court identification. Moreover, all of the other photographs depict individuals who appear to be about the same age as the appellant, and at least two are of the same general body type. Thus the appellant’s picture did not “stand out” so as to prompt London’s selection of Burke as the person to whom the house had been rented. We consider that the in-court idenification of Burke by London was not the product of an improper pretrial photographic identification, and that the identification was properly admitted under Simmons. See United States v. Kimbrough, 5 Cir. 1973, 481 F.2d 421, 425; United States v. Cooper, 5 Cir. 1973, 472 F.2d 64, 66; 18 U.S.C. § 3502.

III.

Finally, Burke urges that reversal of his conviction is required due to the denial of his motion for a mistrial based on an off-the-record conversation by Agent Joe Walker, the Government’s chief witness, the court reporter, and at least one of the jurors. It occurred during a ten-minute recess. So far as the conversation, which was not recorded, could be reconstructed, a juror initiated it with a comment about getting something to drink, and the court reporter rejoined that she had something to drink, and that it was water. The juror apparently commented that he wasn’t sure that the liquid in the court reporter’s cup was water, that it might be “evidence”. At this point, Agent Walker, who was still on the witness stand, observed that if the substance in the cup was “evidence”, the court reporter would not be able to operate her stenotype machine. Apparently this comment was made in a fairly audible voice, since the jurors and spectators were all laughing about it when the defense attorney reentered the courtroom.

The standards governing allegations of improper extrajudicial conduct by jurors in criminal cases are outlined by the Supreme Court in Remmer v. United States, 1954, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654, 656:

In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the jury was harmless to the defendant. [citations omitted].

The inquiry here, then, might be made on two grounds; first, whether the challenged interchange was “about the matter pending before the jury” and second, whether the defendant was prejudiced by the discussion. The grant or denial of a motion for mistrial on the ground of a prejudicial interchange is, of course, addressed to the discretion of the trial judge, to be exercised in accord with the principles outlined above. Only if we are convinced that his discretion has been abused, may we reverse the trial judge’s denial of the mistrial motion. Tillman v. United States, 5 Cir. 1969, 406 F.2d 930, 937, vacated on other grounds, 395 U.S. 830, 89 S.Ct. 2143, 23 L.Ed.2d 742.

There was no abuse of discretion here, however, since it is apparent that the challenged colloquy was not prejudicial to Burke. Indeed, having read the reconstruction of the incident as related under oath by Agent Walker, it is not clear that the brief conversation was even “about the matter pending before the jury”. Extrajudicial conduct cases in this circuit have typically dealt with communications pertinent to the disposition of an ultimate issue in the controversy, that is, to the jury’s consideration of the guilt or innocence of the defendant. See, e. g., Tillman v. United States, supra; Morgan v. United States, 5 Cir. 1968, 399 F.2d 93, cert. denied, 1969, 393 U.S. 1025, 89 S.Ct. 635, 21 L.Ed.2d 568. Here, the only possibly relevant remarks would be those suggesting that whatever was in the court reporter’s cup was “evidence”, and hence intoxicating. Yet there was no issue as to the amount or character of the non-tax whiskey seized. The defendant did not contest the Government’s assertion that the 801 gallons of liquid seized was’ whiskey. He relied on an alibi as a defense. Neither the liquor seized nor any of the apparatus used to produce it was introduced in evidence by either side. This jesting interlude could not have influenced the determination of any issue actually in controversy.

The appellant, however, rests his argument on a slightly different ground: that the exchange among witness, court reporter, and juror, which resulted in widespread laughter among the jurors and the courtroom spectators, established a spirit of camaraderie between the witness and the jury, thereby compromising the jury’s impartiality. After having examined the record and the trial judge’s curative instruction, we are convinced that, in this instance, the brief exchange did not prejudice the rights of the defendant or compromise the jury. This is not to say that we approve of the conduct of Agent Walker here. Law enforcement personnel and the United States Attorney should avoid the appearance as well as the fact of possible improper conduct. We merely conclude that in this case the trial court did not abuse its discretion in determining that the incident described above did not prejudice the trial of the defendant.

The judgment is

Affirmed.

      . Exact reconstruction of the conversation is difficult, since the trial judge was out of the courtroom when the incident occurred. On motion by defense counsel, however, he conducted a void dire inquiry into the incident as soon as he learned of it:
      MR. REA: May it please the Court, we have a motion to make outside of the hearing of the jury.
      THE COURT: All right, 1 will have to ask you to step out in the hall while I hear this motion.
      All right, sir.
      MR. REA: May it please the Court, we at this point move for a mistrial on the ground that when we returned to the courtroom a few minutes ago that Agent Walker and others were having a discussion with the jury and laughing and talking and we feel this was prejudicial.
      THE COURT: With this jury, is that correct?
      MR. STOKES: Conversation with the
      jury?
      THE COURT: After what happened in this case before, how anybody could do that. If the defendant wants to go back to the state jail—
      MR. REA: We move — would Your Hon- or hear the matter as to what happened?
      THE COURT: Well, I have instructed everybody not to talk to the jury and the jury not to talk to them. Now, this happened the last time we tried this case, and that is the reason I sent them upstairs instead of out in the hall. What did happen? I don’t care what the conversation was.
      MR. STOKES: My observation from what I saw, I will have to say I came in here and sat down and Mr. Walker was standing here and the Court Reporter had a cup of water and there was some conversation between the reporter and the jurors, one of them had asked her what she was drinking and something was said about it’s a white liquid. I didn’t hear what was in the cup.
      Then a statement was made about, as I recall it, there was the conversation between the Court Reporter and the jurors that there was one trial in which some evidence went out and somebody thought it all didn’t come back — joking about that.
      THE COURT: Well, what about the Government’s witness?
      MR. STOKES : He wasn’t talking to the jurors, he was talking to her, and said if there was anything in that cup but water she wouldn’t be able to transcribe the testimony, or something like that, and I didn’t understand — it was a conversation between her and the jurors, he just got in on the tailend of it.
      THE COURT: Well, Mr. Walker is under oath. You tell me what happened.
      MR. WALKER: One of the jurors said something about getting something to drink. The Court Reporter said well, she took a drink but it was water, and then the juror said that he wasn’t sure, that it

        might be evidence, and I said well, slie would’t be able to operate that machine if it was evidence.
      THE COURT: Anything else occur?
      MR. STOKES: Nothing that I know of.
      THE COURT: Do you know of anything else?
      MR. REA: The only thing I know, the juror was laughing and the witness was laughing and everyone in the courtroom was laughing when we returned.

      . The court immediately instructed :
      THE COURT: Bring the jury back.
      Ladies and gentlemen, apparently when you returned to the courtroom before the Court came back in there was some remark made about about what the Court Reporter was drinking. I want to instruct you that whatever was said you will disregard, it has nothing to do with this case, and do not let it affect your verdict in any way, either prejudice you for against [sic] the defendant on trial.
      Now, I have given you instructions not to talk to anybody involved in the case, so even if they try to talk to you, until such time as a verdict is made, just turn around and walk off wherever you are.
      Do you understand that whatever happened is not to influence you in any way in your making a verdict in the case, everybody understand that?
      With those instructions, the motion is denied.


author: LEVIN H. CAMPBELL, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Felix Davila WILLIAMS, Defendant, Appellant.
    No. 73-1006.
    United States Court of Appeals, First Circuit.
    Submitted Feb. 6, 1974.
    Decided May 2, 1974.

      Nicolas Nogueras, Jr., San Juan, P. R., on brief for appellants.
    Jorge Rios Torres, Asst. U. S. Atty., with whom Julio Morales Sanchez, U. S. Atty., and Jose A. Anglada, Asst. U. S. Atty., were on brief, for appellee.
    Before COFFIN, Chief Judge, and McENTEE and CAMPBELL, Circuit Judges.
   LEVIN H. CAMPBELL, Circuit Judge.

After a jury trial Davila Williams was convicted on three counts of distributing, and possessing with intent to distribute, heroin and cocaine. 21 U.S.C. § 841(a)(1). The government’s principal witnesses were three undercover agents who testified that Davila Williams sold heroin to one of them on November 7, 1971, and cocaine to another on November 21. Each of the sales was witnessed by the other agents. The gift of a sample of cocaine to one of the agents on November 7 was the third offense.

The agents stated that on both dates Osvaldo ¡Santiago, a paid informer arrested previously by one of the agents, had tipped them off to Davila Williams’ interest in dealing, and that he was present at the transactions. Another informer, Ruben Rodriguez Tirez, was said to have been present at some of the events on November 7. The government never called either informer, although just before the jury was empanelled it provided Davila Williams with their names and last reported addresses.

We discuss below the alleged errors assigned by appellant. None of them warrants reversal.

The Absent Informants

Davila Williams urges that the failure of the government to provide him with the identities of the informers “within reasonable time and promptly before trial date” denied him due process of law. He supports his argument by reference to a document dated April 11, 1972, entitled “Omnibus Hearing Report”, negotiated by an Assistant U. S. Attorney and defense counsel. The District of Puerto Rico was experimenting with the omnibus pretrial procedure. The parties were to discuss the case, complete the lengthy questionnaire and present it to the magistrate for approval. Compliance was not full: many questions on the form went unanswered, some were answered inappropriately, and the form was never presented to the magistrate. The questionnaire, in the section “Motions Requiring Separate Hearing”, requires “The Government to state (1) There (was) (was not) an informer . . . involved.” Neither parenthesis was checked. Instead, “informer” was underlined and next to the sentence was typed:

“INFORMATION NOT AVAILABLE AT THIS TIME.”

Davila Williams argues that this response, when read in the context of a general proviso that all requests for discovery “ordered above” are continuing ones, and that all such information coming to the attention of either party shall be made available promptly to the opposing side, committed the government to inform him well in advance of trial of the informers’ identity and whereabouts. We cannot go so far. ***Nowhere in the form did the government agree to supply that information, and the information was never “ordered”, as might have been the case had the parties appeared before the magistrate. The notation “INFORMATION NOT AVAILABLE AT THIS TIME” is unrevealing. While we do not condone the government’s foot-dragging, the defense had no reason to conclude that the incomplete form, which it signed, imposed a self-enforcing duty upon the government. Nearly seven months elapsed between April and the trial, during which time the defense did not seek the assistance of magistrate or court either in carrying through with the omnibus procedure or in learning more about informers. We do not think the inconclusive efforts in April materially affected the rights of the parties at trial.

Nor can we say that the government in these circumstances had a duty to volunteer before trial the names and whereabouts of informers, see Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L.Ed.2d 639 (1956). Cf. United States v. Richter, 488 F.2d 170 (9th Cir. 1973). When the informers’ names and addresses were furnished, defense counsel moved for a continuance and, in the alternative, argued that the government should produce the informers. The court denied a continuance, pointing out that it was Wednesday, that the’ trial would carry over beyond a forthcoming three day weekend, and that there would be ample time for defendant to interview the two witnesses, both of whom resided in Puerto Rico. In fact, the presentation of evidence continued into the middle of the next week, with arguments and charge on the Thursday following. Under the facts, the district court did not abuse its discretion in denying a continuance; and, given its reasonable expectation that the defense would have access to the witnesses, there was no reason then to explore the alternative suggestion that the government be ordered to produce them.

The trial then proceeded; in its course one of the agents mentioned on cross examination that he had last seen Osvaldo Santiago on January 4, 1972, and did not personally know where he could now be located. Another agent testified that he did not know whether the informers were at their former addresses, and that the names of informers had been held back even from the United States Attorney (apparently confirming an earlier statement by the prosecution that it had first known of the informers only by numbers). The defense formally rested on Wednesday, October 11 (a week after the informers’ names and addresses had been provided) without having made any mention of its efforts to locate and interview the informers. It did not tell the court that it had failed to locate them, did not request the government to find or produce them, and did not indicate any further desire to interview or call them.

After closing arguments on the day following, the subject of the informers again arose, this time in connection with defendants’ request, which was denied, for a missing witness instruction. The government argued that it had provided the names and addresses and that the fact it did not use the evidence “does not mean that we are withholding it and that it is adverse.” To this defense counsel replied,

“Your Honor, number one those names and addresses were given at our request at the beginning of trial. Counsel checked out, I could not find any of the two persons that correspond to that name at those addresses but irrespective of that, number one, we believe that it was a tardy production of the names and addresses of these witnesses but in any event, these instructions goes [sic] to the fact that not calling witnesses to these transactions, not calling the informers that was certainly a most active part of this transaction, not calling them to testify by the District Attorney produces the inference and presumption that your Honor has heard and we request to be instructed to the jury.”

The foregoing events, and their sequence, are relevant not only to the missing witness instruction (discussed below) but also to whether the government may have acquired a duty to help locate the absent informers after the defense could not find them. Though not explicitly raised on appeal, the latter question naturally arises, since the government’s duty under Roviaro to produce names and addresses requires it to produce correct information or at least to have exercised diligence reasonable under the circumstances to locate the informer. It would be serious misconduct for the government intentionally to withhold or to falsify the Roviaro information. How far it must go to keep track of, or search for, an informer is less easily stated; that depends on many factors including the extent of the government’s control over the witness, the importance of the witness’ testimony, the difficulty of finding him, and similar matters. We do not accept a flat rule requiring production of all informer witnesses whenever the government has not disclosed their names before trial. Compare United States v. Jones, 492 F. 2d 239 (3d Cir. 1974) with United States v. Picard, 464 F.2d 215 (1st Cir. 1972). But should an informer disappear or become unavailable to the defense, we would compel the government, upon timely demand, either to locate him or make an affirmative showing satisfactory to the court why it could not reasonably be expected to do so and of its diligence generally as regards the disappearance.

In this case, however, we need not decide what more the government would have been required to do after the defense was unable to find the informers at the given addresses. The defense did not report its lack of success to the court until after it rested and even then did not ask for aid nor press to interview or call the informers. And although the three agents had been in court, the defense did not ask to question them outside the presence of the jury either to elicit further leads or to show the government’s bad faith or lack of diligence. The ease is on all fours with the Second Circuit’s recent decision in United States v. Super, 492 F.2d 319 (1974) where the defense

“did not seek to establish that the Government had failed to use reasonable diligence in its search for Lombardi. It did not seek to question the Government out of the presence of the jury in an effort to determine what search had been made or what search might be productive if a continuance were granted.”

Indeed, counsel’s report, when it came, of his own unsuccessful search was notably laconic. Given the vigor and sophistication of the defense in other respects, it is reasonable to conclude that strategic considerations played a role in the decision not to press for the informers’ presence. The defense undertook to show that the agents were confused and possibly mistaken as to Davila Williams’ identity. If anyone knew him, the informer Osvaldo Santiago plainly did. This circumstance made the latter potentially dangerous to the defendant depending, of course, on what he would say; the defense appears to have decided to use the informers’ absence as the groundwork for demanding a favorable instruction without making further' demands upon the government actually to bring in the witnesses. We therefore find no error in the failure of the government to do more than it did to locate or produce the informers nor, on this record, can we say that it was not diligent.

Finally, we find no error in the omission from the charge of a missing witness, instruction. The court was entitled to find the witness equally unavailable to both sides. Billeci v. United States, 87 U.S.App.D.C. 274, 184 F.2d 394, 398 (1950). The government’s position was that it had given all it knew about the witnesses’ whereabouts to the defense. As the Second Circuit said in Super, supra at 322:

“Informants in drug cases are not Brahmins, nor are they noted for long-term occupancy of well-tended premises. Their disappearance, voluntary or otherwise, is not extraordinary. The fact that a police officer knew that Lombardi was an habitué of Suffolk County bars or that he might be in Florida is hardly indicative that the Government in fact could find him. In any event, as we have stated, defendants’ trial counsel did not show any real interest in finding him. ...”

Two of the government agents when asked professed not to know where the informants now were. There is nothing in the record to show that the latter were under government control or influence at the time of trial. Cf. United States v. Prada, 451 F.2d 1319 (2d Cir. 1971). See generally J. Wigmore, Evidence §§ 285, 1405 (3d ed. 1940); C. McCormick, Evidence § 272 (2d ed. 1972).

Prejudicial Publicity

Several days into the trial defense counsel moved for a mistrial because of allegedly prejudicial newspaper articles reporting an acrimonious exchange on the first day between defense and government counsel concerning the Omnibus Report and the government’s duty, or lack thereof, to reveal the informers’ names before trial. The court promptly examined the jurors in the presence of counsel. Seven admitted familiarity with the articles. Six of these, upon further questioning by the court, indicated that they had no doubts about their own continuing impartiality. A seventh said that he did, apparently from having learned, either from the article or elsewhere, that Davila Williams’ co-defendant was in jail. The juror was excused, after stating that he had not discussed his doubts with the others. He was replaced with an alternate. The court admonished the jury at length of its duty to disregard what it had read. From what we can discern, the articles focussed not on the defendant but on counsels’ arguments concerning their own dealings. It seems improbable that what was said could have so undermined the jury’s faith in defense counsel as to prejudice the defendant. The district court was correct in its handling of the matter and, in light of the jurors’ responses and its own vigorous instructions, did not err in proceeding with the trial.

Prosecutor’s Closing Remarks

On the day of closing argument defense counsel arrived seventy-five minutes late. After both counsel had without incident completed their summations the prosecution attempted to rebut defense counsel’s argument that there had been agents’ errors concerning defendant’s alleged names and aliases. The Assistant U. S. Attorney argued that everyone errs, and highlighted defense counsel’s lateness as an example of such error. Later, in the same vein, the prosecutor argued that a particular agent did not know that Davila Williams was called “Tamango” because agents did not know the names of “characters of the underworld, which [sic] you have is a bunch of rats with a bunch of names.” Both statements were met with prompt and vigorous objections. The court instructed the jury forcefully in both instances to disregard the remarks, and, as to the latter one, reprimanded the prosecutor. Because of the court’s alert and appropriate instructions we find no prejudice.

The remarks were nevertheless utterly unacceptable, for reasons stated elsewhere at wearisome length. United States v. Cotter, 425 F.2d 450, 452 (1st Cir. 1970); Patriarca v. United States, 402 F.2d 314, 321 (1st. Cir. 1968), cert. denied 393 U.S. 1022, 89 S.Ct. 633, 21 L.Ed.2d 567 (1969); Greenberg v. United States, 280 F.2d 472 (1st Cir. 1960). As Judge (now Chief Justice) Burger has said, such remarks are inconsistent with “the dignity of the government” and cannot be permitted. Taylor v. United States, 134 U.S.App.D.C. 188, 413 F.2d 1095, 1096 (1969). We are very likely, in the use of our supervisory power, to reverse future convictions if conduct of this sort continues.

Davila Williams’ final argument, that he was entitled to be provided with counsel during the commission of the crimes because it was a “critical stage”, is so entirely lacking in merit as to require no further comment.

Affirmed.

      . The only other eyewitness mentioned in the agents’ testimony was a co-defendant, Agustín Cruz Carrasquillo. By the time of Davila Williams’ trial Cruz Carrasquillo had pleaded guilty to charges stemming from events on November 7, 1971, but had not yet been sentenced. He was not called.

      . The space provided for the magistrate’s signature is blank, and there is no indication in the record 'that he took any part in the negotiations.

      . In response to the next question the government indicated that it would not call the informer as a witness at trial. Questions requesting the government to choose between supplying the informer’s identity and claiming “privilege of nondisclosure” were left blank. The next line reading “Hearing on privilege set for-” was not filled in. In response to another query the government indicated that it was unwilling to disclose in advance the names of witnesses.

      . Defense counsel sought to demonstrate that the parties understood that the government had agreed to provide the information in advance of trial. However, an Assistant IT. S. Attorney denied that any such understanding was reached, and testified that he informed an associate defense counsel that a separate and specific request would be required to obtain the information. The upshot of the matter, is, in our minds, inconclusive.

      . Had a motion been made, and even in its absence, it would ordinarily be better practice to provide before trial any information or assistance required by Roviaro. If names and addresses are furnished at the last minute, the defense may be entitled to a continuance to locate and interview the informers if the government does not produce them. The government — and the district court when ruling upon a pretrial motion— should weigh any special circumstances, such as the informers’ safety, against the disruption of the trial and prejudice to the defendants from withholding names and whereabouts until the eve of trial.

      . The requested instruction was:
      “a) ‘There is a recognized legal presumption that a party will produce evidence which is favorable to him if such evidence exist [sic] and is available. And the mere withholding or failing to produce material evidence which is available and would, in the circumstances of the case, be expected to be produced, gives rise to a natural inference that such evidence is held back because it would be unfavorable or adverse to a party withholding it’.
      b) If a witness peculiarly available to one side or the other in criminal prosecution is not produced, jury can infer that his testimony would be unfavorable to party that failed to call witness, unless absence of witness is sufficiently accounted for or explained.”

      . This is at least the second case coming to our attention within a year involving conduct of this nature by the same member of the United States Attorney’s staff. “It is counsel’s responsibility to know the ground rules and follow them.” Gibson v. United States, 403 F.2d 569, 570 n. 1 (D.C.Cir. 1968) (Burger, J.) Cf. DeChristoforo v. Donnelly, 473 F.2d 1236, 1238 n. 3 (1st Cir.), rev’d on other grounds, - U.S. -, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974).