author: LEVIN H. CAMPBELL, Circuit Judge.

text:
    The FIRST BANK AND TRUST COMPANY, Plaintiff-Appellant, v. James E. SMITH, Comptroller, etc., et al., Defendants-Appellees.
    No. 74-1263.
    United States Court of Appeals, First Circuit.
    Heard Nov. 4, 1974.
    Decided Jan. 3, 1975.

      Michael T. Putziger, Boston, Mass., with whom Roche, Carens & DiGiacomo, Boston, Mass., was on brief for appellants.
    William A. Waldron, Boston, Mass., with whom Alan L. Lefkowitz, Paul E. Clifford, and Gaston, Snow & Ely Bartlett, Boston, Mass., were on brief for Middlesex Bank, N.A., appellee.
    Morton Hollander, Atty., Dept, of Justice, with whom Carl A. Hills, Asst. Atty. Gen., James N. Gabriel, U. S. Atty., and Leonard Schaitman, Atty., Dept, of Justice, were on brief for James E. Smith, Comptroller of the Currency of the United States, appellee.
    Before COFFIN, Chief Judge, ALD-RICH and CAMPBELL, Circuit Judges.
   LEVIN H. CAMPBELL, Circuit Judge.

This appeal requires us to review a decision by the Acting Comptroller of the Currency of the United States approving an application for permission to establish a branch bank in Chelmsford, Massachusetts. The district court, on the basis of the administrative record and an affidavit supplied by the applicant, granted summary judgment for the defendant Comptroller. Fed.R.Civ.P. 56(b). We vacate and remand for further proceedings.

Defendant-Appellee, Middlesex Bank, N.A., is a national bank operating under the provisions of 12 U.S.C. § 12 et seq. It maintains 28 branch offices in Middle-sex County. Plaintiff-Appellant, The First Bank and Trust Company (First Bank) is a Massachusetts Trust Company operating as a commercial bank under M.G.L. c. 172. It has its principal office in Chelmsford, Massachusetts, and four branch offices in surrounding towns.

On December 6, 1972, Middlesex Bank filed an application with the Regional Administrator of National Banks for the First Bank Region requesting permission from the Comptroller of the Currency to establish a branch office in the Purity Supreme Shopping Center in Chelmsford, Massachusetts. Pursuant to 12 C.F.R. § 5.2(b) Middlesex Bank published legal notice of its application, and First Bank requested that a hearing on the application be held in accordance with 12 C.F.R. §§ 5.4-5.10.

Acting by designation of the Comptroller, the Regional Administrator held a public hearing, having first requested an investigation into the facts by a National Bank Examiner who rendered a written report. At the hearing Middle-sex Bank presented evidence to support its application, First Bank presented opposing evidence, and several other local banks appeared in opposition. The Regional Administrator, without comment, then transmitted the file established pursuant to 12 C.F.R. § 5.3, including a transcript of the hearing, to the Comptroller who, after various levels of staff review, approved the application without stating his reasons. First Bank thereupon brought this action in the district court, 28 U.S.C. § 1331(a), challenging the Comptroller’s action as violative of his statutory duty and authority and seeking declaratory and injunctive relief.

Appellant argues that the Comptroller failed to take into account a statutory requirement that he approve new branches for national banks only “if such establishment and operation are at the time authorized to State banks by the statute law of the State in question” and “subject to the restrictions as to location imposed by the law of the State on State banks.” The statute has been held to incorporate by reference state laws governing the establishment of branch banks, First National Bank v. Walker Bank & Trust Co., 385 U.S. 252, 87 S.Ct. 492, 17 L.Ed.2d 343 (1966). Its purpose is to ensure “competitive equality” so that national banks may not overwhelm and displace a state’s own banks. By requiring national banks to adhere to the same restrictions on branching, Congress intended to prevent them from enjoying an unfair advantage over state banks. Walker Bank, supra; First National Bank v. Dickinson, 396 U.S. 122, 90 S.Ct. 337, 24 L.Ed.2d 312 (1969). In passing on each branch application, the Comptroller “is to weigh [it] against the standard imposed by the statute law of the state, and to deny the application if that standard is not met.” First National Bank of Fairbanks v. Camp, 151 U.S. App.D.C. 1, 465 F.2d 586, 597 (1972), cert. denied, 409 U.S. 1124, 93 S.Ct. 936, 35 L. Ed.2d 255 (1973). The statute law of Massachusetts provides that state banks may establish branch offices only if the Board of Bank Incorporation, a state agency, finds that a city’s or town’s present banking facilities are “inadequate for the public convenience.” M. G.L. c. 172, § 11. It is this standard, incorporated by reference in the federal legislation, which appellant contends was ignored.

Our review of the Comptroller’s action is under the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq. Neither the National Bank Act nor the APA requires the Comptroller, before approving a branch application, to hold a hearing on the record or to make formal findings. Cf. Camp v. Pitts, 411 U.S. 138, 140-142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1972). Thus, the appropriate measure is simply whether the Comptroller’s decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The district court so recognized, stating correctly that the Comptroller was under no duty to make findings of fact, and that review was to be based on the full record before the Comptroller when he made his decision. In affirming the Comptroller’s approval, the court said,

“There may exist some confusion as to the reasoning process employed by the Comptroller in reaching his decision, but there is sufficient explanation in the administrative record ... to obviate the need for further explanation . . . .”

We agree that there would be enough support in the record concerning possible inadequacy and inaccessibility of present banking facilities in Chelmsford to provide a rational basis for the Comptroller’s approval. But the record leaves us in doubt whether the Comptroller took Massachusetts’ statutory standard into account. Under 5 U.S.C. § 706(2)(A), a reviewing court must be satisfied that the Comptroller’s decision was “in accordance with law.” While a decision favorable to Middlesex Bank would not be arbitrary or capricious on this record, neither would one turning down its request for a new branch. It thus becomes crucial to determine whether the relevant legal standard was applied.

At the hearing the applicant bank and its opponent made reference to the Massachusetts statutory standard, but the Comptroller’s subordinates later made no reference to it in the written recommendations and reports which formed the basis of the Comptroller’s action. More troublesome, it is by no means clear from the tenor of their official remarks that the materiality of the state standard was understood. Indeed, portions of certain reports suggest the contrary. For example, in response to a question in a U.S. Treasury form whether under the state’s branch banking laws the applicant could legally establish a bank, federal banking officials simply answered “Yes”. Given the fact that virtually all of the hearing had been devoted to whether or not applicant could qualify under state law, this response is so meager as to suggest that respondents did not grasp the nature of the legal claim. Both sides call to our attention portions of reports indicating either that there were already too many banks in Chelmsford or, contra, that there was room for appellee. But the point is not whether there is support in the record for the Comptroller’s decision — we believe there would be, assuming he applied the correct legal standard. The point is whether or not the Comptroller reviewed the facts in light of the Massachusetts statute law. Under 12 U.S.C. § 36(c)(2), the Comptroller had a duty to focus on the controlling state statute; and the contesting banks were entitled to have the application measured against this legal standard. Otherwise their arguments in opposition were an exercise in futility from the start.

We do not hold the Comptroller to any particular form of record; a conclusory statement or even a subordinate’s report directed to the relevant standard might have satisfied us that the appropriate legal standard had been recognized and applied. But here there is not only an absence of affirmative recognition of Massachusetts law, there are indications on the face of the record that those with the responsibility for guiding the Comptroller may not have considered it at all. We think the present record to be so deficient as to “frustrate effective judicial review.” Camp v. Pitts, supra, 411 U.S. at 142-143, 93 S.Ct. 1241. Until the Comptroller makes it clear whether or not the applicable state standard was taken into account in rendering his decision, it cannot be determined that his approval was “in accordance with law.”

It can be argued, of course, that since the Comptroller can validate his decision by a piece of paper, remand is time consuming ritualism. And it is true that the Comptroller’s good faith representation of compliance will effectively end judicial review. But were we to affirm on the present record, we would abdicate a judicial responsibility; and we will not assume that a senior administrative official such as the Comptroller will take the easy course of certifying that he .considered the state standard if such were not the case. Moreover, we assume that to avoid this problem in future cases, administrative action will be taken to ensure that the requisite consideration of state statute law can be determined from the record.

We vacate and remand for the district court to determine from the Comptroller, following the limited procedures outlined in Camp v. Pitts, supra, 411 U.S. at 142-143, 93 S.Ct. 1241, whether or not the Comptroller took into account the relevant state legal standard. If such was the case, his approval of the application should be sustained. If it should appear that this standard was not taken into account, the district court shall conduct such further proceedings and enter such orders as it deems appropriate.

Remanded for proceedings in accordance herewith.

      . 12 U.S.C. § 36(c)(2) provides that
      “[a] national banking association may, with the approval of the Comptroller of the Currency, establish and operate new branches: ... at any point within the State in which said association is situated, if such establishment and operation are at the time authorized to State banks by the statute law of the State in question by language specifically granting such authority affirmatively and not merely by implication or recognition, and subject to the restrictions as to location imposed by the law of the State on State banks.”

      . We find no merit in the argument that the Comptroller is bound by earlier decisions of the Massachusetts Board of Bank Incorporation refusing to permit a state bank to operate a branch in Chelmsford. The Comptroller is not bound by a state agency’s interpretation of the state’s statutes. First National Bank of Southaven v. Camp, 471 F.2d 1322, 1325-1326 (5th Cir. 1973); Union Savings Bank v. Saxon, 118 U.S.App.D.C. 296, 335 F.2d 718, 723 (1964).
      We note further that the Massachusetts courts have held that state agency decisions concerning “inadequacy” are “political questions” and non-reviewable. First National Bank v. Board of Bank Incorporation, 280 N.E.2d 400 (Mass.1972); Natick Trust Co. v. Board of Bank Incorporation, 337 Mass. 615, 151 N.E.2d 70 (1958).

      . Cf. Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974).


source: Caselaw Access Project

author: FEINBERG, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Peter OTTLEY, Defendant-Appellant.
    No. 185, Docket 74-1731.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 11, 1974.
    Decided Jan. 7, 1975.

      Joel N. Rosenthal, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S. D. N. Y., Lawrence S. Feld, Asst. U. S. Atty., on the brief), for appellee.
    Seymour M. Waldman, New York City (Waldman & Waldman, Louis Waldman, New York City, on the brief), for defendant-appellant.
    Before FRIENDLY, FEINBERG and GURFEIN, Circuit Judges.
   FEINBERG, Circuit Judge:

Union president Peter Ottley appeals from a judgment of conviction on three counts of a 46-count indictment charging him with violations of the Labor Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. § 401 et seq., and the Welfare and Pension Plan Disclosure Act, 29 U.S.C. § 301 et seq. Ottley was tried before a jury and Judge Marvin E. Frankel in the United States District Court for the Southern District of New York and sentenced to three months imprisonment and a $15,000 fine on the three counts. Of the 46 counts in the indictment, two were dismissed on the Government’s motion prior to trial and 21 were dismissed at the close of the Government’s case; the jury acquitted Ottley of all but three of the remaining 23 counts, including all the embezzlement charges where Ottley was indicted as a principal. Ottley was found guilty on two counts of aiding and abetting Peter Byrne, another union official, to embezzle union funds in violation of 29 U.S.C. § 501(c) by leasing and maintaining, at union expense, an automobile for the personal use of Byrne’s wife, and on one count of failure to maintain records in sufficient detail to substantiate Ottley’s claim for weekly reimbursed cash expenses, as required by 29 U.S.C. § 436. For reasons indicated below, we reverse and remand for a new trial on these three counts.

The facts

During the 1968 — 1972 period covered by the indictment, Ottley was president of Local 144, Service Employees International Union, AFL — CIO, an organization representing hotel, hospital, and nursing home employees in the greater New York City area. He was also a member of the Executive Board of the International and on the Boards of Trustees of many of the welfare and pension funds associated with the union. First elected chief executive officer of his union in 1950, Ottley had been a leading force in its growth and success.

In the same period, Peter Byrne was the secretary-treasurer of the Local and the second man in the union hierarchy after Ottley. He was indicted along with Ottley, and on the two automobile embezzlement counts in which Ottley was charged as an aider and abettor, Byrne was the principal. In January 1974, Byrne pleaded guilty to a single misdemeanor, which would not bar him from further union office, and was sentenced to six months probation and a $500 fine. The two automobile counts against Byrne were dropped. Ottley’s conviction, however, bars him both from holding union office and also, we are told, from receiving his pension of approximately $15,000 per year for life. Ottley is now 66 years of age.

The two automobile embezzlement counts involved the payment out of union funds over a four-year period of $9,067.18 to the lessor of an automobile for Byrne and $2,726.12 to Texaco Oil Company on credit card charges. Ottley testified that Byrne had asked for the car to take care of union business and that he did not know or inquire whether Byrne had a license or knew how to drive. Byrne, on the other hand, said that he had told Ottley he had no license and could not get one because of his poor eyesight. Byrne testified that the automobile was used by his wife each day to commute from their New Jersey home to her job at a Manhattan hospital and that normally he would accompany her into the City to a convenient subway station from which he would continue to union headquarters. The credit card slips for the maintenance of the automobile were generally signed by Mrs. Byrne at a service station near their home, and Ottley approved their payment by the union. Byrne testified that since he used the car to get back and forth from work he thought it served a union purpose. Ottley said that, he did not inquire how the car was being used but assumed it was used for union purposes. However, Byrne apparently took cabs, for which he was reimbursed, when he conducted union business out of the office. The Byrne automobile was but one of a number leased by the Local for use by union officials, only one of which (Ottley’s), apparently, was specifically authorized.

On the failure to maintain records counts, most of the evidence was not in dispute. Ottley and Byrne were the only two union officers authorized to receive reimbursed expenses for monies expended on union business. Each week they submitted petty cash vouchers showing the week’s expenses and were reimbursed that amount. As a rule they did not keep bills or receipts for those expenses. Ottley testified that he did not know that more detailed records were required to be kept. On this issue, the Government introduced circumstantial evidence, described later, to prove Ottley’s knowledge of his fiduciary responsibilities.

On appeal, Ottley claims that on the automobile embezzlement counts the judge’s charge to the jury was incorrect and that there was insufficient evidence to convict. On the failure to maintain records count, Ottley argues, inter alia, that there was insufficient evidence to establish a knowing and wilful failure to comply with the statute, that the court erroneously charged the jury on these elements, that Ottley was not a “person” required to file the records, and that various evidentiary rulings were improper.

The automobile embezzlement counts

Ottley’s first contention is that the court improperly charged the jury on the automobile embezzlement counts. While the court’s charge on the 22 embezzlement counts presented to the jury was extensive, the essence of the charge under 29 U.S.C. § 501(c) was:

In the circumstances of this case and in the circumstances of all the charges of embezzlement, you will have to consider a central question of these two matters, first whether the particular expenditure you are considering was in fact duly authorized by the union under its prescribed procedures; second, whether, even if the expenditure was not authorized, the defendant believed in good faith that he had authority to make that expenditure.

Defense counsel had requested a charge that if Ottley believed that the expenditures would benefit the union or “that they had been or would be authorized” by the union, he would not be guilty of violating section 501(c). The court, however, refused to so charge.

The proper interpretation of section 501(c), which is reproduced in the margin, was considered by this court in United States v. Silverman, 430 F.2d 106 (2d Cir.), modified on other grounds, 439 F.2d 1198 (2d Cir. 1970), cert. denied, 402 U.S. 953, 91 S.Ct. 1619, 29 L.Ed.2d 123 (1971). In that case, Judge Friendly, writing for the majority, pointed out that section 501(c) is a “larceny-type” statute, paralleling many other “larceny-type” offenses in the criminal code. Citing Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), the majority said that the common thread of these statutes is

that the defendant, at some stage of the game, has taken another person’s property or caused it to be taken, knowing that the other person would not have wanted that to be done

and that, in enacting section 501(c)

Congress subjected union officers or employees to the same test of criminal liability as government employees, bank officers and the like — not to a lower one.

430 F.2d at 126-127. As in Silverman, the Government’s claim here is not that Ottley

“embezzled” or “stole” the unions’ assets in the ancient sense of those terms; the claim is that he unlawfully and willfully converted monies to the use of another. It is easy to understand how a union employee does this when he “unlawfully and willfully” uses union funds in a manner that works to the personal benefit of himself or the payee and does not benefit the union, whether or not the union went through the form of authorization; the “union” presumably would have objected if it had been able to speak freely. Such was this court’s holding in United States v. Dibrizzi, 393 F.2d 642, 645 (2nd Cir. 1968), and the First Circuit’s in Colella v. United States

430 F.2d at 127. The majority in Silver-man then went on to say that the insufficiency of evidence made it unnecessary to decide

whether a payment made in a bona fide belief that it was for a union’s benefit and that it had been authorized or would be ratified can ever be swept under 29 U.S.C. § 501(c)

Id. However, the majority characterized that proposition as “doubtful” and also cited with approval, as already indicated, Colella v. United States, 360 F.2d 792, cert. denied, 385 U.S. 829, 87 S.Ct. 65, 17 L.Ed.2d 65 (1966). In that case, the First Circuit noted with approval a charge under section 501(c) that, in effect, told the jury to acquit “if the jury felt that the defendant had spent for a union purpose, albeit unauthorized.” 360 F.2d at 798-799, 804.

The central question in a case such as this is usually whether the defendant had the requisite criminal intent. Under Silverman, we do not think that issue can be narrowed solely to whether the expenditure of union funds had been authorized or whether defendant believed that to be the case. If Ottley in good faith believed that Byrne’s automobile was being used for union business and that the union had authorized the expenditure or would ratify it, he did not violate section 501(c). Whether the expenditure did benefit the union would, of course, be relevant to Ottley’s alleged bona fide belief that it did.

In short, we believe that the judge’s charge unduly limited the jury’s consideration of criminal intent. The Government argues that Silverman is not dis-positive, first by quoting at length from Judge Moore’s dissent and then by attempting to distinguish the majority opinion. The view of the dissent, of course, does not control even when the dissenter, as in Silverman, wrote the majority opinion on the remaining counts as to which the panel agreed. The Government also claims that the majority in Silverman “did not discuss the component elements of the crime under 501(c), but assumed arguendo, that Judge Moore’s formulation was correct, and reversed for insufficient evidence.” While the last two statements are accurate, what we have already quoted shows that the first is not. The Government also cites to us the recent decision in United States v. Goad, 490 F.2d 1158, 1165 — 1166 & n. 10 (8th Cir.), cert. denied, 417 U.S. 945, 94 S.Ct. 3068, 41 L.Ed.2d 665 (1974), for the proposition that a belief in union benefit is not a defense to a section 501(c) charge. On its facts, Goad is distinguishable since it involved unauthorized and secret pay raises for union leaders, who had repeatedly refused to answer inquiries by the membership with respect to the level of their compensation. This was an unlikely situation for a credible defense of good faith belief that the expenditures benefited the union and that the membership would have ratified the increases if asked to. On the other hand, the evidence in this case indicated that many other cars were leased by the union (also without specific authorization) for the bona fide use of its business agents. This seems to us to be quite different. In any event, to the extent that there is language in Goad contrary to our holding here, we respectfully disagree.

Finally, the Government argues that the construction we adopt here will emasculate the statute and frustrate its clearly beneficent purpose. We do not agree. Clearly, a jury would be free to disbelieve a union official who, to repeat an example used by the court below, said that the unauthorized sauna he installed at union expense in the basement of his home was for the union’s benefit because it made him feel much healthier and would have been approved had he asked the union to do so. Some expenditures are so clearly personal in nature that such a claim is scarcely credible. Other expenditures — like providing an automobile for another union official — are not so clearly personal, and it is in just such a grey area that we must be careful not to “enlarge the reach of enacted crimes” by unduly narrowing the concept of criminal intent. While the test for liability of a union officer suggested by the Government may be valid in a civil suit under 29 U.S.C. §§ 501(a), (b) to recover monies spent, we do not think it proper in a criminal action.

Because the jury’s consideration of criminal intent was unduly circumscribed, we must reverse Ottley’s conviction on the two automobile counts. We do not, however, find the evidence insufficient to support a guilty verdict from a properly instructed jury. Evidence was presented by the Government from which a jury could find that Ottley knew that Byrne was unable to drive and was not using the automobile for union business. If the jury were to so find, it would be free to disbelieve the proffered evidence of good faith belief in union benefit and return a verdict of guilty. For these reasons, we remand for a new trial on the automobile embezzlement counts.

The maintenance of records count

We turn now to the appeal from the conviction for violating 29 U.S.C. § 436, on which Ottley raises a number of issues. We need discuss at length only a few because we are persuaded that the combined effect of two of the trial court’s rulings and the reversal on the automobile counts make a new trial advisable on this count as well.

Section 436 provides that:

Every person required to file any report under this subchapter shall maintain records on the matters required to be reported which will provide in sufficient detail the necessary basic information and data from which the documents filed with the Secretary may be verified, explained or clarified, and checked for accuracy and completeness, and shall include vouchers, worksheets, receipts, and applicable resolutions, and shall keep such records available for examination for a period of not less than five years after the filing of the documents based on the information which they contain.

Under 29 U.S.C. § 439(a), any person who “willfully” violates this provision is liable to a year in prison, or a fine of $10,000, or both. The district judge charged the jury that an act committed “knowingly and wilfully” is one committed with a wrongful purpose. Then the jury was told that this would be established if the defendant knew what the law required but failed to comply with it, or if he acted in reckless disregard of the law’s requirement. Finally, the judge defined reckless disregard as “closing of the eyes or deliberate indifference or refusal to be informed.” Despite Ottley’s claim to the contrary we believe that all of this was correct. United States v. Budzanoski, 462 F.2d 443, 452 (3d Cir.), cert. denied, 409 U.S. 949, 93 S.Ct. 271, 34 L.Ed.2d 220 (1972).

One aspect of this portion of the charge, however, is troublesome. Just before explaining, in the language quoted above, what “reckless disregard” meant, the district judge stated:

Knowledge and wilfulness may not be established if the failure to maintain the required records resulted from mere negligence or oversight, especially if the defendant had made reasonable efforts to know his fiduciary obligations as a union officer. [Emphasis added.]

Ottley argues that the “especially” clause completely diluted the statement that mere negligence was not enough for criminal liability and erroneously allowed the jury to believe that the failure to make reasonable efforts was enough to constitute knowledge and wilfulness. It is true, as Ottley emphasizes and the district judge recognized, that mere negligence would not constitute criminal behavior here, cf. United States v. Williams, 478 F.2d 369, 373 (4th Cir. 1973). But, according to Ottley, what the underlined words conveyed was that negligence is not enough, if the defendant made reasonable (that is, nonnegligent) efforts to know his obligations. Or — to refine the charge further — negligence is not enough, unless the defendant was negligent in failing to know his obligations. Ottley argues that this charge was incorrect and, at the very least, fatally confusing. It is true that any possible confusion created by the quoted language might have been dispelled by the next paragraph of the charge, which correctly defined reckless disregard. We are not sure that a jury would understand the quoted language to mean what Ottley suggests. But neither are we sure that it would not. Nevertheless, there was no objection to this portion of the charge, and were this the only allegation of error we would be reluctant to require a new trial on this count. As we shall see, however, another ruling of the district judge gives us pause.

One of the principal claims on appeal is that there was insufficient evidence that Ottley “wilfully” violated section 436. With due regard for the salutary purpose of the LMRDA, we conclude that a jury could properly have found that Ottley either knew of his fiduciary responsibilities in general and the record-keeping requirement in particular and ignored them, or consciously avoided learning of them. The evidence we find significant includes the following: In 1959, shortly after the enactment of the LMRDA, Ottley, as union president, signed a form which included above his signature the record-keeping requirements of the law and a statement that the signatories had read and verified all the information contained therein. He also admitted that he was aware of the general purposes of- the LMRDA and knew that it was “restrictive type” legislation. Also admitted into evidence were minutes of a union Executive Board meeting' where it was stated “Brother Ottley reported that in order to comply with our International Constitution and the Landrum-Griffin Law [LMRDA] we would have to make changes in our Constitution.” Furthermore, there was evidence that from 1959 on Ottley attended meetings where attorneys briefed the various labor leaders in attendance on their obligations under the LMRDA, and that his local regularly received material from its attorneys and the International’s attorneys regarding the new law.

We do not suggest, however, that the case against Ottley on the record-keeping count was overwhelming. It was far from that, and, under these circumstances, one of the evidentiary rulings during the trial takes on particular significance. During direct examination by his defense counsel, Ottley was asked if he had ever had a problem with the Internal Revenue Service concerning reimbursed expenses. He answered that he had been “summoned to appear” but was able to explain the expenses and had submitted a memorandum to the Service. Before the questioning went any further a side bar conference was called in response to the Government’s objections. Ottley’s attorney explained that his client had been told by the Internal Revenue Service that his record keeping was sufficient, and therefore the testimony was highly relevant to the question of Ottley’s intent to evade the record-keeping requirements of the labor law regarding the same reimbursed expenses. Nonetheless, the court excluded this line of questioning.

Normally we would not reverse a conviction on an evidentiary ruling within the discretion of the trial court, United States v. Gottlieb, 493 F.2d 987, 992 (2d Cir. 1974). We would not do so here on this point alone, but we would not have shut off this line of inquiry. Whether the information was credible or had any significance to an attorney does not bear on its admissibility. Since the chief issue before the jury on the record-keeping count was Ottley’s state of mind, exclusion of this testimony may well have affected the trial’s outcome. United States v. Matot, 146 F.2d 197 (2d Cir. 1944) (L. Hand, J.), is on point. There the trial court had refused to admit a conversation between defendant and a bank official that might have negated defendant’s intent to defraud the bank. Because defendant was entitled to such evidence, since it could logically corroborate his denial of intent to defraud, the court reversed; Judge Hand noted that “while in a clearer case” the error might be disregarded, in a close case it could not be. See also United States v. Platt, 435 F.2d 789, 793 (2d Cir. 1970). Here, too, the issue was close. Ottley’s acquittal on 20 of the 23 counts submitted to the jury and the jury deliberations over a three-day period are evidence of that. To a jury of laymen, acceptance of record keeping on reimbursed expenses by the Internal Revenue Service and a defendant’s testimony as to the effect of this incident on him may seem important. Of course, the Government would be free to try and prove that such advice was never given or that Ottley did not really rely upon it or that it was reckless of him to do so.

We are thus left on the record-keeping count with an uneasy feeling occasioned by a possibly confusing charge on the crucial question of criminal intent, a questionable evidentiary ruling affecting the same issue and the knowledge that in this long trial covering many counts, relatively little attention was given to the three counts on which Ottley was convicted, and two of those must be retried, in any event. Under the circumstances, we believe that a new trial on the record-keeping count, along with the two automobile counts, is in the interests of justice. See Benton v. Maryland, 395 U.S. 784, 797-798, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); United States v. Barash, 365 F.2d 395, 403 (2d Cir. 1966); United States v. McGee, 426 F.2d 691, 705 (2d Cir. 1970) (dissenting opinion), aff’d, 402 U.S. 479, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971).

Ottley raises a few other issues on appeal, and, to save uncertainty at any retrial, we note that we do not regard appellant’s other arguments as well-founded. Briefly, the records Ottley kept were not necessarily sufficient as a matter of law as Ottley maintains. The issue was one for the jury and the judge’s instructions about the background and purpose of the LMRDA on the point were adequate. There is no merit to the claim that 29 U.S.C. § 436 is unconstitutionally vague. See United States v. Budzanoski, supra, 462 F.2d at 452; United States v. Haggerty, 419 F.2d 1003, 1007-1008 (7th Cir. 1969), cert. denied, 397 U.S. 1064, 90 S.Ct. 1502, 25 L.Ed.2d 686 (1970).

Judgment reversed and case remanded for further proceedings consistent with this opinion.

      . The plea was to count five of the indictment, which charged Byrne with causing the union to make a loan to Ottley of $17,709 in violation of 29 U.S.C. § 503(a) ($2,000 limit on indebtedness of union official to union),

      . 29 U.S.C. § 504(a).

      . 29 U.S.C. § 501(c) reads:
      (c) Any person who embezzles, steals, or unlawfully and willfully abstracts or converts to his own use, or the use of another, any of the moneys, funds, securities, property, or other assets of a labor organization of which he is an officer, or by which he is employed, directly or indirectly, shall be fined not more than $10,000 or imprisoned for not more than five years, or both.

      . Judge Hays concurred and Judge Moore dissented on the counts that were the occasion for the discussion quoted hereafter.

      . Government’s brief at 17.

      . If the Government were correct in its contention that lack of prior authorization or good faith belief in prior authorization were all that was required to convict under § 501(c), then Ottley could have been convicted for all of these cars as well. If these cars actually were used for union business, as seems to be the .case, we doubt that Congress intended to hold such expenditure criminal.

      . This language from Morissette v. United States, supra, 342 U.S. at 263, 72 S.Ct. at 250, was quoted by this court in United States v. Ferrara, 451 F.2d 91, 95 (2nd Cir. 1971).

      . Ottley argues that he is not a “person required to file any report under this subchapter.” Like the district judge, we see no merit in this contention. Section 439(d) provides that “Each individual required to sign reports under section 431 . .of this title shall be personally responsible for the filing of such reports . Ottley, as union president, was required by § 431 to sign reports under that section. Thus, he was responsible for the filing of such reports. In addition, the legislative history of the LMRDA indicates personal as well as union accountability was intended. See 2 U.S.Code Cong. & Admin.News, 86th Cong., 1st Sess. 1959 at p. 2326 (S.Rep. 187).

      . The Act was passed to “prevent, discourage, and make unprofitable improper conduct on the part of union officials ... by requiring reporting of certain arrangements, actions, and interests.” 2 U.S.Code Cong. & Admin.News, 86th Cong., 1st Sess.1959 at p. 2427 (H.R.Rep.741).

      . We agree with the Government that the trial judge properly admitted evidence concerning these documents and meetings.

      . The voucher slips he submitted were minimal. They contained only the date, the amount received from the union, his signature and the notation “for reimbursed expenses.” Even Byrne, who also submitted vouchers, at least included a breakdown of how the money was spent on the reverse side of the slip.


author: RUSSELL E. SMITH, Chief Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Abel Leopoldo BAUTISTA and Rene Jose Monsivais, Defendants-Appellants.
    Nos. 74-1421 and 74-1544.
    United States Court of Appeals, Ninth Circuit.
    Jan. 6, 1975.

      Victor Sherman, Nasatir, Sherman & Hirsch, Beverly Hills, Cal., for defendants-appellants.
    William D. Keller, U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.
    Before DUNIWAY and CHOY, Circuit Judges, and SMITH, District Judge.

       The Honorable Russell E. Smith, Chief Judge of the United States District Court for the District of Montana, sitting by designation.

   OPINION

RUSSELL E. SMITH, Chief Judge:

A jury, viewing the evidence in the light most favorable to the Government, might reasonably have found from the evidence that:

On August 6, 1973, Agent Chretien of the Drug Enforcement Administration, in the company of an informant named Taylor, waited in a car near a public park in Oxnard, California. A truck, with Defendant Bautista driving and Defendant Monsivais in the passenger seat, drove by. It did not stop, circled the block, and drove by again in about five minutes. At that time Defendant Bautista motioned to Chretien and Taylor and shouted “follow me.” Bautista, with Chretien following, drove to an open field and parked. Taylor, who had previously been searched with negative results, left the Chretien car and went to the truck, talked briefly with Monsivais, and returned to the Chretien car. Taylor procured $650.00 in marked bills from Chretien, which he then delivered to Monsivais, and engaged in some conversation with Bautista. . When Taylor returned to the Chretien car Chretien then drove to a “Stop” sign some distance from the meeting place, and at the base of the sign discovered the heroin which is the subject of Counts 2 and 3 of the indictment.

On August 16, 1973, Chretien and Taylor met Monsivais at another public park. Again marked, money was paid by Taylor to Monsivais and again the heroin, which is the subject of Counts 4 and 5 of the indictment, was found at the base of the same “Stop” sign.

On August 21, 1973, Chretien, while driving by, observed Monsivais and Bautista talking in front of a house in Oxnard, California. He returned a short time later and discussed with Monsivais the price and quality of heroin. On this occasion Monsivais said that the heroin was Chato’s and was good heroin and gave Chretien a telephone number. Bautista approached and talked to Monsivais in Spanish. When he departed Monsivais said, “He’s okay; he’s the number one man.”

On August 23, 1973, Chretien met Bautista and Monsivais in the Showboat Bar and talked to them. All were in a radius of about 10 feet. Chretien put $700.00 in marked bills on a pool table, and Monsivais picked it up and went to a men’s restroom to count it. While Monsivais was gone Bautista and Chretien played pool. Monsivais came back, and while all three were standing around the pool table, Monsivais told Chretien that the stuff was in the gas station on the corner under the sink in the men’s room. Chretien left the bar, found more than one gas station on the near corners, and returned to the bar for further advice. Bautista pointed and said, “It is the one closest to us on the corner in the men’s room.” Chretien found the heroin which is the subject of Count 6 and 7 of the indictment.

On August 27, 1973, Chretien called the number Monsivais had given him and talked to Monsivais about future transactions. Monsivais, among other things, said, “The chubby guy who was with me would like to meet you.” Chretien understood the reference to the chubby guy to mean Bautista. On August 28, 1973, Chretien and another agent met with Monsivais at the Showboat Bar. Chretien asked where “Poli” (meaning Bautista) was, and Monsivais answered that he couldn’t make it because he was cutting narcotics. During the conversation Monsivais likewise referred to his partner and to a discussion he and the partner had had relating to the heroin traffic. At this time a deal was made for the delivery of 5 ounces of heroin. Again the name “Chato” was mentioned in connection with the heroin.

On August 29, 1973, at about 12:30 P.M. Chretien met Monsivais at the Windjammer Bar and displayed the money to be used to buy the heroin. Monsivais told Chretien where the heroin was and Monsivais and Chretien left the bar and went to a phone booth. Chretien called undercover agent Jackson and gave him the location of the heroin. Monsivais and Chretien then went to the Showboat Bar where they met Bautista. A short time later Monsivais and Bautista were arrested at the Showboat Bar. The heroin found by Agent Jackson at the described location was the subject of Counts 10 and 11 of the indictment.

Bautista was convicted on Counts 1, 2, 3, 6, and 7. Monsivais was convicted on Counts 1, 2, 3, 4, 5, 6, 7, 10, and 11. Counts 8 and 9 were dismissed. The sentences imposed on all counts ran concurrently.

Bautista claims that the evidence was insufficient to convict him because there were within the Government s case internal conflicts rendering the evidence inherently incredible. We have examined the evidence and do not agree.

Both defendants claimed that there was error in the court’s refusal to compel the informant, Taylor, to testify.

The Government is not required to grant immunity to a prospective witness for a defendant. United States v. Jenkins, 470 F.2d 1061 (9th Cir. 1972), cert. denied, 411 U.S. 920, 93 S.Ct. 1544, 36 L.Ed.2d 313 (1973); Cerda v. United States, 488 F.2d 720 (9th Cir. 1973). Defendants urge that this case falls within a possible exception noted in Earl v. United States, 124 U.S.App.D.C. 77, 361 F.2d 531 (1966), where the court indicated in a footnote that had the Government secured testimony by granting immunity to one eyewitness it might as a matter of due process be required to grant it to another to make evidence available to the defendant. Here, however, the Government granted immunity to no one.

The point is made that the court erred in not ruling that Taylor was not entitled to rely on a fifth amendment privilege. That problem, which is different from the problem of a Government grant of immunity, was never presented to the trial court during the trial. Early in the trial the fact that Taylor had refused to testify for the Government was disclosed by the United States Attorney. The court initially told Taylor that he would be required to testify unless he had some constitutional protection, such as the fifth amendment. After the Government’s case was in, a written motion was filed by defendants .asking the court to compel the Government to grant immunity to Roman. This motion may have been orally enlarged to embrace Taylor. In any event, the court denied it. At no time did the defendants call Taylor, who was physically available to them, as a witness, and at no time was the court given an opportunity to pass upon Taylor’s fifth amendment rights. Taylor, who was in this case in the role of a witness as distinguished from a defendant, could not refuse to take the stand and be examined. His privilege would have arisen only when the answer to some question asked would have tended to incriminate him, and it would have been for the court to say whether silence was justified. Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). Had Taylor been called, the court would then have faced the problem of whether and to what extent Taylor’s status as a paid informant altered his fifth amendment rights. The court would have been required to pass upon each question asked and determine from the facts disclosed by the evidence and from his personal perception of the peculiarities of the case whether an injurious disclosure could result from an answer. Hoffman v. United States, supra. The court committed no error in refusing to require the Government to grant Taylor immunity, and it cannot be put in error for not ruling during the trial on the scope of Taylor’s fifth amendment rights, a problem never presented to it. Fed.R.Crim.P. 51.

A variation of the same problem arises in connection with the motion for a new trial. Taylor was called by the defendants as a witness and asked whether he was known by the name “Chato.” He claimed fifth amendment privilege and the court sustained his claim. Evidence had been given at the trial from which it could be inferred that a “Chato” was heavily engaging in the narcotics traffic. It also appears from' the record that Taylor had narcotics charges pending, not related to the charges against defendants here. Only an affirmative answer to the question would have been of value to defendants, and on the record we cannot say that an affirmative answer would not have been an injurious disclosure to Taylor, and that it could not have tended to incriminate him as to matters falling outside of any of the transactions alleged in the indictment in these cases. The trial court did not err in sustaining the claim of privilege.

Defendants requested the court to give the so-called “missing witness” instruction. Vol. 1, E. Devitt and C. Blackmar, Federal Jury Practice and Instructions § 12.15 (2d ed. 1970). Whether this instruction should be given is a matter that lies within the discretion of the trial court. Under the circumstances here there was no abuse of discretion in the court’s refusal to give the instruction. Morrison v. United States, 124 U.S.App.D.C. 330, 365 F.2d 521 (1966). Yaw v. United States, 228 F.2d 382 (9th Cir. 1955), is not contrary. That case dealt with a failure of proof which might have been cured by an available witness not called. The court did not consider the missing witness instruction.

Defendant Monsivais makes a further point with respect to the missing witness instruction: the trial court indicated prior to argument that it would give the instruction. When counsel for Monsivais was about 240 words into his argument and before he had said anything even remotely involving the missing witness instruction, the court called counsel to the side bar and told him that the missing witness instruction would not be given as to Taylor and Roman. Later counsel for Monsivais brought the lack of Taylor’s testimony into his argument and was stopped. The court did misinform counsel as to instruction prior to their arguments, and that was a technical error under Fed.R.Crim.P. 30. The error was corrected, however, immediately after the argument started and before defendant’s counsel had committed himself to any theory based on the missing witness instruction. The case was relatively simple. Under all of the circumstances we do not find that the error committed was prejudicial. The case is unlike Wright v. United States, 339 F.2d 578 (9th Cir. 1964), relied upon by defendant, where defendant’s counsel was not advised of the nature of the instructions to be given and made an argument on a theory which the court either rejected or ignored in its instructions subsequently given.

Objection was made to the introduction of Exhibits 1-C and 2-C, balloons containing heroin. These exhibits had been given by Agent Chretien to Agent McGlone for fingerprint examination and were returned by McGlone to Chretien and by him forwarded to the chemist for analysis. There was no evidence that the exhibits were not altered while in McGlone’s possession. Within the rule stated in Gallego v. United States, 276 F.2d 914 (9th Cir. 1960), the admission of these exhibits did not constitute error. See Williams v. United States, 381 F.2d 20 (9th Cir. 1967); Harris v. United States, 371 F.2d 365 (9th Cir. 1967).

At the hearing on a motion for new trial on the ground of newly-discovered evidence, testimony was given to the effect that Taylor’s (the informant’s) nickname was “Chato.” The Government introduced substantial evidence to the contrary. The trial court resolved the conflicts in the evidence and specifically found that Taylor was not known as “Chato.” The claimed error is in the denial of a motion for new trial. It is not the province of the circuit court to review the trial court’s findings of fact unless they are wholly unsupported by the evidence. United States v. Johnson, 327 U.S. 106, 66 S.Ct. 464, 90 L.Ed. 562 (1946). The trial court also found that the evidence, if admitted, would not tend to produce an acquittal. That appraisal was a matter within the discretion of the trial court. Wolcher v. United States, 233 F.2d 748 (9th Cir. 1956). We find no error in the denial of the motion for new trial.

We have examined the other claimed errors and find no merit in them.

The judgments of conviction are affirmed.

      . Bautista makes the same contention as to one Roman through whom the Government had intended to prove overt act 11 of Count 1 and Counts 9 and 10. The court dismissed Counts 9 and 10 and offered on request of defendant to tell the jury to disregard overt act 11 of Count 1. Under these circumstances there could be no error as to Roman.

      . The problem was raised, as will be noted, at the hearing on the motion for new trial.

      . See United States v. Housing Foundation of America, 176 F.2d 665 (3d Cir. 1949).

      . The problem here is a different problem than the one arising in assessing a witness’s claim of privilege. Here the court sought to determine the truth of an assertion from the available evidence. In passing upon the claim of privilege the court did not seek to determine the truth of an answer to the question asked. The court appraised the question and if any answer to it would have tended to incriminate, then the privilege was properly claimed. Emspak v. United States, 349 U.S. 190, 75 S.Ct. 687, 99 L.Ed. 997 (1955).


author: THOMSEN, Senior District Judge.

text:
    Stephen A. BODZIN and Tanya K. Bodzin, Appellees, v. COMMISSIONER OF INTERNAL REVENUE, Appellant.
    No. 74-1397.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 2, 1974.
    Decided Jan. 20, 1975.

      Michael L. Paup, Atty., Tax Div., Dept, of Justice (Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks and F. Arnold Heller, Attys., Tax Div., Dept, of Justice, on brief) for appellant.
    John J. Yurow, Washington, D. C. (Arent, Fox, Kintner, Plotkin & Kahn, Washington, D. C., on brief), for appellees.
    Before HAYNSWORTH, Chief Judge, BOREMAN, Senior Circuit Judge, and THOMSEN, Senior District Judge.
   THOMSEN, Senior District Judge.

The Commissioner appeals from a decision of the Tax Court which allowed taxpayers, in computing their taxable income for 1967, to deduct $100 of the $2,100 annual rent they paid for their apartment, on the ground that one room therein was used on some evenings and weekends by the husband as an office.

There is no dispute about the basic facts. Bodzin was an attorney-advisor in the Interpretive Division, Office of the Chief Counsel, Internal Revenue Service. His office was in the Internal Revenue Building, in Washington, where he worked on proposed ruling letters and published rulings, requests for technical advice and opinions; he analyzed the facts and issues, did the necessary legal research, conferred with other people and prepared memoranda. He generally worked independently, without day-today supervision, but was expected to complete his work with reasonable promptness. He was not required, requested, expected or encouraged to work in the evenings or on weekends, but he sometimes did in order to meet deadlines, self-imposed or otherwise. If he had chosen to do so, he could have worked comfortably in his I.R.S. office at any time.

During the tax year in question, the Bodzins and their child lived in Alexandria, Virginia. Their apartment consisted of a living room, dining room, kitchen, two bedrooms and baths and an 8’ x 12' study or den. The study was furnished with a desk, desk chair, cabinets, lamps and several bookcases, in which Bodzin and his wife kept some of their personal books, as well as some tax treatises and lawbooks. The study was not used for entertaining visitors, but was used by the Bodzins for various non-business purposes, including Bodzin’s stamp collecting activities.

Bodzin usually worked in the study two or three evenings a week and for three to five hours on weekends, reading or writing. This was more pleasant and convenient to him than remaining at or returning to his office in the Internal Revenue Building, although that building was always open, heated or air conditioned, and not a long distance from his home.

The Commissioner disallowed the claimed deduction. On taxpayers’ petition for redetermination, the majority of the Tax Court concluded:

“We have found as an ultimate fact, on this record, that the expenses at issue were directly related and pertained to his business — that of a Government attorney. It makes no difference that the petitioner was not required to maintain a home office, that he wanted merely to do a good job, and that he liked his work. The expenses were ‘necessary’ because they were appropriate and helpful in the conduct of his business. They enabled him to keep a facility in his home wherein he could, and did, work. See Newi v. Commissioner [432 F.2d 998, C.A. 2, 1970]; Blackmer v. Commissioner, 70 F.2d 255 (C.A. 2, 1934). They were ‘ordinary,’ and not capital, in nature. See Welch v. Helvering, 290 U.S. 111 [54 S.Ct. 8, 78 L.Ed. 212] (1933); Commissioner v. Tellier, 383 U.S. 687 [86 S.Ct. 1118, 16 L.Ed.2d 185] (1966). Accordingly, we hold that the home office expenses of this petitioner fall within section 162 and outside section 262.”

The dissenting opinions took the position that the claimed deduction was a personal expense and not a business expense.

It is true that § 162(a) of the Internal Revenue Code, 1954, provides: “There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business.” But § 262 provides: “Except as otherwise expressly provided in this chapter, no deduction shall be allowed for personal, living or family expenses.” And, as the Supreme Court has recently pointed out, Commissioner v. Idaho Power Co., 418 U.S. 1, 17, 94 S.Ct. 2757, 2767, 41 L.Ed.2d 535 (1974), “Section 161 provides that deductions specified in Part VI of Subchapter B of the Income Tax Subtitle of the Code are ‘subject to the exceptions provided in part IX’.” Part VI includes § 162 and Part IX § 262. The priority ordering directive of § 161 therefore requires, on the facts of this case, that the provision quoted from § 262 take precedence over the provision quoted from § 162(a).

T.R. (1954 Code), § 1.262-l(b)(3) provides:

“Expenses of maintaining a household, including amounts paid for rent, water, utilities, domestic service, and the like,, are not deductible. A taxpayer who rents a property for residential purposes, but incidentally conducts business there (his place of business being elsewhere) shall not deduct any part of the rent. If, however, he uses part of the house as his place of business, such portion of the rent and other similar expenses as is properly attributable to such place of business is deductible as a business expense.”

Bodzin did not use any part of his apartment as his place of business; like most lawyers and judges, he sometimes, by choice, did some of his reading and writing at home.

Newi v. C. I. R., 432 F.2d 998, cited by the Tax Court, is distinguishable. Newi was an outside salesman of television time for the American Broadcasting Company; he used a study in his residence for an average of three hours a night, reviewing his notes on the day’s selling activities, studying various research materials and ratings, making plans for the next day’s work, and viewing the television advertisements of A.B.C. and its competing networks. The court noted that if Newi had returned to his office after dinner, he would have missed many of the programs which would have been of importance to him, and made clear that it was “deciding only as to the facts here presented.” 432 F.2d at 1000.

Many Tax Court cases have been cited by taxpayers and the Commissioner. In those in which deduction was allowed the office provided by the employer was either not available in the evening and on weekends or was not suitable for the purposes for which the taxpayer involved was using a room in his home. That is not true in the instant case.

We conclude that the expense of renting the Bodzin’s apartment was a personal expense within the meaning of § 262 and not a business expense. It is, therefore, unnecessary to decide whether it was appropriate and helpful in carrying on his business. The deduction was properly disallowed by the Commissioner. The decision of the Tax Court is

Reversed.

      . Bodzin v. Commissioner, 60 T.C. 820, a reviewed decision, with four judges dissenting.


author: PER CURIAM:

text:
    UNITED STATES of America, Appellee, v. David Russell CASSITY, Appellant.
    No. 74-1711.
    United States Court of Appeals, Ninth Circuit.
    Dec. 23, 1974.
    Rehearing Denied Feb. 27, 1975.
    Gwynn Townes, Seattle, Wash., for appellant.
    Susan L. Barnes, Asst. U. S. Atty., Seattle, Wash., for appellee.
    Before MERRILL and GOODWIN, Circuit Judges, and WOLLENBERG, District Judge.

       The Honorable Albert C. Wollenberg, California, sitting by designation. United States District Judge for the Northern District of

   OPINION

PER CURIAM:

David Russell Cassity appeals a conviction under 18 U.S.C. App. § 1202(a)(1). (felon in possession of a firearm in or affecting commerce).

Cassity’s first assignment of error asserts that in his case the facts do not provide an adequate nexus with interstate commerce to satisfy § 1202(a)(1). We agree, and reverse the conviction.

In 1970, Cassity was convicted in the state of Washington of car theft, a felony. In November of 1973, acting on a tip, special agents of the Bureau of Alcohol, Tobacco, and Firearms entered Cassity’s home with a search warrant and seized a Savage rifle.

Section 1202(a)(1) provides that:

“Any person who—
(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, * * *
and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years or both.”

The Savage rifle taken from Cassity’s home was shipped from Westfield, Massachusetts, to Los Angeles, California, in October, 1966. Cassity purchased the rifle in the state of Washington from a friend in the early spring of 1973.

The United States Supreme Court considered the element “in commerce or affecting commerce” in United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). The court stated:

“Having concluded that the commerce requirement in § 1202(a) must be read as part of the ‘possesses’ and ‘receives’ offenses, we add a final word about the nexus with interstate commerce that must be shown in individual cases. The Government can obviously meet its burden in a variety of ways. We note only some of these. For example, a person ‘possesses . in commerce or affecting commerce’ if at the time of the offense the gun was moving interstate or on an interstate facility, or if the possession affects commerce. Significantly broader in reach, however, is the offense of ‘receivpng] ... in commerce or affecting commerce,’ for we conclude that the Government meets its burden here if it demonstrates that the firearm received has previously traveled in interstate commerce * * *.” 404 U.S. at 350, 92 S.Ct. at 524. (Emphasis added.)

This court reversed a § 1202(a)(1) “possession” conviction in United States v. McShane, 462 F.2d 5 (9th Cir. 1972), because “* * * the prosecution did not allege or prove a link between the weapon and interstate commerce as required by United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971).” 462 F.2d at 5.

In Cassity’s case, the United States Attorney’s information alleged in part that he “did knowingly receive, possess, and transport in commerce, and affecting commerce, a firearm.” The undisputed evidence indicates that the rifle had traveled from Massachusetts to California, and that it ultimately came to rest in Washington. While the rifle had been in interstate commerce at one time, the Government proved no connection between Cassity’s possession of the weapon in 1973 and interstate commerce. The court found Cassity guilty of possession, not of receiving or transporting the rifle. The Government argues that because we have held the passage of time to be immaterial in a receiving case we should now .hold it to be equally immaterial in a possession case.

It is true that in United States v. Giannoni, 472 F.2d 136 (9th Cir.), cert. denied, 411 U.S. 935, 93 S.Ct. 1911, 36 L.Ed.2d 396 (1973), we held that a man who had robbed a gun store was guilty of unlawfully receiving a weapon 13 years after it had ended its travels in interstate commerce, but we took care to point out the distinction the Supreme Court had drawn in the Bass case between receiving a weapon and merely possessing it. 472 F.2d at 137.

We hold that the Government in this case failed to show the necessary connection with the commerce element of the statutory offense that creates federal jurisdiction, and that the cause must therefore be reversed. It is not necessary to reach other points urged by the appellant.

Reversed and remanded.


author: LAY, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Lawrence STEVENS, Appellant.
    No. 74-1597
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 14, 1974.
    Decided Jan. 22, 1975
    Rehearing and Rehearing En Banc Denied Feb. 5, 1975.
    Certiorari Denied May 27, 1975.
    See 95 S.Ct. 1993.

      Randolph E. Sehum, St. Louis, Mo., for appellant.
    Donald J. Stohr, U. S. Atty., Thomas E. Loraine, Asst. U. S. Atty., St. Louis, Mo., for appellee.
    Before LAY and HEANEY, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.

   LAY, Circuit Judge.

The essential issue presented on this appeal is the reasonableness of the search of an automobile after it was stopped for a traffic offense and a frisk of the defendant-passenger produced a .16-gauge shotgun shell. The search of the automobile produced an unregistered firearm which led to the defendant’s conviction of possessing an unregistered firearm in violation of 26 U.S.C. §§ 5861(d) and 5871. We affirm the judgment of conviction.

The facts surrounding the search were developed during a suppression hearing. The same facts were adduced by the government during the trial. On November 26, 1973, two St. Louis police officers, Lineback and Sheldon, were on cruiser patrol duty when they observed a 1964 Fairlane station wagon with three black male occupants as it made an illegal U-turn near 5400 Lillian Street in St. Louis. They turned to follow the vehicle, and when they noticed that it also violated a major intersection stop, decided to pull it over and ticket the driver for these traffic violations. Upon initial questioning it was disclosed that the driver did not have an operator’s license. Thereafter, Officer Sheldon called headquarters and requested a warrant check on the vehicle’s license number. He was told the vehicle was wanted in connection with a burglary which had occurred approximately three weeks earlier. At this time, he told all three occupants to get out, and when they were approximately six to eight paces from the car, Officer Lineback conducted a pat-down search for weapons. While patting down Stevens, who had been riding in the right front passenger seat, the officer “noticed a sort of lump in his left coat pocket,” reached inside and found a .16-gauge shotgun shell. Officer Lineback turned and showed the shell to Officer Sheldon who went immediately “to the right front passenger seat where the subject Stevens was seated and searched beneath the seat and found a sawed-off shotgun.” Officer Sheldon testified that he also noticed numerous clothing and household items in the automobile, but that these were not inventoried until the car had been towed to a police lot.

The defendant does not question the legality of the traffic stop. The officers had a legal right to stop the vehicle and either warn or ticket its operator for the U-turn and failing to obey the stop sign. Upon his failure to produce a driver’s license, the officers had the legal right to arrest him as well. Cf. United States v. Valentine, 427 F.2d 1344 (8th Cir. 1970). The defendant relies instead on a long line of cases which have held that there is no justification to arrest an individual simply because he is the companion of another who is legally arrested for the commission of a crime. See Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); United States v. Linnear, 464 F.2d 355 (9th Cir. 1972); United States v. Bazinet, 462 F.2d 982, 989 (8th Cir.), cert. denied, 409 U.S. 1010, 93 S.Ct. 453, 34 L.Ed.2d 303 (1972); United States v. Collins, 142 U.S.App. D.C. 100, 439 F.2d 610, 615 (1971). On this basis, the defendant, who concededly had not committed any offense known to the officers at the time he was requested to get out of the automobile, claims the search of his person and the subsequent search of the auto were illegal. The government contends the search of the automobile was justified once the operator had been properly arrested for the traffic violations and the failure to have a driver’s license. The government offers United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), and Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973), in support of its contention. The difficulty with this reasoning is that Gustafson and Robinson authorize only a lawful search of the person and only upon a custodial arrest. See 414 U.S. at 224, 94 S.Ct. 467. In the instant case, the shotgun was seized from the vehicle and not the driver’s person.

Robinson and Gustafson did not overrule the established principles of Preston and Cooper which held, essentially, that for the search of a vehicle to be incident to an arrest, it must have a reasonable nexus to the nature of the offense upon which the arrest is based. The traffic offenses here, just as the vagrancy charge in Preston, did not warrant a general search of the auto once the occupants were removed from it. See, e. g., Wilson v. State, 511 S.W.2d 531 (Tex.Cr.App.1974). Notwithstanding our rejection of the government’s theory, we find the ensuing frisk of Stevens and the subsequent search of the car to be lawful. The principles of Henry must recognize the limited intrusion now sanctioned in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), that a suspicious person may be subjected to a “stop and frisk” short of probable cause justifying an arrest and search incident to it. Terry, as interpreted in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), recognizes that

[a] brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. Id. [392 U.S.] at 21-22, 88 S.Ct. at 1879-1881; see Gaines v. Craven, 448 F.2d 1236 (CA9 1971); United States v. Unverzagt, 424 F.2d 396 (CA8 1970).
. The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence, and thus the frisk for weapons might be equally necessary and reasonable, whether or not carrying a concealed weapon violated any applicable state law. So long as the officer is entitled to make a forcible stop, and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose.

407 U.S. at 146, 92 S.Ct. at 1923.

Although at the time the vehicle was pulled over for the traffic offense, there was no probable cause to search it, it was nonetheless reasonable for the officers to assume that they could and should question all the occupants on the basis of the information revealed by the warrant check. Under these circumstances, it was not unreasonable that the officers, for their own protection, cautiously required the occupants to withdraw from the vehicle where all their movements could be observed, and submit to a limited “frisk” before questioning. Officers Lineback and Sheldon had a valid reason to be somewhat wary of the occupants of a vehicle wanted in connection with a recent felony.

The privacy of an individual must yield to a limited investigatory intrusion of this sort where there is good reason to believe that he may be “armed and dangerous.” Justice Douglas noted in his dissent in Adams that “[t]here is no reason why all pistols should not be barred to everyone except the police.” 407 U.S. at 150, 92 S.Ct. at 1925. However, until this fact might become a legal reality, we construe Adams in light of Terry as recognition of the fact that a police officer may, for his own protection, briefly frisk a person reasonably suspected of having some nexus with a felony before questioning him. In doing so we place emphasis on the necessity for some reasonable belief that there is possible criminal activity involved. Thus, we are not faced with the concern of Judge Friendly on the Court of Appeals in Adams (436 F.2d at 38-39) that the frisk will become the object of the stop. Here the police had a legitimate basis for the stop, and upon the stop, further facts were obtained justifying the frisk and further investigation of the occupants. Thus, we conclude that the seizure of the shell from the defendant Stevens was the fruit of a reasonable search. The more difficult question we must decide is whether there was a legal basis for Officer Sheldon to then go to the car and open the door to search for a weapon. We conclude that this limited search was also reasonable.

The vehicle was only 4-6 feet away from the suspects at the time the shotgun shell was discovéred. The officers could reasonably infer that the shell belonged to a shotgun either concealed on the subject or in the nearby car. The officers testified to a concern for their safety occasioned by the fact that there were three suspects and only two officers. Immediately after the shell was found on Stevenk, Sheldon proceeded directly to the right front seat where Stevens had been seated, reached under the seat and found the shotgun. Officer Sheldon’s search was a limited one obviously made only for the purpose of discovering possible weapons. Hindsight reasoning might convince one that the officers were being overly cautious or that they could have dealt with their concern by moving the suspects farther away from the vehicle, but we must view their conduct in terms of what could be considered reasonable under the circumstances then existing. See United States v. Peep, 490 F.2d 903 (8th Cir. 1974).

Under the totality of the facts then existing (the operation of the vehicle by someone without a license, the reliable knowledge that the car was “wanted” in connection with a burglary allegedly committed by two black males just three weeks earlier, the visible contents of the car containing various items of personalty, and the defendant’s possession of a shotgun shell), we find the limited intrusion and protective inspection of the car to be reasonable under the Fourth Amendment. Cf. United States v. Isham, 501 F.2d 989 (6th Cir. 1974); Wickizer v. United States, 465 F.2d 1154 (8th Cir. 1972).

Our approval here does not mean that an overall search of the vehicle would have been justified. The officer here did nothing more than open the passenger door of the car and look under the front seat. His concern was to seize any weapons which were readily accessible to the suspects. He was not searching for the incidents of a possessory crime. We see no danger for abuse in the limited inspection of a suspect’s nearby auto where (a) the original stop was not pretextually made by the officers, (b) the additional intrusion was not justified on the basis of some unrelated minor offense committed by the driver, (c) there existed reasonable suspicion of serious criminal activity, and (d) there were reasonable grounds to believe that the nearby vehicle might contain a concealed and dangerous weapon.

Judgment affirmed.

      . The defendant has raised several other points of error, which we summarily reject as having no substantial merit; he asserts that:
      (a) Two jurors employed by the federal government should have been removed for cause solely by reason of their employment, but see Dennis v. United States, 339 U.S. 162, 70 S.Ct. 519, 94 L.Ed. 734 (1950); Frazier v. United States, 335 U.S. 497, 508-512, 69 S.Ct. 201, 93 L.Ed. 187 (1948); United States v. Wood, 299 U.S. 123, 57 S.Ct. 177, 81 L.Ed. 78 (1936).
      (b) The court erred in admitting the certification record from the Bureau of Alcohol, Tobacco and Firearms into evidence to show the shotgun in question to be unregistered, but see United States v. Gardner, 448 F.2d 617, 620-621 (7th Cir. 1971); United States v. Mix, 446 F.2d 615, 621-623 (5th Cir. 1971); United States v. Thompson, 420 F.2d 536, 544-545 (3d Cir. 1970).
      (c) The court erred in permitting the government to examine Luther Murrell, the driver of the vehicle in which the shotgun was found, as a hostile witness. Even assuming this contention to be true, our examination of the record reveals that questions asked by the government after the court permitted him to be treated as a hostile witness were inconsequential and not damaging to the defendant. Thus, the claim is rejected for failing to show prejudice to the defendant.
      (d) The court erred in allowing a government witness to testify concerning an alleged test firing of the shotgun since the government had previously denied that any “scientific tests or experiments” had been made. The testimony concerned the firing of the shotgun to determine if it were operable. We again fail to see the prejudice arising from such testimony. At least, none is demonstrated.
      (e) The evidence is insufficient to sustain the verdict. Our review of the record requires a contrary conclusion. Cf. United States v. Craven, 478 F.2d 1329 (5th Cir.), cert. denied, 414 U.S. 866, 94 S.Ct. 54, 38 L.Ed.2d 85 (1973). In addition to strong circumstantial evidence, the driver testified that the defendant was the owner of the gun.
      (f) The government attorney used prejudicial comments in his closing argument. The comments were objected to and the court sustained the objections and instructed the jury to disregard them. The comments were (1) that Miss White, the defendant’s witness, was the defendant’s girlfriend, and (2) that sawed-off shotguns could be classified with “machine guns, grenades, and bazookas.” The comments do not constitute such prejudice that a jury would be likely to be unduly influenced by them. No motion for mistrial was made and the court’s charge under the circumstances was all that was required.
      (g) The court erred in admitting into evidence two shotgun shells without proper identification as to which was found in the defendant’s pocket and which was found in the gun. The defendant stipulated that they were the two shells seized at the time of the arrest. We find this argument spurious.

      . At the suppression hearing a witness, Bill Temps, was called to verify his reporting the vehicle in early November as the one used by two black males who were observed leaving the scene of a burglary. The evidence showed that the “wanted” label for the auto should have been removed from the police computer lists since the individuals wanted for the burglary had been apprehended before November 26, 1973, the date of defendant’s arrest.

      . It was only after the weapon was found that the officers announced their intent to arrest all of the subjects on the charge of possession of the weapon as well as their intent to arrest the driver for the traffic violations.

      . Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964).

      . Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967).

      . The fact that the vehicle was no longer actually “wanted” is immaterial to the officers’ state of mind at the time the information was given to them. A police officer is entitled to view information supplied via police radio as a trustworthy basis for his actions. Klingler v. United States, 409 F.2d 299, 303 (8th Cir.), cert. denied, 396 U.S. 859, 90 S.Ct. 127, 24 L.Ed.2d 110 (1969).

      . Robinson and Gustafson permit the search of the person incident to a custodial arrest not only on the basis of possible subjective fear of the arresting officer, but on well-established principles governing a search incident to lawful arrest. As the Supreme Court observed in Robinson:

      A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a “reasonable” search under that Amendment.
      414 U.S. at 235, 94 S.Ct. at 477.


author: OAKES, Circuit Judge:

text:
    In re SAREX CORPORATION, Bankrupt. Selena GOUDEAU, Plaintiff-Appellee, v. Irving ARZT, Trustee of Sarex Corporation, Bankrupt, Defendant-Appellant.
    No. 317, Docket 74-1913.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 2, 1974.
    Decided Jan. 15, 1975.
    Martin F. Brecker, Henry & Brecker, New York City, for defendant-appellant.
    Michael Miller, Landay, Rosen & Miller, New York City, for plaintiff-appellee.
    Before KAUFMAN, Chief Judge, and ANDERSON and OAKES, Circuit Judges.
   OAKES, Circuit Judge:

As long as the language of law is ambiguous as it so often is, and so long as lawyers (or laymen) fail to take the time or omit to exercise the acuity necessary to eliminate or reduce that ambiguity, there will be law suits like this one that could have been avoided. The question on this appeal relates to the meaning of a security agreement and the sufficiency of its description of the property secured. Like the bankruptcy judge, Roy Babitt, and the district court judge, Lawrence W. Pierce, of the United States District Court for the Southern District of New York, we hold for the secured party (Selena Goudeau) and accordingly affirm the order directing the trustee of the bankrupt Sarex Corporation (Sarex) to turn over to her the proceeds received from a sale of the property secured necessary to pay the secured balance due.

Sarex, a New Jersey corporation, sold plastic cassette covers and bases and proposed to manufacture them from molds. In early 1970 it agreed to buy some 5 million covers and bases, and for manufacturing purposes two molds, a “1 x 1 cavity mold” and a “2 x 2 cavity mold,” from E.G.L. Enterprises Ltd. (EGL) in Montreal. It was stipulated that, until paid for, the molds were not to be removed from EGL’s premises. EGL proceeded to obtain a $7,500 Canadian default judgment against Sarex for failure to take delivery of and pay for the covers and bases. EGL seized and sold the molds to satisfy the judgment and subsequently bought them back. To have EGL resume production of the covers and bases, transfer title to the “2 x 2” mold and agree to transfer title to the “1 x 1” mold on payment for the final shipment of cassette covers and bases, Sarex needed $10,000.

Sarex’s president, O. Louis Seda, borrowed on its behalf the necessary $10,000 from his wife, the appellee here. Evidencing the security for the promissory note was a printed form of U.C.C. security agreement (chattel mortgage) duly executed July 15, 1970, which contained the following schedule:

Schedule
Describe items of collateral, the address where each item will be located and describe any prior liens, etc., and the amounts due thereon. If items are crops or goods affixed or to be affixed to real estate describe the real estate and state the name and address of the owner of record thereof.
Items
Machinery, equipment and fixtures; Molds, tools, dies, component parts including specifically the:
lxl two cavity cassette cover and base mold
2x2 four cavity cassette cover and base mold
One twenty-four cavity roller mold
One sixteen cavity hub mold
Location, etc.
To be located either at the Debtor’s plant in North Bergen, New Jersey ; and in the ease of the molds also at the plants of contractors who may be using said molds in the manufacture of products for the Debtor

The appropriate financing statement was duly filed on July 23, 1970. Subsequently, the “lx 1” mold was released from the lien and a termination statement filed as to it. Sarex filed a Chapter XI petition in August, 1970, under § 322 of the Bankruptcy Act, 11 U.S.C. § 722. Sarex was adjudicated a bankrupt on April 13, 1972. A lien sale of machinery, equipment, tools and molds was held on May 1, 1972, and of the $40,000 proceeds that were realized apparently only $40 was attributable to the molds itemized in the schedule.

The appellant trustee argues that only the scheduled molds were covered, relying principally upon our In re Laminated Veneers Co., 471 F.2d 1124 (2d Cir. 1973). That case held security agreements to be governed by New York Uniform Commercial Code § 9-110 (McKinney’s Con-sol.Laws, c. 38, 1964) (the Code is hereinafter cited as U.C.C.), which states that a description of personal property is sufficient “whether or not it is specific if it reasonably identifies what is described.” There, because a truck (but not the two automobiles in question) was included in a schedule of specifically pledged items, the generic word “equipment” in an omnibus clause was held not to include the two automobiles, the court saying that “Any examining creditor would conclude that the truck as the only vehicle mentioned was the only one intended to be covered.” 471 F.2d at 1125.

Appellant argues that not to limit the security agreement coverage to molds (and presumably “tools, dies, component parts” which we take it refer to the molds) is to rewrite the schedule so as to make it read “All machinery, equipment and fixtures, including, but not limited to molds, tools, etc.” In a sense this is how we interpret the agreement, particularly as the word “including” is often used (and construed) as a term of enlargement, not of limitation. E.g., American Surety Co. v. Marotta, 287 U.S. 513, 517, 53 S.Ct. 260, 77 L.Ed. 466 (1933). Appellant’s own construction, however, would have us give no effect whatsoever to the words “Machinery, equipment and fixtures.” It would have us treat the semicolon that follows the phrase in the schedule as if it were a colon, and the molds as simply designations of the kind of machinery, equipment and fixtures.

We recognize, however, that the first phrase in the “location” section of the security agreement is ambiguous in at least one respect: the use of the words “To be located” rather than “now or hereafter located” implies that the machinery, equipment and fixtures covered were not at the date of execution of the agreement at Sarex’s New Jersey plant. But the second portion of the location clause indicates that the molds might also be located at the plant of contractors (such as EGL) who might be using the molds in manufacture. If only molds were to be covered by the security agreement, as appellant would have it, this part of the “location” clause would not have included the phrase “and in the case of the molds.” At least this is so in the absence of an indication that molds were to be differentiated from “tools, dies, component parts,” an indication that we do not have.

Laminated Veneers does not stand for the proposition that the use of generic terms in a security agreement description will be given no effect. It does stand for the proposition that the generic term “equipment” used in reference to a lumber business does not include within it two automobiles, at least where a truck is specifically itemized in the schedule. Our case would be closer to Laminated Veneers if in question was coverage of some other mold than those specifically listed; even then, however, a “mold” is a more specific designation, more readily alerting a creditor than the broader term “equipment.”

Here a reasonable draftsman could have considered, at least out of an abundance of caution, that molds (and their components) were not part of “machinery,” “equipment” or “fixtures.” By referring to the molds specifically we hold that he did not render meaningless the previous reference to “machinery, equipment and fixtures; . . ..” The ultimate question is whether the description “reasonably identifies” what is described. U.C.C. § 9-110. The drafters of the Code told us that this requirement is “evidentiary,” i. e., it depends on the proof in each case; but caution us not to require “exact and detailed” descriptions and thereby to use the so-called “serial number” test. U.C.C. § 9-110 Official Comments. See P. Coogan, W. Hogan & D. Vagts, Secured Transactions Under the Uniform Commercial Code § 4.06, at 289-90 (Bender’s Uniform Commercial' Code Service Vol. 1, 1968). Laminated Veneers tells us that reliance purely on generic terminology may, however, be insufficient. This case lies in between and, for reasons stated, we hold the language in question to have reasonably specified and therefore identified the collateral in question.

Judgment affirmed.

      . The New Jersey Code section, N.J.S.A. 12A:9-110, governing here reads as does New York’s but without the italicized section, inapplicable here:
      For the purpose of this Article any description of personal property or, except as otherwise required by subsection (1) of Section 9^f02 relating to the contents of a financing statement, real estate is sufficient whether or not it is specific if it reasonably identifies what is described.


author: PER CURIAM.

text:
    James PAPAIOANNOU, alias John Doe, Petitioner-Appellant, v. COMMANDING OFFICER, 1ST U.S. ARMY, etc., et al., Respondents-Appellees.
    No. 74-1344.
    United States Court of Appeals, First Circuit.
    Argued Jan. 6, 1975.
    Decided Jan. 29, 1975.
    Roqald J. Resmini, Providence, R. I., with whom Resmini, Fornaro & Colagiovanni, Providence, R. I., was on brief, for appellant.
    Constance L. Messore, Asst. U. S. Atty., with whom Lincoln C. Almond, U. S. Atty., was on brief, for appellees.
    Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
   PER CURIAM.

Petitioner, who enlisted in the Rhode Island National Guard, challenged the validity of his call to active duty by a petition for both habeas corpus and mandamus. He claims that his activation under 10 U.S.C. § 673a, based upon his having five or more unexcused absences from training assemblies within a year, was illegal in that his unit commander did not follow Army Regulation 135-91, which requests, prior to activation for unsatisfactory participation, a determination whether “any cogent or emergency reasons existed which prevented the member from attending.” Petitioner asserts that an inquiry would have revealed that he was suffering from a condition requiring psychiatric care which prevented him from attending the training session.

The district court granted the government’s motion to dismiss, reasoning that since petitioner was in an A.W.O.L. status he was seeking to invoke the processes of the law while flouting them, and thus brought himself within the holding of United States ex rel. Bailey v. U. S. Commanding Officer, 496 F.2d 324 (1st Cir. 1974). There we held that a habeas petitioner who, while eluding military authorities, claimed to be in custody for purposes of his writ, was disentitled to call upon the resources of the court. Here, however, petitioner is not playing hide-and-seek with the authorities. Since October 3, 1973 his address in Rhode Island has been known to Army authorities. His suit simply seeks a determination of the validity of his order to active duty before the order is carried out. To say that because the Army has classified him as A.W.O.L. he is beyond the reach of the court under these circumstances is to prejudge the merits of his case.

While, as we noted in Bailey, supra, we have doubts as to whether petitioner can be said to be in such custody that habeas will lie, there is no doubt that mandamus is a proper action to test the validity of his activation order. 28 U.S.C. § 1361; Sledjeski v. Commanding Officer, 478 F.2d 1147 (2d Cir. 1973); Lovallo v. Froehlke, 468 F.2d 340 (2d Cir. 1972); Nixon v. Secretary of Navy, 422 F.2d 934 (2d Cir. 1970); Schatten v. United States, 419 F.2d 187 (6th Cir. 1969); United States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371 (2d Cir. 1968).

In this case petitioner, who had served for fourteen months in the Army Reserve, enlisted in the Rhode Island National Guard in February, 1973, signifying at the time that he understood his attendance obligations, the sanctions for their violation, and his duty to keep his unit advised of his mailing address. After attending training meetings in the spring, with several unexcused absences, and a two week training session between July 14 and July 28, 1973, petitioner was absent from training assemblies on August 29, September 5, 8, and 9. Notices that these were unexcused were sent to petitioner on August 29, September 6, and September 10. They were sent to the address petitioner hád always used— his parents’ address. But they were returned unclaimed. On October 3 petitioner, in claiming a pay check, informed his unit of his new address. On October 29 petitioner was notified of his commanding officer’s recommendation that he be ordered to active duty for unsatisfactory participation and of his right to appeal.

On November 7 petitioner wrote his unit commander, stating that he wished to appeal, that he was having an identity crisis and wished a psychiatric examination, and that he thought it might be unconstitutional for a guardsman to be activated in time of peace. On November 13 the unit commander recommended that the appeal be denied, stating that petitioner had “done all he could to make a mockery out of the system”, that the unit had “tried many avenues, including physically escorting [petitioner] to drill to improve his attendance”, and that petitioner had gone so far as to berate the commander’s mother on the telephone at a late hour for his having to attend Srills. Superior officers approved this recommendation, with the Adjutant General of Rhode Island giving his endorsement, noting the absence of any evidence from a physician indicating a psychiatric disorder.

Meanwhile, in the processing of petitioner’s appeal, his unit commander was asked for a determination in accordance with Army Regulation 135-91. The response was that to the best of his knowledge no cogent or emergency reason existed which would excuse the absences. Finally, on March 19, 1974, a Delay Appeal Board of the Army found that all administrative prerequisites had been met, that no reasons justifying absences had been presented, and that petitioner’s fitness for military service would be determined after a complete medical examination upon petitioner’s entering active duty. The appeal was denied.

On these facts, taken from the Army’s files, the district court, although dismissing the complaint as we have noted, felt that summary judgment should not be granted since factual issues remained open. The question is a close one: was there such a determination of the absence of cogent or emergency reasons preventing petitioner’s attendance as is contemplated by AR 135-91? We are informed by affidavit that a slightly more stringent version, 1A Supplement to AR 135-91, requiring the unit commander to reflect the action taken to determine if any cogent or emergency reasons existed, applies to members of the Army Reserve but not of the National Guard. We are also aware of the limitations on courts in reviewing decisions of the military; they can require that judgments be made if called for by regulations, but cannot dictate that the process lead to a particular result. Nixon v. Secretary of Navy, supra. Nevertheless, we cannot say that the government’s case has been established as a matter of law. Given the district court’s greater opportunity to ascertain all the pertinent facts, we think it appropriate that it determine whether, upon such facts, there was compliance with AR 135 — 91. We therefore remand to the district court for resolution of that issue after further proceedings.

Judgment vacated; remanded for further proceedings consistent with this opinion.

       Petitioner’s complaint includes other claims which, from a scrutiny of the existing record, appear insubstantial. One was a claim that orientation procedures required by 1A Supplement 1 of AR 135-91 were not followed. A government affidavit asserts that this regulation is inapplicable to petitioner. Another claim is that petitioner was not advised as to his rights of appeal. No particular provision of AR 135-91, alleged to be violated, is cited. The record shows • that petitioner was informed of his right to appeal and did file a letter of appeal, although without any supporting documentation. A third allegation could perhaps be interpreted as asserting that notices of petitioner’s unexcused absences from drill were not properly addressed. As our opinion notes, infra, the record indicates that the address used was that given the unit by petitioner, who only belatedly gave information as to a new address.