author: FORMAN, Circuit Judge.

text:
    UNITED STATES of America v. Samuel J. SANTILLO, Jr., et al. Appeal of Ronald F. BUCHERT.
    No. 74-1580.
    United States Court of Appeals, Third Circuit.
    Argued Nov. 1, 1974.
    Decided Jan. 9, 1975.

      Stanton D. Levenson, Watzman, Lev-enson & Snyder, Pittsburgh, Pa., for appellant.
    Richard L. Thornburgh, U. S. Atty., Charles F. Scarlata, James J. West, Asst. U. S. Attys., Pittsburgh, Pa., for appel-lee.
    Before FORMAN, ALDISERT and ROSENN, Circuit Judges.
   OPINION OF THE COURT

FORMAN, Circuit Judge.

Appellant Ronald F. Buchert and several co-defendants were indicted on three counts in the United States District Court for the Western District of Pennsylvania. Having waived his right to trial by jury, appellant was tried to the court and convicted on the second and third counts of the indictment which charged (1) the unlawful distribution of methamphetamine on September 1, 1973 and (2) the possession of methamphetamine with intent to distribute it on September 28, 1973, both violations of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. In each of these transactions appellant allegedly supplied methamphetamine powder to co-defendant Frank J. Dorsey who in turn sold, or intended to sell, the powder to Francis J. Schmotzer, a federal undercover agent. Agent Schmotzer never dealt face-to-face with appellant, but only through Dorsey.

Among pretrial motions made on appellant’s behalf was one to suppress evidence obtained by the Government’s warrantless “interception” of telephone communications between appellant and Agent Schmotzer on September 12 and September 28, 1973, both of which were alleged to have been recorded by the Government.

The grounds for the motion were asserted to be that

(1) the telephonic communications were seized without the Government having previously obtained a court order pursuant to the Omnibus Crime Control Act, Title 3, Wiretap Provisions (18 U.S.C. § 2510 et seq.);

(2) they were seized without the appellant’s consent;

(3) they were seized in violation of appellant’s Fourth Amendment constitutional rights; and

(4) 18 U.S.C. § 2511(2)(c), which authorizes consensual interceptions, is unconstitutional.

The District Judge denied the motion, saying:

Defendant Buchert’s motion to suppress telephone tapes of conversations between himself and an undercover agent will also be denied. Whatever expectation of privacy defendant Bu-chert had by virtue of Katz v. U. S., 389 U.S. 347 [88 S.Ct. 507, 19 L.Ed.2d 576] (1967), he gave up when he confided in the agent. This is clearly the import of Lopez v. U. S., 373 U.S. 427 [83 S.Ct. 1381, 10 L.Ed.2d 462] (1963). U. S. v. White, 401 U.S. 745, 753 [91 S.Ct. 1122, 28 L.Ed.2d 453] (1971). The recording of conversations between undercover agents and suspected wrongdoers may be a distasteful example of law enforcement activity, but in this instance it was not an activity which can be found to have violated defendant’s constitutional rights.

•At trial, the prosecution connected appellant to the transactions by introducing evidence of the two telephone conversations he initiated with Agent Schmotzer, one linking him to the September 1 sale and the other connecting him to the attempted sale of September 28. On this appeal, Buchert submits that his conviction must be set aside because of the trial judge’s failure to grant his motion to suppress evidence of the two incriminating telephone conversations.

Thus, the question presented by this appeal is whether one who engages in a telephone conversation may justifiably expect that the participant on the other end of the line will not record or disclose the substance of what is said. We hold in this case that such expectations of privacy are not “justifiable” within the meaning of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), and therefore are not entitled to the protection of the Fourth Amendment.

Conversation # 1, linking appellant to the September 1 sale.

Agent Schmotzer’s initial contact with appellant was by way of the September 12, 1973 telephone conversation during which appellant identified himself as the source of supply for the methamphetamine sold on September 1. Acting without a warrant, Agent Schmotzer taped the conversation, but due to an equipment malfunction the recording was inaudible. Agent Schmotzer, however, made extensive notes of the conversation from which he was able to testify at trial. As to this first conversation, appellant’s challenge is simply that the Fourth Amendment prevents Agent Schmotzer from publicly disclosing information that was given to him in confidence.

Appellant’s subjective expectation that Agent Schmotzer would not repeat the content of their discussion is not disposi-tive of whether the constitutional safeguards apply. See Katz v. United States, supra, at 361, 88 S.Ct. 507 (concurring opinion of Harlan, J.). The Fourth Amendment’s protective umbrella, as interpreted by Katz, shields only those expectations of privacy which are “justifiable.” Measuring by this objective privacy standard, appellant had no right to assume that Agent Schmotzer would not relate the conversaton to oth-. ers. The possibility of repetition is a well-known risk that the prudent man weighs before disclosing confidential information. Moreover, under the facts of this case the risk of repetition was particularly strong. When the incriminating conversation took place appellant’s only knowledge of Agent Schmotzer was that he had made a single purchase of methamphetamine from Mr. Dorsey.

Although United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), was decided according to pre-Katz interpretations of the Fourth Amendment, the principles espoused by a plurality therein are appropriate here:

Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), which was left undisturbed by Katz, held that however strongly a defendant may trust an apparent colleague, his expectations in this respect are not protected by the Fourth Amendment when it turns out that the colleague is a government agent regularly communicating with the authorities. [The Fourth Amendment] affords no protection to “a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.” Hoffa v. United States, at 302, 87 S.Ct. at 413. No warrant to “search and seize” is required in such circumstances.

We conclude that appellant’s disclosures to Agent Schmotzer during the telephone conversation of September 12, 1973 which connected appellant to the September 1 sale were not protected by the Fourth Amendment.

Conversation # 2, linking appellant to the attempted sale of September 28.

On September 28, 1973, the same date as the attempted sale, appellant again spoke with undercover Agent Schmotzer by telephone. Acting without a warrant, Agent Schmotzer successfully recorded the conversation during which appellant identified himself as the source of supply for the methamphetamine to be sold later that day. In addition to Agent Schmotzer’s testimony, the recording itself was played at trial, both over appellant’s objection.

In considering the admissibility of “conversation # 1,” we concluded that Agent Schmotzer could properly take notes of his conversations with appellant and subsequently testify as to the content of their discussions. Our sole remaining question is whether the Fourth Amendment protects appellant when, instead of merely repeating what was said, the undercover agent records the conversation and is permitted to replay it at trial. Appellant concedes that only the constitutional issue is involved since electronic interceptions by a party to the conversation are expressly exempted from the warrant requirements of the Omnibus Crime Control Act. 18 U.S.C. § 2511(2)(c).

Prior to its decision in Katz, the Supreme Court consistently upheld various forms of electronic eavesdropping where one party to the intercepted conversation gave prior consent. See Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957); On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952). While we agree that the trespassory concepts prevailing at the time these cases were decided have since been discredited, it does not necessarily follow that the holdings themselves are no longer sound law. The continuing validity of Lopez, Rathbun and On Lee remains a subject of active debate.

The governmental activity challenged here is most closely related to the participant monitoring discussed in the Lopez case. Both here and in Lopez a participant in the incriminating conversation secretly recorded what was said and that recording was later introduced as evidence against one of the speakers. In analyzing this factual setting, the Supreme Court found no invasion of the speaker’s Fourth Amendment guarantees:

Once it is plain that [the agent] could properly testify about his conversation with Lopez, the constitutional claim relating to the recording of that conversation emerges in proper perspective. • . . [T]his case involves no “eavesdropping” whatever in any proper sense of that term. The Government did not use an electronic device to listen in on conversations it could not otherwise have heard. Instead, the device was used only to obtain the most reliable evidence possible of a conversation in which the Government’s own agent was a participant and which that agent was fully entitled to disclose. . ...
* * * * * *
Stripped to its essentials , petitioner’s argument amounts to saying that he has a constitutional right to rely on possible flaws in the agent’s memory .. We think the risk that petitioner took in offering a bribe to [the agent] fairly included the risk that the offer would be accurately reproduced in court, whether by faultless memory or mechnical recording.
373 U.S. at 438-439, 83 S.Ct. at 1388 [emphasis added].

The emphasized language closely resembles the Fourth Amendment expectation of privacy analysis required by Katz. In determining whether appellant’s statements were made under circumstances which a reasonable person would assume to be free from “uninvited ears,” it is logical to examine the potential risks of a breach of privacy. See also United States v. White, supra, 401 U.S. at 752-753, 91 S.Ct. 1122.

When appellant revealed his confidential information to agent Schmotzer, he undoubtedly assumed that the information would not be communicated further, least of all to the police. He would not have expressly consented to Agent Schmotzer’s recording and replaying of the confidential disclosures any more than he would have permitted word-of-mouth repetition. Both forms of publication are, however, risks that the speaker who unveils confidential information must recognize. The mechanical ear of the recorder is no different than the ear of a listener with a precise memory.

The extent to which appellant’s disclosures compromised his own secrets was intimately dependent upon his listener’s trustworthiness. Viewed objectively, any continuing expectation that the information would remain confidential required consideration of the possibility of repetition, in whatever form. Our conclusion that appellant’s expectations of privacy were not constitutionally protected is fortified by the Supreme Court’s discussion in United States v. White, supra.

Our problem, in terms of the principles announced in Katz, is what expectations of privacy are constitutionally “justifiable” — what expectations the Fourth Amendment will protect in the absence of a warrant. .
Inescapably, one contemplating illegal activities must realize and risk that his companions may be reporting to the police. If he sufficiently doubts their- trustworthiness, the association will very probably end or never materialize. But if he has doubts, or allays them, or risks what doubt he has, the risk is his. . . . Given the possibility or probability that one of his colleagues is cooperating with the police, it is only speculation to assert that the defendant’s utterances would be substantially different or his sense of security any less if he also- thought it possible that the suspected colleague is wired for sound. At least there is no persuasive evidence that the difference in this respect between the electronically equipped and the unequipped agent is substantial enough to require discrete constitutional recognition. . .

In addition, at least seven other circuit courts have applied Katz and reached a decision similar to the one we reach here.

We are not unmindful of Justice Harlan’s observation, in his White dissent, that expectations of privacy, and the risks a speaker assumes, are largely reflections of pre-existing Fourth Amendment law. 401 U.S. at 786, 91 S.Ct. 1122. Thus, Justice Harlan reasoned, instead of merely examining a particular individual’s expectations, any Fourth Amendment analysis must ultimately focus on the impact a given police practice will have on the public’s sense of security — the fundamental concern of the Fourth Amendment. Id. In terms of the instant case, the underlying issue presented is whether we are willing to burden the average person with the threat of participant recording in order to provide the police with an admittedly valuable law enforcement tool. We are convinced that publications of confidential information by the invited participant, as in this case, do not present the same kind of threat to a free society as was presented by the uninvited listener in Katz. Warrantless electronic eavesdropping without the knowledge of either party to the conversation produces an atmosphere of police omniscience analogous to that produced by the general warrant of a by-gone era. Cf. Katz v. United States, supra at 358-359, 88 S.Ct. 507. See generally Stanford v. Texas, 379 U.S. 476, 482-484, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965). It is this broad transgression, different from that presented by the instant case, against which the Fourth Amendment is designed to protect. A more limited threat to the values of a free society arises from the risk that an invited participant may be electronically recording one’s conversation for later replaying. We concede that, in the latter case, the conversation may eventually reach the same number and kind of people as if the electronic intrusion had been accomplished by an uninvited third party. The significant difference, however, is that private discussions are more likely to be inhibited by the continuous threat of an uninvited listener.

We conclude that the unveiler of incriminating private information must assume some, but not all, possible risks of governmental intrusion. In the participant recording situation, the speaker need only contend with the trustworthiness of the person with whom he converses — a factor which the speaker can evaluate and judge for himself prior to disclosing confidential information. Thus, in order to preserve his privacy, appellant Buchert had only to cautiously evaluate Agent Schmotzer’s reliability. Having failed to accurately assess Agent Schmotzer’s true intentions, appellant can fairly be made to bear the consequences of his misjudgment.

We hold that the district judge properly denied appellant’s motion to suppress the testimony and recorded evidence obtained during Agent Schmotzer’s telephone conversations. The judgment below will be affirmed.

      . Appellant was not named in the first count.

      . 21 U.S.C. § 841(a)(1) provides:
      (a) Except as authorized by this sub-chapter, it shall be unlawful for any person knowingly or intentionally—
      (1) to manufacture, distribute, or dispense, or process with intent to manufacture, distribute, or dispense, a controlled substance [“controlled substances” are listed in the schedules established by 21 U.S.C. § 812],

      . 18 U.S.C. § 2 provides:
      (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
      (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

      . Frank J. Dorsey pleaded guilty.

      . Appendix at A-ll, A-12.

      . In Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969), the Supreme Court held that the principles announced in Katz were not to be applied retroactively. Since the governmental activity challenged in the instant case took place long after December 18, 1967, the date Katz was decided, the Katz principles must be applied. Compare, e. g., United States v. White, 401 U.S. 745, 754, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971).

      . Only four of the nine participating Justices joined in the principal opinion authored by Justice White. Justices Black and Brennan filed separate concurring opinions. Separate dissents were filed by Justices Douglas, Harlan and Marshall.

      . 401 U.S. at 749, 91 S.Ct. at 1125.

      . 18 U.S.C. § 2511(2)(c) provides in pertinent part:
      It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire or oral communication, where such person is a party to the communication

      . Under the trespass doctrine only physical intrusions were prohibited by the Fourth Amendment. Goldman v. United States, 316 U.S. 129, 135-136, 62 S.Ct. 993, 86 L.Ed. 1322 (1942); Olmstead v. United States, 277 U.S. 438, 466, 48 S.Ct. 564, 72 L.Ed. 944 (1928). Thus, electronic surveillance was within the purview of the Fourth Amendment only in those instances where the listening device physically penetrated the speaker’s premises. See, e. g., Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961).

      . See Katz v. United States, 389 U.S. 347, 352-353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). “[The trespass] limitation on Fourth Amendment protection is, in the present day, bad physics as well as bad law, for reasonable expectations of privacy may be defeated by electronic as well as physical invasion.” Id. at 362, 88 S.Ct. at 517 (Harlan, J., concurring).

        Even prior to Katz, however, the Supreme Court had indicated some dissatisfaction with the trespassory concepts. See Berger v. New York, 388 U.S. 41, 45-51, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967); Silverman v. United States, 365 U.S. 505, 511-513, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961).

      . Four Justices among the Supreme Court’s current membership have indicated their belief that Lopez and On Lee survive Katz. See United States v. White, 401 U.S. 745, 750-752, 91 S.Ct. 1122, 28 L.Ed.2d 453. Justices Brennan, Douglas and Marshall, on the other hand, argue that Katz implicitly overrules On Lee and perhaps also Lopez. See Id. at 755-756, 91 S.Ct. 1122 (Brennan, J., dissenting), at 758-760, 91 S.Ct. 1122 (Douglas, J., dissenting) and at 795-796, 91 S.Ct. 1122 (Marshall, J., dissenting).

      . Instead of recording a telephone conversation, the Federal agent in Lopez recorded, on a concealed wire recorder, a face-to-face conversation he had with the defendant. The recording was introduced at trial to corroborate the agent’s in-court testimony relating to the conversation. 373 U.S. at 429-432, 83 S.Ct. 1381.
      By way of comparison, On Lee and Rath-bun are factually dissimilar to the instant case in that they both involve interceptions by a third party who did not participate in the conversation. In On Lee a former acquaintance, turned Government informer, engaged the petitioner in an incriminating conversation and simultaneously transmitted the discussion to a Federal agent hiding a short distance away, 343 U.S. at 749-750, 72 S.Ct. 967. In Rathbun police officers listened on a regularly used extension telephone at the request of one party to the call, 355 U.S. at 108, 78 S.Ct. 161. We make no determination as to whether these factual distinctions would lead to a different result than the one we reach here. • Other circuits have examined post-Katz fact patterns which parallel the On Lee and Rathbun situations and have concluded that third-party interceptions accomplished with the consent of a participant do not violate the Fourth Amendment. See United States v. Bonanno, 487 F.2d 654 (2d Cir. 1973); United States v. Dowdy, 479 F.2d 213 (4th Cir. 1973), cert. denied 414 U.S. 823, 94 S.Ct. 124, 38 L.Ed.2d 56 (1973); Ansley v. Stynchcombe, 480 F.2d 437 (5th Cir. 1973); Holmes v. Burr, 486 F.2d 55 (9th Cir. 1973), cert. denied, 414 U.S. 1116, 94 S.Ct. 850, 38 L.Ed.2d 744 (1973); United States v. Quintana, 457 F.2d 874 (10th Cir. 1972), cert. denied, 409 U.S. 877, 93 S.Ct 128, 34 L.Ed.2d 130 (1972).

      . 401 U.S. at 752-753, 91 S.Ct. at 1126.

      . See United States v. Bonanno, 487 F.2d 654, 658 (2d Cir. 1973); United States v. Dowdy, 479 F.2d 213, 229 (4th Cir. 1973), cert. denied, 414 U.S. 823, 94 S.Ct. 124, 38 L.Ed.2d 56 (1973); Ansley v. Stynchcombe, 480 F.2d 437, 441 (5th Cir. 1973); United States v. Lippman, 492 F.2d 314, 318 (6th Cir. 1974); Meredith v. Gavin, 446 F.2d 794, 797 n. 3 (8th Cir. 1971); Holmes v. Burr, 486 F.2d 55 (9th Cir. 1973), cert. denied, 414 U.S. 1116, 94 S.Ct. 850, 38 L.Ed.2d 744 (1973); United States v. Quintana, 457 F.2d 874 (10th Cir. 1972), cert. denied, 409 U.S. 877, 93 S.Ct. 128, 34 L.Ed.2d 130 (1972).

      . Justice Harlan did not actually apply his Fourth Amendment balance to the participant recording situation. He noted only that “ [distinctions do, however, exist between Lopez, where a known Government agent uses a recording device, and [a case involving] third-party overhearing,” a practice which he considered unconstitutional. United States v. White, 401 U.S. 745, 788 n. 24, 91 S.Ct. 1122, 1145, 28 L.Ed.2d 453 (Harlan, J„ dissenting).

      . In Katz, FBI agents attached an electronic listening device to the outside of a public telephone booth from which the petitioner regularly transmitted wagering information to his associates in other cities. The agents, acting without a warrant and without the knowledge of either of the conversing parties, recorded the petitioner’s end of the discussion. Evidence of the conversation, introduced at trial, was ultimately rejected by the Supreme Court. 389 U.S. 347, 348, 88 S.Ct. 507 (1967).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    GOVERNMENT OF the VIRGIN ISLANDS v. Alfred FRANCIS, Appellant.
    No. 74-1755.
    United States Court of Appeals, Third Circuit.
    Submitted under 3rd Cir. Rule 12(6) Dec. 3, 1974.
    Decided Jan. 10, 1975.

      Thomas Alkon, Isherwood, Colianni, Alkon & Barnard, Christiansted, St. Croix, V. I., for appellant.
    John S. Wilbur, Jr., Asst. U. S. Atty., Christiansted, St. Croix, V. I., Julio A. Brady, U. S. Atty., Charlotte Amalie, St. Thomas, V. I., for appellee.
    Before SEITZ, Chief Judge, and VAN DUSEN and ROSENN, Circuit Judges.
   OPINION OF THE COURT

PER CURIAM:

This appeal challenges a judgment and commitment entered after a jury returned a guilty verdict on both a count charging assault in the first degree (14 V.I.C. § 295(3)) and a count charging burglary in the first degree (14 V.I.C. § 442(1)). Two men had forced their way into the apartment of Mrs. Boreiszo (the victim). One of the men shot her in the neck and personal property was stolen from her apartment by her assailants.

Appellant’s principal contention is that the conduct of the pre-trial identification was so unnecessarily suggestive as to be a denial of due process of law. At the trial, the victim testified that she eliminated three (Nos. 4-6) of six men in a lineup “immediately” and “looked at the other three” (N.T. 101 at 26a). She then eliminated No. 2, leaving two men in the lineup (N.T. 102 at 27a). The victim’s testimony continued at N.T. 102 — 03:

“And then there were two and I looked at them and I felt that I had heels on while I was looking at them and the night it happened I did not, so I took my shoes off, or one shoe so that I could be on the height that I was on on the ground and then I knew at this height that I was looking directly into Francis.
“Q Did you identify anyone at that time?
“A I identified No. 3.
“Q Who was No. 3?
“A Alfred Francis.
“Q Is that the defendant sitting here at the defense counsel table?
“A Yes.
“Q Was there anyone else in that lineup at this point?
“A No. I was still there and I did recognize his face from having seen him in some of the pictures that I had looked at and I made the remark that I remembered seeing him in the albums, in some pictures.
“Q Did you ever identify anyone else in that lineup?
“A No.
“Q And are you sure at that time that the person you identified as No. 3, or No. 3 was your assailant?
“A Yes.
“Q Are you sure now?
“A Yes.”

In a May 30, 1974, Memorandum Opinion of the district court denying the motion to dismiss, the court made these findings, among others:

“It was in connection with her [the victim’s] identification of the defendant from the remaining two suspects that discrepancies in the testimony first developed.
“Defense Attorney Gamal distinctly recalls that the victim first identified suspect number one, and only changed her mind after being told by Assistant U. S. Attorney Wilbur to take her time and be sure. None of the other witnesses present recall the victim’s having ever identified suspect one as her assailant. Instead they remember her having remarked that she recognized him but, on reflection, realized that this was because she had seen his photograph in one of the albums previously displayed to her. I am convinced that all of the witnesses testified to the facts as best they recalled them. However, I find as a fact that the victim never identified suspect one as her assailant. Instead I suspect that she stated T recognize him — number one’ and then stood away from the viewing window. This initial recognition was probably misinterpreted by defense attorney Gamal as a statement that ‘Number one is the man.’ I find the subsequent explanation of her recognition believable and consistent with all the testimony.
“The identification of defendant Francis, number three, as her assailant followed shortly after the recognition of number one. I do not think the identification was the result merely of elimination of the other five suspects, leaving only one. Had defendant Francis not been her assailant the victim would have identified no one, as evidenced by her failure to select any of the photographs shown to her during the first sessions of photographic identification. The victim made only one identification at the lineup and testified in Court that she feels she was right about it.
“I conclude as a matter of law that on the totality of the surrounding circumstances the conduct of the lineup was not unduly prejudicial as fatally to taint a subsequent in-court identification. Coleman v. Alabama, 399 U.S. 1, 4, [90 S.Ct. 1999, 26 L.Ed.2d 387] (1970).”

These findings are supported by the victim’s testimony as noted above. Weighing all the circumstances, we find no substantial likelihood of misidentification. See Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); see also Neil v. Biggers, 409 U.S. 188, 198-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

We agree with the district court that the comments of the United States Attorney to the victim during the lineup to “take her time” were unwise. See Memorandum of May 30, 1974, supra, at 21a. In order to avoid “[a] major factor contributing to the high incidence of miscarriage of justice from mistaken identification [which] has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification,” see United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 1933, 18 L.Ed.2d 1149 (1967), law enforcement authorities must take great care to avoid suggestive identification procedures. See also id. at 236 n. 26, 87 S.Ct. at 1937 (a model statute “would enjoin the police from suggesting to any viewer that one or more persons in the lineup had been arrested as a suspect”). In Simmons v. United States, 390 U.S. 377, 385, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the Court noted that there was no evidence of verbal guidance by the police. See also Coleman v. Alabama, 399 U.S. 1, 6, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970). Cf. Foster v. California, 394 U.S. 440, 443, 89 S.Ct. 1127, 1129, 22 L.Ed.2d 402 (1969) (“[i]n effect, the police repeatedly said to the witness, ‘This is the man’ ”). In Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230, 1237-1238 (1970), the court said:

“Any well-run department will presumably prepare — and enforce — careful regulations in this regard for the guidance of its personnel, as it will also do with respect to police station lineups. Apart from photographic leads and the familiar post-arrest police station confrontation, there are possible variations in the circumstances of arrest and detention where the right to counsel, as well as the demands of due process, will have to be defined and measured from case to case by reference to the reasonableness of the police conduct under the particular circumstances.”

Any instructions to a witness to be careful or take her time should be given prior to the start of the lineup identification, rather than in the course of such a lineup.

The district court judgment and commitment will be affirmed.

      . Many days before the lineup the victim had selected his photograph, as well as two others, and focused her attention on him as her assailant.

      . See also Transcript of Hearing on Motion to Suppress at pp. 11-15:
      “Q And that left only two then?
      “A Only two.
      “Q And there [sic] numbers were what? “A 1 and 3
      “Q What, if anything, did you do with regard to them?
      “A Well, I looked at them and I realized that I had heels on and at the time of this I did not have shoes on, so I took—
      “Q At the time of this what?
      “A The incident.
      “Q The incident that happened to you?
      “A I had no shoes on, so I took my shoes off and then I knew which one of the two because it put me on the same height that I recalled being face-to-face with this person.
      “Q So of those two who were there, did you then come to a conclusion as to any one of them?
      “A Yes, it was number 3.
      “Q And when you say it was number 3, what do you mean?
      “A I concluded that number 3 was the one who had been facing me February 15th.
      “Q Is that the man who assaulted you and shot you in the neck?
      “A Yes.
      “And specifically let me draw your attention to when it came down to the two, the 1 and 3, did you say anything in regard to any of them?
      “A Yes, I did. I said in a casual way I remembered number 1, his picture being in the many pictures that I had looked through.
      “Q When you say pictures you had looked through, are you referring to photographs shown to you by the police after the incident?
      “A Yes.
      “Q When you say you remarked about number 1—
      “A I just recalled recognition from seeing the pictures in the books.
      “Q When you chose number 3 — that was the one you chose, was it not?
      “A Yes.
      “Q How do you feel, what is your state of mind regarding this identification? How do you feel?
      “A I feel that I am right, I am sure that I had identified him.
      “Q Have you seen him since that?
      “A Since the lineup?
      “Q Yes.
      “A Yes.
      “Q When was that?
      “A Today.
      “Q Where is he?
      “A Where?
      “Q Do you see him now?
      “A Yes.
      “Q Will you point him out to me? Just tell me. Is he in this courtroom?
      “A Yes.
      “Q Where in the courtroom? the left side or the right side of the courtroom?
      “A On the right side.
      “Q Go ahead. In what row is he sitting?
      “A The first row.
      “Q Where in the row?
      “A The middle one, in the middle between two people.
      “Q What is he wearing?
      “A A jacket and a tie.
      “MR. BRADY: Will the record reflect, please, that the witness has indicated the defendant Albert Francis.”
      At pp. 40-41, the victim testified:
      “Q Again, while being questioned by Mr. Brady you said that you made a remark that one of the men was in a picture that you looked at; is that correct?
      “A Yes, I did say that.
      “Q Well, isn’t it true, Mrs. Boreiszo, that /ou identified that person as your assailant?
      “A No.
      “Q That isn’t true?
      “A No; I recognized the picture and casually mentioned that I remember seeing that one in the albums.
      “Q You don’t remember saying that it was number 1 and after being told to take your time to be sure of your identification, then saying, ‘No, I picked him out from the pictures I looked at’ ?
      “A I don’t remember saying that.”

      . Government of the Virgin Islands v. Rivera and Francis, Criminal No. 74-29 (D.V.I.)


author: RIVES, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Raul MONTELONGO and Ignacio Montelongo, Defendants-Appellants.
    No. 74-1685.
    United States Court of Appeals, Fifth Circuit.
    Jan. 29, 1975.
    John J. Pichinson, Corpus Christi, Tex., for R. Montelongo.
    Charles W. Cromwell, Corpus Christi, Tex., Thomas G. Sharpe, Jr., Eduardo R. Rodriguez, Brownsville, Tex., for I. Mon-telongo.
    Anthony J. P. Farris, U. S. Atty., Ellis C. McCullough, Mary L. Sinderson, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.
    Before RIVES, WISDOM and COLEMAN, Circuit Judges.
   RIVES, Circuit Judge:

Ignacio Montelongo appeals from a judgment of conviction based on a jury verdict finding him guilty as charged in Counts 1 and 2 of a three-count indictment (No. 72 — C-138 in the district court). Count 1 charged Ignacio, his brother Raul, and one Danny Lynn Sta-ley with conspiracy to distribute “a quantity of marihuana.” Count 2 charged Ignacio and Staley with possession with intent to distribute 422 grams of marihuana. Count 3 did not mention Ignacio, but charged Staley and Raul with distributing 422 grams of marihuana. Ignacio was sentenced to the custody of the Attorney General for two four-year terms to run consecutively.

Raul Montelongo appeals from a judgment of conviction on Counts 1 and 3 of the indictment just discussed. Raul was sentenced on that conviction to two four-year terms to run consecutively. Raul appeals also from judgments of conviction based on two additional indictments, neither of which mentioned Ignacio. One of those indictments (No. 72-C-137 in the district court) charged Raul and Staley with possession with intent to distribute 48.20 granas of heroin and, in a separate count, with distributing 48.20 grams of heroin.

The remaining indictment (No. 72-C-139 in the district court), on which Raul was convicted, joined Raul, Staley and still another codefendant, David Tijerina. One count charged that those three conspired to distribute “a quantity of heroin.” A second count charged that they distributed 235.55 grams of heroin. The crimes charged in this third indictment against Raul were allegedly committed “on or about the 26th day of October, 1972,” while the crimes charged in the two indictments described earlier were allegedly committed “on or about October 17, 1972.” On each of the two last-mentioned judgments of conviction of Raul, he was sentenced to two ten-year terms to run consecutively, making the total of Raul’s consecutive sentences under all three indictments forty-eight years.

The jury found David Tijerina not guilty. On the two indictments last mentioned, Staley was tried separately some six months prior to the trial of Tijerina and the Montelongos. Staley was convicted and sentenced to six years imprisonment on those two indictments. His conviction has been affirmed by this Court without a published opinion. United States v. Staley, 5 Cir. 1974, 492 F.2d 1241.

The sufficiency of the evidence to support convictions was challenged by motion of each defendant for judgment of acquittal filed at the conclusion of the government’s case and renewed at the close of the evidence. The district court denied the motions, and also denied a motion for new trial filed by Ignacio

Upon appeal Ignacio Montelongo makes two contentions: (1) that there was insufficient evidence to sustain his conviction; and (2) that the district court erred in not granting his motion for severance.

Raul Montelongo contends on appeal: (1) that the district court erred in permitting the government to carve out more than one offense from a single transaction and in imposing consecutive sentences for each such offense; (2) that, upon sentence, the district court erred in considering information not in the record without giving him an opportunity to refute such information; and (3) that the district court erred in denying his motion to quash the jury panel and in refusing his counsel permission to develop the nature and extent of prior jury service of the members of the jury panel.

The issues as to the sufficiency of the evidence and the selection of the jury, under the circumstances of this case, may be matters affecting the fundamental fairness of the trial and convictions of the defendants. We therefore consider those issues first.

1. Sufficiency of the Evidence

Raul Montelongo on appeal makes no contention that the evidence was insufficient to sustain the jury’s verdict under any count on which he was convicted. Ignacio Montelongo seriously contends that there was not sufficient evidence to sustain the jury’s verdict finding him guilty under Counts 1 and 2 of the indictment in case No. 72-C-138. It is enough to say that, while a close question is presented, particularly as to Count 1, the conspiracy count, any insufficiency may be supplied upon another trial. We note that Ignacio both moved for a new trial, as has been stated, and also prayed that his case “be reversed and remanded for a new trial.” (Brief, p. 7.) We need not prolong this opinion with a necessarily elaborate discussion of the evidence, since the judgment against Ignacio must be reversed and his case must be remanded for other reasons presently to be discussed.

2. Selection of the Jury

The venire from which the jury was selected was the same as that from which the jury had been selected some months earlier in the case of codefend-ant Staley. Without prior notice to any of the parties or to counsel, the court, ex mero motu, at the call of the docket before the trial began, consolidated the three cases for trial. The judge excused six members of the venire who sat upon the Staley jury. Counsel for Ignacio Montelongo objected to the consolidation because it would limit his challenges and also because the charges against Ignacio involved marihuana and he would probably be prejudiced by the trial of his case along with two cases to which he was not a party, both of which involved heroin.

Counsel for Raul Montelongo also objected to any limitation upon his challenges. The district court stated: “ * * I am going to add two strikes, and so that the defendants can, jointly, exercise twelve strikes.” (Supp.Rec., 18.) Counsel persisted in his objection to the consolidation:

“MR. PICHINSON [Counsel for Raul Montelongo]: Now comes the Defendant, Raul Montelongo, and moves the Court to quash the jury panel from which a jury is to be selected in the trial of this ease for the reason that it has been developed from the questions asked that twenty-seven out of the thirty-two members of the jury panel have had previous service in cases involving narcotics, and therefore, it is impossible to select a fair and impartial jury from the panel.
“Further, that the Court has refused to permit Counsel for the Defendant, Raul Montelongo, to inquire from the twenty-seven persons who have had previous jury service in narcotics cases to the type of case, the extent of their service in regard thereto, and the extent of service in regard—
“THE COURT: All right—
“MR. PICHINSON: —And further, there is something in addition to that, the Defendant, Raul Montelongo, acknowledges that the Court has now permitted fourteen strikes as between all Defendants, and the Defendant, Raul Montelongo, does not, this does not waive his right to have the individual ten strikes permitted, and respectfully still urges the objection that the fourteen strikes between all Defendants is not sufficient.
“MR. SHARPE [Counsel for Ignacio Montelongo and David Tijerina]: The Defendants David Tijerina and Ignacio Montelongo, at this time would re-urge their request to have ten strikes each, and would adopt the Motion previously filed by Raul Montelongo with regard to quashing the panel.
“THE COURT: All right, the Motions are denied.”

(Supp.Rec., 24, 25 & 26.)

We think that the district court erred in denying the motions to quash the jury panel without allowing counsel for the defendants any opportunity to develop the nature and extent of the prior jury service of the twenty-seven members of the panel who had had prior jury service in narcotics cases.

Under the circumstances of these cases, we direct that on any re-trial Ignacio Montelongo be tried separately from Raul Montelongo. The remaining issues may not arise upon any re-trial and, hence, are not discussed.

The judgments of conviction of Ignacio Montelongo and of Raul Montelongo are reversed and the cases are remanded.

Reversed and remanded.


author: COLEMAN, Circuit Judge.

text:
    John F. TOMLIN, Trustee, Plaintiff-Appellee, v. The CERES CORPORATION et al., Defendants, Harry I. NEUMAN, Defendant-Third-Party Plaintiff-Appellant, MITCHELL T. CURTIS & CO., INC., Third-Party Defendant-Appellee.
    No. 74-1092.
    United States Court of Appeals, Fifth Circuit.
    Jan. 29, 1975.

      W. F. Leigh, Pecos, Tex., for appellant.

      Calvin W. Wesch, Kermit, Tex., for Mitchell T. Curtís & Co., Inc.
    Before RIVES, WISDOM and COLEMAN, Circuit Judges.
   COLEMAN, Circuit Judge.

This is a diversity action on a $165,064.54 note and on a contract which guaranteed payment of the note. John Tomlin (payee of the note) filed the action against the limited partnership, Ceres Ranches LTD (the maker of the note), against the Ceres Corporation (the sole general partner of Ceres Ranches LTD) and against Harry I. Neuman and Mitchell T. Curtis & Co., Inc. (guarantors of part payment of the note).

The defendants are closely related. Defendant Mitchell T. Curtis & Co., Inc. owns 75% of defendant Ceres Corporation. Defendant Ceres Corporation is the sole general partner of defendant Ceres Ranches LTD. The President of defendant Mitchell T. Curtis & Co., Inc. is Mitchell T. Curtis, who is also President of defendant Ceres Corporation. Defendant Neuman is an officer of defendant Ceres Corporation and owns 25% of it.

All defendants defaulted except Neu-man, who sought to exonerate himself in three ways. First, he claimed that he was discharged from liability under his guaranty contract because of an extension of time granted the primary debtor, defendant Ceres Ranches LTD. Second, he claimed that he was entitled to credit for certain payments made by Mitchell T. Curtis & Co., Inc. Third, he claimed that Mitchell T. Curtis (President of Mitchell T. Curtis & Co., Inc. and Ceres Corporation) had contracted to indemnify him for any loss he might suffer by reason of his guaranty contract. Neu-man brought Mitchell T. Curtis into the fray as a third party defendant.

The District Judge rejected all three defenses. Neuman appeals. We affirm.

Except for the multiplicity of parties and contracts, the facts are simple. Plaintiff John F. Tomlin is the trustee for a huge number of creditors of the financially-troubled Ceres Ranches LTD. Ceres Ranches LTD, for reasons not material to this appeal, gave Tomlin a note for $165,064.54, representing the total amount owed by Ceres Ranches LTD to creditors represented by Tomlin. The note was dated 10 November 1966 and payable two years from date.

In addition to getting Ceres Ranches LTD to give him the note, Tomlin was able to obtain guarantees the note would be paid, at least in part. Harry I. Neu-man and Mitchell T. Curtis & Co., Inc. agreed to guarantee part payment of the note. Specifically, each agreed to make good $25,000 of the debt if the primary debtor (Ceres Ranches LTD) failed to pay.

Neuman sought to protect himself if Ceres Ranches LTD defaulted. On the same day the guaranty contracts were executed, the following indemnification contract was executed:

AGREEMENT OF INDEMNITY
“WHEREAS, Harry I. Neuman is unwilling to execute the GUARANTEE AGREEMENT of a portion of the note from Ceres Ranches, a limited partnership, to John F. Tomlin, Trustee, unless he receives the agreement of Indemnity;
NOW, THEREFORE, the undersigned agrees to indemnify, and hold harmless Harry I. Neuman, his heirs, successors and assigns, from any loss, cost or expenses which Harry I. Neuman, his heirs, successors and assigns may suffer by reason of:
The execution by Harry I. Neuman of the guarantee agreement above described.
Dated: 10th, of November, 1966 [Signature of Mitchell T. Curtis]
Mitchell T. Curtis_
Mitchell T. Curtis & Co., Inc. President
315 Montgomery St.
San Francisco, Calif.
Attest: Melvin H. Brown
Melvin H. Brown, Asst. Secy.”
Pay day arrived; payment was not made. On November 25, 1968, an extension of time contract was executed. In relevant part, it recited :
WHEREAS, on the 10th day of November, 1966, Ceres Ranches, a Limited Partnership, acting by The Ceres Corporation as General Partner, executed a Deed of Trust note payable to the order of John F. Tomlin, Trustee, for the creditors listed on the exhibit to said note, said note being in the sum of One Hundred, Sixty Five Thousand, Sixty-four and 54/100 ($165,064.54) Dollars, bearing interest from date at the rate of six per cent (6%) per annum, said note being due and payable on or before two (2) years after date.
**********
On the said 10th day of November, 1966, Harry I. Neuman and Mitchell T. Curtis & Co., Inc. executed a Guaranty Agreement wherein each of said parties agreed to guarantee the payment of said Deed of Trust Note to the extent of Twenty Five Thousand Dollars ($25,000) each, as more specifically provided in said agreement to which reference is here made for all purposes.
WHEREAS, Ceres Ranches has agreed to make monthly payments in the sum of One Thousand and No/100 ($1,000.00) Dollars each to be applied upon said note for a period of nine (9) months, commencing on or before December 10, 1968, and to pay the entire balance of said note, including both principal and interest, on or before September 10, 1969, and the owner and holder of said note has agreed not to foreclose the Deed of Trust lien securing said note provided said monthly payments are timely made by the said Ceres Ranches.
WHEREAS, Mitchell T. Curtis & Co., Inc., for and in consideration of the extension of time granted for the payment of said note and the agreement by the owner and holder thereof not to foreclose provided nine (9) monthly payments in the sum of $1,000.00 each are made on or before the 10th day of each month beginning on December 10, 1968, and the entire balance, including both principal and interest, is paid on or before September 10, 1969, has agreed to guarantee the additional sum of Fifty Thousand and No/100 ($50,000.00) Dollars, so as to make the total amount of its Guaranty Agreement the sum of Seventy Five Thousand and No/100 ($75,000.00) Dollars.
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, that Mitchell T. Curtis & Co., Inc., a corporation, does hereby guarantee the payment of $75,000.00 of the above described Deed of Trust Note dated November 10, 1966 .... PROVIDED FURTHER, that this guaranty and the prior guaranty of Harry I. Neuman to the extent of $25,000.00, shall extend and be enforceable only as to the first One Hundred Thousand and No/100 ($100,000.00) Dollars of the amount of said note, and this guaranty shall reduce pro tanto as to any part or portion of payments first made on said note; and when $100,000.00 of the amount of said note . . . has been paid (whether principal, interest, or both) this Guaranty Agreement shall terminate and be of no further force and effect.
It is further understood and agreed that all monthly payments made by Ceres Ranches during the extended period shall be credited not only against said Deed of Trust Note but also against the guaranty of Mitchell T. Curtis & Co., Inc. hereby given. It is further expressly understood and agreed that nothing herein contained shall in any manner alter or modify the liability of Harry I. Neuman on the Guaranty Agreement dated November 10,1966.
EXECUTED this the 25th day of November, A.D. 1968.
MITCHELL T. CURTIS & CO., INC.
By: /s/ Mitchell T. Curtis
Mitchell T. Curtis,
President.

Notice that only Mitchell T. Curtis, acting on behalf of Mitchell T. Curtis & Co., Inc., signed this agreement. Neuman had no part in it.

The note was not fully paid on September 10, 1969, as Mitchell T. Curtis & Co., Inc., had promised it would be. However, monthly payments as required by the extension contract were begun. There were 22 such payments, the last on November 1, 1970. The payments were made not by the primary debtor, Ceres Ranches LTD, but by the co-guar- • antor Mitchell T. Curtis & Co., Inc.

Tomlin filed this suit to collect the balance due on the note on November 3, 1972.

All the transactions involved occurred in Texas, and the parties agree that Texas law governs.

The primary question is whether the extension agreement signed by Mitchell T. Curtis as agent of Mitchell T. Curtis & Co., Inc. legally discharged Neuman as a non-consenting guarantor.

The law in Texas, as elsewhere, is that any contract alteration — such as an extension of time agreement — between a principal debtor and a creditor discharges a guarantor. Wylie v. Hightower, 74 Tex. 306, 11 S.W. 1118 (1889); 10 Williston on Contracts § 1222 (3rd ed., 1967). A reason frequently assigned is that the contract the guarantor promised to guarantee no longer exists. It has been legally terminated by the new contract between the principal debtor and the creditor. “If an alteration be made in a contract ‘in a point so material as in effect to make a new contract’, without the consent of a guarantor, he is discharged. . And if he be then sued on the original contract a good answer is, ‘that such contract no longer exists, it having been legally terminated by the altered or substituted contract made by the parties’.” Kingsbury v. Westfall, 61 N.Y. 356, 360 (1875); 10 Williston on Contracts § 1225 (3rd ed., 1967).

Another reason is the inherent prejudice to the guarantor resulting from the termination of the underlying contract. He has lost his right to pay the debt on pay day and to obtain reimbursement through subrogation to the creditor’s position. He has lost his right to insist that suit be brought by the creditor against the debtor. His risk has been increased by the greater time given the primary debtor. Having lost these benefits of his guaranty contract, the guarantor can no longer be held to it. Sauder v. Dittmar, 10 Cir., 1941, 118 F.2d 524; Gleason v. McDonald, 6 Cir., 1939, 103 F.2d 837; 10 Williston on Contracts § 1225 (3rd ed., 1967).

The law is different when the principal debtor is not a party to the extension of time agreement. If the extension of time agreement is between the creditor and some third party, the contract between the primary debtor and the creditor is unaffected. The guarantor retains all the rights — e. g., exoneration, subrogation, reimbursement — that he had under the original contract. He can insist on performance of the original contract between the primary debtor and the creditor, notwithstanding the fact that this performance may be a breach of the contract between the creditor and a third party. The guarantor’s rights under the original contract being unaffected by any extension of time not agreed upon by the same parties who made the contract, the guarantor is not discharged. Kaufman v. Penn Mutual Life Ins. Co., 1933, 62 App.D.C. 37, 64 F.2d 160, cert. den., 289 U.S. 763, 53 S.Ct. 793, 77 L.Ed. 1506; 10 Williston on Contracts § 1224 (3rd ed., 1967).

The problem is to place this case in its proper category. Is this a case in which the primary debtor (Ceres Ranches LTD) was a party to an extension agreement so that the guarantor was released from liability? Or, on the other hand, is this a case in which the primary debtor was not a party to the extension agreement so that the guarantor is not relieved of liability?

The burden was upon Neuman to place the case in the category favorable to him — to prove that Ceres Ranches LTD was a party to the extension of time agreement. Discharge of a contract obligation is an affirmative defense. Rule 8(c), Fed.R.Civ.P.

The only evidence Neuman produced tending to show that Ceres Ranches LTD was a party to the extension of time agreement was a representation contained in the extension agreement itself. The extension agreement, signed by Mitchell T. Curtis as agent of Mitchell T. Curtis & Co., Inc., recites that, as consideration for the extension of time, “Ceres Ranches has agreed to make monthly payments . . . ”.

Such a recital is incompetent as proof that Ceres Ranches LTD, in fact, agreed to the extension of time. An out-of-court statement, not made under oath, admitted to show the truth of the matters contained in it is incompetent hearsay. See Jacksonville Paper Co. v. N.L.R.B., 5 Cir., 1943, 137 F.2d 148, cert. denied, 320 U.S. 772, 64 S.Ct. 84, 88 L.Ed. 462; Superior Engraving Co. v. N.L.R.B., 7 Cir., 1950, 183 F.2d 783, cert. denied, 340 U.S. 930, 71 S.Ct. 490, 95 L.Ed. 671; Dallas County v. Commercial Union Assur. Co., 5 Cir., 1961, 286 F.2d 388; Emmco Ins. Co. v. Wallenius Caribbean Line, 5 Cir., 1974, 492 F.2d 508; Vanston v. Connecticut General Life Ins. Co., 5 Cir., 1973, 482 F.2d 337.

Even if it were not hearsay, Neuman would not be aided by the statement. It is a statement only of Curtis’ opinion or conclusion that Ceres Ranches LTD has entered a binding legal agreement. The statement contains no fact showing such agreement by Ceres Ranches LTD.

The crucial fact required to show that Ceres Ranches LTD, in fact, agreed to the extension was assent by the Ceres Corporation’s Board of Directors. Ceres Ranches LTD is a limited partnership. A limited partnership acts only through its general partner, in this case, Ceres Corporation. Donroy Limited v. United States, 9 Cir., 1962, 301 F.2d 200; Riviera Congress Associates v. Yassky, 18 N.Y.2d 540, 277 N.Y.S.2d 386, 223 N.E.2d 876 (1966); Vernon’s Ann. Civ.St. Art. 6132b, § 9(1) read with Vernon’s Ann.Civ.St. Art. 6132a, § 10(a). Ceres Corporation, in turn, could assent to the extension of time only through action by its board of directors. A corporation executes its business affairs by, and is bound by, the actions of its board of directors. Vernon’s Ann.Tex.Civ.St., Bus.Corp.Act, Art. 2.31; Duncan v. Ponton, 102 S.W.2d 517 (Tex.Civ.App.1937); Reynolds-Southwestern Corp. v. Dresser Industries, Inc., 438 S.W.2d 135 (Tex.Civ. App.1969). Since the recital in the extension agreement contained no evidence of assent by the Ceres Corporation’s board of directors, there was no evidence of any fact tending to prove agreement to the extension by Ceres Corporation on behalf of Ceres Ranches LTD.

In the complete absence of any competent evidence that Ceres Ranches LTD was a party to the extension agreement, the only factual finding supportable by the record was that Ceres Ranches LTD was not a party to the extension agreement. This brings the case within the rule that an extension of time agreement between a creditor (Tomlin) and a third party (Mitchell T. Curtis & Co., Inc.) leaves a guarantor (Neuman) unaffected and does not discharge him.

The District Judge was correct in holding that the extension agreement did not release Neuman.

Neuman has two other arguments.

First, he says that the Curtis-Tomlin extension contract kept him from collecting from Mitchell T. Curtis & Co., Inc. under the indemnification contract. He says that if the extension contract had not been executed, he could have paid the $25,000 to Tomlin, due under his guaranty contract, and been reimbursed by Mitchell T. Curtis & Co., Inc. under the terms of the indemnification contract. Therefore, he is entitled to credit for the $22,000 paid by Mitchell T. Curtis & Co., Inc. to Tomlin under the extension contract. That amount, in the absence of the extension contract, could have been collected by him under the indemnification contract.

Neuman misunderstands the effect the extension contract had on the indemnification contract. That effect was nil. Neuman had every right after execution of the extension contract to pay the $25,000 and seek indemnification from Mitchell T. Curtis & Co., Inc. The Mitchell T. Curtis & Co., Inc. promise to indemnify Neuman could not be affected by any agreement Mitchell T. Curtis & Co., Inc. might make with a third party such as Tomlin. One does not escape contract obligations by making another contract with a third party.

Neuman’s final contention is in the form of a claim against Mitchell T. Curtis. Neuman says that the indemnification contract bound Mitchell T. Curtis personally rather than Mitchell T. Curtis & Co., Inc. The indemnification contract is signed:

“Dated: 10th of November, 1966 [Signature of Mitchell T. Curtis]
Mitchell T. Curtis_
Mitchell T. Curtis & Co., Inc. President
315 Montgomery St.
San Francisco, Calif.
Attest: Melvin H. Brown
Melvin H. Brown, Asst. Secy.”

This signature is ambiguous. The typewritten matter beneath the signatures of Curtis could mean that Curtis signed only as an agent of the corporation. On the other hand, it could be meant to state the title and identity of Mitchell T. Curtis.

Whether a person signs an instrument as an agent or in his own right can be shown by parol evidence when the signature is ambiguous. Restatement, Agency, Sec. 323(1), pp. 714-715; Cavaness v. General Corporation, 155 Tex. 69, 283 S.W.2d 33 (1955).

The trial judge, therefore, acted properly in admitting the testimony of Neuman and Curtis on the question of whether Curtis signed as the corporation’s agent or in his own right. Neu-man testified that the signature was meant by the parties to bind Curtis personally. Curtis testified that the understanding between himself and Neuman was that he signed as the corporation’s agent.

The credibility choice was for the trial judge. He chose to believe Curtis’ testimony that his signature was made as an agent of the corporation. This factual finding was not clearly erroneous, which is the complete answer to Neuman’s contention that Curtis was bound personally by the indemnification contract.

The Judgment of the District Court is

Affirpied.

      . It has not been contended that Ceres Corporation was not bound because it could not legally act as a partner. The general rule in Texas, as elsewhere, is that a corporation cannot become a partner. See, for example, Luling Oil & Gas Co. v. Humble Oil & Refining Co., 144 Tex. 475, 191 S.W.2d 716 (Texas, 1945); Henn, Law of Corporations, § 183, p. 351, Anno. “Corporation’s Power to Enter into Partnership or Joint Venture”, 60 A.L.R.2d 913. The reason most frequently assigned is that the entry of a corporation into a partnership allows the corporation to be bound by the acts of other partners, thereby depriving the corporation’s directors of management of corporate affairs. This rationale would not apply in this case where the corporation is the sole general partner of the partnership. Texas courts have generally been reluctant to apply the rule when the reason for applying it is absent. E. g., Port Arthur Trust Company v. Muldrow, 155 Tex. 612, 291 S.W.2d 312, 60 A.L.R.2d 913 (1956). Furthermore, a corporation which represents itself to be a partner cannot, as a general rule, deny that status to escape liability to a person who has been misled by the corporation’s representation. See, e. g., Millers’ Indem. Underwriters v. Patten, 238 S.W. 240 (Tex.Civ.App.1922) aff’d, 250 S.W. 154 (Tex.Comm. App.1922); Annot. “Corporation’s Power to Enter into Partnership or Joint Venture”, 60 A.L.R.2d 913.

      . Unfortunately, the .trial judge did not make the findings of fact and conclusions of law required by Rule 52, Fed.R.Civ.P. We are thus handicapped by the lack of a factual finding as to whether Ceres Ranches LTD agreed to the extension. In such a situation, we would “normally vacate the judgment and remand the action for appropriate findings to be made”, 5A Moore’s Federal Practice, Par. 52.06(2) and extensive list of cases there cited. In this case, a remand is not necessary since the record would not support a finding that Ceres Ranches LTD was a party to the extension agreement. Such a finding, if the trial judge had made it, would be clearly erroneous.

      . That the extension agreement did not affect Neuman’s right to pay Tomlin the $25,000 on the original due date of the note has already been demonstrated. See pages 7 & 8, supra.

      . See comprehensive list of ways in which a contract obligation may be discharged in 15 Williston on Contracts § 1793 (3rd ed., 1967).
      The most familiar application of the rule that one cannot escape one contract by making another with a third party is found in cases of sales of mortgaged property. The vendor remains liable on his promise to pay the mortgage debt notwithstanding any agreement he might make with the buyer of the property.

        Another application of the rule was discussed on pages 7-9, supra. The reason a guarantor of a debt is not discharged when an extension of time is agreed upon between the creditor and a third party is that the terms of the contract guaranteed can only be changed by the parties to the contract; not by a contract by one of the parties with a third party.

      . Our review of the contention that Curtis was bound personally was also handicapped by the District Judge’s failure to follow Rule 52, Fed.R.Civ.P. He made no finding that the signature on the indemnification agreement was ambiguous. However he did not exclude the parol testimony. We are therefore left to deduce that he considered the signature ambiguous.
      Nor did the trial judge make a finding that the indemnification agreement was intended by the parties to bind the individual, not the corporation. However, the judge’s holding that Curtis was not liable personally can lead to but one conclusion — that he believed the testimony of Curtis to the effect that the parties’ agreement was that the corporation, not the individual, was bound.


author: GIBBONS, Circuit Judge. ADAMS, Circuit Judge

text:
    ISLAND CREEK COAL COMPANY, Appellee, v. UNITED MINE WORKERS OF AMERICA, DISTRICT 2, UNITED MINE WORKERS OF AMERICA, and Local No. 998, United Mine Workers of America, Appellants.
    No. 74-1631.
    United States Court of Appeals, Third Circuit.
    Argued Nov. 22, 1974.
    Decided Jan. 14, 1975.
    As Amended Feb. 5, 1975.
    Henry J. Wallace, Jr., Reed, Smith, Shaw & MeClay, Pittsburgh, Pa., Ferdinand F. Bionaz, Bionaz & Raptosh, Johnstown, Pa., for appellee.
    Joseph A. Yablonski, Lewis D. Sargen-tich, Washington, D. C., Lloyd F. Engle, Jr., Melvin P. Stein, Kuhn, Engle, Blair & Stein, Pittsburgh, Pa., for appellants.

      Before ADAMS, GIBBONS and WEIS, Circuit Judges.
   OPINION OF THE COURT

GIBBONS, Circuit Judge.

In this appeal from an order granting a preliminary injunction pending arbitration we consider once again the scope of the no strike obligation implied from the' settlement of dispute provisions of the National Bituminous Coal Wage Agreement. The plaintiff employer, Island Creek Coal Company, operates Bird No. 2 and No. 3 mines in Somerset County, Pennsylvania, and employs members of Local No. 998, United Mine Workers of America. In April, 1974 a work stoppage commenced at Florence Mining Company No. 2 mine, whose employees belong to Local No. 680 of the United Mine Workers. On April 11, 1974 20 to 25 men not employed by Island Creek, and so far as appears not members of Local 998, picketed Bird No. 2 and No. 3 mines. The Island Creek employees declined to cross the picket line and report for work. Island Creek sought an injunction in the district court pursuant to § 301 of the Labor-Management Relations Act of 1947, 29 U.S.C. § 185 alleging that under the collective bargaining agreement, whether the members of Local 998 were required to report for work across stranger picket lines was an arbitrable dispute under the settlement of disputes procedures of the agreement. After a hearing the district court issued the requested preliminary injunction and Local Union 998 appeals.

The settlement of disputes provisions of the National Bituminous Coal Wage Agreement of 1971 are virtually identical with the settlement of disputes provisions of the 1968 Agreement which was construed by the Supreme Court in Gateway Coal Co. v. United Mine Workers, 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974). The key provisions are Article XVII, § (b):

“Should differences arise between the Mine Workers and the Employer as to the meaning and application of the provisions of this agreement, or should differences arise about matters not specifically mentioned in the agreement, or should any local trouble of any kind arise at the mine, an earnest effort shall be made to settle such differences at the earliest practicable time.” (Appendix at 4a).

and Article XX:

“The United Mine Workers of America and the Employers agree and affirm that they will maintain the integrity of this contract and that all disputes and claims which are not settled by agreement shall be settled by the machinery provided in the ‘Settlement of Disputes’ article of this agreement . . . .” (Appendix at 6a)

In Gateway the Supreme Court held that the 1968 Agreement implied a no strike obligation co-terminus with the grievance-arbitration provisions, 414 U.S. at 381—382, 94 S.Ct. 629, and that the language “any local trouble of any kind arispng] at the mine” was to be read broadly to encompass even disputes over mine safety. Id. at 376, 94 S.Ct. at 636. If the underlying dispute falls within the scope of the grievance-arbitration clause, then, on the authority of Gateway the order appealed from must be affirmed. The Seventh Circuit, considering the same contract as is before us, and in the same context of a dispute over the employees’ duty to cross a stranger picket line, held that injunctive relief was proper. Inland Steel Company v. Local 1545, UMW, 505 F.2d 293 (7th Cir., 1974). Judge Fairchild dissented, referring to the analysis made by Judge Hunter in his dissenting opinion in NAPA Pittsburgh, Inc. v. Automotive Chauffeurs, 502 F.2d 321, 324 (3d Cir.), cert. denied, - U.S. -, 95 S.Ct. 625, 42 L.Ed.2d 644 (1974).

Our analysis must begin with the question whether there is a dispute which falls within the grievance-arbitration provisions of the contract. In this respect the present case is distinguishable both from Gateway and from NAPA Pittsburgh. In the former the underlying safety dispute was between the employer and its employees and the Supreme Court held that safety disputes were not excepted from the sweeping “any local trouble of any kind” language of the contract. In the latter, although the picket line was not the result of a dispute between the employer and its employees, the contract had an express no strike undertaking and a specific reference to honoring secondary picket lines. In this case there is no express no strike undertaking and there is no contractual reference to honoring picket lines. Thus neither Gateway nor NAPA Pittsburgh are dispositive of the question of arbitrability of this dispute. As with many legal issues, how we frame the question probably determines its answer.

Whatever difficulties there may be concerning the scope of the remedy recognized in Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970), there would, we assume, be a high degree of unanimity in support of the proposition that if the contract gives the union and the employees the right to grieve and arbitrate a given dispute that remedy must be pursued in preference to a work stoppage. Thus the initial inquiry should not be whether the employer is entitled to an injunction, but rather, whether the underlying dispute is one which the union and the employees could grieve and arbitrate.

In making this initial inquiry, in the context of the employees’ refusal to cross a stranger picket line, the starting point is the recognized principle that a union man’s honoring of á lawful stranger picket line is protected activity. The right to engage in that protected activity may, however, be bargained away by the collective decision of his union. NLRB v. Rockaway News Supply Co., 345 U.S. 71, 73 S.Ct. 519, 97 L.Ed. 832 (1953). In the Rockaway News case the collective bargaining agreement contained an express no strike clause but no specific reference to honoring picket lines. An employee truck driver refused to make a pick-up at a plant the employees of which were on strike, and was discharged. His union grieved his discharge through arbitration and the arbitrator decided in favor of the employer. The discharged employee then filed an unfair labor practice charge with the National Labor Relations Board, contending that he was discharged for engaging in protected activity. The Board, recognizing that the right to honor lawful stranger picket lines could be and had been bargained away, held that the contract was void because it contained an unlawful maintenance of membership clause. Thus it sustained the unfair labor practice charge. The Supreme Court reversed, holding that the no strike and arbitration clauses were separable from the maintenance of membership clause, and that the arbitrator’s decision was binding. 345 U.S. at 81, 73 S.Ct. 519. Rock-away News, is authority for the proposition that the question whether the right to honor a stranger picket line has been bargained away may be an arbitrable question. We ask, then, if Island Creek had discharged its employees who in this instance refused to cross a stranger-picket line, could the union have grieved their discharge under the settlement of disputes provisions of the instant contract?

We grant that the answer is not as clear in this case as in a case where the contract contains an express no strike clause as in Rockaway News or an express reference to picket lines, or, as in NAPA Pittsburgh, both. Nevertheless we conclude that under the settlement of disputes provisions of this contract the union could have grieved and arbitrated a discharge of its members for refusing to cross a picket line. The contract covers not only all matters dealt with specifically but also “matters not specifically mentioned.” Art. XVII, § (b). It provides that “all disputes and claims which are not settled by agreement shall be settled by the machinery provided in the ‘Settlement of Disputes’ article . . . .” Art. XX. These clauses are broad enough to confer on the arbitrator jurisdiction to resolve disputes over matters which were not specifically resolved in the collective bargaining process, including the matter of the members’ right to honor stranger picket lines. This result may superficially seem inconsistent with the philosophy of collective bargaining, since it recognizes a substantial jurisdiction in the grievance-arbitration process to fill in the interstices of the collective bargaining agreement. See United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 580, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). The apparent inconsistency is only superficial, however, since the settlement of disputes provisions were bargained for and the parties have undertaken to live by them during the term of the contract. The result is consistent, moreover, with the presumption of arbitrability laid down by the Supreme Court.

“An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.” Gateway Coal Co. v. United Mine Workers; supra, 414 U.S. at 377—378, 94 S.Ct. at 637 (quoting from United Steelworkers of America v. Warrior & Gulf Navigation Co., supra, 363 U.S. at 582-583, 80 S.Ct. 1347).

It will undoubtedly be urged that by starting with the question whether the union could grieve a discharge for refusing to cross a picket line we have predicated our analysis upon a different dispute than that before us, since in the discharge case the discharge itself is the dispute. There is, however, no meaningful distinction. In the discharge case the arbitrator would be required to determine whether or not the union has bargained away its members’ right to honor stranger picket lines. If he has jurisdiction to make such a determination that jurisdiction is equally available to the employer. To make a distinction which would in effect force the employer to discharge employees in order to bring the settlement of disputes provisions into operation would be counter-productive of the intended purpose of the provisions and of the national policy favoring settlement of industrial disputes by peaceful means.

Since we conclude that the dispute over whether the union has contracted away its members’ right to honor stranger picket lines is an arbitrable dispute, it follows from Gateway that the injunction appealed from was in this case properly issued.

This decision should not, however, be read as generally applicable to contracts where there is neither an express no strike clause nor a reference to the honoring of picket lines. The grievance-arbitration clause in this case is unusually broad; broad enough to permit the arbitrator to decide issues which the parties did not specifically resolve in the bargaining process. Our conclusion that it is broad enough to support the injunctive relief granted by the district court does not mean that in any case where there is a grievance-arbitration clause employees may automatically be enjoined from honoring picket lines. A narrower grievance-arbitration clause might well produce an opposite result. The no strike obligation is as wide as, but no wider than, the contractual arbitration undertaking of the parties. See Parade Publications, Inc. v. Philadelphia Mailers Local 14, 459 F.2d 369 (3d Cir. 1972).

The order appealed from will be affirmed.

ADAMS, Circuit Judge

(dissenting):

This Court in NAPA, by a 6 to 3 vote, decided that a strike could be enjoined by a federal court when the union members refused to cross a secondary picket line that was established by employees of an associated plant located some distance away. In NAPA, the collective bargaining contract in question contained an express no-strike clause and also stated that “It shall not be a violation of the agreement ... in the event an employee refuses ... to go through or work behind any primary picket lines ... at the Employer’s place or places of business.” There is no express no-strike clause in the collective bargaining agreement present in this case and no direct or indirect reference to secondary picketing. Accordingly, the majority opinion in this case constitutes an extension of the rule in NAPA.

For the reasons set forth in the dissenting opinions in NAPA and for the additional reason that an extension is here made to the NAPA doctrine that will further constrict the protection established by the Norris-LaGuardia Act, I respectfully dissent.

Moreover, no bench mark has been suggested by which additional extensions can logically be precluded, once the underpinnings- of NAPA plus those in this case are established.

I am concerned that if the courts continue to interpret the national policy favoring arbitration along the lines set forth by the majority here and in NAPA, then by a process of attrition, the salutary rule established after a long and sometimes bitter struggle by the Norris-LaGuardia Act will be imperceptibly chipped away until it has lost a substantial portion of its vitality. The Supreme Court specifically eschewed such an intent. 398 U.S. at 253, 90 S.Ct. 1583.

It was one thing to further the policy favoring arbitration of grievances conventionally submitted to arbitration, and to interpret the no-strike clause so as to permit that to be done. It is quite another thing to make it virtually impossible for union members to maintain their tradition of not crossing picket lines under a rationalization that the union, sub silentio, relinquished this valued right in favor of permitting an arbitrator to decide whether an agreement not to honor a picket line should be read into the contract.

      . United Mine Workers of defendant-appellants. America, and District 2, United Mine Workers of America are also

      . See Wilmington Shipping Co. v. Longshoremen’s Local 1426, 86 LRRM 2846 (4th Cir., June 19, 1974), cert. denied, - U.S. -, 95 S.Ct. 498, 42 L.Ed.2d 296 (1974); Pilot Freight Carriers v. Teamsters, 497 F.2d 311 (4th Cir. 1974). In Monongahela Power Co. v. IBEW, 484 F.2d 1209 (4th Cir. 1973), the court held that an injunction could be issued to enforce a no strike clause in a contract even though it had no provision applicable to honoring a picket line of another union.

      . AFL v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855 (1940). While recognition by the union of an unlawful secondary picket line is normally a violation of § 8(b)(4), 29 U.S.C. § 158(b)(4), in the absence of a contractual undertaking such an unfair labor practice would not give rise to a remedy under § 301, 29 U.S.C. § 185. Cf. Carpenter & Joiners Local 213 v. Ritters Cafe, 315 U.S. 722, 62 S.Ct. 807, 86 L.Ed. 1143 (1942) (upholding state law outlawing secondary picketing). Thus for present purposes the question whether the picketing here was lawful stranger picketing or unlawful secondary picketing is irrelevant.

      . For an incisive analysis of the considerations militating against permitting the district court to enjoin the work stoppage in NAPA, which is equally applicable in Island Creek, see Note, 88 Harv.L.Rev. 463 (1974). The Note points out: (1) that the work stoppage was not designed to force a concession from the employer on an arbitrable issue, as was the strike in Boys Markets v. Retail Clerks Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970); (2) that in NAPA, unlike Boys Markets, the union was not trying to avoid its obligation to arbitrate and the dispute would ultimately have been resolved by arbitration even without an injunction, so that no “accommodation” was necessary between the policy of the Norris-LaGuardia Act; (3) that in Boys Markets the strike was clearly illegal, while in NAPA the work stoppage was arguably legal, and instead of “merely enforc[ing] the obligation that the union freely undertook,” as in Boys Markets, the NAPA injunction created a new obligation which undermined the union’s contractual rights; (4) that NAPA by permitting an injunction wherever the work stoppage was arguably illegal would emasculate the Norris-LaGuardia Act by prohibiting injunctions only when the strike was clearly legal, in which case no injunction could be issued in any case; (5) that in NAPA since the dispute underlying the work stoppage was between the company and another union, it was not subject to settlement under the arbitration process set out in the NAPA-Local 926 contract — while the arbitra-ble dispute between NAPA and Local 926 was a result, rather than a cause, of the work stoppage; and (6) that under ordinary principles of equity, before enjoining the strike the district court in NAPA should have concluded that the employer would probably succeed on the merits of the issue whether the stoppage was legal.

      . See Boys Markets, 398 U.S. at 247-248, 90 S.Ct. 1583 (1970). In Boys Markets, the dispute arose when the store’s frozen foods supervisor and members of his crew, not members of the bargaining unit, began to rearrange merchandise in the frozen food cases. 398 U.S. at 239, 90 S.Ct. 1583. This is the type of dispute conventionally submitted to arbitration.

      . In the present case, as in Boys Markets and NAPA, the question involved — whether the union has a right to honor secondary picket lines — is not clearly arbitrable under the collective bargaining agreement. Contrast Gateway Coal Co. v. United Mine Workers, 414 U.S. 368, 376, 94 S.Ct. 629, 636, 38 L.Ed.2d 583 (1974): “On its face, th[e] contractual language admits of only one interpretation: that the agreement required the union to submit this dispute to arbitration for resolution by an impartial umpire.”
      The arbitration clauses relevant here are the same generalized ones present in Gateway Coal. The character of the issue on which arbitration is sought, however, is different. In Gateway the union went on strike because the employer reinstated two supervisors whose presence the union considered a safety hazard. The Court stated, “A collective-bargaining agreement cannot define every minute aspect of the complex and continuing relationship between the parties. Arbitration provides a method for resolving the unforeseen disagreements that inevitably arise.” 414 U.S. at 378, 94 S.Ct. at 637. Surely, however, the mineworkers’ right here to observe a stranger picket line cannot nonchalantly be described as an “unforeseen” issue.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Benjamin Franklin MOSES, Jr., Defendant-Appellant.
    No. 74-2831
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 30, 1975.

      Jack V. Eskenazi, Federal Public Defender, Michael Brodsky, Asst. Federal Public Defender, Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., David F. McIntosh, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before BELL, SIMPSON and MORGAN, Circuit Judges.

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

   PER CURIAM:

Benjamin Franklin Moses appeals from his conviction of knowing failure to report for induction, Title 50, App., U.S.C., Section 462. We affirm.

Moses does not contest the fact that he wilfully and knowingly failed to ap- . pear for induction into the Armed Forces of the United States. Instead he urges that the induction order under which he was indicted was invalid, thereby nullifying the obligation on his part to comply. Moses points out that his mother had informed the Executive Secretary of his local draft board over the telephone that he was attending the University of Houston. Moses then urges that the Executive Secretary’s failure to convey that information to the entire board for consideration of a postponement of induction pursuant to Title 50 App., U.S.C., Section 456(i)(l) and (2) invalidated the subsequent “rescheduled” induction order, the date of which was selected by the Executive Secretary upon the recommendation of the State Director of the Selective Service System.

Moses relies heavily on our decision in' United States v. Jackson, 5 Cir. 1972, 454 F.2d 821, in which case we held an induction order invalid because a draft board clerk failed to submit to the entire board a physician’s letter stating that Jackson was suffering from functional hypoglycemia. After admonishing that, “it is for the local board and not the clerk to determine the merits of classification questions,” 454 F.2d at 824, we specifically held that Jackson “presented an arguable case (for reclassification on medical grounds) and that the board, which has great discretionary authority, must first fulfill its responsibility by considering whether the information meets the standards set out in the Regulations.” (emphasis supplied) 454 F.2d at 825. Moses’ position, therefore, hinges upon whether the information in the hands of the Executive Secretary presented at least an arguable case for a student deferment. We find that it did not.

In order to qualify for a student postponement of an induction order, the student must not only fit within the statutorily defined class of deferable students but must also have the appropriate facts pertaining thereto presented to the local board. Title 50 App., U.S.C., § 456(i)(l) & (2), Note 2, supra. The burden of proving an entitlement to student deferment was clearly on Moses. See United States v. Brooks, 6 Cir. 1969, 415 F.2d 502, 506; 32 CFR § 1622.25(d). At the time Moses’ induction order was rescheduled, the only information the board had pertaining to his alleged status as a student was his signed statement that he had graduated from high school in June of 1970 and his mother's uncorroborated oral statement over the telephone on October 31, 1972 that he was attending the University of Houston. While this information may have served to put the board on notice of the possibility that Moses was a deferable student, it did not even arguably infer that he was “satisfactorily pursuing a full-time course of instruction” as is required by Section 456(i) and 32 CFR § 1622.25(d). It is clear that Moses was not statutorily entitled to a student deferment based on the information possessed by the local board at the time his rescheduled induction order was issued. Any error therefore committed by the board’s Executive Secretary in not submitting what little information she had to the entire board was harmless. See United States v. Jackson, supra; Batiste v. United States, 5 Cir. 1969, 409 F.2d 910.

Nor may Moses cure this dearth, of information by a later presentation of additional facts before a court of law. By failing to inform his local board of the facts necessary for it to ascertain whether he was eligible for student deferment, Moses failed to exhaust his administrative remedies. This failure bars Moses’ later assertion of entitlement because it jeopardizes the legitimate government interest “in full administrative fact gathering and utilization of agency expertise.” McGee v. United States, 1971, 402 U.S. 479, 486, 91 S.Ct. 1565, 1569, 29 L.Ed.2d 47. See McKart v. United States, 1969, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194; DuVernay v. United States, 5 Cir. 1968, 394 F.2d 979, aff’d by equally divided Supreme Court, 1969, 394 U.S. 309, 89 S.Ct. 1186, 22 L.Ed.2d 306. As this Court stated in United States v. McDuffie, 5 Cir. 1971, 443 F.2d 1163, 1165:

“ ‘We would frustrate administration of the Selective Service System by permitting a registrant first to stand aloof from the process designed to bring such possibly determinative facts to light * * * and then to challenge the firmness of the factual foundation for his draft board’s discretionary actions.’ United States v. Houston, 433 F.2d 939 (2d Cir. 1970).”

Affirmed.

      . The pertinent facts were stipulated by the parties and counsel as follows:
      “1. That the defendant was a person liable to be called for service in the armed forces of the United States, having a date of birth of June 1, 1951, a place of birth of Quincy, Florida.
      2. That the defendant was timely registered with his Local Board No. 147, Delray Beach, Florida, on July 23, 1970, and was given Selected Service Number 8-147-51-989.
      3. That the defendant submitted to his Local Board a Selective Service System Classification Questionaire in his own handwriting dated July 23, 1970, in which he stated that he had graduated from high school in June of 1970. Enclosure # 1.
      4. That the defendant was correctly classified by his Local Board on May 11, 1972 as “1-A” and was thereafter examined and found fully acceptable for induction into the Armed Forces by the AFEES, Coral Gables, Florida. Enclosure # 2.
      5. That the defendant was mailed an order on August 4, 1972 by his Local Board to report for induction on September 6, 1972, but failed to appear. Enclosures # 3 and # 3(a).
      6. That Martha H. Clayton, Executive Secretary of Local Board No. 147, had a telephone conversation with the defendant’s mother on October 31, 1972, in which the defendant’s mother stated that the defendant was then attending the University of Houston and was expected home about December 16, 1972. Enclosure # 4.
      7. That on November I, 1972, Mrs. Clayton wrote to the State Headquarters of the Selective Service System, St. Augustine, Florida, for further instructions; and, on November 3, 1972, State Headquarters recom-
      mended to her that the defendant be rescheduled for induction on December 27, 1972. Enclosure # 6.
      8. That on November 6, 1972, defendant’s Local Board rescheduled him for induction on December 27, 1972, using SSS Form 253, “Notice of Rescheduled Induction Reporting Date.” Enclosures # 7 and # 7(a).
      9. That the defendant appeared as ordered at Delray Beach, Florida on December 27, 1972, and was placed on the bus to Miami (with registrant Richard Rowe Riley) by Mrs. Martha Clayton who directed both registrants to proceed to Miami, Florida, and thence to the AFEES Station, Coral Gables, Florida, for induction into the Armed Forces of the United States.
      10. That after arrival of the defendant and registrant Riley in Miami, Florida on December 27, 1972, the defendant did wilfully and knowingly fail to appear at the AFEES Station, Coral Gables, Florida, for induction into the Armed Forces of the United States as he had been instructed to do by Mrs. Clayton of Local Board No. 147. Enclosure # 8.
      11. That thereafter, in January of 1973, the defendant returned to Houston, Texas, without having contacted the Selective Service System.
      12. That on April 24, 1973, the defendant was interviewed by FBI agents at 4361 Wheeler, Room 103 Taub Hall, University of Houston, Hopston, Texas, and the defendant stated that he was enrolled as a freshman at the University of Houston.
      13. That on May 2, 1973, Local Board No. 147 received an unsigned letter from the defendant, the envelope of which contained his Houston, Texas address. Enclosure # 9.
      14. That until Local Board No. 147 received the defendant’s unsigned letter on May 2, 1973, the defendant had never informed his

        Local Board that he was enrolled in any type of schooling.
      15. That the defendant has never informed his Local Board of any change of his home address.
      16. That the defendant began attending a High School Equivalency Program sponsored by the Office of Economic Opportunity at the University of Houston on August 7, 1972.
      17. That the defendant applied for and subsequently became' a registered voter (Registration # A-857072) of Harris County, Texas, August 25, 1972. Enclosure # 10.
      18. That the High School Equivalency Program at the University of Houston ended December 1, 1972, and the defendant was awarded his “G.E.D.” diploma.
      19. That on or about January 15, 1973, the defendant initially enrolled as a freshman at the University of Houston and is presently still enrolled at the University of Houston.
      20. That the defendant is the person named in the indictment No. 74-10-Cr-CF.”
      The designations, “Enclosure # 1,” et cet-era, refer to supporting documents attached to the written stipulation.

      . Title 50 App., U.S.C., Sec. 456(i): (1) Any person who is satisfactorily pursuing a full-time course of instruction at a high school or similar institution of learning and is issued an order for induction shall, upon the facts being presented to the local board, have his induction postponed (A) until the time of his graduation therefrom, or (B) until he attains the twentieth anniversary of his birth, or (C) until he ceases satisfactorily to pursue such course of instruction, whichever is the earliest. Notwithstanding the preceding sentence, any person who attains the twentieth anniversary of his birth after beginning his last academic year of high school shall have his induction postponed until the end of that academic year if and so long as he continues to pursue satisfactorily a full-time course of instruction.
      (2) Any person who while satisfactorily pursuing a full-time course of instruction at a college, university, or similar institution is ordered to report for induction under this title [sections 451, 453, 454, 455, 456, and 458 to 471a of this Appendix], shall, upon the appropriate facts being presented to the local board, have his induction postponed (A) until the end of the semester or term, or academic year in the case of his last academic year, or (B) until he ceases satisfactorily to pursue such course of instruction, whichever is the earlier, (emphasis added)