text:
    Richard A. LAUCHLI, Jr., Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 72-1247.
    United States Court of Appeals, Seventh Circuit.
    Heard April 9, 1973.
    Decided July 6, 1973.

      Richard A. Lauchli, Jr., Helen Lauchli, Collinsville, 111., for petitioner-appellant.
    Donald B. Mackay, U. S. Atty., Max E. Goodwin, Asst. U. S. Atty., Springfield, 111., for respondent-appellee.
    Before SWYGERT, Chief Judge, and KILEY and CUMMINGS, Circuit Judges.

      . Petitioner asserted that, among others, the Goodyear Tire and Rubber Co., the Browning Arms Co., the Colt Co., the Olin Mathieson Co., the Mars Co., the Harrington and Richardson Co., the Cadillac Gauge Co., the International Armament Corp. — all special occupational taxpayers — were actually suspected of criminal activity.

   PER CURIAM.

This appeal stems from our prior opinion in Lauchli v. United States, 432 F.2d 1207 (7th Cir. 1970). There we remanded the cause so that the trial court could resolve certain questions arising from petitioner’s conviction for violation of five Sections of the National Firearms Act of 1934. The district court was required to determine the following three questions:

1. Whether importers, manufacturers and dealers in firearms are, as a class, almost exclusively individuals inherently suspect of criminal activities, so that Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889; Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906; and Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923, would require setting aside petitioner’s convictions under 26 U.S.C. §§ 5801 and 5802.
2. Whether transferors of firearms are such a suspect class, thus similarly invalidating petitioner’s convictions under 26 U.S.C. §§ 5811, 5813 and 5814.
3. Whether the principle of Minor v. United States, 396 U.S. 87, 90 S.Ct. 284, 24 L.Ed.2d 283, where the Supreme Court decided that the Fifth Amendment is not available as a defense to a charge of selling narcotic drugs and marijuana without the written order forms required by law, saves petitioner’s conviction under 26 U.S.C. § 5814.

Determination of the first two questions was to be made “as a matter of fact.” 432 F.2d at 1210.

Upon remand, the district court conducted evidentiary hearings on March 18 and 25, 1971. Petitioner was represented by appointed counsel. The district court confined evidence at the hearing to the three questions specifically referred, and in view of the evidence presented on these questions and their resolution, there was no occasion under our mandate to consider anything further.

At the hearing, Cecil Wolfe, an official of the Treasury Department, testified for the Government that there were licensed importers, manufacturers and dealers in firearms subject to the registration and occupational tax provisions of 26 U.S.C. §§ 5801 and 5802 in about 45 of the 50 states in 1964, when these offenses occurred. There were five classes of these special occupational taxpayers under the regulations promulgated under the National Firearms Act of 1934. Petitioner fell in Class I, which covered importers and manufacturers of firearms not covered by the other classes. Wolfe testified that during fiscal year 1964 there were 18 Class I manufacturers and importers registered under the Act, including a number of familiar and legitimate businesses. He said that the tax and registration provisions of the Act were designed to qualify legitimate business operations. He added that the lawfulness of a Class I business was not related to the size of the operation and that a person could register and pay the special tax as a manufacturer without becoming a member of an inherently suspect class.

As to transfers of firearms, Wolfe testified that as of 1964 there were over 100.000 firearms registered under the 1934 National Firearms Act (excluding those owned by the military and the Federal Government), each of which was subject to its transfer provisions. He estimated that between 5,000 and 10.000 firearms were actually transferred under the procedures of the Act in 1964, the pertinent year, including transfers by collectors, law enforcement agencies, individual peace officers, licensees and special occupational taxpayers and excluding transfers to the military and exports.

Wolfe stated that the form used to record a transfer of a firearm in 1964 was a Form 4. The transferee was required to obtain the form, fill in certain information about himself and present it to the transferor in duplicate. The transferor would then complete the form, attach and cancel a tax stamp, and forward the form to the Director, Alcohol and Tobacco Tax Division. According to Wolfe, the form could be obtained from an Internal Revenue Service or Alcohol, Tobacco Tax office, and the transfer tax stamps could be purchased by anyone from an Internal Revenue Service district director’s office without giving any information.

Anthony Scherer, Jr., a former Class IV firearms dealer, was called as a witness for petitioner. In his opinion, formed partly on the basis of his own experience and partly on “stories heard from other dealers,” persons engaged in the firearms business with less than $100,000 per annum volume are generally regarded as persons inherently suspect of criminal activities. Although not a manufacturer, he related hearsay information that some firearms manufacturers had been harassed by the Government. He also alleged he was personally harassed. Petitioner’s request to subpoena two former police officials similarly to testify to the effect that in their opinion persons engaged in the sale of certain firearms subject to the National Firearms Act whose gross business was less than $100,000 per year would be inherently suspect of criminal activity was denied. However, the district judge allowed an offer of proof and clearly considered its purport in making his decision, saying he would “take it with the case.”

Petitioner then testified in his own behalf. He stated that his experience in the firearms business convinced him that all persons and corporations engaged in that business, regardless of volume, were inherently suspect. he conjectured that he might have been required to identify himself if he had purchased tax stamps in 1964. He admitted that tax stamps and the forms used under the 1934 Act could be obtained by anyone.

In its unreported opinion upholding petitioner’s conviction under the 1934 Act, the district court found that since a number of Class I legitimate manufacturers registered and paid this tax in 1964, their existence “conclusively refutes the contention that Sections 5801 and 5802 [of the National Firearms Act] were directed almost exclusively to individuals inherently suspect of criminal activities.”

The court also held that small manufacturers like petitioner were not inherently suspect because the legality of the manufacture of firearms covered by the Act under both federal and state law is not dependent upon size and that petitioner would not have become inherently suspect of violating Illinois law by complying with Sections 5801 and 5802 of the National Firearms Act. Therefore, the convictions under Counts I and II were sustained.

The court also upheld the convictions under Counts VI, VII, VIII, IX, X and XI involving illegal transfer offenses under Sections 5811, 5813 and 5814 because “transferors” under the same statute did not constitute a class almost exclusively of individuals inherently suspect of criminal activities. The court was influenced by Mr. Wolfe’s testimony (summarized supra) that there are legitimate transfers of firearms “inasmuch as many transfers have occurred within a legitimate and proper manner as set out by the regulations of the National Firearms Act.” The court refused to credit the contrary testimony of Mr. Scherer and petitioner since “the evidence did not clearly establish the basis for these alleged suspicions” and since it was not shown that either one had become suspect by virtue of being a “transferor” under the Act.

As to 26 U.S.C. §§ 5813 and 5814 involved in Counts VII, VIII, X and XI, the Court denied petitioner’s self-incrimination claim upon analysis of Minor v. United States, 396 U.S. 87, 90 S.Ct. 284, 24 L.Ed.2d 283, and of the possible incriminatory impact of compliance with the particular obligations contained in the above Sections.

Accordingly, the district court ruled that all counts of petitioner’s conviction under the National Firearms Act must stand. We affirm.

I

The evidence credited by the district judge established that manufacturers of firearms under the 1934 Act are not almost exclusively individuals inherently suspect of criminal activities. Therefore, under the interpretation of this Court in the previous appeal, the rationale of Marchetti, Grosso and Haynes, supra, is inapplicable to petitioner’s failure to register as a firearms manufacturer and pay the occupational tax, as required by Sections 5801 and 5802. Since these provisions were clearly directed at law-abiding persons as well as criminally suspect persons, no automatic hazard of self-incrimination under the Fifth Amendment was presented.

The situation here under Sections 5801 and 5802 is a far cry from that in Haynes, which involved possession of an unregistered firearm under Section 5851. That Section made it an offense to possess a firearm which was acquired in violation of the making or transfer provisions. or which was not registered as required by Section 5841. Section 5851 was construed to incorporate the requirements of Section 5841 so as to declare unlawful the possession of any firearm which had not been registered by its possessor in circumstances in which Section 5841 imposed an obligation to register. 390 U.S. at 94, 88 S.Ct. 722. That obligation to register was imposed on all possessors except those who acquired the firearm by transfer or importation or who made it if the National Firearms Act provisions relating to such transfer, importation or making were complied with. Thus the Supreme Court found the registration requirement to be directed principally at those persons who obtained possession without complying with the Act’s other requirements. Id. at 96, 88 S.Ct. 722. Indeed almost invariably the only possessors required to register would have been those who violated the Act’s other provisions, the only cited exception being the finder of a lost or abandoned firearm. Id. at 96-97 and n. 10, 88 S.Ct. 722. In contrast, the tax and registration requirements of Sections 5801 and 5802 for manufacturers, importers, and dealers do not almost invariably ensnare only those who have violated other requirements of the Act, and we see no correlation between satisfaction of these requirements and any subsequent violation of the Act which would lead us to conclude that the requirements are almost exclusively directed at an inherently suspect class. See Marchetti v. United States, 390 U.S. 39, 53-54, 88 S.Ct. 697, 19 L.Ed.2d 889. The number of legitimate occupational taxpayers subject to and in compliance with these requirements is persuasive evidence to the contrary.

Petitioner argues that as an Illinois manufacturer of firearms he would necessarily be inherently suspect because of an Illinois statute regulating weapons and because the identity of manufacturers registered under the National Firearms Act was available to Illinois officials in 1964. However, the weapons regulated by the federal and state statutes differed. Since Class I manufacturers under the former did not necessarily manufacture weapons regulated by Illinois law, the federal obligations cannot be deemed “directed almost exclusively to individuals inherently suspect of criminal activities.” Lauchli v. United States, swpra at 1209 of 432 F.2d. Also, the Class I manufacturer was not “inherently suspect” in view of the various exemptions for certain uses provided by the Illinois statute. Since a Class I manufacturer could be in compliance with Illinois law according to the type of weapon manufactured and its intended use, it cannot be said that he was confronted by a comprehensive system of federal and state prohibitions against firearms in the same way as in Marchetti, supra at 42-48 of 390 U.S., 88 S.Ct. 697. Thus whether or not petitioner was violating Illinois law, he would not be inherently suspect of such violation by complying with the National Firearms Act.

II

As to the transfer offenses under Sections 5811, 5813 and 5814 (see note 1 supra), the evidence credited by the district judge established that “transferors” subject to the Act were not an “inherently suspect” class. Even petitioner’s expert witness acknowledged the legitimate nature of many transfers. Neither he nor petitioner showed that either was criminally suspect as a “transferor.”

Even if “transferors” under the 1934 Act were criminally suspect, petitioner’s compliance with Sections 5811, 5813 and 5814, or at least part thereof, would not present a real and substantial hazard of incrimination as in Marchetti, Grosso and Haynes. Again the district court chose to believe Mr. Wolfe’s testimony that the tax stamps in payment of the $200 transfer tax were sold “like a postal stamp,” with no information demanded of the buyer. As he said, “the only thing required to get one is to go down [to any district director’s office] and pay the money and tell them what you want.” Since no real and substantial hazard of incrimination was involved, the Fifth Amendment provides no defense to petitioner’s conviction for violating Section 5811 by failing to pay the transfer tax.

As to petitioner’s failure to obtain a written order form from the transferee as required by Section 5814, the applicable Form 4 was issued in blank to anyone requesting it. The transferee would then complete part of the form and include his fingerprints and the certificate of a law enforcement officer that the transferee would apparently use the firearm lawfully. He was not required to furnish the identity of the transferor. The latter, in turn, could not transfer the firearm without obtaining the form from the transferee and sending it to the Director of the Alcohol and Tobacco Tax Division of the Treasury Department for prior approval.

If there was no substantial possibility that would-be transferees would present him with a Form 4 on demand, then, as in Minor v. United States, supra, and Buie v. United States, Id., petitioner simply could not sell and would be confronted only with imaginary and insubstantial hazards of incrimination rather than the real and appreciable risks that would support a Fifth Amendment defense. However, as the Government concedes and the district court found, unlike the situation in Minor and Buie, obtaining the transfer form from a prospective purchaser “does seem to be a realistic possibility, because unlike the buyers under the marijuana and narcotics laws, a prospective firearms transferee could easily obtain blank forms without cost and, if his purpose were legitimate, would have no fear of completing his part of the application * * * and seems to have * * * no particular responsibility for determining [the seller’s] legitimacy * * * .” Thus petitioner’s self-incrimination claim is not defeated on the ground that the possibility of a buyer with transfer form in hand is purely hypothetical. Nevertheless, the claim must fail for another reason. The self-incriminatory element in 26 U.S.C. § 5814 could only exist in forwarding the order form to the Treasury Department, whereupon the seller might be admitting his violations of other sections of the National Firearms Act. But even if petitioner’s subsequent forwarding of the order form to the Treasury Department could be resisted on self-incrimination grounds, petitioner would have no self-incrimination basis to excuse his failure to obtain a partially completed Form 4 from a transferee before effecting the transfer, as required by § 5814(a). See Buie v. United States, 396 U.S. 87 at 91 n. 3, 90 S. Ct. 284, 24 L.Ed.2d 283.

With respect to petitioner’s failure to affix the tax stamps to the order forms, as required by Section 5813, no incrimination could result in merely affixing a transfer stamp to a Form 4. This follows inevitably if the provisions requiring payment of the transfer tax by purchase of the stamps and the obtaining of an order form are valid, as we have found.

Affirmed.

      . 26 U.S.C. § 5801, which imposed a special tax on importers, manufacturers and dealers in firearms; 26 U.S.C. § 5802 which required such persons to register with the Treasury; 26 U.S.C. § 5811, which imposed a tax on each firearm transferred, which the transferor must pay by purchasing a stamp; 26 U.S.C. § 5813, which required the stamp be affixed to the requisite order form; and 26 U.S.C. § 5814, which made it unlawful to transfer a firearm except in pursuance of a written order from the transferee on a blank issued by the Treasury on application of the transferee.

      . During the same fiscal year five Class II manufacturers and importers registered, sixty Class IV dealers registered and paid special occupational taxes, and ninety-four Class V dealers registered and paid the taxes.

      . Ill.Rev.Stat. Ch. 38, § 24-1 et seq.

      . Only some weapons covered by the National Firearms Act were regulated by the Illinois statute. Compare 26 U.S.C. § 5848(1) — (5) with Ill.Rev.Stat. Ch. 38, § 24r-l(a) (7). For example, whereas the Illinois statute applied to “any weapon from which more than 8 shots or bullets may be discharged by a single function of the firing device,” the National Firearms Act covered “any weapon which shoots or is designed to shoot, automatically or semi-automatically, more than one shot * * * by a single function of the trigger”; whereas the Illinois Act covered “any shotgun with a barrel less than 18 inches in length,” the National Firearms Act covered in addition any “rifle having a barrel or barrels of less than 16 inches in length, or any weapon made from a rifle or shotgun (whether by alteration, modification, or otherwise) if such weapon as modified has an overall length of less than 26 inches, or any other weapon, except a pistol or revolver, from which a shot is discharged by an explosive if such weapon is capable of being concealed on the person.”

      . Ill.Rev.Stat. Ch. 38, § 24-2(c).

      . “Transferors” comprised a much broader class than “manufacturers” subject to the 1934 Act. See 26 U.S.C. §§ 5801(a) (1), 5812 and 5848(10).

      . We respectfully disagree with the contrary brief, per curiam opinion of the Eighth Circuit in Lauchli v. United States, 402 F.2d 455 (1968), where the court did not explain the basis for its assertion that payment of the transfer tax under Section 5811 requires self-incriminatory conduct.

      . See 26 C.F.R. § 179.98 in effect in 1964.

      . The transfer provisions would not involve Uauchli in an appreciable risk of incrimination under Illinois law because the National Firearms Act did not make transfer information available to state officials. See Haynes v. United States, supra at 99-100 of 390 U.S., 88 S.Ct. 722.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Fannie JEFFRIES, Individually and on behalf of all persons similarly situated, Plaintiff - Appellee - Appellant, Maxine Handel et al., Intervenors-Plaintiffs-Appellees, v. Jule SUGARMAN, as Commissioner of the Department of Social Services of the City of New York et al., Defendants-Appellants-Appellees.
    Nos. 342, 343, 344, Dockets 72-2039, 72-2041, 72-2043.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 3, 1972.
    Decided June 29, 1973.
    See also D. C., 345 F.Supp. 172.
    Stephen P. Seligman, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen., of the State of New York; Samuel A. Hirshowitz, First Asst. Atty. Gen., on the brief), for State Dept, of Social Services.
    Norman Redlich, Corp. Counsel, City of New York, New York City, for defendant-appellant-appellee, Sugarman.
    John J. S. Mead, County Atty., of Westchester County, for defendant-appellant-appellee, Kurtis.
    Toby Golick, New York City (Jonathan A. Weiss, New York City, on the brief), for plaintiff-appellee-appellant.
    Norman B. Lichtenstein, White Plains, N.Y. (The Legal Aid Society of Westchester County, Martin A. Schwartz and John T. Hand, White Plains, N.Y., on the brief), for intervenors-plaintiffs-appellees.
    Harlington Wood, Jr., Asst. Atty. Gen., Civil Div.; Morton Hollander, Chief, App. Section, U. S. Dept, of Justice, filing briefs for Depts. of Labor and Health, Education and Welfare as amici curiae.
    Before MOORE, FEINBERG and MULLIGAN, Circuit Judges.
   PER CURIAM:

The Commissioners of the New York City, Westchester County, and New York State Departments of Social Services appeal from an order of Judge Charles H. Tenney rendered in a class action suit brought by plaintiff Fannie Jefferies under 42 U.S.C. § 1983 in the United States District Court for the Southern District of New York. Mrs. Jefferies, the mother of a minor child, was employed until September 1969 as a typist. At that time she left her job and entered Queens Community College as a full-time student under a federally-sponsored program that provided her with a full scholarship. Upon leaving her job, she applied for public assistance for her child and herself, which she received on a temporary basis until December 1969, when all benefits were terminated because she was unwilling to seek and accept work as required under the New York Social Services Law, McKinney’s Consol.Laws, c. 55, § 131 (4) (since amended) and the administrative regulations issued thereunder, 18 NYCRR §§ 385.1, 385.7 (statute and regulations are hereinafter referred to as the Work Rules). . The Work Rules provide for a state system of employment and job-training referral for those welfare recipients who are “employable” under the state statutory and regulatory criteria, and acceptance of such referral is made a condition for continued payment of benefits to “employable” recipients. Under administrative interpretation of these standards, persons enrolled in four-year college programs are automatically deemed “employable” and hence required to accept employment or enrollment in vocational training programs.

On being denied further benefits, Mrs. Jefferies brought suit “individually and on behalf of all other persons similarly situated” for declaratory and injunctive relief against the operation of file state Work Rules on due process, equal protection and first amendment grounds, as well as on the theory that the Work Rules, as applied to recipients of Aid to Families With Dependent Children (AFDC) benefits, are inconsistent with applicable provisions of the federal Social Security Act, 42 U.S.C. § 601 et seq. and are preempted by the federal Work Incentive Program (WIN), a system of job training and employment referral for AFDC recipients established under that Act. 42 U.S.C. § 630 et seq. A three-judge court was convened, and three other AFDC recipients, all mothers who were attending college and had been threatened with termination of their benefits because of that attendance, were permitted to intervene as plaintiffs. After a hearing, the court rejected plaintiffs’ due process, equal protection and first amendment arguments, but remanded the pendent statutory claims to Judge Tenney. Jefferies v. Sugarman, 345 F.Supp. 172 (S.D.N. Y.1972), appeal docketed, 41 U.S.L.W. 1315 (U.S. Nov. 28, 1972) (No. 787).

Thereafter, in a comprehensive opinion, Judge Tenney concluded that plaintiffs’ claims respecting the invalidity of the New York Work Rules were justified. Jefferies v. Sugarman, 71 Civ. 2060 (S.D.N.Y. July 11, 1972). He found that the WIN program, in view of both its “comprehensive, detailed, and mandatory nature” and its legislative history, was intended to preempt any state system of mandatory employment referral for receipt of AFDC benefits, at least to the extent that the state work rules are “not in conformance with the minimum requirements of the federal sttaute.” Id. at 9. He further found that plaintiff Jefferies could not be denied her benefits merely because she had not complied with the New York Work Rules, which were preempted by the federal program; if she was “appropriate” under the federal statute for referral to WIN, she should be so referred, and if she was not appropriate for referral but was otherwise eligible for benefits, she should not be denied them. Id. at 9-12. Finally, Judge Tenney held that the state rule denying benefits to anyone attending a four-year college was inconsistent with federal standards because it denied eligibility to a category of people who would otherwise be eligible under the federal law and that therefore plaintiff Jefferies and the intervenors had improperly been denied their benefits. Id. at 18-19. Defendants were enjoined from denying or reducing payments to persons inappropriate for referral to WIN, though eligible for AFDC assistance, merely because they were attending a four-year college; defendants were also enjoined from denying benefits to otherwise eligible recipients who had been referred to WIN but were attending a four-year college program directed to a vocational objective and not paid by the public assistance grants.

Notice of appeal was filed by defendants on September 22, 1972, and argument was heard by this court early in October. Thereafter, at the suggestion of the panel, amicus briefs were filed on behalf of the Departments of Labor and Health, Education and Welfare. At oral argument, it was noted that a case involving a number of identical or similar issues had been decided several months previously by a three-judge court in the Western District of New York. Dublino v. New York State Department of Social Services, 348 F.Supp. 290 (W.D.N.Y. 1972). Since some of the issues in Dub-lino overlapped with this case and an appeal to the Supreme Court was filed in November, we thereafter decided to postpone our decision until the Supreme Court had considered Dublino. On June 21, 1973, the Supreme Court reversed the decision of the three-judge court in Dublino and remanded for further proceedings. -U.S.-, 93 S.Ct. 2507, 37 L.Ed.2d 688.

The district court in Dublino had held, in response to a challenge by AFDC and other public assistance recipients to the validity of the New York Work Rules, that those Rules were inconsistent with the eligibility standards of the Social Security Act and were preempted by WIN. On appeal, the Supreme Court concluded that WIN did not preempt the state work requirements, but it remanded the case to the district court for a determination of “whether some particular sections of the Work Rules contravene the specific provisions of the Federal Social Security Act.” -U.S. -, 93 S.Ct. at 2518. This holding appears to undercut certain of Judge Tenney’s conclusions in this case, e. g., the finding that the Work Rules are preempted by WIN and the related holding that Mrs. Jefferies cannot be denied her benefits except in accordance with WIN procedures and standards. In addition, the Supreme Court’s acknowledgement that the states have some latitude in formulating their own employment rules,-U.S. -, 93 S.Ct. 2507, may indicate that such inconsistencies with the federal law as will' justify invalidation must be more substantial than suggested by the district courts in either Dublino or the instant case.

In view of the Supreme Court decision in Dublino, we have decided to remand this case to the district court. It is apparent that New York may maintain its own work rules, and it would be appropriate for the district court to consider anew, in light of Dublino, in what respects relevant to this case such rules are to be permitted to differ from the federal pattern embodied in WIN, and whether the state rule that recipients cannot enroll in four-year college programs conflicts with standards mandated by the federal Act.

Remanded for proceedings consistent with this opinion. Cross-appeal dismissed.

      . In February 1970, the decision to deny benefits to Mrs. Jefferies’s child was reversed after a hearing by the State Department of Social Services.

      . This interpretation was incorporated in an administrative letter sent by the State Department of Social Services to the local Social Services commissioners in 1971. Mrs. Jefferies was denied her benefits prior to promulgation of this policy because she already had a job skill. The three intervenors in this case, however, were threatened with termination of benefits pursuant to the new policy. See note 5 infra and accompanying text.

      . The Social Security Act provides for the establishment in each state of so-called Work Incentive Programs. 42 U.S.C. § 602(a). AFDC recipients, with certain enumerated exceptions, must register with the state as a condition of eligibility for benefits. 42 U.S.C. § 602(a) (19) (A). The state in turn certifies them, when it lias provided them the required supportive services, to the Secretary of Labor for assignment under the Work Incentive Program to jobs or training. 42 U.S.C. §§ 602(a) (19) (G), 632(b), 633(a). Those certified to WIN are provided certain procedural safeguards, such as a hearing for any recipient who refuses to accept an assignment to employment or training. 42 U.S.C. § 633(g). In addition, if the refusal is determined to have been improper, 60 days of counselling is to be provided before benefits can be terminated. 45 C.F.R. § 220.35(b) (6).
      The law in its present form reflects certain modifications introduced through enactment of the Talmadge Amendment prior to the decision below. Pub.L.No. 92-223, 85 Stat. 802 (1971).

      . The panel consisted of Circuit Judge Paul It. Hays and District Judges Harold R. Tyler, Jr., and Charles II. Tenney.

      . Unlike Mrs. Jefferies, the intervenors allegedly lacked sufficient job skills to support their families prior to commencement of their college studies.

      . Judge Tenney dissented from the decision of the court on equal protection grounds. 345 F.Supp. at 176.

      . A number of courts had held, prior to Judge Tenney’s decision, that WIN preempted state work rules similar to those of New York. E. g., Woolfolk v. Brown, 325 F.Supp. 1162 (E.D.Va.1971), aff’d, 456 F.2d 652 (4th Cir.) (per curiam), cert. denied, 409 U.S. 885, 93 S.Ct. 112, 34 L.Ed.2d 141 (1972).

      . Defendants were also required to post notices informing students who might have lost their benefits because of college enrollment that such denial had been improper.

      . In addition to defendants’ appeal from the decision of Judge Tenney, we have before us plaintiff Jefferies’s cross-appeal from the decision of the three-judge court. It is quite apparent, however, that that court did reach the merits of plaintiff’s complaint and that the proper forum for review is therefore the Supreme Court, to which an appeal has in fact already been addressed. 41 U.S.L.W. 3315 (U.S. Nov. 28, 1972) (No. 787).

      . Our delay in disposing of this case did not impose any new hardship on the State Department of Social Services because it has been enjoined since October 1972, by order of the three-judge court in Dub-lino, from enforcing the state Work Rules.

      . We note in passing that several changes have been made in the New York Work Rules in the past year, apparently in order to make them more consistent, in terms of standards and procedures, with the provisions of WIN. See, e. g., N.Y. Sess. Laws ch. 941 (1972) (McKinney).


author: VAN OOSTERHOUT, Senior Circuit Judge.

text:
    UNITED STATES of America, Appellee-Cross-Appellant, v. 3,317.39 ACRES OF LAND, MORE OR LESS, IN JEFFERSON COUNTY, ARKANSAS, et al., Appellant-Cross-Appellee.
    Nos. 72-1419, 72-1506.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 14, 1973.
    Decided May 7, 1973.

      James T. Gooch, Arkadelphia, Ark., for appellant.
    Larry G. Gutterridge, Atty., Dept, of Justice, Washington, D. C., for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, HEANEY, Circuit Judge, and VAN SICKLE, District Judge.

       Sitting by designation.

   VAN OOSTERHOUT, Senior Circuit Judge.

This is a timely appeal by condemnee Ark-Mo Farms, Incorporated (Ark-Mo) from final judgment of the District Court entered June 16, 1972, ordering Ark-Mo to refund to the Government by way of restitution $736,891.45 with interest thereon at 6% per annum from June 16, 1972.

The basic facts are set out in a prior appeal to this court. United States v. 3,317.39 Acres, 443 F.2d 104 (8th Cir. 1971). Upon that appeal we reversed an award of $976,071.00 for just compensation and remanded for a new trial.

Pertinent facts relevant to this appeal will be briefly summarized. The Government on December 9, 1966, filed a declaration of taking and in connection therewith deposited estimated just compensation of $110,000.00 which was paid to Ark-Mo pursuant to court order. After the jury award involved in the prior appeal, the Government on April 23, 1970, deposited in the registry of the court $866,071.00, being the difference between the jury award and the $110,000.00 deposit, together with interest thereon from the date of taking in the amount of $175,254.81, the total of the deposit being $1,041,325.81.

On May 11, 1970, the Government voluntarily obtained an order for distribution of the $1,041,325.81 deposit to Ark-Mo for the purpose of stopping interest on the award, and on the same day filed notice of appeal from the award. Payment of such sum was made to and accepted by Ark-Mo. The Government made no effort to stay the judgment pending appeal. There is no evidence that the Government intended to make the payment as a final settlement of Ark-Mo’s claim or that the Government intended to abandon the appeal.

On February 22, 1972, subsequent to the reversal of the first jury award, the Government filed a motion to require Ark-Mo to repay the Government the $1,041,325.81 it had received plus interest thereon at 6% per annum from the date of deposit. Ark-Mo filed a resistance to the motion stating that the Government had by its $1,041,325.81 payment satisfied the judgment, and alternately that if the judgment was not satisfied, the court could not enter a judgment against the landowner as no final judgment for the award of just compensation had been entered, and that under Rule of Civil Procedure 71A(j), no recovery could be had for overpayment prior to final judgment.

The trial court on May 10, 1972, filed an order requiring Ark-Mo to pay into the registry of the court $1,041,325.81 with interest at 6% from January 28, 1972 (the date of our mandate on the prior appeal). An appeal was taken from such judgment but the appeal has not been pursued, doubtless for the reason that such judgment does not constitute a final judgment as the issue of just compensation had not then been determined.

The retrial which we had ordered on the just compensation issue was expedited and resulted in a jury award of just compensation in the amount of $378,000.00 on June 7, 1972. Thereafter on June 16, 1972, the court entered a final order reading in pertinent part:

“The defendant landowner not having complied with the order of the Court and redeposited the sum improvidently and erroneously deposited by the government pursuant to the previous jury trial and judgment, the government is entitled to a judgment against the landowner for said sum, less the sum due the landowner as a result of a jury trial and verdict June 7, 1972.
“It therefore appears to the Court that the United States is indebted to the defendant landowner, Ark-Mo Farms, Inc., in the principal sum of $268,000.00 [The $378,000.00 jury award less $110,000.00 just compensation deposit received by landowner.] plus interest at the rate of 6% per annum from December 9, 1966, to April 23, 1970, and interest on said sum ($268,000;00) from January 28, 1972, until the date of this judgment. It further appears to the Court that the landowner, Ark-Mo Farms, Inc., is indebted to the United States in the sum of $1,041,325.81, together with interest at the rate of 6% per annum from January 28, 1972, until the date of this judgment^
“It Is Therefore Ordered, Adjudged and Decreed that the United States have judgment against the defendant landowner, Ark-Mo Farms, Inc., in the sum of $736,891.45, plus 6% interest per annum from the date of this judgment until the date said sum is deposited with the Clerk of the Court.”

On motion of Ark-Mo the judgment was stayed pending appeal under Rule 8, FRAP, conditioned on filing a bond of $50,000, which bond was filed and approved.

The issues raised by Ark-Mo on this appeal are:

1. The court erred in not holding that the payment of the $1,041,325.81 deposited in the registry of the court and paid Ark-Mo pursuant to court order constitutes a satisfaction of the judgment which renders this appeal moot.

2. The court erred in awarding interest on the overpayment from the date of our mandate on the former appeal rather than from the date of the June 16, 1972, final order.

Our examination of the record satisfies us that the court committed no error in determining that the payment of the $1,041,325.81 under the circumstances hereinabove related did not constitute a satisfaction of the judgment which renders the appeal moot.

In rejecting a similar contention, Judge Breitenstein speaking for the Tenth Circuit in United States v. Featherston, 325 F.2d 539, 541 (10th Cir. 1963), states:

“The government deposited the deficiency to stop the running of interest, and made the deposit with the intent not to prejudice the appeal. If the ultimate recovery is less than the amount deposited, the government can get the excess back from the clerk or, if it has been paid to the landowner, maintain a suit to recover it from him. ... If the government wants to stop interest and take the chance of repayment in the event of reversal, it may do so. The motion to dismiss is not well taken.”

See United States v. Miller, 317 U.S. 369, 380-382, 63 S.Ct. 276, 87 L.Ed. 336 (1943); United States v. Cooper, 277 F.2d 863, 864 (5th Cir. 1960); United States v. Hirsch, 206 F.2d 289 (2nd Cir. 1953).

In Restatement, Restitution § 74, the applicable law is thus stated:

“A person who has conferred a benefit upon another in compliance with a judgment, or whose property has been taken thereunder, is entitled to restitution if the judgment is reversed or set aside, unless restitution would be inequitable or the parties contract that payment is to be final; if the judgment is modified, there is a right to restitution of the excess.”

In our present case there is no evidence that the Government entered into any contract to abandon its appeal or that it had any intention so to do. The purpose of the deposit it made was to stop interest. Ark-Mo was in no way misled by thé Government into believing that the Government would not pursue its appeal. Moreover, Ark-Mo did not raise the satisfaction issue on the prior appeal to this court and hence is bound by our judgment of reversal. The court properly ordered restitution to the Government of the overpayment received by Ark-Mo.

The court in its computation of the amount to be repaid to the Government computed interest on the overpayment from January 28, 1972, the date of our mandate reversing the judgment on the prior appeal. The Government urges interest on the overpayment should run from the date of the deposit by the Government. Ark-Mo contends the interest should run only from the date of the final judgment, to wit, June 16, 1972. We find no basis for the trial court’s choice of the date of our mandate as the date from which interest should run. The Government makes a reasonable argument in support of its contention that interest should run from the time it made the deposit, or at least from the time that Ark-Mo received the deposit pursuant to the court order. However, we have in three recent cases resolved this issue against the Government, holding that interest should run only from the date of the final judgment on the just compensation issue. United States v. 421.89 Acres, 465 F.2d 336, 340 (8th Cir. 1972); United States v. 339.77 Acres, 420 F.2d 324, 328 (8th Cir. 1970); Sykes v. United States, 392 F.2d 735, 739, n. 2 (8th Cir. 1968); see United States v. Miller, 317 U.S. 369, 382, n. 28, 63 S.Ct. 276, 87 L.Ed. 336 (1943).

We are not persuaded that we should depart from the position taken in the cases just cited which hold that interest on the amount to be paid by way of restitution should be computed only from the date of the final judgment.

The judgment appealed from is affirmed on the restitution issue. On the interest issue, the judgment is modified to provide for interest only from June 16, 1972, the date of the final judgment determining just compensation (not from the date of our mandate on prior appeal) on the difference between the total amount paid into the registry of the court by the Government and received by Ark-Mo and the $378,000.00 finally determined as the amount of just compensation due to Ark-Mo, plus allowable interest. The judgment as to interest as modified is affirmed.

The case is remanded to the trial court for computation of the amount of restitution due consistent with the views expressed in this opinion.

      . Other parties were made defendants in the condemnation proceedings. The .trial court has determined that Ark-Mo is the only party entitled to fair compensation for the taking of the land involved in this case and Ark-Mo is the party who received the payment for which restitution is sought.

      . The Government asserts that it has cross-appealed from the trial court’s order staying execution of the judgment pending appeal. We find no notice of appeal by the Government in the appendix nor is there any notation thereof in the docket entries incorporated in the appendix. In the absence of such notice of appeal, we lack jurisdiction to consider the Government’s contention. In any event, we are not disposed at this late date to determine that the court abused its discretion by granting the stay.


author: GEWIN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Cleveland KIMBROUGH, Defendant-Appellant.
    No. 72-3578.
    United States Court of Appeals, Fifth Circuit.
    July 9, 1973.
    Drayton Nabers, Jr., Birmingham, Ala., court appointed, for defendant-appellant.
    Wayman G. Sherrer, Albert C. Bowen, Jr., Birmingham, Ala., for plaintiff-appellee.
    Before GEWIN, THORNBERRY and SIMPSON, Circuit Judges.
   GEWIN, Circuit Judge:

On May 18, 1972, a two-count indictment was returned charging the appellant with passing, uttering and publishing two counterfeit Federal Reserve Notes in violation of 18 U.S.C. § 472. A jury found him guilty on each count and a sentence of two consecutive five year terms was imposed.

On this appeal, Kimbrough presents two contentions which he maintains require a reversal of his conviction. First, he asserts that the Government failed to present substantial evidence that he passed the two counterfeit bills with the requisite guilty knowledge. Secondly, he alleges that the in-court identification by the prosecution witnesses was tainted by an unfair pretrial photographic identification. After a careful review of the evidence adduced at the trial and the applicable legal standards which guide our review of appellant’s contentions, we conclude that no error was committed and affirm.

I. The Facts

On December 17, 1971, a man entered a Bessemer, Alabama store and requested two tens as change for a twenty from Rodney Porterfield, a clerk in the store. Porterfield referred him to A. E. Davis, the store manager. Agreeing to the exchange, Davis gave the man the requested two tens. Further examination of the bill by Davis led him to conclude that it did not “look right”, but by that time the man who presented it had left.

In hopes of quieting their suspicions, Davis and Porterfield went to a neighboring store to get another opinion as to the bill’s genuineness. Their neighbor responded that he didn’t think it looked counterfeit. Upon returning to their store, however, Davis made a side by side comparison of the suspected bill with other twenties in his cash register and determined that it was counterfeit.

On the day following the Bessemer incident, a man entered the Mary Carter Paint Store in Alabaster, Alabama and asked the store clerk, Mrs. Mable Langston, for two packs of cigarettes. Mrs. Langston testified that the man tendered a twenty dollar bill and she gave him the change. She stated further that he engaged her in a short conversation and then casually walked out of the store. Mrs. Langston said she had become suspicious of the man because he thanked her several times and that he acted “too nice.”

She watched him as he left the store and noticed that he had not parked directly in front of her store but instead on the highway some 100 feet away. She considered this conduct unusual since directly in front of the store there was a parking lot which could hold ten or twelve cars and at that time it was virtually empty. She saw the man get in a black over maroon Cadillac with out of state license plates and drive away. Langston immediately checked the twenty with a counterfeit list supplied by a local bank and discovered that it was counterfeit.

On February 5, Agent Robert Pettway, who was assigned to the case, showed A. E. Davis a series of six photographs of possible suspects at the Bessemer store. The photographs had been scrambled by Pettway and stacked one on top of the other. Davis was positive in his identification of the photograph of appellant as the man who had presented him the counterfeit twenty dollar bill for change. Additionally, both Porterfield and Langston were able to identify the appellant from the series of photographs when each was presented the series by Pettway on the same day. At trial, Davis, Porterfield, and Langston positively identified appellant as the person who had presented the counterfeit twenty dollar notes.

Special Agent George Hudson, who is an expert in counterfeit notes, testified that the two notes presented to Davis and Langston were definitely counterfeit. He stated that they had been manufactured in the same location in Buffalo, New York. He testified that approximately 77 of these notes turned up in the Birmingham area during December 1971.

Subsequent to appellant’s identification, he was arrested on February 25, 1972, at his Carbondale, Illinois apartment. No counterfeit money was found on appellant’s person, in his apartment or in his car at the time of his arrest. At trial, appellant stated that he had around $2,500 at the time of his arrest. He stated further that he owned a diamond ring valued at $2,000.

Apparently, appellant had been a dental technology student at the University of Illinois in Carbondale from 1969 until 1971. He stated that he had difficulty in obtaining a job after his graduation but he had been employed at various places for limited amounts of time. This testimony conflicts with Agent Venker’s testimony to the effect that appellant told him that he had not been employed for some four years.

Appellant stated that prior to entering the University of Illinois he had accumulated a savings of $10,000 from two jobs to help pay for his education. He claimed that he still had some of these savings when he was arrested in early 1972. He testified that the rest of his wealth had come from gambling ventures including a trip to New Orleans after Christmas in 1971 when he won over $1,200 at the track. Appellant also admitted that he had been in Buffalo, New York, the alleged place of origin of the counterfeit money, during the December, 1971 period.

Appellant admitted being in Birmingham during the period when the counterfeit bills had been passed but denied ever being in the Bessemer store or the Mary Carter Paint store. He contended that he had never seen Davis, Porter-field, or Langston. In an attempt to refute Mrs. Langston’s testimony, he asserted that on the weekend in question his car had been in Don Drennen’s Cadillac shop in Birmingham for repairs. However, Robert McComb, an employee of Don Drennen’s, testified that his records tended to show that even though appellant’s car may have been in the shop for minor repairs it had not been held there overnight.

II. The Sufficiency of the Evidence

In all criminal cases, skilled and diligent counsel for appellants can point to circumstances which could possibly generate doubts in the minds of jurors. However, it is not our function to disturb verdicts of juries only because the possibility of doubt can be generated by skillful and ingenious arguments. The conclusion reached by the jury must be upheld if supported by substantial evidence, including reasonable inferences drawn therefrom as viewed in the light most favorable to the Government.

After a careful review of all the facts adduced at appellant’s trial, we believe that substantial evidence was presented from which the jury could reasonably infer that appellant had the requisite guilty knowledge when he passed the counterfeit bills in question. Although not of controlling importance, we note at the outset that appellant’s defense strategy was somewhat different at trial from what it has been on this appeal. During his trial, appellant continually attempted to prove that he had not even passed these bills. Now however, he asserts that even if he passed them, no evidence was presented that he knew they were counterfeit. Of course it was still incumbent on the Government to offer substantial evidence in proof of this vital element of its case against the appellant.

Since we feel that the evidence presented would surely permit the jury to conclude that he had indeed passed these counterfeit notes, we approach this issue then solely as to whether there was substantial evidence that the appellant knew that the bills were counterfeit when he passed them. Knowledge is an elusive element of any crime, and short of a confession by the accused it can seldom be proved by direct evidence. Thus in the usual case the jury will have to rely on circumstantial evidence presented by the Government to find this needed element.

The scope of the jury’s inquiry is not limited. We have stated:

Guilt and knowledge seldom can be shown by direct evidence, and the Jury may scrutinize the entire conduct of the defendant at or near the time when the money was passed.

We feel that the jury could have reasonably inferred the element of guilty knowledge by scrutinizing all the surrounding facts in the instant case. In Bessemer appellant asked for two tens for a twenty, a rather unusual request. In Alabaster he was highly solicitous and had parked his Cadillac some distance away from the store. These two transactions took place within a two-day period. He admitted being in Buffalo, New York, the origin of the counterfeit bills. When arrested he possessed an excessive amount of cash and other valuable possessions even though he had not been employed for several years. Viewing the above factors, we conclude that there was sufficient circumstantial evidence for the jury to infer the needed element of knowledge beyond a reasonable doubt.

III. The In-Court Identification

Secondly, appellant asserts that the in-court identification by the Government witnesses was materially and substantially influenced by the photographic identification obtained by the government prior to trial. Our examination of the photographs and a review of the facts surrounding the presentation of the photographs to the Government witnesses prior to trial and their subsequent positive identification of appellant at trial leads us to a different conclusion. The use of photographic identification for apprehending felons is a necessary and regular criminal investigative technique.

In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) the Supreme Court delineated some of the dangers inherent in the use of photographs as an investigative technique. While recognizing some of the problems with such identification processes, the Court refused to adopt any per se rule for exclusion purposes. Mr. Justice Harlan stated for the Court that:

[W]e hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on the ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. 390 U.S. at 384, 88 S.Ct. at 971. (Emphasis added)

Thus Simmons establishes a two pronged test for determining if an in-court identification by a proffered Government witness will be excluded.

First, a court must determine if the photographic spread is impermissibly suggestive. This court has previously explicated the scope of inquiry under this prong of the Simmons test as follows:

We reiterate . . . that only the picture spread itself must be evaluated in determining if it meets the standard — whether other more desirable methods of identification (e. g. a line-up) were available, or whether there was a compelling need for speedy identification, are just not relevant to a determination of the impermissibly suggestive issue. United States v. Sutherland, 428 F.2d 1152, 1156 (5th Cir. 1970) (Emphasis added)

Only when the trial court finds that the photographic spread was impermissibly suggestive is there any need for a determination of whether there was “a very substantial likelihood of irreparable misidentification” from the proffered witness at trial.

We are somewhat confused on the thrust and focus of appellant’s Simmons contentions. Davis, Porterfield, and Langston identified the appellant as the one who had passed the bills as a result of direct examination by Government counsel at trial. On cross-examination, defense counsel attacked the credibility of the witnesses’ identification by showing that the photographic spread shown to them by Agent Pettway was not fairly representative of the age group and body size of the appellant. In response to defense counsel’s cross-examination of these witnesses, the Government moved to introduce the photographic spread so the jury itself could determine if the photographs shown to the witnesses were fairly representative.

Defense counsel then objected to the introduction of the photographic spread and attempted to obtain a ruling that the spread was not fairly representative. A voir dire examination of Agent Pettway was conducted to determine the issue of admissibility. He stated that six photographs were shown to the witnesses. The photographs were randomly shuffled in a stack. No attempt was made to influence the witnesses, and each viewed the photographs separately. Of the six photographs, three men were not fairly representative of the body size and age of the appellant. However the men in the remaining three photographs were similar in body size and age. After viewing the spread, the court ruled that as a matter of law the spread was not impermissibly suggestive and permitted its introduction for the jury’s examination.

We believe that this determination was not clearly erroneous. Although some of the photographs did not fairly represent the appellant, others did, and we feel this cured any possible defect. Our conclusion is buttressed by the fact that each of the witnesses positively and unequivocally identified the appellant at trial. Although each of the witnesses could not recall the appellant’s dress with 100% accuracy, they did recall his overall characteristics. The trial court correctly concluded that the photographic spread as a whole was not impermissibly suggestive and that the circumstances surrounding its presentation did not make it so. We believe the defendant was accorded a fair trial and accordingly affirm.

Affirmed.

      . The record reveals that appellant was convicted of robbery in 1959 in New York.

      . Prior to his arrest appellant had been interviewed on January 15, 1972 by special agent Martin Venker at his apartment in Carbondale. Agent Venker testified that he advised appellant of his Miranda protections and appellant responded that he fully understood these protections. Upon request appellant refused to execute a -written waiver of rights form but nevertheless agreed to answer some questions. Venker stated that appellant had told him that he had been traveling extensively during the December 1971 period.
      Appellant stated that he had traveled from Illinois down to Birmingham then on to New Orleans and then on to Brie, Pennsylvania. He stated further that he had been in Buffalo, New York during this period. Venker testified that appellant told him that he had over $2,600 which he had won in various gambling pursuits. Venker stated that at that time appellant owned a black over maroon El Dorado Cadillac with Illinois plates. At this time Venker examined appellant’s car and found no counterfeit money. Venker also examined appellant’s safe-deposit box and found $1,000 in cask which was genuine but he found no counterfeit currency.

      . Court appointed counsel in this case presented an excellent brief to the court and delivered a forceful oral argument upon the appellant’s behalf.

      . See, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942) ; Peters v. United States, 376 F.2d 839 (5th Cir. 1967).

      . Paz v. United States, 387 F.2d 428, 430 (5th Cir. 1967).

      . Of course the court must consider the facts surrounding the presentation of the photographic spread for a full determination of the Simmons issue.

      . We note that appellant made no prior or contemporaneous objection to the in-court identification by these witnesses,


author: SOBELOFF, Senior Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Donald DAVIS, Appellant.
    No. 72-1819.
    United States Court of Appeals, Fourth Circuit.
    Argued April 4, 1973.
    Decided June 20, 1973.
    Certiorari Denied Oct. 23, 1973.
    See 94 S.Ct. 296.

      J. Hardin Marion, Baltimore, Md. [Court-appointed counsel], (Tydings & Rosenberg, Baltimore, Md., on brief), for appellant.
    James E. Anderson, Asst. U. S. Atty. (George Beall, U. S. Atty., on brief), for appellee.
    Before SOBELOFF, Senior Circuit Judge, and BUTZNER and RUSSELL, Circuit Judges.
   SOBELOFF, Senior Circuit Judge:

Donald Davis was convicted by a jury of bank robbery and aiding and abetting, violations of 18 U.S.C. §§ 2113(a), (b), (d) and (f) and 18 U.S.C. § 2. He was sentenced to imprisonment for 20 years under 18 U.S.C. § 4208(a)(2). In this direct appeal Davis argues that several reversible errors were committed in the prosecution of his case. For the reasons set forth below, we disagree and affirm the conviction.

FACTS

On August 13, 1971 a lone robber took $2854 from the Provident Savings Bank, 1110 S. Charles Street, Baltimore, Maryland. The robber got in a line, together with other customers at teller Jerrolene Small’s window. When he reached the window he asked the teller to exchange his five single dollar bills for a five dollar bill. As she gave him the bill the robber produced a pistol, gave her a bag and demanded it be filled with money. Mrs. Small followed the gunman’s instructions and the man escaped. Of all the people in the bank only Mrs. Small and Darlene Cox, the teller at the next window, were aware that a robbery took place.

Immediately afterwards both tellers were shown a spread of photographs by police officers and FBI agents. Both witnesses identified Davis’ picture as that of the man who committed the robbery. A magistrate’s warrant was issued for Davis’ arrest.

On August 18, 1971 Davis was stopped on the street by Baltimore City police officers, who thought he resembled the photograph of the bank robber reproduced on an FBI circular. When Davis was unable to provide any identification he was frisked and the police found on his person a .32 caliber pistol and 25 bags of heroin. Davis was arrested for possession of those items. Later that day an FBI agent questioned Davis, who made an oral confession that he had committed the bank robbery. The next morning, August 19, Davis was brought to the FBI office where his oral statement of the previous day was transcribed and signed by Davis. Approximately one hour later Davis was brought before the magistrate.

The trial began on March 6, 1972, continued on March 7, 8, 13, and was concluded with the jury’s verdict on March 14.

Davis raises a plethora of issues in this appeal, most of which we regard as frivolous. Several of his points, however, do merit discussion.

PHOTOGRAPHIC IDENTIFICATION

Teller Jerrolene Small made an in-court identification of Davis. Davis argues that admission of this identification was reversible error because of the taint of an improper prior photographic identification. We disagree.

Of the several photographs shown Mrs. Small on the day of the robbery, only Davis’ picture presented a Negro man with a moderate Afro hair style and a short beard. All the other photos were of Negro men with short hair who were clean shaven with the exception of several with moustaches. Davis argues that these factors render the photographic identification “ * * * impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification”, Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). This identification, according to Davis, inevitably tainted the subsequent in-court identification.

A claim that an in-court identification was tainted by a previous photographic identification * * * must be evaluated in light of the totality of surrounding circumstances.” United States v. Marson, 408 F.2d 644, 650 (4th Cir. 1968), and cases cited therein. According to that standard we find the in-court identification made by Mrs. Small free from any possible suggestive taint. Davis’ photograph showed him as he appeared at the time of his arrest, with a beard and his Afro hair style. The day Mrs. Small testified, Davis did not have his beard. Before Mrs. Small testified Davis was seated among the spectators near four other Negroes. Two of the men were selected by Davis for this purpose. Mrs. Small nevertheless identified Davis from all those present in the court room. This convinces us that her in-eourt identification was independent of the photographic identification made seven months earlier. Therefore we need not decide whether the photographic lineup, in which Davis’ picture was the only one portraying a bearded subject with an Afro styled hairdo, was impermissibly suggestive. Cf. United States v. Fernandez, 456 F.2d 638, 641 (2d Cir. 1972).

PSYCHIATRIC EXAMINATION

On December 29, 1971, several months prior to the trial, Davis’ counsel made a motion under 18 U.S.C. § 4244 for an examination of Davis to determine his mental competency to stand trial. The petition requested that the court, appoint Dr. Leonard J. Gallant or any other competent psychiatrist to examine Davis. The court, after conferring with counsel, appointed Dr. William W. Fitzpatrick, the psychiatrist usually employed by the court for such examinations.

Davis now argues that failure to appoint Dr. Gallant constitutes reversible error under the dictum of United States v. Matthews, 472 F.2d 1173 (4th Cir. 1973). It is our view that Matthews does not control here. The defendant in Matthews moved for a psychiatric examination under 18 U.S.C. § 3006A(e), which section governs situations in which the court authorizes “[c]ounsel for a defendant who is financially unable to obtain investigative, expert or other services necessary to an adequate defense * * * ” to secure them for his client at Government expense. When a doctor is selected to examine a defendant under this statute it is envisioned that the doctor will be part of the accused’s insanity defense. Section 4244, on the other hand, controls examinations to determine competency to stand trial and expressly states that the examining doctor will not be permited to testify against the accused on the issue of guilt in any criminal proceeding. See United States v. Theriault, 440 F.2d 713, 715 (4th Cir. 1971).

In Matthews we indicated that the doctor preferred by the defendant should be allowed to examine him under a section 3006A(e) motion unless the court sees compelling reasons why this should not be permitted. We sought to provide the indigent defendant with a range of choice in selecting a physician similar to the one employed by the affluent defendant and to prevent situations such as the one that occurred in Matthews where the United States Attorney’s office chose the defendant’s doctor. Such considerations do not arise under a section 4244 motion where the only purpose is to provide the court with sufficient information to decide whether the defendant is competent to stand trial. Additionally, we note that the Matthews dictum was promulgated under the general supervisory purview of this court and is not to be applied retroactively.

ALLEN CHARGE

A final issue which merits discussion is the trial judge’s use of the controversial Allen Charge. Four hours after the jury began its deliberations a note was sent to the judge stating that an impasse had been reached. The court then delivered to the jury a mild form of the Allen Charge.

The propriety of this type charge has been the subject of strong disagreement among the circuits. It has been held reversible error by some, see United States v. Fiorvanti, 412 F.2d 407 (3d Cir. 1969); United States v. Thomas, 146 U.S.App.D.C. 101, 449 F.2d 1177 (D.C. Cir. 1971); and criticized as coercive, see Green v. United States, 309 F.2d 852 (5th Cir. 1962). See also Sullivan v. United States, 414 F.2d 714 (9th Cir. 1969), and United States v. Wynn, 415 F.2d 135 (10th Cir. 1969).

Nevertheless, our circuit has repeatedly stated its approval of the Allen Charge and we do not retreat from that position. See United States v. Sawyers, 423 F.2d 1335 (4th Cir. 1970). We do reiterate our recommendation made in Sawyers, that trial judges in this circuit consider use of the American Bar Association version of the Allen Charge. But the charge given in this case, under the circumstances described, was in conformity with the accepted standards of our circuit.

Finding no error in the trial court proceedings, we accordingly decide that the conviction be

Affirmed.

      . Nor can it be said that Davis’ situation is governed by our lidding in United States v. Taylor, 437 F.2d 371, 377 n. 8 (4th Cir. 1971), where we stated that a motion made under § 4244 that properly should have been made pursuant to § 300GA(e) will be treated as having been so made. For in Taylor the background of the defendant, his mental history and behavior patterns all indicated that insanity was to bo a major part of his defense. Taylor liad previously been committed to a mental hospital, amliduring his examination at a subsequent date had refused to cooperate with the doctor and even threatened to kill him. Quite clearly a § 300GA(e) examination was called for. In Davis’ case such factors are absent and we believe that the motion under § 4244 for an examination to determine competency to stand trial was the correct motion under the circumstances. We therefore need not treat the motion as one made under § 3006A (e).

      . The court’s language was:
      “Members of the jury, I understand from your most recent note that you have some serious doubts as to whether further deliberations will enable you to return a verdict in this case. In that connection, I want to tell you that it is eminently desirable that if you reasonably can, that you agree upon a verdict in this case.
      For the parties that are involved, the Government and the Defendant, this case is an important one, and its I>resentation to you has involved expense and expenditure of time by both sides of the case. If you, members of the jury, fail to agree upon a verdict, the case will have to be tried before another jury, selected in the same manner and from the same source as you were chosen. There is no reason to believe that the case will ever be submitted to another jury more competent to decide it than this jury is.
      Of course, by pointing out to you the desirability of your reaching a verdict, tlie Court is not suggesting to you that you surrender conscientious convictions of what the truth is and of the weight and effect of all the evidence. It does, however, wish to call to your attention that in most cases absolute certainty cannot be expected, although the Government is, of course, required to convince you, by evidence beyond a reasonable doubt, of the guilt of the Defendant of every essential element of the crime charged.

        While each one of you must decide this case for yourself and not merely acquiesce in the conclusions of your fellow jurors, you should examine the questions submitted to you with candor and frankness and with proper deference to, and regard for, the opinions of each other.
      It is your duty, after full deliberation and consideration of all the evidence, to agree upon a verdict, if you can do so without violating your individual judgment and conscience.
      Under the circumstances, the Court feels that it would be desirable for you to retire again and continue your deliberations in the light of what I have just told you.

      . Although the author of this opinion dissented in the Sawyers case, disapproving the Allen Charge given by the trial court, his vote to affirm Davis’ conviction is not inconsistent with his previously stated position.
      The circumstances under which the charge was given in Sawyers were far different than in Davis’ case and were, as stated in the Sawyers dissent, inherently unfair and prejudicial to the defendant. The judge had been informed of how the vote in the jury room stood and of details of the individual jurors’ attitudes and behavior during the deliberations. Davis’ ease contains none of these elements. So, even though this writer regarded use of the Allen Charge as being unfair under the circumstances of Sawyers, he does not perceive the same inherent unfairness to Davis.
      Speaking for myself, I would nevertheless do away with the Allen Charge and, utilizing the supervisory powers of the court, adopt prospectively the American Bar Association recommended standard. See Sawyers, 423 F.2d at 1342 n. 7. The questionable benefits of the charge do not, in my judgment, justify the unending litigation and confusion it breeds. But since my brethren disagree, the standard of our circuit remains unchanged.


author: JAMES M. CARTER, Circuit Judge:

text:
    UNITED STATES of America and John H. Kerdus, Special Agent of the Internal Revenue Service, Petitioners-Appellees, v. Charles LUTHER and the Bible Institute of the Air, Inc., Defendants-Appellants. UNITED STATES of America and John H. Kerdus, Special Agent of the Internal Revenue Service, Petitioners-Appellees, v. Charles LUTHER and The Bible Institute of the Air, Inc., Defendants, C. W. Burpo, Applicant for Intervention-Appellant.
    Nos. 71-2326 and 71-2327.
    United States Court of Appeals, Ninth Circuit.
    July 6, 1973.

      Charles W. Luther (argued), Luther & Luther, Sacramento, Cal., for defendants-appellants.
    Stephen G. Fuerth (argued), App. Sec., Tax Div., Johnnie M. Walters, Asst. Atty. Gen., Fred B. Ugast, Acting Asst. Atty. Gen., Tax Div., Dept, of Justice, Washington, D.C., D. Dwayne Keyes, U.S. Atty., Bruce Babcock, Jr., Asst. U.S. Atty., Sacramento, Cal,, Gilbert E. Andrews, Chief, App. Sec., Meyer Rothwacks, John P. Burke, Joseph H. Reiter, Tax Div., Dept, of Justice, Washington, D.C., for petitioners-appellees.
    Before MERRILL, KOELSCH, and CARTER, Circuit Judges.
   OPINION

JAMES M. CARTER, Circuit Judge:

These appeals result from the issuance by the Government qf a summons to The Bible Institute of the Air, Inc. (hereafter the Corporation) pursuant to Sec. 7602 of the Internal Revenue Code of 1954, 26 U.S.C. § 7602, for the records of the Corporation. Charles Luther, custodian of some of the Corporation’s records, refused to comply with the summons, and an enforcement proceeding was instituted in the district court.

On March 22, 1971, following a hearing, the district court ordered the Corporation to turn over certain of its financial records to the Internal Revenue Service in connection with an examination of the returns of Burpo, the taxpayer, who was also the president and an employee of the Corporation, for the years 1965 through 1969.

The Corporation and Luther appeal in No. 71-2326. On March 22, 1971, the court made an order denying the petition of Burpo to intervene. He appeals in No. 71-2327.

We modify the scope of the summons and otherwise affirm both orders.

Discussion

Appeal No. 71-2326

The Corporation and Luther present a multitude of contentions. None, except the scope of the summons, have merit. At the hearing it was stipulated that Cannon, the Internal Revenue agent, would testify that no recommendation for a criminal prosecution had been made and that the posture of the investigation was such that none could be made. Thus the issue of whether a recommendation for a criminal prosecution had been made, was removed from the case. Donaldson v. United States, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971) states:

“We hold that under § 7602 an internal revenue summons may be issued in aid of an investigation if it is issued in good faith and prior to a recommendation for criminal prosecution.” p. 536, 91 S.Ct. p. 545.

Answering the contentions of the Corporation and Luther, we hold:

(1) The summons was properly-issued, 26 U.S.C. §§ 7601, 7602, and the purpose was a legitimate one, i. e., to determine the correctness of Burpo’s return.

(2) The relevance of the records was to ascertain if the Corporation’s records supported the returns of its employee, the taxpayer Burpo. Foster v. United States (2 Cir. 1959), 265 F.2d 183, cert. den., 360 U.S. 912, 79 S.Ct. 1297, 3 L.Ed.2d 1261; United States v. Ruggeiro (9 Cir. 1970), 425 F.2d 1069. Any alleged lack of showing of a nexus between the Corporation and Burpo was clearly dispelled at the enforcement hearing.

(3) The Corporation’s records were not at the time in the possession of the Internal Revenue Service. The fact that the Service may have had access to (a) statements filed by the Corporation with the State of Arizona, (b) records of banks as to cheeks issued by the Corporation, or (c) possession of Forms W-2 issued by the Corporation, showing withholding, does not destroy the Government’s right to inspect the original and primary records of the Corporation.

(4) There was shown no abuse of process or discretion in the Court’s denial of the request to explore whether there had been wiretapping, electronic surveillance, or a mail watch. See United States v. Bell (9 Cir. 1971), 448 F.2d 40.

Our holding does not preclude an inquiry into such matters on some subsequent occasion where the issue may be material. An inquiry into such matters at the hearing to enforce the summons would have been totally irrelevant. All the Government sought was an inspection of the records of the Corporation in order to ascertain the correctness of Burpo’s income tax returns.

(5) The claim that prior required administrative steps were not taken, is without merit. 15 U.S.C. § 7605(c) was added by the Tax Reform Act of 1969, Pub.L.No. 91-172, § 121 (f), 83 Stat. 548, which was enacted on December 30, 1969, and was expressly applicable to taxable years after December 31, 1969. Id., § 121(g). Burpo’s returns under examination were for the years 1965-1969.

Sec. 7605(c) required an assertion by the Secretary of the Treasury or his delegate, prior to an examination of church records, that he believed a church or specified similar organization was carrying on an unrelated trade or business, and notification thereof to the organization. Here the court was shown that the purpose of the inspection was to ascertain the correctness of Burpo’s individual tax returns. Moreover, no proof was offered that the Corporation was a church or other organization within See. 7605(c).

(6) The contention of violation of a penitent-clergyman privilege is without merit. A clergyman must be a natural person. See Proposed Rules of Evidence for the United States Courts and Magistrates, Rule 506(a)(1). There is no suggestion in the record as to how a communication to the Corporation could violate the privilege. Our holding does not prevent a later determination at a time when the issue is properly raised and supported by a proper showing.

(7) The answer to the claim that the Government is engaged iñ a fishing expedition is without merit. Sec. 7602 authorizes the Secretary or his delegate “to fish”. United States v. Giordano (8 Cir. 1969), 419 F.2d 564, 568, cert. den., 397 U.S. 1037, 90 S.Ct. 1355, 25 L.Ed.2d 648 (1970).

The Scope of the Summons and Order

We are not prepared to hold that the summons and the order were overly broad. It sought only records that reflected financial transactions and covered only the years 1965-1969, which corresponded with the years of the returns of Burpo, the taxpayer, then under examination. See Civil Aeronautics Board v. Hermann, 353 U.S. 322, 77 S. Ct. 804, 1 L.Ed.2d 852 (1957). The fact that the records called for were extensive is not material. The summons directed Charles W. Luther to appear, give testimony and produce the following records of The Bible Institute of the Air, Inc., for the years 1965 through 1969, inclusive:

“Cash receipts journals, cash disbursement journals, general ledgers, general journals, subsidiary journals, real estate and depreciation (sic) ledgers, chart of accounts, records of contributions, bank statements, cancelled checks, copies of deposit tickets, check vouchers, check stubs, corporation minutes books, correspondent (sic) files, paid bills and invoices and any other records relating to the income and disbursements of the BIBLE INSTITUTE OF THE AIR, INC.” The ■ court order was identical.

The summons did not request the personal records of Luther but only the records of the Corporation. He admitted he had “some” of them.

We believe we may limit the scope of the summons and order, with some protection to the Corporation and without unnecessarily impeding the Government’s examination.

As to (1) corporation minute books, (2) correspondence files, (3) paid bills, (4) invoices, and (5) other records, we impose the limitation that only such items in these categories which reflect the receipt or disbursement of money or relate to financial or property transactions of the Corporation or the taxpayer, Burpo, need be presented for inspection.

Representation has been made that all .or some of the Corporation records are in Arizona. We amend the order to provide that the records be produced at the place where they are located; that if the Corporation chooses, examination be made at such places rather than turning the records over to the Internal Revenue Service or transporting them to Sacramento.

Appeal No. 71-2327

The trial court denied Burpo’s request to intervene in the summons enforcement proceeding against the Corporation, a third party, and denied his request for discovery. We affirm.

Such intervention is not a matter of right but the court in its discretion, upon showing by the taxpayer of some protectable interest, may permit intervention. Donaldson v. United States, 400 U.S. 517, 529-531, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971). No such interest was shown. The records were not Burpo’s and no seizure would be made from him. Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L. Ed.2d 176 (1969). Burpo had no standing to assert any Fifth Amendment privilege in records which did not belong to him, but to the Corporation. United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542 (1944); United States v. Bell, supra, 448 F.2d at 41 & n. 1. There was no abuse of discretion.

As to Burpo’s claim of a penitent-clergyman privilege, it was not shown at the enforcement hearing how penitential communications could get into the financial records, and if they did, how they could retain their confidentiality in the hands of a third person, the Corporation.

The Corporation had its day in court and chose not to identify itself, except as a nonprofit corporation, organized for religious purposes. There was no showing it was a clergyman or a penitent, or even a church. It would have to be a clergyman or a penitent to claim the privilege.

The taxpayer may still assert a protectable interest, if he can properly describe one in future proceedings. Donaldson, supra, 400 U.S. p. 531, 91 S.Ct. 534. He is not foreclosed from subsequently attempting to support the penitent-clergyman privilege.

Both judgments are affirmed.


author: SETH, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. ARTICLES OF DEVICE consisting of the following: * * * “KuF DIATHERA-PUNCTEUR, ETC. * * * DETECTEUR NIBOYET GMG SCHMIDT D’ACUPUNCTURE,” etc., et al., Defendant-Appellant, and F. K. Bellokossy, M. D., Claimant-Appellant.
    No. 72-1210.
    United States Court of Appeals, Tenth Circuit.
    Submitted Feb. 23, 1973.
    Decided May 30, 1973.

      Herbert W. DeLaney, Jr., Denver, Colo., on the brief for defendant-appellant and claimant-appellant.
    James L. Treece, U. S. Atty., Gregory B. Hovendon, Chief, Consumer Affairs Section, Howard S. Epstein, Atty. Antitrust Div., Dept, of Justice (Peter Barton Hutt, Asst. Gen. Counsel, Food, Drugs, and Product Safety Div., Joanne S. Sisk, Robert E. Wilmoth, and Jay H. Geller, Attys., Dept, of Health, Education, and Welfare, Washington, D.C., of counsel), on the brief for plaintiff-appellee.
    Before SETH, McWILLIAMS and BARRETT, Circuit Judges.
   SETH, Circuit Judge.

This is an action for forfeiture of two machines seized in a doctor’s office under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq. It is alleged in the complaint that the machines were misbranded in that the labels did not contain adequate directions for diagnosis and treatment of human diseases.

There are two machines against which the proceedings were brought and which were ordered condemned and destroyed by the trial court. One was described as a “KuF Diathérapuncteur” (KuF machine), and the other as a “Detecteur Niboyet GMG Schmidt D’Acupuncture” (the Schmidt machine). Dr. F. K. Bellokossy, from whom the devices were seized, intervened as the claimant. The case was tried on the-misbranding issue.

The trial court found that the two machines were “devices” within the meaning of 21 U.S.C. § 321(h) in that they were “intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man . . . ,” and that they were misbranded within the meaning of section 352(f)(1), in that their labeling did not bear adequate directions for use nor did it warn against unsafe dosages or methods of duration and application.

The trial court also found that the devices were not exempt under the exceptions provided in 21 C.F.R. §§ 1.-106(d)(3) and (d)(4) from the labeling requirements of section 352(f)(1), by referring to the testimony of plaintiff’s experts that the “directions, hazards, warnings and other information” were not “commonly known to practitioners licensed by law to use the device.”

Based on the testimony of claimant-appellant, the trial court found that nothing except an electrical wiring diagram was furnished with the devices, and that even if the books and other information introduced into evidence by the claimant-appellant had been furnished with the devices, the devices would still be misbranded because the books were in German, and not in English, as required by 21 C.F.R. § 1.103(c). Additionally, the court found that the devices were inadequately labeled from the testimony of claimant-appellant that he himself could not have used the machines had he not taken a thirty-day course of instruction and read over thirty-five different books which he had purchased from time to time from different sources, in order to be able to use the devices.

A careful review of the record convinces us that the findings of the trial court were supported by substantial evidence and were not clearly erroneous.

Appellant argues on this appeal that the statements of the trial court appearing at various parts of the record show that he was biased and prejudiced against the appellant, and that under those circumstances, the trial was not the fair and impartial one he is entitled to.

Within reasonable bounds, the trial court has the right to participate in questioning witnesses and may otherwise attempt to bring out the truth, especially in cases tried without a jury. See Bank of Utah v. Commercial Security Bank, 369 F.2d 19 (10th Cir.); Moore v. Strong, 360 F.2d 71 (10th Cir.). From the record before us it appears that at times the trial court was irritated with appellant, but the judge’s comments and questions, taken either individually or collectively, did not exceed the bounds of judicial discretion. Nor do we discover any prejudice against the appellant after careful study of the court’s findings. Although we can say that some of the findings dealing with the nature and usefulness of the practice of acupuncture may have been influenced by his feelings and thoughts about that medical practice, such findings are immaterial to the action and have no bearing on the court’s conclusion that the devices were in fact inadequately and improperly labeled.

Appellant’s next claim is that the trial court exceeded the bounds of judicial notice by commenting upon, and to some extent relying upon, his previous experience in the field of electrical engineering and expressing his opinion, after looking at the wiring diagram which was delivered with one of the devices, that the device would probably short out if plugged into an electrical circuit. Although we concede that if the questions of how the machine was wired, and if it would in fact work, were in any way pertinent to the adequacy of the labeling (which they are not), we would feel it necessary to consider further this argument. However, the entire line of inquiry into the electrical workings of the devices had no bearing on any of the issues in this case, and any extrajudicial notice that might have been taken by the trial court could not have been more than harmless error, not prejudicial to the appellant.

Appellant next urges that we reverse the trial court because the expert witnesses called by the Government all admitted that they knew nothing about either the science of acupuncture or the construction or operation of the devices. It is also contended that the testimony relative to the “experiments” performed by these expert witnesses with the devices should not have been allowed into evidence nor considered by the court.

The Government called as their experts Charley Smyth, M.D., a professor at the University of Colorado Medical School in charge of the Arthritis Division of that institution; Gordon Christensen, D.D.S., professor and chairman of the Department of Rehabilitative Dentistry at the same medical center; and George Hill, M.D., Assistant Professor of Surgery and Surgeon-in-Chief of the Cancer Chemotherapy Clinic, also at the University of Colorado Medical Center. These gentlemen examined the devices in question and, with the exception of Dr. Smyth, plugged them into an electrical outlet and “experimented” with them. Dr. Smyth did not have an opportunity to do so. Each of the experts testified that the “directions, warnings, and other information” were not “commonly known to practitioners licensed by law to use the device” nor were they, with the instructions made available to them by the Government, able to understand how the devices operated or what hazards or contraindications were associated with the operation of the devices. The material made available to the witnesses was a pamphlet, translated from the German by Government translators. The German version appeared to be the only material that came with the machines other than the wiring diagram discussed earlier and taken by the Food and Drug Administration agents when the devices were seized.

The pamphlet mentioned above and the testimony of claimant-appellant indicated that the devices could be used to locate focal infection in teeth, for organ testing and treatment, to select proper drugs for a particular patient, and to treat pain associated with cancer, arthritis, etc., among other functions. We believe that it was entirely proper to accept the testimony of the Government’s experts and the results of their “experiments” to show that the devices did not come within the exceptions contained in 21 C.F.R. §§ 1.106(d)(3) and (d)(4).

Appellant’s last three points deal with (a) whether the machines are devices within the meaning of 21 U.S.C. § 321(h); (b) whether the machines come within the exceptions contained in 21 C. F.R. §§ 1.106(d)(3) and (d)(4); (c) whether the literature accompanying the machines constituted adequate labeling within the meaning of 21 U.S.C. § 352(f)(1).

As to point (a), appellant argues that since the trial court made a finding that the machines were probably no more than mere galvanometers, therefore the machines cannot meet the definition of “device.” This argument has been disposed of by the Ninth Circuit in Church of Scientology of California v. Richardson, 437 F.2d 214 (9th Cir.). See also United States v. Ellis Research Laboratories, Inc., 300 F.2d 550 (7th Cir.), where a machine similar in use and function to the ones involved in this case was found to be a “device.”

Appellant argues under point (b) as to exceptions that since the seller of the machines required that a person take his thirty-day course in their use and operation, the machines are exempt according to the provisions of 21 C.F.R. §§ 1.106(d)(3) and (d)(4), since all the hazards, etc. of using the machines would be “commonly known to practitioners licensed by law to use the device.” The answer to this argument is that it appears that although the sale of the machines might be restricted to those taking the course, any medical doctor would be “licensed by law to use the device.” 21 C.F.R. §§ 1.106(d)(3) and (d)(4) provide in substance that these machines must have been labeled or have directions, warnings, and other information unless the device is one commonly known to practitioners licensed by law to use the device. There was testimony by three members of the medical profession who testified that they had never heard of the machines, nor had they ever seen them used at any place or any time in their experience. This is sufficient.

Point (c) of appellant relates to the accompanying literature as “labeling.” The trial court found there was no such labeling and no such documents. In any event, what material there was had to be translated from German to English, and had this been present and adequate the devices were nevertheless misbranded since 21 C.F.R. § 1.103(c) provides, with an exception not here relevant that the labeling must be in English.

Having found no merit in any of appellant’s contentions, the judgment of the district court is affirmed.