author: DUFFY, Senior Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert Leslie ABRAMS, Defendant-Appellant.
    No. 72-1370.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 17, 1973.
    Decided March 27, 1973.
    Rehearing Denied May 31, 1973.

      George C. Pontikes, Chicago, Ill., for defendant-appellant.
    James R. Thompson, U. S. Atty., William T. Huyck, Terry M. Gordon, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.
    Before DUFFY, Senior Circuit Judge, KILEY and STEVENS, Circuit Judges.
   DUFFY, Senior Circuit Judge.

A grand jury indictment was returned in April 1971 charging defendant Abrams with a one count violation of 50 U.S.C. App. § 462, that on or about April 8, 1970 and continuing to and including the date of the indictment, Abrams wilfully and knowingly neglected, failed and refused to report for induction as ordered. A jury was waived. The trial judge found defendant Abrams guilty as charged and he was sentenced to the custody of the Attorney General for a term of three years.

The evidence adduced at trial revealed that defendant was ordered to report for induction on three separate occasions by Local Board No. 151, Waukegan, Illinois. On November 18, 1969, Abrams was ordered to report for induction on December 1, 1969. On December 1, 1969, defendant’s induction was postponed “until further notice” pursuant to 32 C.F.R. § 1632.2.

The reason for the postponement of induction was to allow completion of a medical review of the defendant at his request which was then being conducted by the Surgeon General. A postpone- • ment order dated December 16, 1969 was issued by the local board nunc pro tunc so as to be effective from the date of postponement, December 1, 1969.

A second order for induction dated January 27, 1970 was mailed to defendant ordering him to report on February 16, 1970. Reference to his prior order was included in the new order. Abrams failed to report as ordered, but telephoned the local board on the afternoon of February 16th informing them that he failed to appear for induction because at the time he was being treated in the Intensive Care Unit of the Highland Park Hospital for an overdose of drugs. The local board requested that he tender an explanatory letter to them which request he fulfilled on February 18th. The local board also received a substantiating letter from one Dr. Rosenberg stating that defendant had been treated for an overdose of sleeping pills on the 16th of February.

A third order for induction dated March 18, 1970 was mailed to the defendant at 1055 County Line Road, Highland Park, Illinois, which was the last address the defendant supplied to his local board. This order made reference to the previous induction date of February 16, 1970 and instructed the defendant to report on April 8, 1970. Defendant Abrams failed to report as ordered.

The F.B.I. entered the case to determine why defendant had not reported as requested. In July 1970 the Bureau wrote to defendant’s father indicating that defendant was delinquent with his local board. On August 18, 1970, Agent Kneibert visited the Abrams’ home and was informed that defendant was located in Ann Arbor, Michigan but was expected to return within a month. Agent Kneibert instructed the parents to have defendant call the F.B.I. on his return.

Defendant returned home on September 7, 1970 but failed to contact the F.B.I. Agent Kneibert then visited defendant at his home on September 17, 1970 and informed him of the outstanding order to report. Defendant admitted he received the two previous orders but denied receipt or knowledge of the order of April 8, 1970. At this interview, Agent Kneibert asked defendant what his action would be if future induction notices were sent to him. Defendant indicated that he would require the assistance of counsel before he could reply to such a question.

Abrams was arrested on October 7, 1970 by the F.B.I. and the indictment was returned in April 1971. From the record, it is evident that at no time after February 1970 did defendant attempt to contact his local board.

I.

The principal defense propounded by the defendant at trial and in issue on appeal was that he was not in receipt of the order of induction mailed on March 18, 1970. The trial court made a finding contrary to this contention to the effect that given the fact that the third notice was mailed to the last address supplied by the defendant to his local board, and that such letter was not returned to the board, the presumption of regularity of board procedures and mailing attested to the receipt of the notice of induction by defendant Abrams. On appeal, despite the finding to the contrary by the trial court, defendant argues that he presented sufficient evidence at trial to rebut the presumption of receipt, thereby rendering the trial court’s finding erroneous.

Defendant produced evidence that from Saturday March 21,. 1970 at midnight until Monday, March 24, 1970, at midnight, there was a work stoppage at the Highland Park Illinois Post Office and after delivery of mail was resumed, four days were required to distribute accumulated mail.

There was also testimony of a two-day work stoppage at Waukegan in which city the office of defendant’s draft board was located. However, the officer in charge at the Waukegan Post Office testified that there was no accumulation of out-going mail during the work stoppage. The officer also testified that a letter mailed in the vicinity of the defendant’s local board before 5:00 p. m. on March 19, 1970 would not have been delayed as a result of the work stoppage.

Defendant’s father and mother both testified to the effect that no communication had been received from the draft board concerning their son's selective service status between February 1970 and July 1970 when they were contacted by the F.B.I.

The government offered as evidence the testimony of Theolene Dixon, secretary to the Local Board Operations in Chicago who stated at trial that the third induction notice had been mailed to defendant on March 18, 1970 to his last known address.

Although defendant Abrams insists that he never received the induction order dated March 18, 1970, nevertheless we must accept the findings of the trial court to the contrary unless they are clearly erroneous. United States v. Keefer, 464 F.2d 1385 (7 Cir., 1972); United States v. Ganter, 436 F.2d 364, 368 (7 Cir., 1970).

We are of the opinion after considering the evidence preserved in the record of the proceedings below and the presumption of receipt of Selective Service mailings provided in 32 C.F.R. § 1641.3 relied upon by the trial court, that the evidence was sufficient for said court to conclude that defendant received the order.

Furthermore, regardless of defendant’s claim of nonreeeipt of the letter order, further notice of the order was provided to Abrams in person by Agent Kneibert on September 17, 1970. Such notification by itself coupled with defendant’s subsequent inaction would be sufficient evidence to sustain a conviction for failure to report for induction. United States v. Williams, 433 F.2d 1305 (9 Cir., 1970).

II.

A second argument raised by defendant on appeal is whether the offense of failure to report for induction imposes a continuing duty to report after non-compliance with an outstanding induction order. Defendant argues that the statutory mandate of 50 U.S.C. App. § 454(a) is insufficient to impose a continuing duty to report. Abrams relies on Toussie v. United States, 397 U.S. 112, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970) in support of his position and analogizes the continuing duty to register considered in that case to the continuing duty to report in issue before us.

The government argues that the law which upholds the continuing offense theory for refusing induction is not affected by the Toussie decision because of the fundamental distinction between the statutes and policies involved in the Toussie case and in the case at bar. We agree. In Toussie, the narrow issue before the Supreme Court was whether for the purpose of tolling the statute of limitations, the obligations of refusing to register for the draft is a continuing one, so that an indictment returned 8 years after defendant Toussie’s 18th birthday would not be barred.

In Toussie, a decision in favor of the government would have had the effect of permitting an indictment to be brought against a person who had failed to register any time from his 18th birthday to his 31st birthday. The court held that such a result should not be reached “ . . . unless the statute itself, apart from the regulation, justifies that conclusion”. 397 U.S. at page 121, 90 S.Ct. at page 863.

We hold contrary to the contention of the defendant that Toussie applies to the case at bar. As our court stated in United States v. Bruckman, 466 F.2d 754 (7 Cir., 1972) at page 757, in a similar challenge to the continuing duty to report,

“In the case before us, however, there is no statute of limitations problem. We are not presented with the ‘compounding of a single offense into a multitude for purposes of avoiding the statute of limitations.’ Williams, supra, 433 F.2d at 1306. Furthermore, the Court in Toussie did not, as Bruckman contends, invalidate the continuing duty regulation.

As the Court in Owens stated, 431 F.2d at 351:

The Court did not . . . outlaw the continuing duty regulation; rather, it explicitly excepted it from the sweep of the opinion.

The exception referred to was footnote 17 in Toussie:

We do not hold, that as the dissent . seems to imply . . . that the continuing duty regulation is unauthorized by the Act. All we hold is that neither the regulation nor the Act itself requires that failure to register be treated as the type of offense that effectively extends the statute of limitations. 397 U.S. at 121, n. 17, 90 S.Ct. at 864.”

We are of the opinion that a registrant who fails to report for induction as ordered is under a continuing duty thereafter to report, thereby precluding defendant’s challenge to the continuing duty to report herein. United States v. Bruckman, supra; Silverman v. United States, 220 F.2d 36 (8 Cir., 1955); United States v. Williams, supra; United States v. Preston, 420 F.2d 60 (5 Cir., 1969); Simmons v. United States, 406 F.2d 456 (5 Cir., 1969); White v. United States, 403 F.2d 1005 (8 Cir., 1968).

III.

A third issue raised by defendant on appeal concerns the quantum of proof necessary to establish the criminal intent for an offense under the applicable statute. Defendant asserts that the government failed to prove that he wilfully and knowingly failed to report for induction beyond a reasonable doubt.

As we have previously determined in this case, the trial court properly held that Abrams was in receipt of his March 18th induction order. Furthermore, it is established from the record that he failed to report or contact his board after actual notice of induction was received from Agent Kneibert. The last time defendant did, in fact, contact his draft board before his indictment was on February 20, 1970 concerning his second postponement of induction.

Given the facts and circumstances of this case, we are of the opinion that the evidence adduced by the government was adequate to support a finding by the trial court with respect to defendant’s knowing and wilful failure to report. Defendant’s claim that his failure to report was “inadvertent” relying on United States v. Rabb, 394 F.2d 230 (3 Cir., 1968) is negated by the fact that even after actual notice was provided, he failed to report. We hold that viewing the evidence in a light most favorable to the government, the trial court properly found the evidence sufficient to prove defendant’s criminal intent, that he knowingly and willingly failed to report for induction. United States v. Ebey, 424 F.2d 376 (10 Cir., 1970). See also United States v. Williams, 421 F.2d 600 (10 Cir., 1970).

IV.

The last argument advanced by defendant on appeal is that the last two induction orders mailed January 27, 1970 and March 18, 1970, respectively, were invalidated by the failure of the local board to comply with the Selective Service Regulations applicable to postponement of induction. Defendant contends that the postponement of December 16, 1969 of his initial December 1, 1969 induction date, nunc pro tunc, extended over 60 days until his second induction date of February 16, 1970 and hence violated 32 C.F.R. § 1632.2(a). Abrams additionally argues that the postponement regulation (§ 1632.2) was also violated because more than 120 days, the maximum allowable postponement, elapsed between December 1, 1969 and April 8, 1970.

With respect to defendant’s first claim that more than 60 days had run between his first induction date and the corresponding postponement and his second date of induction, it is settled that only delays attributable to administrative inertia or undue delay in processing on the part of the draft board may warrant invalidation of an induction order. Where delays occur at the request or for the benefit of a registrant or inductee, such delays may not be challenged except for the exceptional case where the delay causes undue prejudice to a registrant. Here, it is quite evidence that the initial postponement was for the benefit of the registrant and was instigated by him to process late-filed medical claims. Thus the delay was for his own benefit and may not be raised on appeal as a claim of procedural error, necessitating a cancellation of an induction order. United States v. Foster, 439 F.2d 29, 31 (9 Cir., 1971); United States v. Bell, 476 F.2d 1046 (7 Cir., 1973).

Furthermore, upon considering defendant's related claim that a postponement of 120 days elapsed between his initial induction and the third date of induction, it is well established that the 120 day limitation does not apply to a registrant who has failed to appear for and submit to induction. United States v. Bell, supra; United States v. Brunner, 457 F.2d 1301 (9 Cir., 1972); United States v. White, 447 F.2d 1124 (9 Cir., 1971), cert. denied 404 U.S. 1049, 92 S.Ct. 714, 30 L.Ed.2d 740 (1972). Here there was no need for a further postponement nor does defendant have access to a claim of an excessive period of postponement when in fact he failed to appear for the scheduled induction on February 16, 1970. United States v. White, supra.

Defendant’s reliance on United States ex rel. Iverson v. Rhodes, 465 F.2d 402 (7 Cir., 1972) is misplaced. The facts in that case depicting inexcusable administrative inertia are easily distinguishable from the case at bar where any delay in the induction process was a consequence of the defendant’s own design.

For the reasons hereinbefore discussed, the judgment of conviction of the District Court is

Affirmed.

      . While the government asserts the time interval between the date of postponement and the second date of induction was exactly 60 days (December 16, 1969-February 16, 1970) we note that the postponement was issued mino pro tuno which reverts said order to the December 1, 1969 date. Therefore, the statutory period commenced on December 1, 1969 and if such a postponement were not for the benefit of the defendant, a procedural violation possibly could be asserted.


source: Caselaw Access Project

author: KILKENNY, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Jack Edward GALARDI, Appellant. UNITED STATES of America, Appellee, v. Angel Jerrold GALARDI, Appellant. UNITED STATES of America, Appellee, v. Peter Michael LAFKAS, Appellant.
    Nos. 72-2817, 72-2743, 72-2777.
    United States Court of Appeals, Ninth Circuit.
    April 4, 1973.
    Rehearing Denied May 17, 1973.

      William C. Miller, Los Angeles, Cal., for appellant, Jack Edward Galardi.
    William D. Keller, U. S. Atty., Eric A. Nobles, Asst. U. S. Atty., Crim. Div., David H. Fox, Asst. U. S. Atty., Asst. Chief, Crim. Div., Los Angeles, Cal., for appellee.
    Michael F. Richman (argued), Ball, Hunt, Hart, Brown & Baerwitz, Long Beach, Cal., for appellant, Lafkas.
    Michael D. Nasatir (argued), Nasatir, Sherman & Hirsch, Beverly Hills, Cal., for appellant, Angel Jerrold Galardi.
    Before BROWNING, KILKENNY and TRASK, Circuit Judges.
   KILKENNY, Circuit Judge:

Appellants appeal from certain judgments of conviction and sentences. Count One charges the Galardis with conspiracies in violation of 18 U.S.C. § 371; Counts Two and Four charge the Galardis with violations of 18 U.S.C. § 2115 and 18 U.S.C. § 2 in aiding and abetting another in forcibly breaking into a Post Office building; Counts Three and Five charge the Galardis with a violation of 18 U.S.C. § 641 in receiving stolen United States Postal Money Orders; Count Six charges the Galardis and appellant Lafkas with a violation of 18 U.S.C. § 371 in conspiring to commit an offense against the United States by transporting in foreign commerce certain United States Postal Money Orders of a value exceeding $5,000.00, which money orders had been stolen; Count Seven charges appellant Lafkas with a violation of 18 U.S.C. § 2314 and 18 U. S.C. § 2 in aiding and abetting appellant, Jack Edward Galardi, in transporting in foreign commerce postal money orders of a value exceeding $5,000.00. Additionally, Lee Spencer Parker was named as a co-defendant in Counts One through Six. Prior to trial, he entered a plea of guilty to Counts One, Two and Four and then appeared as a principal witness for the government. Angel Jerrold Galardi was sentenced to imprisonment for a term of five years on each of the Counts One through Six with the sentences to run concurrently, a total period of incarceration of five years. Jack Edward Galardi was sentenced to imprisonment for a term of five years on each of the Counts One through Seven with the sentences to run concurrently, a total period of incarceration of five years. Peter Michael Lafkas was sentenced to imprisonment for a term of four years on each of Counts Six and Seven with the sentences to run concurrently, a total period of incarceration of four years.

THE GALARDI APPEALS

Inasmuch as the Galardi appeals present essentially the same contentions, we shall treat them together.

The evidence, viewed in a light most favorable to appellee, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), Vitello v. United States, 425 F.2d 416, 421 (CA9 1970), cert, denied 400 U.S. 822, 91 S.Ct. 43, 27 L.Ed.2d 50 (1970), convincingly establishes that the Galardis actively participated in the robbery of two United States Post Offices in California during the summer of 1968. Stolen in the robberies were blank United States Postal Money Orders with a potential value of in excess of $200,000.00. The Galardis hid the money orders on the premises of a bar and warehouse which they owned in Long Beach. Subsequently, they entered into an agreement with appellant Lafkas to transport the money orders to Viet Nam where Lafkas would cash them on the black money market. Following through on this arrangement, over 1,600 of the stolen money orders were cashed in the Far East for more than $160,000.00. The money orders were recovered and received in evidence during the course of the trial. On a substantial number of the orders were the fingerprints of the appellants.

CONTENTIONS

(1). In claiming unreasonable pre-indictment delay, appellants point to the fact that the crime was committed in the summer of 1968 and that they were not indicted until September, 1971. The appellee responds by saying that much of the government’s evidence was not secured until a few months prior to the indictment. It wasn’t until May 24, 1971, that the co-conspirator Parker signed a sworn statement with reference to appellants’ participation in the crime. As we read the record, the appellants have not brought themselves within the exceptions stated in United States v. Marion, 404 U.S. 307, 320-323, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), by showing that they were in any way prejudiced by the delay. The mere dimming of a memory is not sufficient.' United States v. Griffin, 464 F.2d 1352, 1354 (CA9 1972). The assertion that a missing witness might have been useful does not show the “actual prejudice” required by Marion.

(2) Appellants’ argument on post-indictment delay is also without merit. The record makes it clear that much of the delay was occasioned by a belief on the part of the United States Attorney that appellants wished to follow the procedure outlined in Rule 20, F.R.Crim.P. The appellants, upon arrest, were immediately admitted to bail. The trial judge found that appellants had shown na prejudice by the delay and that the claim of dimmed memory was conclusory and insufficient. His finding and conclusion are well supported by the record and by the authorities. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); United States v. Lewis, 406 F.2d 486 (CA7 1969), cert. denied 394 U.S. 1013, 89 S. Ct. 1630, 23 L.Ed.2d 39.

(3) Co-defendant Parker appeared as a witness for the government. During the course of his examination, the defense made reference to an alleged inconsistency between his testimony and his prior written statements. Later, the statements were admitted in evidence over appellants’ objections. The judge ruled that appellants had emphasized an inconsistency between the statements and the testimony in the record. The record supports this view. In these circumstances, the statements were properly admitted. Kaneshiro v. United States, 445 F.2d 1266 (CA9 1971), cert. denied 404 U.S. 992, 92 S.Ct. 537, 30 L.Ed.2d 543.

(4) Next, appellants attempt to utilize Lenske v. United States, 383 F.2d 20 (CA9 1967), in their argument that the testimony before the grand jury should have been recorded. The author of Lenske criticized the government for recording and using only a part of the grand jury testimony. Tersely stated, Lenske has no application. Appellants do not argue that the facts of this case present “a clear indication of prejudice.” United States v. Thoresen, 428 F.2d 654, 666 (CA9 1970).

(5) Appellants would have us abandon our time honored rule that the uncorroborated testimony of an accomplice is sufficient to convict. Such an action would require in banc consideration. Aside from that fact, the evidence of Parker, the accomplice, is amply corroborated by other evidence, for example, the fingerprints on the Orders. In any event, we are not inclined to depart from the rule stated in Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442, 495 (1917); United States v. Hibler, 463 F.2d 455, 458 (CA9 1972), and authorities therein cited. There is nothing in this record which would indicate a possible miscarriage of justice, such as mentioned in Hibler, p. 459.

(6) Although the trial judge castigated counsel for Angel Galardi for continually ignoring the court’s order with reference to responding to objections, and the judge at one point indicated that he might be compelled to employ a contempt proceeding, our examination of the record convinces us that the court’s remarks were justified. Moreover, the record convincingly demonstrates that counsel was in no way intimidated by these remarks.

THE LAFKAS APPEAL

The Lafkas challenge to the convictions under Counts Six and Seven calls for the construction of 18 U.S.C. § 2314, as applied to the record before us. In this argument, he concedes that the money orders were stolen and were transported in foreign commerce in violation of the first paragraph of § 2314, and that the proof demonstrates that the money orders were altered before they were transported in foreign commerce and, consequently, fell within the exclusion of the section. The challenge involves the basic facts and a study of the history of the legislation.

The basic facts are simple. The money orders were “in blank” when stolen. The Galardis, with stolen equipment, filled in the value on each bond at $100.-00. The money orders were forged and altered before they left the United States and placed in foreign commerce. United States Money Orders are “obligations” or “other securities” of the United States within the meaning of 18 U.S.C. § 2311, defining securities. See Nelson v. United States, 406 F.2d 1136, 1138 (CA10 1969); United States v. Powers, 437 F.2d 1160, 1161 (CA9 1971) [American Express Money Orders], Clearly, the stolen money orders were forged and altered securities of the United States within the meaning of the exclusion to the statute unless, as argued by the government, the exclusion has no application to the paragraph making it a crime to transport stolen securities in foreign commerce.

The legislation in question is a splendid example of what happens to statutes when an exclusion or exception is taken out of context and placed with its initial subject and other existing laws in an overall revision or codification. On June 25, 1948, the Congress of the United States passed an Act to “. . . revise, codify and enact into positive law, Title 18 of the United States Code, entitled ‘Crimes and Criminal Procedure’ ”. In this revision and codification, the Congress passed the present Section 2314, which is a combination of previously distinct offenses patterned into one section. See 62 Stat. 683, 806, 807.

A casual look into the statute’s history reveals that the parent of the paragraph of the statute under which Lafkas was indicted and the exclusion were part and parcel of the same section. The applicable section [53 Stat. 1178, Act of August 3, 1939] reads as follows:

“AN ACT
To amend the National Stolen Property Act.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 3 of the National Stolen Property Act, approved May 22, 1934 (48 Stat. 794; U.S.C., title 18, sec. 415), be, and the same is hereby, amended to read as follows:
‘SEC. 3. Whoever shall transport or cause to be transported in interstate or foreign commerce any goods, wares, or merchandise, securities, or money, of the value of $5,000 or more theretofore stolen, feloniously converted, or taken feloniously by fraud or with intent to steal or purloin, knowing the same to have been so stolen, feloniously converted, or taken, or whoever with unlawful or fraudulent intent shall transport or cause to be transported in interstate or foreign commerce any falsely made, forged, altered, or counterfeited securities, knowing the same to have been falsely made, forged, altered, or counterfeited, or whoever with unlawful or fraudulent intent shall transport, or cause to be transported in interstate or foreign commerce, any bed piece, bed plate, roll, plate, die, seal, stone, type, or other tool, implement, or thing used or fitted to be used in falsely making, forging, altering, or counterfeiting any security, or any part thereof, shall be punished by a fine of not more than $10,000 or by imprisonment for not more than ten years, or both: Provided, That the provisions of this section shall not apply to any falsely made, forged, altered, counterfeited, or spurious representation of (1) an “obligation or other security of the United States” as defined in section 147 of the Criminal Code (U.S.C., title 18, sec. 261) or (2) an obligation, bond, certificate, security, treasury note, bill, promise to pay, or bank note, issued by any “foreign government” as defined in the Act of June 15, 1917, title VIII, section 4 (U.S.C., title 18, sec. 288), or by a bank or corporation of any foreign country.’ ” [Emphasis supplied.]

18 U.S.C. § 261 defining “obligation or other security of the United States” mentioned in the initial legislation is now 18 U.S.C. § 8.

To be noted is the fact that the language of the present exclusion “. an obligation or other security of the United States . . . ” is precisely the same as the language of the initial exclusion, the enactment of August 3, 1939.

The legislative background leading up to the passage of the 1939 amendment makes it apparent that the Congress intended to exclude falsely made, forged, altered or counterfeited securities of the United States from what is now, with slight modification, the first paragraph of § 2314. From that report and the amendment itself, it is manifest that the Congress intended to include for the first time “. . . transportation of falsely made, forged, altered or counterfeited securities . . .”, and at the same time determined that this inclusion should not apply to United States obligations for the reason that existing statutes adequately dealt with trafficking in such securities. The Attorney General of the United States, in a letter to William B. Bankhead, Speaker of the House of Representatives, from which we quote in relevant part, expressed the same viewpoint:

-X- * -x- * *
“It is also desirable to include the transportation of counterfeit securities within the prohibitions of the statute. It need not, however, embrace counterfeit Government obligations or counterfeit foreign obligations, as the statutes relating to counterfeiting penalize their possession." H.R.Rep.No.422, 76th Cong., 1st Sess. (1939). [Emphasis supplied.]

The Attorney General directed a letter, using the same language, to Henry F. Asher, the Chairman of the Senate Judiciary Committee, containing the same language as used in the communication to Speaker Bankhead.

Under the provisions of 18 U.S.C. § 471, anyone who, with intent to defraud, falsely makes, forges, counterfeits or alters any obligation or other security of the United States is guilty of a crime. This law was passed on March 4, 1909, 35 Stat. 1115, long prior to the 1939 legislation and, no doubt, was one of the laws to which the legislative history makes reference. 18 U.S.C. § 500 making it a crime for any one to falsely alter in any material respect any money order is another statute under which appellants could have been indicted. In other words, one who forges or alters an obligation or other security of the United States, or falsely alters a money order, is guilty of a crime without the necessity of crossing a state line. To invoke the Commerce Clause of the Constitution in order to provide federal jurisdiction, in these circumstances, would be an exercise in futility.

Worthy of more than just casual notice is the fact that the use of the language “this section” in the exclusion was carried through in the codification and revision in 1948. Clearly, the exclusion was intended to apply to each paragraph, including the first. Aside from the clarity with which the congressional history exposes the congressional intent, we find no vagueness or ambiguity in the statute itself. The appellee argues that the exclusion is inapplicable to the present case for the reason that the appellant was indicted for transporting stolen money orders, not falsely made United States Postal Money Orders. The answer to the argument is that the language of the exclusion “. . . this section . . .’’is all inclusive and applies to the para-graph under which the indictment was returned with the same degree of exclusion as it does to others.

Even if we could say that there was some doubt as to the meaning of the exclusion, the government would still be in trouble. It is well settled that any ambiguity or vagueness in a criminal statute must be resolved in favor of lenity. Rewis v. United States, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971); United States v. Campos-Serrano, 404 U.S. 293, 92 S.Ct. 471, 30 L.Ed.2d 457 (1971); United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). As recently as February 22, 1973, the Supreme Court in United States v. Emmons, 410 U.S. 396, 93 S.Ct. 1007, 35 L.Ed.2d 379, has reaffirmed the rule stating: “. . . this being a criminal statute, it must be strictly construed, and any ambiguity must be resolved in favor of lenity. a

Finally, the government argues that even though the exclusion might prevent appellants’ prosecution under Count Seven, charging a violation of § 2314, nevertheless, Count Six, the conspiracy count, must stand.

The government’s argument falls of its own weight. It should require no citation of authority to say that a person cannot conspire to commit a crime against the United States when the facts reveal there could be no violation of the statute under which the conspiracy is charged. If, as we have just held, the exclusion prevents prosecution under § 2314, then the appellants cannot be guilty of conspiring to commit that offense against the United States. They are charged only with conspiring to violate 18 U.S.C. § 2314. That section does not apply to falsely made and altered obligations of the United States. Although the case is factually distinguishable, the language of Justice Stewart in Ingram v. United States, 360 U.S. 672, 680, 79 S.Ct. 1314, 1320, 3 L.Ed.2d 1503 (1958), “. . . Smith and Law were not liable for the wagering tax. . They could not, therefore, have been convicted of the crime which they were charged with having conspired to commit. To sustain their conviction on this record would be to make of the crime of conspiracy just that ‘dragnet to draw in all substantive crimes’ against which the Court warned in . ”, is very much in point and persuades us to the conclusion just reached. United States v. Smith, 200 F.Supp. 227 (E.D. Tenn.1961), construing 18 U.S.C. § 2314 on a conspiracy charge in connection with falsely made obligations of a foreign corporation [Canada] is also in point. Obviously, the conspiracy charge cannot stand.

OTHER CONTENTIONS

Appellants’ other contentions with reference to: (1) prosecutorial misconduct, (2) Parker’s motives for testifying, (3) alleged hearsay within hearsay, (4) alleged declarations after the conspiracy had ended, (5) rulings on cross-examination of Parker, and (6) instructions as to money order valuation, are either patently groundless or the errors, if any, clearly harmless under Rule 52(a), F.R.Crim.P.

CONCLUSION

The judgments and sentences against Jack Edward Galardi and Angel Jerrold Galardi under Counts One, Two, Three, Four and Five are affirmed. The judgments and sentences of Angel Jerrold Galardi, Jack Edward Galardi and Peter Michael Lafkas under Count Six are reversed. The judgments and sentences of Jack Edward Galardi and Peter Michael Lafkas under Count Seven are reversed.

It is so ordered.

      . Also, inferentially challenged by the Galardis.

      . * * *
      “Whoever transports in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud; . . . ”

      . * * *
      “This section shall not apply to any falsely made, forged, altered, counterfeited or spurious representation of an obligation or other security of the United States, . . . ”

      . The previous statute did not have the exclusion. 48 Stat. 794.

      . 18 U.S.C. § 8.
      “§ 8. Obligation or other security of the United States defined

      Tlie term ‘obligation or other security of the United States’ includes all bonds, certificates of indebtedness, national bank currency, Federal Reserve notes, Federal Reserve bank notes, coupons, United States notes, Treasury notes, gold certificates, silver certificates, fractional notes, certificates of deposit, bills, checks, or drafts for money, drawn by or upon authorized officers of the United States, stamps and other representatives of value, of whatever denomination, issued under any Act of Congress, and canceled United States stamps.”

      . We quote from the report of the Committee on the Judiciary of the House.
      * * * *
      “Section 1
      Section 3 of the Stolen Property Act makes it a Federal criminal offense knowingly to transport in interstate or foreign commerce stolen property, securities, or money of tlie value of $5,000 or more. This section of the law is amended by section 1 of the reported bill to include such transportation of property, securities, or money of the same minimum value which have been feloniously converted, and also to include transportation of falsely made, forged, altered, or counterfeited secu,rities of the apparent or purported value of $3,000 or more. Counterfeited securities of the United States and foreign governments are exempted by a proviso because they are dealt with adequately by other provisions of existing law.” [Emphasis supplied.] [H.R.Rep.No.422, 76th Cong., 1st Sess. (1939)].

      . 18 U.S.C. § 471.
      “§ 471. Obligations or securities of the United States

      Whoever, with intent to defraud, falsely makes, forges, counterfeits, or alters any obligation or other security of the United States, shall be fined not more than $5,000 or imprisoned not more than fifteen years, or both.”

       Emphasis supplied.


author: TIMBERS, Circuit Judge:

text:
    The CONNECTICUT LIGHT & POWER COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    Nos. 339, 340, Dockets 72-1664, 72-1816.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 16, 1973.
    Decided April 6, 1973.

      Harold N. Mack, Boston, Mass. (Morgan, Brown, Kearns & Joy, Boston, Mass., on the brief), for petitioner.
    Allison W. Brown, Jr., Atty., NLRB, Washington, D. C. (Peter G. Nash, Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Steven C. Kahn, Atty., NLRB, Washington, D. C., on the brief), for respondent.
    Milton A. Smith and Otto F. Wenzler, Washington, D. C., and Gerard C. Smetana and Lawrence M. Cohen, Chicago, 111., for The Chamber of Commerce of the United States, amicus curiae.
    Before FRIENDLY, Chief Judge, and OAKES and TIMBERS, Circuit Judges.
   TIMBERS, Circuit Judge:

The Connecticut Light & Power Company (the Company) has petitioned to review and set aside an order of the National Labor Relations Board issued May 8, 1972, 196 N.L.R.B. No. 149 (1972), which essentially required that the Company bargain in good faith with the Union as to the selection of an insurance carrier for the Company’s employee medical-surgical benefits plan. The Board has cross-petitioned for enforcement of its order. We agree with the Company that the selection of an insurance carrier under the circumstances presented here is not a mandatory subject for bargaining within Section 8(d) of the National Labor Relations Act (the Act), 29 U.S.C. § 158(d) (1970). We therefore grant the petition to review and set aside the Board’s order, and we deny the cross-petition to enforce the order.

I.

The Company is a Connecticut corporation. It is a public utility engaged in the production, distribution and sale of electricity and gas. It is engaged in commerce within the meaning of the Act.

System Council U-24, International Brotherhood of Electrical Workers, AFL-CIO, and its Local Unions 420, 753, 1045, 1175, 1226, 1317 and 1817 (the Union), are labor organizations within the meaning of the Act. Together they serve as the exclusive representative for all the Company’s employees within the relevant bargaining unit. For many years, the Company and the Union have had a collective bargaining relationship.

The Company has long provided its employees with a non-contributory, Company-paid medical-surgical insurance plan. Since 1967 the carrier of this insurance plan, which includes major medical coverage, has been the Aetna Life Insurance Company (Aetna). For several years prior to 1967, the Company had contracted with Blue Cross-Connecticut Medical Service (Blue Cross) for the basic medical-surgical insurance, and with the Hartford Accident and Indemnity Company for major medical insurance.

In 1969, the Union informed the Company of its dissatisfaction with Aetna’s administration of the insurance plan. As a result, the Company secured various changes from Aetna. Nevertheless, during the 1971 collective bargaining negotiations, the Union again expressed its dissatisfaction with Aetna and sought to include in those negotiations the reinstatement of Blue Cross as the carrier for the employee insurance plan. The Company did bargain during the 1971 negotiations with respect to coverage, benefits and administration of the plan; but it steadfastly refused to bargain as to the selection of the carrier, maintaining that it had the right unilaterally to choose the carrier.

On May 14, 1971, the Union filed a charge with the Board, alleging a refusal by the Company to bargain, in violation of Section 8(a)(1) and (5) of the Act, 29 U.S.C. § 158(a)(1) and (5) (1970). That charge resulted in the issuance of a complaint by the General Counsel on July 19, 1971. A hearing was held before a trial examiner on October 18, 1971. On February 2, 1972, the examiner filed a decision, in which he found that the Company had unlawfully refused to bargain as to the selection of an insurance carrier for the employee medical benefits plan. On May 8, 1972, the Board affirmed the trial examiner’s decision and adopted his recommended order. It ordered the Company to cease and desist from refusing to bargain collectively as to the selection of an insurance carrier, to bargain in good faith on that subject upon request of the union, and to take certain other affirmative action to comply with the order.

The sole issue before us on the Company’s petition to review and the Board’s cross-petition to enforce is whether the Board correctly concluded that the selection of an insurance carrier under the circumstances presented here is a mandatory subject for bargaining within the meaning of Section 8(d) of the Act.

II.

The requirement that an employer bargain collectively with the representatives of its employees, pursuant to Section 8(a) (5) of the Act, is limited by Section 8(d) to an obligation to confer as to “wages, hours, and other terms and conditions of employment . . . . ” 29 U.S.C. § 158(d) (1970). It is well established that included within that language are such “non-wage” benefits as the group health insurance here involved. E. g., W. W. Cross & Co. v. NLRB, 174 F.2d 875, 878 (1 Cir. 1949); Inland Steel Co. v. NLRB, 170 F.2d 247, 251 (7 Cir. 1948), cert. denied, 336 U.S. 960 (1949) (accepting the Board’s conclusion that “the term ‘wages’ . must be construed to include emoluments of value, like pension and insurance benefits, which may accrue to employees out. of their employment relationship . . . . Realistically viewed, this type of wage enhancement or increase, no less than any other, becomes an integral part of the entire wage structure . . . .”). The Company here does not dispute the inclusion of the instant group insurance plan within the term “wages”. Indeed, it has at all times freely negotiated with regard to the benefit levels and administration of the plan. Further, as noted above, it successfully obtained various changes from Aetna following notification from the Union of the latter’s dissatisfaction with certain aspects of the plan.

In Chemical Workers, Local 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157 (1971), the Court was asked to decide whether retirees’ benefits — i. e., benefits for former employees already retired — is a mandatory subject for bargaining under Section 8(d). In holding that, because retirees are not “employees” under Section 2(3) of the Act, 29 U.S.C. § 152(3) (1970), the refusal to bargain was proper, the Court observed that it was required also to consider whether such benefits nevertheless were within the ambit of compulsory negotiation topics: “Section 8(d) of the Act, of course, does not immutably fix a list of subjects for mandatory bargaining .... But it does establish a limitation against which proposed topics must be measured. In general terms, the limitation includes only issues that settle an aspect of the relationship between the employer and employees.” 404 U.S. at 178. This, as the Court observed, depends on whether the matter “vitally affects the ‘terms and conditions’ of [the] employment.” 404 U.S. at 179. (emphasis added).

A recent Sixth Circuit decision examined the applicability of that standard to the selection of a carrier for an employee medical-surgical insurance plan. In Bastian-Blessing, Division of Golconda Corp. v. NLRB, 474 F.2d 49 (6 Cir. 1973), the court held that under the specific facts of that case the naming of an insurance carrier for an employee group benefit plan was a mandatory subject for bargaining. We find Bastían distinguishable from the instant case in significant respects. There, Aetna had been the carrier of the group plan since World War II. The plan was contributory in nature, the employees paying approximately 40% of the cost. In 1970, the company unilaterally cancelled the Aetna policy and began a self-insurance plan. The Board found that the change adversely affected the employees in important respects: (1) the new plan “omitted entirely two significant employee benefits: a conversion privilege without evidence of insurability, and the certainty of coverage of new-born babies under the $20,000 major medical benefit”; (2) it deprived the employees of “enforceability of the prior master contract and of Aetna’s administration of that contract”; and (3) a degree of uncertainty was created as to the funding of the new plan which the Board considered to have “an adverse impact on the employees’ previously negotiated benefits.” 474 F.2d at 51-52.

The court’s conclusion that the company had violated Section 8(a)(5) of the Act clearly was based on the unilateral changes in the terms of the insurance plan, referred to above. The court noted that it had found no case law which squarely supports “the proposition that the specific insurance carrier for a group health plan is a mandatory subject for bargaining.” 474 F.2d at 53-54. Instead, it chose to confine its ruling to the facts of the case before it, where it was impossible “to find a way to separate the carrier from the benefits.” 474 F.2d at 54. And it concluded that:

“We emphasize that the conclusion reached herein is governed by the facts of this case and is not to be interpreted as a ruling by this Court that the naming of an insurance carrier for an employee group benefit plan, in the absence of other considerations, is a mandatory subject for bargaining.” 474 F.2d at 54.

Similarly, the other cases cited to us which required bargaining with regard to the carrier of the employees’ insurance plans involved substantive changes in benefits which dictated the results. E. g., Wisconsin Southern Gas Co., 173 N.L.R.B. 480 (1968); Wabana, Inc., 146 N.L.R.B. 1162 (1964). Here, there have been no specific allegations of any changes in coverage, levels or administration of the plan. All the Union has alleged is general “dissatisfaction” with Aetna. Equally important, the Company has responded to specific complaints with good faith negotiation; and, as the Board found, the Company has been able to obtain modifications from Aetna.

Consequently, we are unable to conclude that the Company has violated its obligation to bargain under Pittsburgh Plate Glass. The Company at no time has refused to negotiate with the employees as to any subject that “vitally affects the ‘terms and conditions’ of their employment.” Chemical Workers, Local 1 v. Pittsburgh Plate Glass Co., supra, 404 U.S. at 179. In Westinghouse Electric Corp. v. NLRB, 387 F.2d 542, 548 (4 Cir. 1967) (en banc), the court observed that:

“[Sjince practically every managerial decision has some impact on wages, hours, or other conditions of employment, the determination of which decisions are mandatory bargaining subjects must depend upon whether a given subject has a significant or material relationship to wages, hours, or other conditions of employment.”

The benefits, coverage and administration of the plan in the instant case clearly are proper bargaining subjects.

We hold that the Company, having negotiated about those matters, was free to choose any carrier that would satisfy the Company’s agreement with the Union.

III.

Our holding as stated above, however, should not be construed to mean that in all cases may the selection of a carrier be divorced from the elements of employee health insurance that traditionally have been held to be mandatory subjects of bargaining. As in Bastían, we are reluctant to attempt to formulate a test for determining in which cases the identity of the insurance carrier itself vitally affects the terms and conditions of the employment. In Bastían, the court found a sufficient interrelationship to require 'bargaining. Here, on the other hand, we find that all the matters within the bargaining requirement can be, and have been, the subject of negotiations between the Company and the Union without reference to the identity of the carrier. Moreover, should the Company’s choice of a carrier produce a situation where the Company is unable to fulfill its agreement under the collective bargaining contract, the Union has a remedy under Section 301 of the Labor-Management Relations Act, 29 U.S.C. § 185 (1970). Thus, while a different result might be necessary where, as in Bastían, a change of carrier were found to affect the bargained-for terms of the employee insurance plan, or where, for example, the mal-administration of the plan by the company-selected carrier were found to be so pervasive and pernicious as to have the “vital effect” contemplated in Pittsburgh Plate Glass, we do not pass on such matters here because they are not before us. All that the Union has alleged here is an undefined “dissatisfaction” with Aetna’s administration.

We hold that the Board on the facts of this case erroneously concluded that the Company had violated its duty to bargain.

The petition to review and set aside the Board’s order is granted; and the cross-petition for enforcement is denied.

      . Our summary of the facts is based on the trial examiner’s findings, all of which were affirmed by the Board.

      . Prior to the Blue Cross-Hartford arrangement, the coverage was secured from Aetna and Blue Cross alternately.

      . In addition to the Company’s refusal to bargain as to the selection of an insurance carrier, the charge and the complaint alleged a refusal to bargain as to retirees’ benefits. The trial examiner dismissed that portion of the complaint on the authority of Chemical Workers, Local 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157 (1971), which held that retirees’ benefits are not a mandatory subject of bargaining within Section 8(d) of the Act. The Board affirmed that ruling. The issue has not been raised before us.

      . Even if we were to find such prior administrative decisions to have dealt with facts indistinguishable from those at bar, they of course would not be controlling here as to the legal issues involved. “Reviewing courts are not obliged to stand aside and rubber-stamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.” NLRB v. Brown, 380 U.S. 278, 291 (1965).


author: ROBERT D. MORGAN, District Judge.

text:
    UNITED STATES of America, Plaintiff-Appellant, v. William Earl MATTLOCK, Defendant-Appellee.
    No. 72-1449.
    United States Court of Appeals, Seventh Circuit.
    Argued Nov. 30, 1972.
    Decided Feb. 5, 1973.
    Certiorari Granted May 29, 1973.
    See 93 S.Ct. 2734.

      John O. Olson, U. S. Atty., Madison, Wis., for plaintiff-appellant.
    Donald S. Eisenberg, Madison, Wis., for defendant-appellee.
    Before HASTINGS, Senior Circuit Judge, CAMPBELL, Senior District Judge, and MORGAN, District Judge.*

       Senior District Judge William J. Campbell of the United States District Court for the Northern District of Illinois and Chief Judge Robert D. Morgan of the United States District Court for the Southern District of Illinois -are sitting by designation.

   ROBERT D. MORGAN, District Judge.

This appeal is prosecuted by the United States to review an order of the court below suppressing certain evidence seized by state officers and FBI agents in three separate warrantless searches of a residence house.

On November 12, 1970, at about 9:30 a. m., sheriff’s officers of Columbia County, Wisconsin, arrested defendant, a bank robbery suspect, in the yard of a residence house rented by a Walter Marshall and Elaine Marshall, the arrest being made some distance from the house itself. Residents of the house at the time were Elaine Marshall, Gayle Graff, a daughter of the Marshalls, Graff’s infant son, at least two younger Marshall children, and the defendant.

Immediately after the arrest, certain of the officers went to the house and were admitted by Graff. The officers told Graff that they were looking for money and a gun and wished to search the house. Graff consented. The officers seized $4,995 and certain other items from a closet and a dresser drawer in a second floor bedroom, identified in the record as the east bedroom.

The same officers conducted a second search shortly after the first was concluded. Graff again admitted them to the house and consented to a further search. Certain items were then seized from a closet on the first floor of the house. The second search began about 10:15 a. m.

The third search was conducted about 4:30 p. m. of the same day by FBI agents and local officers. Three of the officers were admitted to the house by one of the younger children, where they waited while the fourth officer involved brought Mrs. Marshall from her place of employment to the house. Mrs. Marshall signed a written consent to search. During that search, certain items were seized from a dresser drawer in the east bedroom. Others were seized from locations on the first floor.

Following extensive evidentiary hearings, the court found and concluded that the government had proved that it reasonably appeared to the several officers, just prior to the searches, that facts existed in each instance from which the officers could reasonably believe that both Graff and Mrs. Marshall had authority to consent to a search and that their respective consents would be binding upon the defendant. The evidence related to Graff’s apparent authority to consent was that she and defendant, among others, resided in the house; that she admitted the officers while dressed in night clothes and a robe; that she then told the officers that she and defendant both occupied the east bedroom, and that women’s clothing therein contained was hers; and that she had told the officers that she used the two upper drawers of a dresser in the room and the defendant used the two lower drawers.

The appearance of Mrs. Marshall’s authority was found in the fact that she and her husband were the lessees of the whole premises from a third party owner. Though finding apparent authority to consent, the trial judge expressed his incredulity of the fact that none of the officers had asked Mrs. Marshall about the arrangement under which 'defendant occupied the east bedroom.

The judge expressed a reservation as to search of the bottom two dresser drawers, since there was no testimony as to whether Graff’s statement that defendant, only, used those drawers was made before or after the search, saying that if the information was known prior to the search, there was no apparent authority to bind defendant by Graff’s consent.

From Mrs. Marshall’s testimony, the court found that a rental agreement had existed between defendant and Mrs. Marshall, pursuant to which he paid her $25.00 per week for the use of the east bedroom and board. The court found and concluded that prior to the several searches, facts did not exist which would render the consent of either Graff or Mrs. Marshall to a search of the east bedroom binding upon the defendant.

In that regard, the court refused to consider the hearsay evidence that Graff had stated to the searching officers that she occupied the east bedroom with the defendant, and that certain clothing there located was hers, as substantive evidence^ that the room was jointly occupier by her and the defendant.

The court ordered that all evidence seized from the east bedroom be suppressed. Defendant’s motion to suppress evidence seized from other areas of the house was denied on the ground that defendant had no standing to object to a search of any part of the house except the east bedroom.

The government’s principal contention against the suppression order is that appearance of authority to consent satisfies Fourth Amendment requirements, and that the court erred in requiring proof of facts showing actual authority to consent. Thus, the government argues that an imposter, having no connection with a residence searched, would bind a putative defendant if it reasonably appealed to the searching officer that the imposter had the right to consent to a search. Statement of the argument is largely its own refutation. Furthermore, the government bases its position to a great extent upon United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950). Rabinowitz can only be viewed as shaky authority, since the broad rationale of that case was quite generally overruled in Chimel v. California, 395 U.S. 752, 768, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

Security in one’s home from unreasonable searches and seizures is a personal right, e. g., Stoner v. California, 376 U.S. 483, 489, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); Anderson v. United States, 399 F.2d 753, 755 (10 Cir., 1968), not to be eroded “by unrealistic doctrines of ‘apparent authority.’ ” Stoner v. California, supra, at 488, 84 S.Ct. at 892.

One of joint occupants of a residence may consent to a search of the premises jointly occupied and by his consent bind the nonconsenting occupant to face the evidence seized. E. g., United States v. Stone, 471 F.2d 170, 7 Cir. 1972; United States v. Airdo, 380 F.2d 103 (C.A.7 1967), cert. denied, 389 U.S. 913, 88 S.Ct. 238, 19 L.Ed.2d 260. The government relies wholly on such cases. United States v. Wixom, 441 F.2d 623 (C.A.7 1971); United States v. Botsch, 364 F.2d 542 (C.A.2 1966), cert. denied, 386 U.S. 937, 87 S.Ct. 959, 17 L.Ed.2d 810 and Drummond v. United States, 350 F.2d 983 (C.A.8 1965), cert. denied, 384 U.S. 944, 86 S.Ct. 1469, 16 L.Ed.2d 542, all involving consent by one of partners in crime to search premises to which all had equal access; United States v. Airdo, supra, involved admitted joint occupancy; Burge v. United States, 342 F.2d 408 (C.A.9 1965), cert. denied, 382 U.S. 829, 86 S.Ct. 63, 15 L.Ed.2d 72, joint occupants of a bathroom searched; Weaver v. Lane, 382 F.2d 251 (C.A.7 1967), cert. denied, 392 U.S. 930, 88 S.Ct. 2289, 20 L.Ed.2d 1390, consent by hostess to search room of temporary visitor; Gurleski v. United States, 405 F.2d 253 (C.A.5 1968), involved joint use and possession of automobile. It is equally clear that a landlord cannot by his consent waive a tenant’s right to be free from an unreasonable search. Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961). Nor can a person having no right of occupancy of premises bind another by his consent to a search of the premises. Stoner v. California, supra.

A comparison of the many cases reveals that a vicarious consent is sustained only when actual authority to consent is shown to have existed when consent was given. In our view, Judge Doyle has simply articulated the correct principle which courts until now have applied without clear articulation thereof. He correctly held that defendant’s constitutional rights could be waived only if it was proved that reasonable appearance of authority to consent existed and, also, that just prior to the search, facts existed showing actual authority to consent. We cannot reject his finding that the government failed to prove that actual authority did exist. Such actual authority is, of course, to be distinguished from actual permission to consent, which need not be proved.

The court below correctly placed the burden upon the government to prove that defendant’s Fourth Amendment rights were waived. E. g., Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); Chimel v. California, 395 U.S. 752, 761, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Stoner v. California, 376 U.S. 483, 486, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964). The government appears before the court asserting misplaced reliance upon inapposite cases dealing with either the challenged validity of a search warrant or the issue of standing to move to suppress seized evidence. E. g., Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 4 L.Ed. 2d 697 (1960), and Brandon v. United States, 106 U.S.App.D.C. 118, 270 F.2d 311, 312-313 (1959), cert. denied, 362 U.S. 943, 80 S.Ct. 808, 4 L.Ed.2d 771 (issue was standing to pursue motion to suppress); United States v. Rellie, 39 F.Supp. 21 (E.D.N.Y.1941) (challenged legality of a warrant).

The government also challenges the court’s statement that the authority of the consenter to bind a putative defendant must be proved “to a reasonable certainty, by the greater weight of the credible evidence” as applying an erroneous standard of proof. The sustaining of the contention that a constitutional right has been waived invokes a high standard of proof of facts showing waiver. Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); United States v. Coleman, 322 F.Supp. 550, 553 (E.D.Pa.1971); United States v. Cole, 325 F.Supp. 763, 768 (S.D.N.Y.1971). The district court’s statement of the standard of proof required to prove the fact of authority to bind defendant is consistent with the principle enunciated in those cases and is not subject to abstract criticism.

Finally, the government contends that the court erroneously excluded extra judicial statements and other hearsay evidence as bearing upon the issue of the existence of actual authority to bind the defendant by Graff’s consent. Thus, the court excluded Graff’s hearsay statements to officers that she occupied the east bedroom with defendant and testimony that both defendant and Graff had stated publicly several times that they were married. The evidence was properly excluded pursuant to the well established rule that hearsay is not admissible as substantive evidence to prove the existence of a fact in issue. Bridges v. Wixon, 326 U.S. 135, 153-154, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945); 29 Am.Jur.2d, Evidence, §§ 493, 495. The hearing below cannot be equated with that on a petition for a search warrant, as the government contends. An unreasonable, warrantless search is not insulated against constitutional objection by the fact that probable cause did in fact exist. Vale v. Louisiana, supra, 390 U. S. at 34, 90 S.Ct. 1969; Chimel v. California, supra, 395 U.S. at 762, 89 S.Ct. 2034. A search warrant should have been obtained in this case.

The record supports the findings that a rental agreement did exist between defendant and Mrs. Marshall, and that there was no proof of facts showing actual authority in either Graff or Mrs. Marshall to consent to a search of the east bedroom.

The court below did not direct what disposition was to be made of the cash and other evidence suppressed. It should do so. The judgment will be affirmed and the cause remanded to the court below for that determination and such further proceedings as may be required.

Affirmed and remanded.

      . The court did not consider the question whether Graff’s consents were voluntary, in light of the fact that she was never advised that she had the right to refuse consent.

      . That hearsay evidence was admitted and considered for its bearing upon the question of the reasonableness of appearance to the officers of Graff’s authority to bind defendant by her consent.


author: KNOCH, Senior Circuit Judge.

text:
    Henry G. LAHR, Administrator of the Estate of Peter Lahr, Deceased, Plaintiff-Appellant, v. Elliot L. RICHARDSON, Secretary of Health, Education and Welfare, Defendant-Appellee.
    No. 71-1721.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 13, 1972.
    Decided March 23, 1973.

      Donald M. Orstrom, Ervin D. Snyder, Glen Ellyn, Ill., for plaintiff-appellant.
    James R. Thompson, U. S. Atty., William T. Huyck, Kenneth R. Siegan, Asst. U. S. Attys., Chicago, Ill., for defendant-appellee.
    Before KNOCH, Senior Circuit Judge, and FAIRCHILD and PELL, Circuit Judges.
   KNOCH, Senior Circuit Judge.

This matter arises out of the decision of a hearing examiner for the Social Security Administration of the Department of Health, Education and Welfare, denying the claim of plaintiff, Henry G. Lahr, Administrator of the Estate of Peter Lahr, deceased, that old age insurance benefits were due Peter Lahr for the period from September, 1963 through April, 1968. The decision further ordered plaintiff to reimburse the Social Security Administration the sum of $2,940 which had been paid him on behalf of Peter Lahr for the period May, 1961 through August, 1963.

The hearing examiner relied on the facts that Peter Lahr had been placed in a nursing home about 1% years prior to May 30, 1961, because of his child-like behavior, the result of brain syndrome following an accident. He had been adjudicated incompetent on April 25, 1961. Payment of benefits was made to Henry Lahr who had been appointed conservator. The nursing home was about 150 yards from the lake, access to which was possible at two close locations. On two occasions, Peter Lahr, without notice, had left the home where he had some complaints about his treatment. Because of this potentially dangerous behavior, plaintiff was considering removal of his father to another institution.

On May 30, 1961, at the age of 72 years and in excellent physical condition (as distinguished from mental condition) Peter Lahr disappeared from the home and has not been heard of since. The hearing examiner determined that he died on May 30, 1961, most likely having gone into the lake which was so close at hand.

Meanwhile, the Circuit Court of Cook County, Illinois, determined that the father died on May 30, 1968, presuming death after seven years of unexplained absence.

The Appeals Council, of the Social Security Administration, affirmed the decision of the hearing examiner, as did the District Court, 1971, 328 F.Supp. 996. The District Judge also denied plaintiff’s motion to vacate that judgment. Plaintiff contends that the Court was bound by the presumption of death to the extent that it might not examine the evidence apart from that presumption. Plaintiff also contends that there is no substantial evidence in the record to rebut that presumption. Plaintiff’s position is that here, as in In re Chicago and N. W. Ry. Co. (Carlson v. Thomson), 7 Cir., 1943, 138 F.2d 753, the appellee had the burden of proving that Peter Lahr died at the time asserted and has failed to sustain that burden by anything other than conjecture or surmise. In Carlson, an elderly man, suffering only from a degree of deafness and melancholy because of his wife’s death, was last seen leaving a train in an area where there were abandoned mines and pits. An intensive search failed to disclose any trace of a body that might have been his. Peter Lahr, however, was not mentally competent and the lake does not always give up its dead. It was reasonable for the examiner to conclude that it was extremely unlikely that an individual in Peter Lahr’s circumstances would have survived where no sign was found even in a search by the Chicago Police Department.

The Secretary’s decision with respect to Peter Lahr’s benefits must be affirmed if it accords with applicable law and is supported by substantial evidence. See Title 42 U.S.C. § 405(g); Sykes v. Finch, 7 Cir., 1971, 443 F.2d 192, 194 ftn. 2; Kutchman v. Cohen, 7 Cir., 1970, 425 F.2d 20, 23. We may not make our own appraisal of the evidence. Carqueville v. Flemming, 7 Cir., 1959, 263 F.2d 875, 877.

In Gardner v. Wilcox, 9 Cir., 1966, 370 F.2d 492, 494-495, the Court held that it was for the hearing examiner to balance the probabilities and likelihoods of life or death in the light of all the known facts as part of the fact-finding function.

In Tobin v. United States Railroad Retirement Board, 6 Cir., 1961, 286 F.2d 480, on which plaintiff relies, the Court held that the 7-year presumption of death was not conclusive and was not to be rigidly observed without regard to the circumstances, but made specific reference to the absence of any apparent peril or danger and the strong motives for Mr. Tobin’s possible desire to escape from the institution in which he was confined and the daughter who had caused his confinement there. Mr. To-bin was described as able-bodied, strong and husky, physically very powerful for his age and in possession of money and identification.

Since Tobin the Railroad Retirement Act, Title 45 U.S.C. § 228c(g), has been amended to provide that no annuity shall accrue to an annuitant who disappears until he is shown to have been alive for the period in question.

There was evidence that Peter Lahr had previously placed himself in a dangerous position by walking down the middle of the busy thoroughfare on which the home was situated. The proximity of the lake, Peter Lahr’s mental incompetence, his inability to take care of his daily needs, his failing memory, his frequent irrationality, support the finding that he did not survive the day he disappeared.

In any case, plaintiff argues that § 204(b) of the Social Security Act [Title 42 U.S.C. § 404(b)] bars recovery of payments made as he is a person who is without fault and recovery would defeat the purpose of the Act or be against equity or good conscience. Plaintiff disagrees with the hearing examiner that he knew or should have known that the payments were incorrectly made. He states that the payments were expended for ordinary and necessary expenses to cover the costs of the conservatorship, attorneys’ fees, insurance premiums and bank charges, which he characterizes as a necessary part of managing any incompetent’s estate. Having no evidence of death, plaintiff asserts that he was obliged to pay insurance and bond premiums and attorneys’ fees up to the expiration of the 7-year period. Plaintiff at no time notified the Social Security Administration of his father’s disappearance. He ought to have known that this was material information which should not be withheld. The inequities to which the statute refers would be those suffered by Peter Lahr, should he be deprived, for example, of income for current living expenses.

Title 42 U.S.C. § 404(a)(1) does not specify the payment of interest on the amount overpaid. Even if an award of interest would be authorized, on the amount overpaid or the judgment as here affirmed, we do not consider such allowance equitable and appropriate under the circumstances of this case.

Affirmed.


author: KILEY, Circuit Judge. KILKENNY, Senior Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Sam Lee FOWLER, Jr., Defendant-Appellant.
    No. 72-1042.
    United States Court of Appeals, Seventh Circuit.
    Argued Oct. 25, 1972.
    Decided April 4, 1973.
    George R. Ripplinger, Jr., Belleville, Ill., for defendant-appellant.
    Henry A. Schwarz, U. S. Atty., Frederick J. Hess, Asst. U. S. Atty., E. St. Louis, Ill., for plaintiff-appellee.
    Before KILEY and STEVENS, Circuit Judges, and KILKENNY, Senior Circuit Judge.

       Senior Judge John F. Kilkenny of the Ninth Circuit, sitting by designation.

   KILEY, Circuit Judge.

Defendant Fowler, a sixteen year old boy, was committed to the custody of the United States Attorney General “during his minority” following a proceeding in which he was found delinquent because of his participation in the burglary of a United States post office. He has appealed. We reverse.

Fowler was arrested as a suspect in the burglary of the post office in Colp, Illinois. Thereafter he was interrogated by a postal inspector in the Carbondale, Illinois police station. He orally confessed to his participation in the offense and subsequently joined two juvenile accomplices in a common affidavit admitting the offense.

As permitted by 18 U.S.C. § 5032, Fowler consented to be prosecuted as a juvenile rather than an adult. The government then filed an information instead of an indictment charging him with the burglary offense. Fowler’s pre-trial motion to suppress his confession was denied, and the confession and joint affidavit were introduced into evidence over objection at the subsequent bench trial. He was found to be “delinquent” and his commitment followed.

I.

The first issue presented is whether Fowler was entitled to Miranda warnings before he confessed to his participation in the burglary.

The Supreme Court in a series of cases has departed from the Parens Patriae Doctrine which denied juveniles vital rights accorded their elders. This is particularly true in the case of In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed. 2d 527 (1967), where the Court struck down the Arizona Juvenile Code as unconstitutional. The Court found that the Code permitted the denial of due process to a fifteen year old during a juvenile delinquency proceeding because the Code deprived juveniles of the exercise of the rights to confrontation, cross-examination, appellate review and notice to the juvenile’s parents of the right to counsel in the proceedings. In finding that the juvenile was denied the privilege against self-incrimination, the Court said “[i]t would indeed be surprising if the privilege against self-incrimination were available to hardened criminals but not to children.” Id., at 47, 87 S.Ct. at 1454.

We hold therefore, by virtue of In re Gault, that Fowler had the right to Miranda warnings prior to confessing to his participation in the burglary.

II.

The next issue raised is whether Fowler was adequately warned of his rights prior to interrogation as required by Miranda.

The evidence at the trial which implicated Fowler in the alleged burglary was the testimony of the postal inspector and - the joint affidavit which read “we” confess.

The inspector’s trial testimony shows that he did not tell Fowler, before the confession, that any answers he gave to questions could be used against him later in court. And the joint affidavit omitted to warn defendant that he had a right to an attorney before answering questions. We think these deficiencies indicate that on neither occasion were the “full” Miranda warnings given defendant.

It might be argued that although both the oral and written warnings were each deficient, when considered together they were complementary so as to meet the requirements of Miranda. We reject the argument in this case, since we cannot see that either warning or both considered together were meaningful to Fowler.

When his confession was made Fowler was sixteen years of age. So far as the record shows he had not previously been arrested, had not previously been in jail, nor had he ever been interrogated by law enforcement officials. One need only recall his own adolescence to appreciate the impact upon this boy, alone in a jail room, in custody of a postal inspector, being warned of his constitutional rights. “That which would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens [fifteen years old].” Haley v. Ohio, 332 U.S. 596, 599, 68 S.Ct. 302, 304, 92 L.Ed. 224 (1948). In these circumstances it is difficult to accept the notion that defendant fully comprehended what he was being told.

Fowler’s father was sent for, and was present in the jail at some time while the joint confession was being prepared. He was not present, however, when the oral interrogation began so that Fowler could be helped in understanding the gravity of his answers to the postal inspector’s questions. When the father was present, he did not ask for advice about, or any explanations of, his son’s rights so that he could aid in his son’s understanding of them. Seemingly unconcerned with his son’s understanding of the seriousness of what he was doing in signing the affidavit, he encouraged his son to “tell the truth.” His concern appeared to be mostly whether his son’s trouble would prevent him from getting into the “Job Corps.” What Fowler needed at the time was “counsel and support if he [was] not to become the victim first of fear, then of panic.” Id., at 600, 68 S.Ct. at 304. The father, however, did not fill this need.

We hold that the Miranda warnings as given Fowler were inadequate and that the admission of his confession and the affidavit into evidence requires reversal of the judgment.

The government’s argument places reliance on two cases which do not militate against our holding. In West v. United States, 399 F.2d 467 (5th Cir. 1968), full Miranda warnings were given, and the record disclosed several circumstances indicating the juvenile’s maturity and independence. Those circumstances are not present here. In the case’ of United States ex rel. Richardson v. Vitek, 395 F.2d 478 (7th Cir. 1968), the matter had been tried before In re Gault was decided. Moreover, this court’s affirmance of the dismissal of the juvenile’s habeas proceeding was based on the Illinois Supreme Court record and on the fact that both the Illinois and district courts reached the same conclusion that the juvenile had been advised of his right to remain silent, was able to inform his parents of his whereabouts, and his confession was “freely given.”

In the recent Pennsylvania Supreme Court case, Commonwealth v. Porter, 449 Pa. 153, 295 A.2d 311 (1972) (two justices dissenting), the court decided that a sixteen year old boy’s murder confession was not involuntary simply because his mother was not permitted to be present during the interrogation. A comparison of the facts of the instant case and those in Porter demonstrates that the two cases differ in significant respects. First, the Porter facts reveal that full Miranda warnings were given to the juvenile defendant with no question remaining as to right to counsel or to remain silent. Secondly, the Porter facts are similar to the West facts, because a showing of independence is evident. More precisely, the evidence in Porter indicated that the juvenile defendant did not want his mother to be present during his interrogation. The facts of the present case, however, are void of any showing of independence.

We limit our holding — that the district court committed constitutional error in admitting Fowler’s confession and the affidavit — to the facts in this case. We need not hold that a juvenile’s confession, or that absence of an attorney for a juvenile at interrogation, per se renders the confession involuntary. But see Gallegos v. Colorado, 370 U.S. 49, 54, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962), and Lewis v. State, 288 N.E.2d 138 (Ind., 1972). Neither do we consider the governments’ argument that Fowler was competent to waive his constitutional rights.

For the reasons given, the judgment is reversed.

KILKENNY, Senior Circuit Judge

(dissenting):

Assuming, arguendo, that Miranda warnings are required, nevertheless, the judgment of the lower court should be affirmed. There is nothing in the record to indicate that appellant had less than the normal intelligence of an average sixteen year old boy. Since Miranda does not require “. . .a ritual of words to be recited by rote according to didactic niceties”, Coyote v. United States, 380 F.2d 305, 308 (C.A.10 1967), I would hold that the oral and written warnings, when read together, fully comply with the Miranda requirements. United States v. Hilliker, 436 F.2d 101 (C.A.9 1970), cert. denied 401 U.S. 958, 91 S.Ct. 987, 28 L.Ed.2d 242 (1971), is closely in point and supports this view.

I would affirm.

      . 18 U.S.C. §§ 2 and 2115.

      . § 5032. Proceeding against juvenile delinquent
      A juvenile alleged to have committed one or more acts in violation of a law of the United States not punishable by death or life imprisonment, and not surrendered to the authorities of a state, shall be proceeded against as a juvenile delinquent if he consents to such procedure, unless the Attorney General, in his discretion, has expressly directed otherwise.
      In such event the juvenile shall be proceeded against by information and no criminal prosecution shall be instituted for the alleged violation.

      . Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948), and Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed. 2d 325 (1962), (in both cases juvenile’s confession violated right to due process) ; Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), (right to hearing on juvenile court’s waiver of jurisdiction).

      . See this court’s Geboy v. Gray, 471 F.2d 575 (7th Cir. 1973), written for the court by Judge Sprecher, where the right of a juvenile to counsel at a hearing on waiver of juvenile jurisdiction was sustained. Id., at 6, 87 S.Ct. 1428.

      . Fowler was given the following warning by Barnes:
      I told him who I was and identified myself. I explained to him that I wanted to discuss a matter with him that I was investigating, but that it might or could involve a violation of the law; and because of that it was necessary for him to understand his constitutional rights.

        I explained to him that he did not have to talk to me or answer any questions, if he chose not to do so and I explained to him that he had the right to the services of an attorney; and that if he could not afford an attorney, one could be appointed for him. I explained to him that if he answered questions, that he could refuse to answer any question or stop answering questions at any time. (H-5)

      . The joint affidavit read in pertinent part: We have been advised of our constitutional rights, that we do not have to make a statement, that anything we say can be used against us in court, that we have the right to an attorney and if we cannot afford an attorney, one can be appointed for ns. We wish to make the following statement of our own free will without any threats or coercion used against us. We are making this statement so that the true facts can be known.

       I have grave doubts as to the validity of the assumption.


author: MORGAN, District Judge. SWYGERT, Chief Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Donald Alan BUSH, Defendant-Appellant.
    No. 72-1013.
    United States Court of Appeals, Seventh Circuit.
    Argued Dec. 1, 1972.
    Decided March 15, 1973.
    Rehearing Denied May 10, 1973.

      George C. Pontikes, Chicago, Ill., for defendant-appellant.
    James R. Thompson, U. S. Atty., William T. Huyck, and Theodore T. Seudder, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.
    Before SWYGERT, Chief Judge, CASTLE, Senior Circuit Judge, and MORGAN, District Judge.

       Chief Judge Robert D. Morgan of the Southern District of Illinois is sitting by designation.

   MORGAN, District Judge.

Defendant appeals a judgment finding him guilty of the offense of wilfully and knowingly failing to submit to induction into the armed forces of the United States in violation of 50 Appendix, United States Code, Section 462. The basic contention for reversal is defendant’s assertion that he was entitled to a conscientious objector classification.

Defendant filed his original selective service questionnaire in late 1964, in which he asserted no physical or mental disqualification and no claim to conscientious objector status. He did state that he was a student at Purdue University. His local board granted him a student deferment.

On December 15, 1965, defendant reported to his board that he had withdrawn from Purdue. On a current status questionnaire filed thereafter, defendant asserted a mental condition. He also requested a form for claiming classification as a conscientious objector. He filed the latter form on January 11, 1966, asserting that he was conscientiously opposed to war by reason of his belief in and adherence to the philosophical theories of Immanuel Kant. The board classified defendant 1-A, available for military service. Defendant was so notified by mail, such notice containing advice of his right to appeal and the time and manner for appealing that classification.

About two weeks thereafter, defendant filed a current information questionnaire, reporting a change of employment. He did not request an appeal of his classification. Months later he did request an appeal, upon the sole ground that he had been working in Indianapolis and only returned on weekends to the Cincinnati mailing address which he had supplied to the board. The board refused to extend the time limit for appeal.

On June 26, 1966, following a pre-induction Army physical examination and his being notified that he was qualified for military service, defendant filed another current information questionnaire in which he reported that he was a student at Ohio State University, but he claimed no disqualifying conditions. Defendant was classified 1-A. He sought and obtained a personal appearance before the local board, followed by an appeal to the appeal board. That appearance and appeal were limited to his claim for a student deferment, a classification which was granted to him in late May, 1968.

In the meantime, defendant had written to the board on May 2, 1968, stating that he would like to appeal his then 1-A classification on the ground that “I am a conscientious objector as described” in the form “filled out in late 1965 or early 1966.” Later the same date defendant wrote to the board regarding his C-0 claim, stating that he would “defer that appeal” because he was “primarily interested in regaining my II-S status.”

As graduation from Ohio State approached, defendant was reclassified 1-A and notified. On December 2, 1968, he wrote to the board saying that he wanted to appeal “on the grounds of a hardship deferment.” Later he wrote to the board withdrawing the hardship claim, stating, “This being the case I would like to reopen an appeal of my beliefs (as explained in a C-0 form on record with your office since 1965) * * Thereafter, on defendant’s request, the local board scheduled an interview with defendant for February 25, 1969, at which time defendant was invited to appear. He could not appear, but submitted to the board a written statement repeating and expanding his beliefs based upon the Kantian philosophy. He was reclassified 1-A. An appeal was taken and the appeal board reclassified him 1-A.

An induction order for defendant, issued October 1, 1969, was postponed because of defendant’s enrollment in Northwestern University School of Business. A rescheduled induction order was issued June 29, 1970. Thereafter, defendant requested from his board another conscientious objector form. That form was mailed to him, but never returned by him to the board. He reported for induction on August 13, 1970, but refused to submit to induction.

It is patent upon this record that defendant failed to exhaust his administrative remedies by either requesting an interview with his board or an appeal to the appeal board upon denial of his C-0 claim in 1966.

The guidelines for applying the exhaustion principle, as established by the Supreme Court, are contained in representative statements by that Court as follows:

“ * * * [Petitioner’s] failure either to secure a personal appearance or to take an administrative appeal— implicates decisively the policies served by the exhaustion requirement, especially the purpose of insuring that the Selective Service System have full opportunity to ‘make a factual record’ and ‘apply its expertise’ in relation to a registrant’s claim. When a claim to exemption depends ultimately on the careful gathering and analysis of relevant facts, the interest in full airing of the facts within the administrative system is prominent, * * *.” McGee v. United States, 402 U.S. 479, 489-490, 91 S.Ct. 1565, 1571, 29 L.Ed.2d 47 (1971).
“In the circumstances of this case, petitioner’s failure to take an administrative appeal not only deprived the appeal board of the opportunity to ‘apply its expertise’ in fact-finding to the record that was available; it also removed an opportunity to supplement a record containing petitioner’s own submission but not containing the results of any specific inquiry into sincerity.” Ibid, at 490-491, 91 S.Ct. at 1572.
“Conscientious objector claims * * * would appear to be examples of questions requiring the application of expertise or the exercise of discretion. * * * The Selective Service System is empowered by Congress to make such discretionary determinations and only the local and appeal boards have the necessary expertise.” McKart v. United States, 395 U.S. 185, 198, 89 S.Ct. 1657, 1665, 23 L.Ed.2d 194 n. 16 (1969).

In applying the exhaustion of remedies principle, this court has recently held that the exhaustion principle should be applied by the courts except where exceptional circumstances are shown to have existed. United States v. Rabe, 466 F.2d 783, decided by this court on August 11, 1972. Absent such circumstances, failure to request a personal appearance before the local board or to appeal to the appeal board has been repeatedly held to bar a defense to prosecution, based upon a conscientious objector claim. E. g., United States v. Lyzun, 444 F.2d 1043, 1044 (C.A.7 1971); United States v. Smogor, 411 F.2d 501, 503 (C.A.7 1969), cert. denied, 396 U.S. 972, 90 S.Ct. 460, 24 L.Ed.2d 440; United States v. Goodman, 435 F.2d 306, 313-314 (C.A. 7 1970); United States v. Kurki, 384 F.2d 905, 907 (C.A.7 1967), cert. denied, 390 U.S. 926, 88 S.Ct. 861, 19 L.Ed.2d 987.

The Regulations vest discretion in a local board to enlarge the time for appeal when it is shown that failure to request an appeal within the time specified was without the registrant’s fault. 32 C.F.R. 1626.2(d). Here, notice of classification was mailed to the address supplied by defendant, and his only suggestion was that he did not receive such notice because he was absent from such address except on weekends. Failure of the board to extend time under those circumstances was neither arbitrary nor an abuse of the board’s discretion. E. g., United States v. McDuffie, 443 F.2d 1163, 1165 (C.A.5 1971); Gretter v. United States, 422 F.2d 315, 317 (C.A.10 1970); United States v. Haseltine, 415 F.2d 334, 336 (C.A.9 1969). It is clear upon this record that defendant asserted his conscientious objector claim when his first student deferment ended, and that he thereafter failed to pursue it except as it seemed convenient to do so. From time to time in addition to his student and C-0 claims, defendant claimed deferment upon the basis of hardship, mental disability, and the physical impairment of a tendency to flat feet. The C-0 claim is shown to have been reasserted by defendant only when one or more of such pending claims were either withdrawn by him or rejected by the board.

There is no merit to defendant’s contention! that the board was required to find facts showing that he was not entitled to his claim of conscientious objection. By his failure to follow the appeal procedures provided for him, defendant never invoked the statutory processes which would have initiated a factual inquiry into the sincerity of his claim. McGee v. United States, supra.

The judgment is Affirmed.

SWYGERT, Chief Judge

(dissenting).

I respectfully dissent.

Under the circumstances of this case, the defendant Bush must be presumed to have stated a prima facie case of conscientious objection when he reasserted his 1-0 claim before his board in 1969. This requires reversal of his conviction under United States v. Lemmens, 430 F.2d 619 (7th Cir., 1970), unless he failed inexcusably to exhaust administrative remedies. For the reasons set out below, I do not think Bush may be charged with a failure to exhaust.

As the majority correctly recognizes, Bush failed to appeal from his board’s 1966 denial of 1-0 status until December, 1968, when he wrote:

I would now like to open an appeal on the basis of my beliefs (As explained in a C.O. Form on record with your office since 1965); this is an appeal for classification into the C.O. class.

This in effect was a request for a reopening of his classification, since the period for a proper appeal had expired long prior to the date of the letter. United States v. Vincilli, 215 F.2d 210 (2d Cir., 1954); United States ex rel. Berman v. Craig, 207 F.2d 888 (3d Cir., 1953); 32 CFR § 1626.2(c). The board responded by scheduling Bush for a personal appearance on February 25, 1969. Bush never appeared. By letter dated February 5, 1969, he informed the board that he would be unable physically to appear as scheduled and requested in lieu thereof that the board consider a lengthy written explication of his moral beliefs. Bush’s next communication from the board was a notice of classification as I-A (SSS Form 110) and a classification advice (SSS Form 111).

The mailing of these forms takes on importance when viewed in conjunction with the regulations in effect at the time. 32 C.F.R. § 1625.4 (revised Dec. 9, 1971) dealt with the criteria governing reopening and the procedure to be followed by a local board upon a determination not to reopen:

When a registrant, any person who claims to be a dependent of a registrant, any person who has on file a written request for the current deferment of the registrant in a case involving occupational deferment, or the government appeal agent files with the local board a written request to reopen and consider anew the registrant’s classification and the local board is of the opinion that the information accompanying such request fails to present any facts in addition to those considered when the registrant was classified or, even if new facts are presented, the local board is of the opinion that such facts, if true, would not justify a change in such registrant’s classification, it shall not reopen the registrant’s classification. In such a case the local board, by letter, shall advise the person filing the request that the information submitted does not warrant the reopening of the registrants’s classification and shall place a copy of the letter in the registrant’s file. No other record of the receipt of such a request and the action taken thereon is required, (emphasis added)

When a board reopened a registrant’s classification, it was required to reclassify him, 32 C.F.R. § 1625.11, and notify him as follows under 32 C.F.R. § 1625.12 (revised Dec. 9, 1971):

When the local board reopens the registrant’s classification, it shall, as soon as practicable after it has again classified the registrant, mail notice thereof on Notice of Classification (SSS Form No. 110) to the registrant and on Classification Advice (SSS Form No. Ill) to the persons entitled to receive such notice or advice on an original classification under the provisions of § 1623.4 of this chapter.

The fact that Bush was mailed Forms 110 and 111 by his board is thus highly significant; under the applicable regulations — which we must presume were adhered to by the board — the mailing signifies that Bush’s classification was reopened. This the board could not have done without making a twofold determination: (1) that Bush had presented new matter in support of his 1-0 claim, and (2) that his file, new matter included, contained sufficient information to state a prima facie case of conscientious objection. These determinations by the board are not subject to reexamination on appeal. See generally, Joseph v. United States, 405 U.S. 1006, 92 S.Ct. 1274, 31 L.Ed.2d 473 (1972); Lenhard v. United States, 405 U.S. 1013, 92 S.Ct. 1296, 31 L.Ed.2d 477 (1972); United States v. Dziemiela, No. 72-1465 (7th Cir., Sept. 28, 1972); United States v. Nelson, No. 71-1812 (7th Cir., July 12, 1972); United States v. Hulsey, 463 F.2d 1071 (7th Cir., 1972); Memorandum for the United States in Joseph v. United States, 18-22; c. f. United States v. Hershey, 451 F.2d 1007 (3d Cir., 1971).

That the board found a prima facie case of conscientious objection and failed to state reasons for its denial of a 1-0 exemption calls Lemmens immediately into play. And the board’s finding that Bush had presented it with new matter by his letter of February 5 is relevant to refute the Government’s assertion that he failed to exhaust administrative remedies. The majority implies that Bush’s failure to exhaust remedies on his 1-0 claim in 1966 precludes his effective exhaustion in 1969, when he admittedly took an appeal from the board’s denial of that claim. As I see it, this view is persuasive only if the board rejected the 1-0 claim in 1969 for failure to state “any facts in addition to those considered when the registrant was classified.” 32 C.F.R. § 1625.4. But the board found the opposite, for it reopened Bush’s classification. It follows that the 1969 prosecution by Bush of his conscientious objection claim must be assessed apart from his 1966 prosecution of that claim and that his 1966 failure to exhaust Selective Service remedies cannot be carried over to taint his full attempt to exhaust those remedies in 1969.

Since I also reject the Government’s argument that Bush’s Selective Service file displays enough objective indicia of insincerity regarding his 1-0 claim to eliminate his defense under Lemmens, I would reverse.

      . This would not be the case if Bush had appeared in person before the board. He would then have received Forms 110 and 111 even if the board had decided not to reopen his ease. 32 C.F.R. § 1624.2(d) states:

        After the registrant has appeared before the member or members of the local board designated for the purpose, the local board, as soon as practicable after it again classifies the registrant, or determines not to reopen the registrant’s classification, shall mail notice thereof on Notice of Classification (SSS Form No. 110) to the registrant and on Classification Advice (SSS Form No. Ill) to the persons entitled to receive such notice or advice on an original classification under the provisions of § 1623.4 of this chapter, (emphasis added)
      Bush did not appear, however, and this section raises no ambiguity as to the import of the board’s action.

      . In the cited cases, it was inferred from the fact of reopening only that a local board had found a registrant’s file to state a prima facie case for statutory exemption. This is attributable, I think, to the fact that new matter unquestionably was involved in each case, and not to any judicial (or prosecutorial) reluctance to extend Joseph to its logical limit. Given the fact that an offering of new matter and presentation of a prima facie case are parallel requirements of a reopening under 32 C.F.R. § 1625.4, I can see no reason to read Joseph as inferring only a prima facie case from the fact of reopening.

      . This would have been possible, even in light of the board’s mailing of Forms 110 and .111, if Bush had shown up for his personal appearance. See note 1, supra. We might then have to embark on a careful analysis of Bush’s Selective Service file to determine if the board’s decision to retain Bush as I-A could have been based on his failure to present new matter or a prima facie case for exemption. Here, however, Joseph forecloses this inquiry.