*1 briеf, remedy. City, ap- New York for too was was severe The Commis- gave pellant. sion careful consideration to this contention, reviewing the over-all con- Goodkind, Attorney, Arthur B. operating duct the station Commission, Federal Communications finding and therein insufficient reason for Ohlbaum, Mr. Daniel As- whom E. action less severe revocation. Counsel, Federal sociate General Com- Commission, and Mr. Max munications carefully We too have consider Paglin, Counsel, Federal Com- General ed the record. We that the rul conclude munications Commission time correct, toas notice was and that the filed, brief was clearly findings supports record Henry Geller, appellee. Mr. General conclusions of the Commission. While Counsel, Federal Communications Com- revocation is indeed severe we do not mission, Reel, Attorney, and Mrs. Ruth V. justified, record, feel of the view Commission, Federal Communications substituting judgment a different appearances also entered by agency having prim that reached Fahy ary responsibility protection Miller, of the Before Wilbur K. public in these matters. Burger, See Federal WOKO, Inc., Communications Comm’n.v. PER CURIAM: 329 U.S. 67 S.Ct. L.Ed. 204 hearings Following proceed- other ings the Federal Com- Communications Affirmed. the standard mission order revoked Radio, broadcast station KWK license of Inc., appellant, operator of station KWK, Louis, Commis- St. Missouri. The findings sion order based its on its general KWK, under the of its direction manager, who was also one of its Vice Presidents, had two treasure conducted Joseph LEWIS, Appellant, E. in a hunts constituted manner which upon public, deliberate thus fraud America, UNITED STATES bringing operation of the station Appellee. (2) scope within the of Section Nо. 18019. (3) of the Communications Act.1 rejected appellant’s The Commission con- United States Court of tention the order invalid because District of Columbia Circuit. provisions 9(b) of the Section Argued March 1964. regard- Administrative Act2 Procedure Decided June ing notice as a condition to rеvocation with, pointing complied had not been out Rehearing Petition for en Banc inapplicable that the section is “cases Denied Oct. willfulness”, as was con- rejected duct. Commission also assuming that, contention of found, revocation the misconduct be as provides: “(3) repeated (2) (3) for willful or Section failure operate substantially “The sta- set Commission revoke forth permit— license; license or construction tion ” * * * * * coming amended, “(2) (1952), because of conditions Stat. 716 47 U.S. (3) 1962). (Supp. -which C.
the attention the Commission IV refusing grant warrant it in would original permit applica- 1008(b) 2. 60 Stat. 242 license an 5 U.S.C. tion; *2 Henry Johnson, Jr., Lincoln Wash-
ington,
C.,
appellant.
Frescoln,
Atty.,
Mr. Max
Asst. U. S.
Acheson,
with whom Messrs. David C.
U.
Q.
Atty., Frank
S.
Nebeker and Robert
Norris,
Attys.,
B.
Asst. U. S.
Burger
Before
Wright,
Bastían,
pellant
that he-
Judge.
own
testified
his
behalf
BURGER, Circuit
participated in
transactions de-
had
two counts
Appellant was
government
witnesses.
scribed
-with sell
of an
testimony
of en-
raised the issue
His
giving
exchanging
bartering,
ing,
*3
trapment4
the-
court instructed
the
drugs
away
written
without
narcotic
jury on this issue.
26
of
Treasury
in violation
order form
charging
that,
;1
(a)
counts
two
4705
U.S.C.
appeal it is claimed
On this
dispensing
selling,
or dis
purchasing,
giving an
in nоt
the District Court erred
drugs
tributing
in or from
not
narcotic
following
requested in the
instruction
original stamped package in violation
the
language:
2;
two counts
of 26 U.S.C. §
you
“If
the Federal
believe
facilitating
charging
concealment
the
informer,
Agent..........or
the
drugs illegally imported
narcotiс
sale of
instructions and.
who
acted
illegally imported
knowing
same to be
agents
authority
the Federal'
174.3 These
21
U.S.C. §
violation
Narcotics,
asked the de-
Bureau
count
latter
of nine
counts were the
six
get
for him
heroin
fendant
some
charging
distinct nar
three
thereupon
defendаnt under-
the
statute
under each
cotics offenses
pur-
prospective
took to act in the
separate
participation in
of three
each
own,,
than his
chaser’s behalf rather
transactions;
jury
unable to
was
drug'
doing purchased
and in so
agree
counts, which
the first three
as to
person
from a third
with whom he-
alleged
first of the three
related
selling, and'
was not associated in
of 5
transactions.
sentences
Concurrent
buyer,
thereafter delivered it to
4705(a))
years
(§
4 and 7
on both counts
not
defendant would
be
seller
174)
(§
2-6
and of
and counts 6 and
yeаrs
9
not
this
and could
be
4704(a))
(§
counts 5 and 8
on
added.)
(Emphasis
indictment.”
imposed.
5,
8,
2,
Counts
as well as
government’s
selling, dispensing,
such
was
or dis
The
evidence
reasonably
jury
tributing,
purchase
could
with the
beyond
purchasing
that an
doubt
of narcotics.
usual
found
reasonable
The
police
cоmpany
procuring agent
in the
not
undercover
officer
instruction would
employee
buying.
special
applicable
De-
of a
of the Police
to the offense of
See
Kelley
States,
U.S.App.
partment
transactions
latter two
v. United
107
given appellant
(1960) (per
certain
had
sums
D.C.
indictment. 9; re- counts 6 аnd Affirmed 5,4, remanded as counts
versed
and 8. Judge (concurring WRIGHT, Circuit dissenting part). part reasoned I court’s well concur reversing
opinion respectfully the affirm-
8. I dissent from *6 6 and 9. as to counts
ance giving agent procuring instruc- a distinguishing
tion, be- no for I see basis “ of sale. [A] sale and facilitation tween participant particular transaction punished or as either as a seller must be genеral buyer. no offense There participation viewed in the transaction Moses, 3 a whole.” (1955). Cir., who One Washington, Alexander, D. Mr. John agent buyer is, procuring Johnson, ,C. whom Mr. W. -with Walter law, nor neither the seller brief, Jr., Washington, C., D. was facilitator the sale. United States appellant. Cir., (1959); D.Conn., Washington, Boardman, States v. M. Jean F.Supp. 201, 203 I C., Liptz, would there- D. whom Mr. Irwin H. require fore instruc- C., Washington, onwas all tion for counts. Burger Danaher, would, moreover, Before approve and McGow- I the in- an, struction in a form similar to the one re- quested and denied: that one cannot PER CURIAM: 4704(a), under U.S.C. §§ or 21 This Domestic Relations U.S.C. if he was a case concerning presented Branch for a issues Government purchasing narcotics, custody young children. and was of three mother, both himself seller of narcotics. father and now divorced and engaged litigation Cir., remarried, which the District Columbia Court