decided: February 14, 1974.
UNITED STATES OF AMERICA, APPELLEE,
DONALD THOMAS MARGRAF, APPELLANT.
JAMES HUNTER, III, Circuit Judge.
On November 24, 1971, Donald Thomas Margraf was convicted of a violation of 49 U.S.C. § 1472(l ) before a United States magistrate pursuant to 18 U.S.C. § 3401. On January 27, 1972, the conviction was affirmed by Judge Weiner, United States District Court for the Eastern District of Pennsylvania. 347 F. Supp. 230. On June 20, 1973, this Court, sitting en banc, affirmed the conviction (three judges dissenting). 483 F.2d 708.
Before the United States Supreme Court, the Solicitor General represented that the Federal Aviation Agency's guidelines*fn1 were not adhered to in this prosecution, and he therefore recommended that certiorari be granted and the case be remanded so that the government could dismiss the complaint.
On December 17, 1973, the United States Supreme Court granted certiorari and remanded the case to this Court to reconsider in light of the government's present position, [*] U.S. $, 94 S. Ct. 833, 38 L. Ed. 2d 734. No. 72-1331, filed Dec. 17, 1973.
In his memorandum to the United States Supreme Court, the Solicitor General represented that
"[the] FAA's guidelines are not binding upon those addressed and leave room for the exercise of trained judgment in regulating the kinds of objects that passengers may carry on board aircraft. They do, however, represent an informed judgment by the expert federal agency charged with primary responsibility for assuring the safety of air commerce that only large knives or those considered illegal under state law should be considered weapons for this regulatory purpose. The Department of Justice has therefore concluded that prosecutions under Section 1472(l ) should not be undertaken with respect to objects not proscribed under the guidelines, at least in the absence of unusual, aggravating circumstances, or where local law may be unduly lax in regulating the carriage of knives or other objects.*fn5 Since the present case
presents no aggravating circumstances and involves no unduly lax local laws, petitioner should not be subject to prosecution."
In accordance with the government's current position it is therefore ordered and adjudged that this case be and is hereby remanded to the district court to allow the government to dismiss the complaint.