opinion: UNITED STATES v. MOLYNEAUX et al.
  No. 231.
  Circuit Court of Appeals, Second Circuit.
  Feb. 8, 1932.
  Louis Halle, of New York City (Milton R. Kroopf, of New York City, of counsel), for appellant Molyneaux.
  Howard W. Ameli, U. S. Atty., of Brooklyn, N. Y. (Herbert H. Kellogg, William T. Cowin, and Henry G. Singer, Asst. U. S. Attys., all of Brooklyn, N. Y., of counsel), for the United States.
  Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
  AUGUSTUS N. HAND, Circuit Judge.
  The appellant, Cecil Molyneaux, and an alleged confederate, Malcolm McMasters, were convicted under count 2 of the indictment which charged the defendants with unlawfully operating certain apparatus for the transmission of energy, communications and signals by radio, for which a radio license was required by the Radio Aet of 1927 (47 USCA § 81 et seq.), without first having obtained an operator’s license to operate the apparatus from the Secretary of Commerce required by section 20 of the Radio Act of 1927 (47 USCA § 100).
  The indictment is attacked as insufficient because it did not in terms charge that the appellant operated the apparatus for the purpose of transmitting signals or intelligence beyond the borders of the state of New York, and was silent as to the intended or actual destination of the messages.
  Section 1 of the Radio Act (47 U. S. C. § 81 [47 USCA § 81]) provides that no person shall use any apparatus for communication by radio from any place within any state when the effects of such use extend beyond the borders of such state. In other words, an apparatus, the effects of which extend beyond the state in which it is stationed, comes within the law requiring a station license. Section 20 of the Radio Act (47 USCA § 100) provides that the actual operation of all transmitting apparatus in any radio station for which a station license is required shall be carried on only by a person holding an operator’s license.
  The second count of the indictment essentially alleges that the defendants did operate an apparatus for the transmission of communications by radio for which a radio license was required by the Radio Act of 1927, without having first obtained an operator’s license. In other words, it in effect alleges that, without an operator’s license, they operated a radio apparatus for which a station license was required by section 1 of the act. [2, 3] In charging a statutory offense it is ordinarily sufficient to charge it in the words of the statute. Baas et al. v. United States (C. C. A.) 25 F.(2d) 294; United States v. Brand (D. C.) 229 F. 847; Newton Tea & Spice Co. v. United States (C. C. A.) 288 F. 475; Lund v. United States (C. C. A.) 19 F.(2d) 46; Blain v. United States (C. C. A.) 22 F.(2d) 393; Olmstead v. United States (C. C. A.) 29 F.(2d) 239. Accordingly the allegation that the defendants operated a radio apparatus for which a radio license was required by the Radio Aet of 1927, without first having obtained an operartor’s license seems to ns to have incorporated by reference the provisions of section 1 requiring a station license in ease of an apparatus, the effects of which extend beyond the borders of the state. The indictment was therefore sufficient in form and fairly notified the defendants of the charge which they had to meet.
  There was plainly enough evidence to go to the jury to justify a finding that the apparatus operated was of the sort which required a station license and that the defendants did not have operators’ licenses. But there was no adequate proof that Molyneaux, who is the only defendant who has taken an appeal, actually operated the apparatus at all. He was seen by the government witnesses to he bending over the apparatus handling two wires that came into the building where the radio instrument was and adjusting some screws (fol. 532-533), but there is not the slightest proof that he was operating it, though he was in faet an experienced operator. For that matter the other defendant McMasters was also a trained operator and the evidence showed that the only operation which had been actually detected was traced to him. When the officers entered, both defendants were in their shirt sleeves, both were alarmed and tried to escape. The evidence showed that Molyneaux was familiar with the premises, that he had written a letter to a friend in which he said, “ * * * it’s a heck of a scramble trying to" outwit the authorities all the time,” and that he had in a bag, among things found at the time of his arrest, orders for the purchase of supplies for radio apparatus. But, so far as the evidence goes, Molyneaux might have been on the promises to see McMasters or to get information that McMasters had received by radio, or was receiving, or to adjust or repair the apparatus. Such proof as the record contains goes no farther than to show that Molyneaux could operate the instrument and that for some reason, perhaps because he was engaged in illegal dealings in spirituous liquors (Exhibit 7), he was afraid of the public authorities. The trial judge refused to leave to the jury the question whether Molyneaux aided and abetted McMasters in operating without a license. Molyneaux could not be convicted for operating without a license, if he merely was acting as a mechanic and had not operated the apparatus in order to receive or transmit messages. The evidence on which McMasters was convicted tended to show that he alone had operated the radio instrument, and to exclude Molyneaux.
  For the foregoing reasons the judgment of conviction is reversed as to the defendant Molyneaux.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
  If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
  Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.