(dissenting).
In disagreeing with the result reached by the majority, I deem it appropriate to emphasize what is not involved in this appeal. Appellant does not claim that he has been deprived of any constitutional right; that he was subjected to an unreasonable search or seizure; that he was illegally arrested, or that he was deprived of his fifth amendment rights. My brethren do not rest their opinion on constitutional grounds.
In searching for a basis to reverse, my brethren have resorted to the “Plain Error” rule and by that vehicle have concluded that prejudicial error resulted from the failure of the magistrate and the district judge to consider the concealment issue. With due deference, I am convinced that this record does not reveal plain error or, for that matter, any error as to concealment or any other element of the offense. Therefore, I dissent.
I recognize that in exceptional circumstances, this court may sua sponte notice error to which no exception has been taken, but as the majority recognizes, this power to review issues not raised by the parties must be exercised only with great caution. Surely the rule does not contemplate reversing simply because the appellate court is disturbed by the initiation of' the prosecution in the first instance and the ensuing judgment of conviction.
The magistrate in this case, the Honorable Calvin K. Hamilton, is faulted for not considering the concealment issue. Page 431, majority opinion. However, consideration of the proceedings before Judge Hamilton demonstrates not only that the concealment issue was not presented to the magistrate, but that in fact the appellant conceded the subject weapon was in the hand luggage when appellant attempted to board the airplane.' This is clear from the first and second paragraphs of the written stipulation filed in the magistrate court, reproduced at pages 429-430 of the opinion of the majority. Moreover, an admission was made by the appellant before the magistrate which to my mind clearly demonstrates that the appellant recognized that the subject weapon was in his hand luggage and for that reason waived any right to consideration of the element of concealment. After the written stipulation had been filed, and during the course of the proceedings, the following occurred:
*435THE COURT (Magistrate Hamilton): . . . Will the parties stipulate for certain so this record will be clear that the defendant was attempting to board an aircraft that was being operated by an air carrier in trans — in air transportation.
MR. ELDREDGE (Counsel for appellant): We will so stipulate.
THE COURT: And one other thing that I want to clear up with regard to this Stipulation. Perhaps it’ll be cleared up by the defendant’s testimony, but was it — the defendant was carrying the flight bag in which was found the Vanguard tear pistol and the shells in his hand — carrying it in his hand at the time that he was going through the gate — going through the magnetometer.
MR. ELDREDGE: That’s correct, your Honor.
THE COURT: And it was then in his — in or — in his person — I mean the bag itself in which was the — in which was contained the tear gas pistol was being carried by the defendant as he was boarding the — attempting to board the aircraft and in so doing was — went through the magnetometer.
MR. ELDREDGE: That’s correct.
Subsequent to submission of the case to the magistrate, the appellant filed an exhaustive memorandum in support of his motion for judgment of acquittal. The only point raised was
The Government’s proof leaves reasonable doubt as a matter of law that the .22 calibre Vanguard pistol designed to fire only blank and tear gas cartridges as a “dangerous or deadly” weapon within the purview of 49 U.S.C. § 1472(1). (Taken from appellant’s brief before the magistrate.)
As thus posited, it is convincingly clear that the appellant’s only defense before the magistrate focused upon the characteristics of the weapon, that is, whether it was the type proscribed by the applicable statute. And, it is equally clear to me that the appellant implicitly if not explicitly conceded before the magistrate that the weapon was in fact concealed.
Upon due consideration, Judge Hamilton filed findings of fact and conclusions of law and held that “the .22 caliber Vanguard revolver found in the defendant’s hand luggage was a concealed dangerous weapon within the purview of 49 U.S.C. § 1472(1).”
Another undisputed link in the chain of events further dissipates the claim of plain error. On appeal to the district court, Chief Judge Becker afforded appellant an “opportunity to file additional contentions and authorities.” Counsel for appellant declined this offer and the case was submitted on the record of the magistrate court. As reference to Judge Becker’s opinion will disclose, the judge considered two points: 1) the requirement of knowing possession, 376 F.Supp. at 454-458; 2) whether the pistol “was a deadly or dangerous weapon.” 376 F.Supp. at 458-459. In an exhaustive and soundly reasoned opinion, Judge Becker resolved both questions against appellant. Since the element of concealment had never been questioned, Judge Becker made short shrift of that point, but did find that the proof showed the weapon had been concealed. 376 F.Supp. at 457.
Further support for my position that there is no basis for applying the plain error rule, is found in appellant’s brief filed in this court. The brief states, “the defendant concedes that the record sup-, ports the finding that the defendant did know that the tear gas pistol was in his travel bag.” Pp. 15 and 16 of appellant’s brief. Appellant then proceeded to attempt to develop that the district court was wrong in holding that the Government was not required to prove that appellant knew that the tear gas pistol was dangerous.
Notwithstanding all of the foregoing undisputed circumstances, my brethren conclude the magistrate was obviously in error for not considering whether the weapon was concealed.
With all due respect, it is quite evident to me, at least, that the majority has *436overturned the previous findings of fact of the magistrate and district court without expressly saying so. It is apparent from a reading of the majority opinion that the weapon was in fact concealed from view. But in overturning the findings of fact reached by the magistrate and affirmed by the district court, the majority has injected an element previously foreign to the case; to wit, whether appellant intended to conceal the subject weapon. To me, the magistrate’s holding that the element of intent must be proven is a departure from the plain wording of the Act, and if the opinion stands, the Government will be under a heavy burden in cases where concealment is an issue. As I see it, the Government was required to prove three elements: 1) that appellant was attempting to board an aircraft; 2) that he was in possession of a dangerous or deadly weapon (the majority concedes one and two were proved); 3) the weapon was concealed.
This record satisfies me that all three elements were established. The magistrate and the district court so found and, consequently, I would affirm.
Finally, I am at a loss to understand the purpose of a remand for another trial to resolve the concealment issue. The written and oral stipulations and the testimony of appellant stand undisputed. There is no indication of the existence of additional relevant evidence. Thus, I am constrained to believe the remand for another trial on the one issue will prove to be an exercise in futility and will serve only to further burden an already overworked court. I suspect another trial will produce the same result. Where, as here, the case has been fully explored, tried, and decided on the facts and in accordance with the law, we as the reviewing court should exercise restraint and refrain from sending the case back for another trial.