concurring specially:
Though I generally agree with the principles set out in Judge Williams’ cogent dissent, nevertheless, under the particular facts of this case, I concur in the majority’s holding that the trial judge erred in instructing that as a matter of law the “Gold Certificate” was a security. The instrument so labeled was vague and ambiguous, *1326experts differed as to its meaning, and facts outside the document, and inferences therefrom, were relevant to the determination of its status. See Roe v. United States, 287 F.2d 435, 438, 440 (5th Cir.), cert. denied, 368 U.S. 824, 82 S.Ct. 43, 7 L.Ed.2d 29 (1961). Indeed, the panel opinion relied in part, for its determination that the “Gold Certificate” was a security, on the economic reality of the transaction as evidenced by Johnson’s promise to pay Brinlee for the use of the document. 700 F.2d 163 at 175, reh’g granted, 700 F.2d at 181 (5th Cir.1983) (en banc). However, in the instance, for example, of an instrument which on its face is unambiguously a promissory note, the trial judge, in a prosecution under 18 U.S.C. § 2314 alleging the instrument is a stolen security, should normally be entitled to instruct the jury that an instrument of that exact same tenor, if genuine and what it purports to be, is a security as a matter of law. Such an instruction, no matter how particularized, would not be an improper comment on the weight of the evidence, for it does not tell the jury what facts it should find, but only states the legal characterization of a particular state of facts which the jury may find from the evidence. As such it is an instruction on the law. As long as the instruction makes clear that the jury alone has the duty and power to determine the facts, that its duty is to follow the court’s instructions on the law, and that it has the power to return a verdict of not guilty in any event, the proper and historic division of functions between judge and jury is faithfully maintained. For the judge to do more may invite tyranny; but to do less may invite chaos.