author: PER CURIAM:

text:
    STATE OF MISSISSIPPI, Plaintiff-Appellee, v. Will B. McCOLLUM, Defendant-Appellant.
    No. 75-1036
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 27, 1975.
    Samuel H. Wilkins, Jackson, Miss., for defendant-appellant.
    A. F. Summer, Atty. Gen., Edward J. Peters, Dist. Atty., Thomas R. Mayfield, Asst. Dist. Atty., Jackson, Miss., for plaintiff-appellee.
    Before THORNBERRY, MORGAN and RONEY, Circuit Judges.

       Rule 18, 5th Cir., see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Charged with armed robbery in state court, Will B. McCollum filed a petition for removal of his criminal prosecution to the United States District Court for the Southern District of Mississippi, proceeding under 28 U.S.C.A. § 1443 and alleging in effect that he was being denied a speedy trial.

28 U.S.C.A. § 1443 provides as follows: Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:
(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof;
(2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.

We affirm the district court’s decision to remand the case to the Mississippi state court on the ground that the removal statute applies only to cases where civil rights are denied for racial re.asons, and not to an alleged deprival of the right to a speedy trial. In this case, the petitioner is white and alleges no racial motive in connection with the state’s actions.

In Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966), the United States Supreme Court said:

On the basis of the historical material that is available, we conclude that the phrase “any law providing for equal civil rights” must be construed to mean any law providing for specific civil rights stated in terms of racial equality. Thus, the defendants’ broad contentions under the First Amendment and the Due Process Clause of the Fourteenth Amendment cannot support a valid claim for removal under § 1443, because the guarantees of those clauses are phrased in terms of general application available to all persons or citizens, rather than in the specific language of racial equality that § 1443 demands.

384 U.S. at 792, 86 S.Ct. at 1790.

It is thus apparent that the right to a speedy trial, not being a specific civil right couched in terms of equality but rather a broad constitutional guarantee of general application, cannot serve as the basis for removal under 28 U.S. C.A. § 1443. Naugle v. Oklahoma, 429 F.2d 1268 (10th Cir. 1970); New York v. Konigsberg, 305 F.Supp. 1201 (S.D.N.Y.), aff’d, 418 F.2d 500 (2d Cir. 1969), cert. denied, 397 U.S. 964, 90 S.Ct. 998, 25 L.Ed.2d 256 (1970).

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Francis E. LaCHAPELLE, Individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. OWENS-ILLINOIS, INC., Defendant-Appellee.
    No. 74-4187
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 23, 1975.

      E. Lee Redfern, Rex M. Lamb, III, Atlanta, Ga., for plaintiff-appellant.
    Lloyd Sutter, Atlanta, Ga., for defendant-appellee.
    Before BROWN, Chief Judge, and GODBOLD and GEE, Circuit Judges.

       Rule 18, 5th Cir., See Isbell Enterprises, Inc. v. Citizens Casualty Company of New York, et al., 5th Cir., 1970, 431 F.2d 409, Part I.

   PER CURIAM:

This is an interlocutory appeal taken from an order of the district court dismissing Appellant LaChapelle’s class action claim in an age discrimination suit. The appeal presents for decision a single, well defined question of law. This is whether suits brought under the Age Discrimination in Employment Act of 1967 may be Rule 23 -type class actions. We conclude that they may not and, therefore, affirm the decision below.

Section 7(b) of ADEA directs that “The provisions of this Chapter shall be enforced in accordance with the powers, remedies, and procedures provided in Sections 211(b), 216 (except for Subsection (a) thereof) and 217 of this title. . . . ” 29 U.S.C. § 216(b), in turn, provides, in part that

“Action to recover such liability may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.” (Emphasis added.)

Rule 23(c) reads

“(c) Determination by Order Whether Class Action to be Maintained; Notice; Judgment; Actions Conducted Partially as Class Actions.
“(1) As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits.
“(2) In any class action maintained under subdivision (b)(3), the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that (A) the court will exclude him from the class if he so requests by a specified date; (B) the judgment, whether favorable or not, will include all members who do not request exclusion; and (C) any member who does not request exclusion may, if he.desires, enter an appearance through his counsel.
“(3) The judgment in an action maintained as a class action under subdivision (b)(1) or (b)(2), whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class. The judgment in an action maintained as a class action under subdivision (b)(3), whether or not favorable to the class, shall include and specify or describe those to whom the notice provided in subdivision (c)(2) was directed, and who have not requested exclusion, and whom the court finds to be members of the class.
“(4) When appropriate (A) an action may be brought or maintained as a class action with respect to particular issues, or (B) a class may be divided into subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly.”

There is a fundamental, irreconcilable difference between the class action described by Rule 23 and that provided for by FLSA § 16(b). In a Rule 23 proceeding a class is described; if the action is maintainable as a class action, each person within the description is considered to be a class member and, as such, is bound by judgment, whether favorable or unfavorable, unless he has “opted out” of the suit. Under § 16(b) of FLSA, on the other hand, no person can become a party plaintiff and no person will be bound by or may benefit from judgment unless he has affirmatively “opted into” the class; that is, given his written, filed consent. Sims v. Parke Davis & Co., 334 F.Supp. 774, 780—81 (E.D.Mich.) aff’d 453 F.2d 1259 (6th Cir. 1971) cert. denied 405 U.S. 978, 92 S.Ct. 1196, 31 L.Ed.2d 254 (1972). It is crystal clear that § 16(b) precludes pure Rule 23 class actions in FLSA suits. This however, is an ADEA, not an FLSA action.

LaChapelle urges that there are important distinctions between FLSA and ADEA actions which warrant a holding that, while Rule 23 class actions may not be available in the former, they should, nevertheless, be maintainable in the latter. Specifically, he points out that, as we have noted, “With a few minor exceptions the prohibitions of . [ADEA] are in terms identical to those of Title VII of the Civil Rights Act of 1964 except that ‘age’ has been substituted for ‘race, color, religion, sex or national origin.’ ” Hodgson v. First Federal Savings and Loan Ass’n of Bro-ward Co., Fla., 455 F.2d 818, 820 (5th Cir. 1972). Although he recognizes that all of the district courts save one which have been called upon to rule directly upon the question, have held that Rule 28 class actions are unavailable in ADEA suits, he argues that the similarities between that act and Title VII should influence us to hold, in light of the broad remedial purposes of both, that Congress did not mean what it said when it directed that ADEA be enforced in accordance with, among others, Section 16(b) of FLSA. He asks us to conclude, from the failure of ADEA’s legislative history specifically to mention, approvingly or disapprovingly, the consent requirement of the third sentence of § 16(b), that Congress did not consider what effect this provision of FLSA would have on Rule 23 class actions and to conclude further that, had Congress foreseen the effect, it would have excluded the offending sentence from § 7(b)’s directive. These things we may not do. The statutory language of ADEA § 7(b) is clear; likewise the language of FLSA § 16(b) is unambiguous. “We are recused from immersion in the sea of legislative history by the general principle that we must not refer to legislative history if the statutory language is clear.” Globe Seaways, Inc. v. Panama Canal Co., No. 74-1654, 509 F.2d 969 (5th Cir. 1975). Rather, we must apply the law as it has been written.

Rule 23(c) provides for “opt out” class actions. FLSA § 16(b) allows as class members only those who “opt in.” These two types of class actions are mutually exclusive and irreconcilable. Since ADEA § 7(b) adopts FLSA § 16(b), we must hold that only “opt-in” type class actions may be utilized in age discrimination cases. Rule 23 cannot be invoked to circumvent the consent requirement of the third sentence of FSLA § 16(b) which has unambiguously been incorporated into ADEA by its Section 7(b).

Affirmed.

      . The district court certified that the issue disposed of by its order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order might materially advance the ultimate termination of this litigation. Pursuant to 28 U.S.C. § 1292(b) we granted leave to appeal from the interlocutory order.

      . 29 U.S.C. §§ 621-634. Referred to hereafter as ADEA.

      . Rule 23, Federal Rules of Civil Procedure.

      . 29 U.S.C. §. 626(b).

      . Section 16(b) of the Fair Labor Standards Act, as amended. Cited hereafter as FLSA § 16(b).

      . The emphasized portion of § 16(b) was added to FLSA by the Portal to Portal Act of 1947, § 5(a), 61 Stat. 87, 88, 29 U.S.C. § 216(b). Prior to the Portal to Portal Act, FLSA § 16(b) had allowed both “spurious” class actions and “agent or representative” actions [actions could “be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated, or such employee or employees may designate an agent or representative to maintain such action for and in behalf of all employees similarly situated”]. The 1947 amendment eliminated the agent or representative type action and, although it retained the class action, it specifically required that all employees wishing to have their rights adjudicated “opt in” as parties plaintiff. See generally 3B Moore’s Federal Practice, []23.10[4], pp. 23-2671-74 (2d. ed. 1974). Since the amendment the courts have consistently recognized that, in FLSA actions, one employee may not represent another unless the represented employee has filed a written consent to become a party plaintiff in the court in which the action is brought. E. g., Clougherty v. James Vernon Co., 187 F.2d 288, 290 (6th Cir.) cert. denied 342 U.S. 814, 72 S.Ct. 28, 96 L.Ed. 616 (1951), Sims v. Parke Davis & Co., 334 F.Supp. 774, 780-81 (E.D.Mich.) aff’d 453 F.2d 1259 (6th Cir. 1971) cert. denied 405 U.S. 978, 92 S.Ct. 1196, 31 L.Ed.2d 254 (1972).

      . More correctly, class members may opt out only when the action is maintainable under subdivision (b)(3) of Rule 23. When either subdivision (b)(1) or (b)(2) applies, the rule does not allow a class member to avoid the effect of judgment by disassociating himself from the suit. See 3B Moore’s Federal Practice V 23.31 [3] (2d ed. 1974).

      . Blankenship v. Ralston Purina Co., 62 F.R.D. 35 (N.D.Ga.1973).

      . Cooke v. Reynolds Metals Co., 9 F.E.P. Cases 46 (E.D.Va.1975), LaChapelle v. Owens-Illinois, Inc., 64 F.R.D. 96 (N.D.Ga.1974)—the decision below—, Hull v. Continental Oil Co., 58 F.R.D. 636 (S.D.Tex.1973), Bishop v. Jelleff Associates, Inc., 4 F.E.P. Cases 1262 (D.D.C.1972) (holding, inconsistently, that plaintiffs therein could bring a Rule 23 class action but that “the statute requires that all members of plaintiff’s class file consents to suit”). Other courts have recognized the consent requirement that implicitly precludes Rule 23 class actions. Burgett v. Cudahy Co., 361 F.Supp. 617 (D.Kan. 1973), Price v. Maryland Casualty Co., 62 F.R.D. 614 (S.D.Miss.1972). But cf. Gebhard v. GAF Corp., 59 F.R.D. 504, 507 (D.D.C.1973) (Language in this decision implies that Rule 23 actions are available under ADEA. See, however, Bishop v. Jelleff Associates, Inc., supra, for the district court for the District of Columbia’s interpretation of an ADEA-Rule 23 class action.)

      . It has been suggested that Rule 23 and FSLA § 16(b), as it applies to ADEA, could be reconciled by reading the phrase “No employee shall be a party plaintiff . unless” as applying only to the named (Rule 23) representatives. Class Actions under the Age Discrimination in Employment Act: The Question is “Why not?”, 23 Emory L.J. 831, 837 (1974). Such a reading, attractive if the objective is to make Rule 23 class actions available in ADEA suits, analytically has the effect of making the third sentence of § 16(b) a nullity, since the second sentence, alone, allows for representative actions and since any second-sentence plaintiff would be required to file a written consent to suit — the complaint. ADEA § 7(b) adopts all of FSLA § 16(b). Had Congress desired to read out the third sentence it could have done so. It has not, and we may not. Any argument that the inclusion of the consent requirement undercuts the broad remedial purposes of ADEA should be made to the legislature and not to the courts.

      . LaChapelle points out that FLSA § 16(b) speaks only in terms of employees whereas ADEA applies to potential and ex-employees as well as the currently employed. From this starting point he argues that it is obvious that Congress did not mean for ADEA § 7(b)’s incorporation of FLSA § 16(b) to read too literally. As applied to the question of whether Rule 23 is available in ADEA actions, the argument is somewhat thin.


author: AINSWORTH, Circuit Judge:

text:
    Durwood T. PYE, Plaintiff-Appellant, v. DEPARTMENT OF TRANSPORTATION OF the STATE OF GEORGIA et al., Defendants-Appellees.
    No. 74-3705
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 23, 1975.
    Rehearing Denied June 13, 1975.

      Tom Pye, Lewis M. Groover, Jr., Atlanta, Ga., for plaintiff-appellant.
    Robert E. Whitley, Atlanta, Ga., for U. S. Fidelity.
    E. Lewis Hansen, Atlanta, Ga., for All-good.
    Arthur K. Bolton, Atty. Gen. of Ga., William C. Joy, William B. Brown, Terry P. McKenna, Atlanta, Ga., for Dept, of Transportation, and others.
    Before COLEMAN, AINSWORTH and SIMPSON, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   AINSWORTH, Circuit Judge:

This is a suit for recovery of land and damages based on several federal question grounds (due process, equal protection, and the National Environmental Protection Act) by plaintiff Durwood T. Pye against the Department of Transportation of the State of Georgia. The District Court concluded that all of plaintiff’s contentions were either without merit or had been fully litigated in prior Georgia state court proceedings, and therefore were barred by the doctrine of res judicata. We affirm.

On February 21, 1969, the Department of Transportation (then called the State Highway Department) of Georgia brought an in rem proceeding pursuant to Georgia law (Ga.Code Ann. § 36-1303) against 0.413 acres of land and plaintiff in a Georgia state court, in order to condemn the land for use in a planned federally funded highway project. In addition to filing an answer in this proceeding, Pye initiated an equitable action in the Georgia state court to enjoin the Department from taking his land. These actions were consolidated, and the state court eventually entered an order declaring that the taking was proper and that the only remaining question was the amount of compensation.

Pye appealed to the Supreme Court of Georgia, which affirmed the lower court in an exhaustive 38-page opinion. Pye v. State Highway Department, 226 Ga. 389, 175 S.E.2d 510 (1970). Pye then appealed to the United States Supreme Court which dismissed the appeal for lack of jurisdiction, but treated the papers as a petition for certiorari and denied the petition. 400 U.S. 913, 91 S.Ct. 173, 27 L.Ed.2d 152 (1970). The present action was filed in the District Court on September 14, 1973. Summary judgment was granted in favor of defendants on May 1, 1974, and this appeal followed.

Plaintiff recites three issues on which he contends the District Court erred in granting summary judgment: whether an amendment to the Georgia Constitution authorizing this type of condemnation proceeding was valid; whether the Department’s order of condemnation was false and fictitious; and whether the Department’s failure to put his land to a present public use rendered the taking violative of the Fourteenth Amendment.

Under the federal law of res judicata, which governs this federal question case, a prior action is res judicata as to all issues that were raised or reasonably could have been raised in that action. See Astron Industrial Assoc., Inc. v. Chrysler Motors Corp., 5 Cir., 1968, 405 F.2d 958, 961; Acree v. Air Line Pilots Association, 5 Cir., 1968, 390 F.2d 199, 201. The test set forth in As-tron is as follows:

Is the same right infringed by the same wrong? Would a different judgment obtained in the second action impair rights under the first judgment? Would the same evidence sustain both judgments?

405 F.2d at 961. Plaintiff contends that the present case differs from that presented in his state court action because it involves trespasses against his land alleged to have occurred after the state court proceeding. The legality of these entries onto the land, however, turns on precisely the same questions already litigated in the state court, because the entries are pursuant to the same condemnation.

[Fjederal courts most assuredly do not provide a forum in which disgruntled parties can re-litigate federal claims which have been presented to and decided by state courts.

Deane Hill Country Club, Inc. v. City of Knoxville, 6 Cir., 1967, 379 F.2d 321, 325. In this case the District Court correctly concluded that all three issues were fully treated in both the state trial and appellate courts. Thus any consideration of those issues in the present action is barred by res judicata.

Plaintiff also contends, irrespective of any similarity between the issues raised in the state court and those raised in this action, that the state court judgment is not final and therefore cannot be res judicata, since the amount of compensation has not been determined. He interprets the Supreme Court’s dismissal of his appeal for want of jurisdiction as evidencing that Court’s belief that the state court judgment was not final. However, “To be final a judgment does not have to dispose of all matters involved in a proceeding.” IB Moore’s Federal Practice H 0.409 at 1002; Kurlan v. C. I. R., 2 Cir., 1965, 343 F.2d 625, 628-629 & n. 1. The Court gave no reasons for its dismissal of Pye’s appeal for want of jurisdiction, and we cannot speculate that it was based on lack of finality. Whether brought by appeal or by writ of certiorari, judgments of state courts can be reviewed by the Supreme Court only if they are final. 28 U.S.C. § 1257. The Supreme Court’s denial of Pye’s petition for certiorari, however, as it characterized the papers he filed, carries no implication that the state court judgment was not final.

The present action was brought not only against the Department of Transportation but also against two former Directors of that agency, their sureties, and a demolition contractor, named Allgood, hired by the Department to raze a dwelling on Pye’s property. Pye contends that Allgood cannot plead the prior judgment as res judicata because he was not a party to that proceeding, and that as a general rule sureties cannot plead res judicata as to actions to which only their principals were parties. The record shows, however, that Allgood was a party to the state court action. The trial court retained him as a party pending appeal, and enjoined him from proceeding with the demolition until the Supreme Court of Georgia could rule on the case. That court’s affirmance of the judgment left only the issue of just compensation. For that portion of the proceedings there was no need for Allgood to be a party.

As for the sureties of the state officials, their plea of collateral estoppel in the circumstances of this case was entirely proper and the District Court so concluded. Sureties generally may not plead judgments as res judicata to which only their principals were parties, because a surety-principal relationship does not by itself establish privity. A judgment in favor of the principal, however, extinguishes the surety’s right of subro-gation against him, and so it is only logical to permit the surety to invoke that judgment collaterally. See IB Moore’s Federal Practice H 0.412[7] at 1831-1832; Kramer v. Morgan, 2 Cir., 1936, 85 F.2d 96, 97.

The District Court entered summary judgment on the basis of an excerpted version of the record in the state court proceeding. Pye contends, citing two Georgia cases, that it is improper to consider a plea of res judicata on anything less than a complete record. However, as we noted earlier, the question whether the state court judgment is res judicata is one of federal law, and therefore cases interpreting Georgia law are inapposite. More importantly, Pye has failed to demonstrate any prejudice from the District Court’s reliance on an abbreviated state court record, which clearly set forth the issues considered. Finally, Pye made no effort to supplement that record, as he was entitled to do. See Fed.R.Civ.P. 56(e).

The only issue raised by plaintiff which was not adjudicated in the state courts was whether the action of the Department in condemning his land violated the National Environmental Policy Act (42 U.S.C. § 4321 et seq.). Pye contends he could not possibly have raised this issue in the 1969 state court proceeding because the Act was not passed until 1970. This law affords plaintiff no relief, however, because it makes no provision for awarding damages and restitution to a private party, as plaintiff seeks. Although some courts have held that NEPA calls for judicial review of substantive agency decisions to undertake projects rather than only the adequacy of reports detailing the basis for such decisions, we find no decisions in which a private plaintiff has been awarded damages or restitution on the basis of the Act. In the only cases where such relief has been requested, it has been denied. Morris v. Tennessee Valley Authority, N.D.Ala., 1972, 345 F.Supp. 321, 324; Virginians for Dulles v. Volpe, E.D.Va., 1972, 344 F.Supp. 573, 578. See generally Environmental Defense Fund v. Corps of Eng. of U. S. Army, E.D.Ark., 1971, 325 F.Supp. 749, 755.

Affirmed.

      . Heiser v. Woodruff, 327 U.S. 726, 733, 66 S.Ct. 853, 856, 90 L.Ed. 970 (1946), and cases cited therein.

      . Sierra Club v. Froehlke, 7 Cir., 1973, 486 F.2d 946, 951-953; Conservation Council of North Carolina v. Froehlke, 4 Cir., 1973, 473 F.2d 664, 665; Environmental Defense Fund v. Froehlke, 8 Cir., 1972, 473 F.2d 346, 352-353; Environmental Defense Fund v. Corps of Eng., U. S. Army, 8 Cir., 1972, 470 F.2d 289, 297-300; Calvert Cliffs’ Coord. Comm. v. United States A. E. Com’n, 1971, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1115. See contra Environmental Defense Fund, Inc. v. Armstrong, 9 Cir., 1973, 487 F.2d 814, 822 n. 13; Jicarilla Apache Tribe of Indians v. Morton, 9 Cir., 1973, 471 F.2d 1275, 1279-1280; National Helium Corporation v. Morton, 10 Cir., 1971, 455 F.2d 650, 656; Upper Pecos Association v. Stans, 10 Cir., 1971, 452 F.2d 1233, 1236. This court has suggested that the “better reasoned rule favors such review.” Environmental Def. F., Inc. v. Corps of Eng. of U. S. Army, 5 Cir., 1974, 492 F.2d 1123, 1138-1140. That case, however, was decided on other grounds.

      . The record does not show the stage of completion of the highway project at the time plaintiff brought this action, but it appears that substantial construction had been completed. See Mornirigside-Lenox Park Association v. Volpe, N.D.Ga., 1971, 334 F.Supp. 132, 134-137. Although projects undertaken prior to the 1970 effective date of NEPA are not immune from its requirements, see Environmental Def. F., Inc. v. Corps of Eng. of U. S. Army, supra, 492 F.2d at 1128 n. 7; Zabel v. Tabb, 5 Cir., 1970, 430 F.2d 199, 213, there clearly are limits to the retrospective force of the Act. See Jones v. Lynn, 1 Cir., 1973, 477 F.2d 885, 889-890; San Francisco Tomorrow v. Romney, 9 Cir., 1973, 472 F.2d 1021, 1025; Pennsylvania Environmental Council, Inc. v. Bartlett, 3 Cir., 1971, 454 F.2d 613, 624. We doubt that the Act applies to the construction work and condemnation of which plaintiff complains.


author: PER CURIAM: GODBOLD, Circuit Judge.

text:
    Dorotea Zaldivar V. DE TENORIO, Plaintiff-Appellee, v. H. E. McGOWAN et al., Defendants-Appellants.
    No. 74-1082.
    United States Court of Appeals, Fifth Circuit.
    May 27, 1975.
    Tally D. Riddell, Quitman, Miss., for McGowan and others.
    Jack H. Ewing, Jackson, Miss., for Love Pet. Co., and others.
    Herbert R. Ginsberg, Hattiesburg, Miss., for J. L. Sellers and W. Fairchild.
    Paul M. Neville, Meridian, Miss., for Smith, Corsair Pet.
    Thomas H. Watkins, Jackson, Miss., for Cecil Barnett.
    Vardaman S. Dunn, Jackson, Miss., David A. Kattan, New Orleans, La., for plaintiff-appellee.
    ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
    (Opinion March 19, 1975, 5 Cir., 510 F.2d 92)
    Before COLEMAN, GODBOLD and RONEY, Circuit Judges.
   PER CURIAM:

The petition for rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 25 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the petition for rehearing en banc is denied.

Counsel for the plaintiff-appellee have filed a vigorous petition for rehearing. Much of it retraces the arguments previously advanced and previously rejected.

Nevertheless, the Court considers it not out of order to comment upon some of the points which the petition seeks to raise.

First, it is asserted that our decision “sets a precedent which will adversely affect reciprocal property rights under treaties with at least twenty three nations around the world”. We cannot agree. This ease has been decided on its own peculiar facts. The deceased lady, Maria Obdulia Zaldivar McGowan, was first vested with her Honduran Treaty rights on October 31, 1957. In the absence of a necessity for prolongation those rights expired October 31, 1960. She died February 28, 1969 without taking any action whatsoever to dispose of the property under Article IV of the Treaty .or to seek an adjudication that a reasonable prolongation was necessary. It remained for her heirs to champion such a necessity long after the expiration of the term of years specified by the Treaty. We were of the opinion that no such necessity had been shown. How this damages the fabric of the Honduran, or any similar, Treaty is not apparent.

It is next said that our decision ignores the clearly erroneous rule. The District Court did say, 364 F.Supp. 1051, at 1060, that Hamilton McGowan occupied a fiduciary relationship toward E. J. McGowan. There was no finding of fact, except possibly by inference, to the effect that Hamilton McGowan occupied a fiduciary relationship toward the deceased widow. If there was such a finding, our prior opinion conclusively demonstrates, we think, that it was clearly erroneous.

We thus found it unnecessary to reach or decide whether existence of such a fiduciary relationship, had it existed, would have provided the “necessity” for a “reasonable prolongation”. Neither did we decide whether a prolongation of eight years would have been reasonable. Moreover, we did not decide whether, after a delay of eleven years (1960 — 1971) the heirs of one originally vested with the right could inherit that right.

In sum, the petition for rehearing it replete with arguments that this Court should not enforce the three year period of limitations expressly provided by the Treaty and insists that we should decree a necessity for quadrupling that, term when no necessity is shown beyond the desire of the widow’s heirs (and their grantees) to obtain legal title- to the land and its producing oil well.

We adhere to our published opinion.

GODBOLD, Circuit Judge.

I dissent.


author: EUGENE A. WRIGHT, Circuit Judge:

text:
    FRIENDS OF THE EARTH et al., Plaintiffs-Appellants, v. William T. COLEMAN, Jr., Secretary U. S. Department of Transportation, Individually and in his official capacity, et al., Defendants-Appellees.
    No. 74-2755.
    United States Court of Appeals, Ninth Circuit.
    March 10, 1975.

      Thomas Zuckerman (argued), Stockton, Cal., for plaintiffs-appellants.
    Elias D. Bardin, Asst. Chief Counsel (argued), Sacramento, Cal., for defendants-appellees.
   OPINION

Before CHAMBERS and WRIGHT, Circuit Judges, and THOMPSON, District Judge.

EUGENE A. WRIGHT, Circuit Judge:

Appellants are conservationists who sought in the district court injunctive and declaratory relief against the federal defendants for an alleged failure to comply with the requirements of the National Environmental Policy Act of 1969 (NEPA) with reference to environmental impact statements. The project with which the appellants were concerned was the construction of a segment of Interstate Highway 5 (1-5) between Sacramento and Stockton, California. The state intervened through its Department of Transportation.

The district court found no genuine issues of material fact, held that the statement submitted for the project was sufficient as a matter of law, and granted summary judgment of dismissal. We affirm.

Appellants are two environmental organizations whose members regularly use the affected areas, and several individual users. Their challenge was directed not so much to the actual construction of the 1-5 segment, as to ap-pellees’ decision to obtain fill for the project from the site of a Peripheral Canal, proposed as part of the California Water Project to transfer water from the upper Sacramento Valley to southern California.

Invitations for bids on the highway project from the California Division of Highways included specifications designed to implement the decision to coordinate excavation work on the two projects. By agreement with the State’s Department of Water Resources, the Division required that the fill needed for the highway project be obtained from the canal site. The specifications also provided that any excavation to obtain the fill conform to the approximate design dimensions and shape of the canal.

Appellants contend that the environmental impact statement (EIS) submitted for the highway project was inadequate because it failed to consider all reasonable alternative borrow sites for the fill. They also argue that the proposed excavations will constitute a commencement of the canal project sufficiently significant to warrant formal NEPA evaluation of the canal’s environmental impact. Such an evaluation, they contend, must be made prior to any further construction work on the 1 — 5 segment, either as part of a revised statement for the highway project, or as a separate statement dealing with the canal project alone.

I. CONSIDERATION OF ALTERNATIVE FILL SOURCE SITES.

This court has construed NEPA § 102(2)(C) as not requiring an agency to examine every conceivable alternative, but only those that are reasonable. Life of the Land v. Brinegar, 485 F.2d 460, 472 (9th Cir. 1973). It follows that an agency must consider those alternatives which are reasonable.

Appellants argue that the final EIS for the highway project failed to consider at least three reasonable alternative sites for obtaining the needed fill. In support of this contention, they refer to correspondence in the record indicating that state highway officials were aware of these alternatives, but concluded that they were not viable ones. That determination, appellants note, was sharply disputed in their own affidavits, which declared that “[rjeasonable and viable alternatives to the proposed excavation exist.” They assert that, at the very least, these contentions raised genuine issues of material fact as to the reasonableness of the alternative sites, and that the summary dismissal of their action was therefore improper.

Fed.R.Civ.P. 56(e) provides that
“when a motion for summary judgment is made and supported an adverse party may not rest upon the mere allegations or denials of his pleading, but his response must set forth specific facts showing that there is a genuine issue for trial.”

The showing of a “genuine issue for trial” is predicated upon “the existence of a legal theory which remains viable under the asserted version of the facts, and which would entitle the party opposing the motion (assuming his version to be true) to a judgment as a matter of law.” McGuire v. Columbia Broadcasting System, Inc., 399 F.2d 902, 905 (9th Cir. 1968). Hence we must determine whether there is “sufficient evidence supporting the claimed factual dispute ... to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968).

The district court concluded that appellants had failed to introduce specific, evidentiary facts in support of their contention that the final EIS improperly failed to consider reasonable and viable alternative fill sites. We have read the affidavits and exhibits referred to by appellants, and cannot say that this determination was in error.

Counsel for appellants assure this court that they are experts qualified in their own right to assess the reasonableness of alternative fill source sites. However, even if we assume that their qualifications as affiants were properly presented below, we cannot agree that the bare conclusions of reasonableness contained in their affidavits sufficed as a matter of law to preclude summary judgment.

The highway officials who prepared the EIS presumably considered the alternative sites proposed by appellants unreasonable and unacceptable. In contrast, the final EIS did consider those alternative borrow sites thought to be viable ones, and concluded that the site chosen was not only economically preferable, but also less environmentally disruptive than any of the other possibilities. Absent the assertion of specific evidentiary facts, the district judge was not required to deny appellees’ motion and take evidence on this issue.

Finally, it is contended that the EIS failed to consider the alternative of not completing the project, and thereby avoiding altogether the environmental disruption of the excavations. Appellants claim that the discussion of the environmental impact of the excavations was of the cursory type criticized in our recent decision in Trout Unlimited v. Morton, 509 F.2d 1276 (9th Cir., 1974).

In that case, this court upheld the determination that an EIS for a dam project was adequate. Nevertheless, we went on to caution those charged with preparing impact statements against too heavy a reliance on a conclusory form of presentation, lest the act’s purpose of adequately informing the public of probable significant environmental impacts be undermined. Id. at 1283-1284.

As with the EIS at issue in Trout Unlimited, that before us is also somewhat conclusory in its discussion of the impact of the planned excavations. Nevertheless, we cannot agree that it was so con-clusory as to require invalidation of the district court’s finding of sufficiency.

We uphold the district court’s determination that the EIS for the P-5 project adequately discussed those alternative borrow sites which were reasonably available, and adequately considered the environmental impact of the proposed excavations.

II. CONSIDERATION OF THE PERIPHERAL CANAL’S ENVIRONMENTAL IMPACT.

Appellants concede the merit of any attempt to save public funds by intera-gency coordination and cooperation. They argue, however, that such cooperation cannot circumvent the clear intent of NEPA’s EIS requirement that all ramifications of each proposed federal project “significantly affecting” the environment be considered at the earliest possible time prior to commencement of actual construction.

Nor, is it asserted, can linking commencement of an environmentally hazardous project to completion of an environmentally unobjectionable one be allowed to circumvent the EIS requirement for the former. Since the excavations proposed for the highway fill will also be part of the canal watercourse, they argue that the time for EIS consideration of both projects is now, before excavation commences.

As the district court properly noted, there are limits to the required scope of consideration of one project which may be remotely connected with, or have some effect upon, another. The proper test, we believe, does not depend, upon the interrelation of the projects per se. Rather it depends upon whether completion of one project will inevitably involve an “irreversible and irretrievable commitment of resources” to the second. NEPA § 102(2)(C)(v), 42 U.S.C. § 4332(2)(C)(v). See Scientists’ Institute for Public Information v. AEC, 156 U.S. App.D.C. 395, 481 F.2d 1079 (1973), noted in 87 Harv.L.Rev. 1050, 1055-56 (1974)

Scientists’ Institute, the leading case analyzing NEPA’s “irreversible commitment” language, held that an EIS had to be submitted prior to commencement of a massive research and development program for breeder reactors. The court looked to the nature of the contemplated “research and development” program, which involved test projects and massive expenditures for the development and improvement of nuclear energy technology. The court concluded that the decision to go ahead with the “R & D” phase of AEC’s proposed program would also effectively commit the agency to that program’s subsequent implementation phase. Given the long lead time generally associated with the development of energy resources, the decision to implement the program’s first phase would in reality foreclose reliance upon alternative energy sources to satisfy additional demand for energy in the future.

Appellants contend that this case falls within the Scientists’ Institute rationale. They claim that the cut and fill specifications of the highway project would involve excavation of one-third of the canal’s watercourse. Excavations of this magnitude would, they argue, seriously influence the decision in favor of completion of the remainder of the canal. Hence, unless environmental review of the canal project is had now, commitments will have been made by the time the canal project comes up for formal approval which will make completion of the watercourse a foregone conclusion.

We are not convinced that any such consequences would necessarily follow. In the first place, the highway project EIS noted that contingent plans had been made for use of the excavation sites should the canal fail to be approved for any reason. Substantial evidence was submitted that the excavations could stand on their own as successful and useful fish hatcheries, and that conditional agreements had been reached by which they would be utilized as such.

Secondly, even if the excavations are allowed to proceed, the public and Congress will have full opportunity to evaluate the wisdom of the contemplated water transfer scheme before it takes place. It is true that, should the canal project eventually be approved, construction would be able to proceed more economically and expeditiously because of the earlier decision to act in coordination with the highway project. But we do not believe that this brings the Scientists’ Institute rationale into play. The resources committed to the canal project by the proposed highway fill excavations would have been spent on the highway project in any event. In fact, evidence was introduced that the canal site constituted the cheapest source of highway fill available.

More importantly, since an EIS will be required before any work on the canal beyond the highway fill excavations can be done, requiring the statement now would serve no useful purpose, but would delay the highway project considerably. We are reluctant to accord to NEPA an interpretation which would have the sole effect of discouraging agency cooperation of the sort involved here.

While appellants may be correct that the presence of the excavations will most likely determine the path of the Peripheral Canal, if it is built, we do not find in this a sufficiently significant nexus to the highway excavations to warrant linking the two projects for EIS purposes. The environmental issues involved in carrying out the contemplated water transfer are likely to be of far greater significance than those concerning the route over which this transfer would occur.

Since the canal iá to be only 43 miles long, with relatively fixed termini, there is little room for variation in the actual route chosen. Cf. Iowa Citizens for Environmental Quality, Inc. v. Volpe, 487 F.2d 849, 853 (8th Cir. 1973). And, as previously discussed, if any significant environmental advantage should appear in selecting a different route, the alternative use agreement with the California Department of Fish and Game would go into effect.

The construction of 1-5 is nearing completion, after much time and great expense. The proposed 17-mile segment involved here will leave, when completed, only a 23-mile gap remaining before the California portion is complete. The massive nature of the commitments to 1-5 already made afford additional support, we believe, to our decision to uphold the district court’s refusal to countenance further delay. Cf. Citizens Environmental Council v. Volpe, 484 F.2d 870, 873 (10th Cir. 1973).

Hence we agree with the district court’s conclusion that the highway and canal projects should stand by themselves for purposes of environmental review. Cf. Trout Unlimited v. Morton, supra, 509 F.2d at 1285. We uphold the district court’s ruling that the highway project EIS satisfied § 102(2)(C), and affirm its order denying injunctive and declaratory relief.

      Honorable Bruce R. Thompson, United States District Court Judge for the District of Nevada.

      . National Environmental Policy Act § 102(2)(C) [42 U.S.C. § 4332(2)(C) (1970)].

      . Appellants also argue that commencement of the canal excavation would constitute an unlawful expenditure of federal highway funds on a non-highway project without the explicit congressional authorization required by Section 101(d) of the Federal Highway Act [23 U.S.C. § 101(d) (1970)].
      This contention can be quickly dismissed. Defendants presented uncontroverted evidence that using the canal site as a source of fill would result in a substantial saving of federal highway funds, since the state had already acquired substantial portions of the right of way for the proposed canal.

      . Appellants also contend that the district court applied the wrong standard in evaluating the EIS’s sufficiency under NEPA. Although it is unclear from the record what standard of review the trial court ultimately determined to apply, at the time of its decision the appropriate standard in this circuit for testing the adequacy of an EIS was Administrative Procedure Act § 10(e)’s “abuse of discretion” test [5 U.S.C. § 706(2)(A) (1970)]. See Life of the Land v. Brinegar, 485 F.2d 460, 469 (9th Cir. 1973).
      Our subsequent decision in Lathan v. Brinegar, 506 F.2d 677, 692-93 (9th Cir. 1974) (en banc), made it clear that the correct standard was instead to be found under § 706(2)(D), which compels us to set aside agency actions found to be “without observance of procedure required by law.” However, we have concluded that on the facts of this case, dismissal of appellants’ action was correct under either test. Compare Environmental Defense Fund, Inc. v. Armstrong, 487 F.2d 814, 817 n. 7 (9th Cir. 1973).

      . This test is similar to that set out for successive implementation phases of the same project in Trout Unlimited v. Morton, 509 F.2d 1276, at 1285 (9th Cir. 1974).

      . Although appellees disputed appellants’ characterization of the scope of the contemplated excavation, the district court was obliged to consider the facts in the light most favorable to the parties against which summary judgment was sought. Since we conclude that the EIS was adequate in any event, we need not consider whether this contention by appellants was subject to the same objection of inadequate factual allegation fatal to appellants’ claims regarding consideration of alternative fill source sites.

      . This evidence was in a memorandum of understanding between the State Departments of Water Resources and Fish and Game. It committed the latter to converting the borrow sites into fish hatcheries if the canal project had not received final approval within three years after excavation.

      . See note 2 supra.


text:
    Roy C. WILLIAMS, Plaintiff-Appellant Cross Appellee, v. BRASEA, INC., and VESSEL CIAPESC I, her engines, etc., Defendant-Appellee Cross Appellant, Bender Welding & Machine Co., Inc., Defendant-Appellee Cross-Appellant, Construction Machinery Company, Defendant-Appellee Cross Appellant.
    No. 72-3623.
    United States Court of Appeals, Fifth Circuit.
    May 23, 1975.
    M. W. Meridith, Jr., Corpus Christi, Tex., for Construction Machinery Co.
    John M. O’Quinn, Houston, Tex., for Texas Trial Lawyers Ass’n, amicus curiae, on rehearing en banc.
    William K. Altman, Wichita Falls, Tex., amicus curiae, on rehearing en banc.
    C. D. Kennedy, William M. Jensen, Houston, Tex., Jack G. Carinhas, Jr., Brownsville, Tex., for Brasea.
    A. J. Watkins, Bill R. Bludworth, Houston, Tex., for Bender.
    William R. Edwards, Corpus Christi, Tex., W. A. Cleveland, Jr'., Jacksonville, Fla., for Williams.
    ON PETITIONS FOR REHEARING AND PETITIONS FOR REHEARING EN BANC
    (Opinion July 5, 1974, 5 Cir. 1974, 497 F.2d 67)
    Before GEWIN, THORNBERRY and SIMPSON, Circuit Judges.
   PER CURIAM:

The Petition for Rehearing filed on behalf of Roy C. Williams is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35, Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.

The Petition for Rehearing filed on behalf of Brasea, Inc. is denied and no member of this panel nor Judge in regular active service on the Court háving requested that the Court be polled on rehearing en bane, (Rule 35, Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.

We have given thorough consideration to the petitions for rehearing and for rehearing en banc, as well as to the several briefs, including briefs by amici curiae, received in support of or in opposition thereto, before reaching our decision to deny the petitions.

We direct two slight changes in the panel opinion, Williams v. Brasea, Inc., 5 Cir. 1974, 497 F.2d 67.

Perceiving that our disposition of the cross-appeals (1) of Bender, Part IV of the panel opinion, 497 F.2d at 77 — 79, and (2) of CMC, Part V of the panel opinion, 497 F.2d at 79 — holding that neither of said parties could be held liable under a theory of products liability — dissipated completely any basis for assessing damages in rem against the shrimp trawler CIAPESC I, we withdraw and recede from the following designated portions of the panel opinion:

(a) The statement appearing at page 75 of 497 F.2d:

“Finally, Williams alleges that the district court erred by failing to enter judgment in rem against CIAPESC I despite the fact that the vessel was found to be unseaworthy. The point is well taken. The lower court specifically found the CIAPESC I unseawor-thy, App. at 1754, and that finding is not challenged on appeal by Brasea either on brief or at oral argument. The district court on remand should make the appropriate modification on its final order.”

(b) That portion of the “VI CONCLUSION” section of the opinion, appearing at page 80 of 497 F.2d:

“(2) the district court is ordered to assess liability in rem as to the vessel CIAPESC I.”

In lieu of (a) above the following language is substituted:

“Finally, Williams alleges that the district court erred by failing to enter judgment in rem against CIAPESC I despite the fact that the vessel was found to be unseaworthy. The point would be well taken if the underpinning for the finding of unseaworthiness was sustained against the cross-appeals of Bender and CMC, either or both. The basis for the unseaworthiness finding by the district court was in fact its findings that Bender and CMC provided the vessel CIAPESC I with equipment which was ‘unreasonably dangerous’, ‘defective’ and ‘not reasonably suited for the purpose for which it was intended.’ The district court’s opinion further held ‘The faults of Bender and CMC, as heretofore outlined, are the same faults which caused Defendant, Brasea, Inc., to afford to Plaintiff an unseaworthy vessel.’ (App. p. 1760)
“Our disposition reversing the district court as to the cross-appeals of Bender and CMC, Parts IV and V of this opinion, infra, eliminates any basis for holding CIAPESC I liable in rem. The point is rendered moot.”

With respect to (b) above the remaining numbered portions under “VI CONCLUSION” of the opinion, i. e. (3), (4), (5) and (6) are renumbered respectively (2), (3), (4) and (5).

The costs of this appeal are directed to be assessed one-half against the plaintiff-appellant-cross-appellee, Roy C. Williams, and one-half against the defendant-appellee-cross-appellant, Brasea, Inc.

      . “Therefore, the Court finds that the failure on the part of CMC to provide an adequate braking mechanism for the port cathead rendered the same defective and unreasonably dangerous to persons situated as was plaintiff, and, therefore, it was not reasonably suited for the purpose for which it was intended; and, further, that the absence of an adequate brake was a producing cause of injuries to plaintiff.” (App. p. 1750)
      “Therefore, the Court finds the placement of the snatch-block frame by Bender was such as to make the vessel, and particularly the area in front of and near the winch, unreasonably dangerous to users thereof, and thus it was not reasonably suited for the purpose for which it was intended; and such installation was a producing cause of the incident in which plaintiff was seriously injured.” (App. p. 1751)
      “Bender installed on the vessel, engine and power take off equipment which operated the winch, constructed a snatch-block frame which was above the winch and installed a rod with a handle on it which was part of the engine and power take off equipment.” (App. p. 1744)
      “No substantial change had occurred or modifications made in said winch, the port cat-head, or the machinery related to the operation of the cathead, or in the snatch-block frame from the date of delivery of the vessel to Brasea until the time plaintiff suffered said injuries.” (App. p. 1745).


text:
    Cecelia PELAEZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
    No. 74-3197.
    United States Court of Appeals, Fifth Circuit.
    May 22, 1975.
    Rehearing Denied June 9, 1975.
    David A. Kattan, New Orleans, La., for petitioner.
    William B. Saxbe, Atty. Gen., U. S. Dept, of Justice, Washington, D. C., Ger-aid J. Gallinghouse, U. S. Atty., New Orleans, La., Troy A. Adams, Jr., Dist. Director, Immigration & Naturalization Service, New Orleans, La., Chester J. Halicki, John L. Murphy, Government Reg. Section Criminal Division, Washington, D. C., for respondent.
    Before GIBSON , THORNBERRY and AINSWORTH, Circuit Judges.

       Of the Eighth Circuit, sitting by designation.

   PER CURIAM:

Petitioner Cecelia Pelaez, a 36-year-old native and citizen of the Philippines, seeks review of the decision of the Board of Immigration Appeals dated July 24, 1974, which affirmed the denial by the immigration judge of the suspension of her deportation.

Petitioner entered the United States on November 11, 1964 as a nonimmi-grant visitor for business. Her status was later changed to a nonimmigrant student which authorized her to remain here until November 17, 1968. She was ordered deported in May 1969 but two private bills pending, introduced in Congress on her behalf, continued her stay. When the bills failed of passage, she filed this application for suspension of deportation under 8 U.S.C. § 1254(a)(1).

8 U.S.C. § 1254(a)(1) reads as follows:
(a) As hereinafter prescribed in this section, the Attorney General may, in his discretion, suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence, in the case of an alien who applies to the Attorney General for suspension of deportation and—
(1) is deportable under any law of the United States except the provisions specified in paragraph (2) of this subsection; has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application, and proves that during all of such period he was and is a person of good moral character; and is a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States, or an alien lawfully admitted for permanent residence; or

The immigration judge found that petitioner had satisfied the first two requisites of the subsection pertaining to physical presence in the United States for seven years, and that she was of good moral character, but had not shown that her deportation would result in extreme hardship, and thus had failed to establish the statutory conditions precedent to the Attorney General’s exercise of discretionary relief. Kimm v. Rosenberg, 363 U.S. 405, 80 S.Ct. 1139, 4 L.Ed.2d 1299 (1960); United States v. Shaughnessy, 353 U.S. 72, 77 S.Ct. 618, 1 L.Ed.2d 652 (1957); 2 Gordon and Rosen-field, Immigration Law and Procedure § 7.9e (1972).

Petitioner is not married and has no family ties in the United States but has three brothers living in the Philippines, two of whom are tenant farmers and one of whom is unemployed. Though educated in this country as a computer programmer, she works as a governess earning $135 per week and holds property, cash,and stock worth approximately $3,000.

She claims extreme hardship will result from deportation primarily because of the difficulty of obtaining employment and the lower standard of living in the Philippines. Additional factors urged are the impossibility of obtaining a return visa, the inability to continue the support of her brothers and the disruption of the way of life to which she has become accustomed.

Economic hardship has consistently been rejected as sufficient to compel a finding of extreme hardship. Nishikage v. Immigration and Naturalization Service, 9 Cir., 1971, 443 F.2d 904; Fong Choi Yu v. Immigration and Naturalization Service, 9 Cir., 1971, 439 F.2d 719; Yeung Ying Cheung v. Immigration and Naturalization Serv., 3 Cir., 1970, 422 F.2d 43, 46-47; Kasravi v. Immigration and Naturalization Service, 9 Cir., 1968, 400 F.2d 675, 676. Petitioner, who has the burden of establishing the statutory prerequisites, has failed to carry this burden. Considering all these factors, the immigration judge found that Pelaez failed to prove extreme hardship. We agree with this finding for the reasons stated by the judge.

Finally, Pelaez asserts that 8 U.S.C. § 1254(a)(1) is unconstitutional on its face and as applied because it discriminates against aliens without family ties in the United States. She contends that an alien with family here can base suspension of deportation on his family’s hardship but an alien without family is limited to personal hardship. We find no merit in this contention. Congress has plenary power in the immigration area, particularly in determining which aliens will be admitted and the period they shall remain. Harisiades v. Shaughnessy, 342 U.S. 580, 588-591, 72 S.Ct. 512, 519-520, 96 L.Ed. 586 (1952); Torao Takahashi v. Fish and Game Commission, 334 U.S. 410, 419, 68 S.Ct. 1138, 1142, 92 L.Ed. 1478 (1948); United States v. Shaughnessy, 2 Cir., 1950, 180 F.2d 489, 490. Additionally, the statutory history of Section 1254(a) discloses that the suspension provision was originally enacted in 1940 solely to deal with hardships to the alien’s family in the United States which would result from deportation. Eight years later, Congress extended the suspension process to aliens who could show extreme hardship when they had no family ties in this country. Act of July 1, 1948, 62 Stat. 1206; see 2 Gordon and Rosenfield, Immigration Law and Procedure § 7.9a (1972). Congress’ extension of the Act to include aliens, such as Pelaez, negates any claims of discrimination.

The decision of the Board of Immigration Appeals is

Affirmed.

      . In his written decision, the immigration judge held, in pertinent part, as follows:
      The sole question remaining is whether deportation would result in extreme hardship to her (8 CFR 242.17(d)). Respondent has not been married. She has no family ties in the United States. Her sole living relatives, three brothers, live in the Philippines. Respondent asserts extreme hardship would ensue to her if required to leave this country because of difficulty in obtaining employment in the Philippines. She has been trained to be a programmer as a result of her schooling in the United States. She has not obtained employment in this field because permanent residence is a prerequisite. However, in the Philippines, respondent alleges, it will be impossible to obtain such employment because one “needs someone in the government to get a good job.” Further, the salary of a governess in the Philippines is too small to consider such a position. Lastly, she asserts that her brothers lease farmland and are all poor and could not help her financially.
      Concededly the respondent’s deportation from the United States would result in economic detriment to her. However, under the circumstances present in this case economic detriment in and of itself does not amount to “extreme hardship”. See Matter of Sang-ster, 11 I&N Dec. 309. Other than respondent’s self serving statement there is no evidence present in the record showing that the respondent could not obtain suitable employment in the Philippines.

      . Pelaez also contends that application of the protected status doctrine results in unconstitutional discrimination against her. Since the consideration of her protected status was not necessary to the Board’s denial of suspension, we need not consider this claim.

      . Pelaez finds error in the immigration judge’s statement that even if petitioner had established statutory eligibility, he would refuse to grant suspension of deportation as a matter of discretion because of the congressional policy statements disfavoring suspension of aliens who remained here in a protected status, i. e., student. The Ninth Circuit in Asimakopoulos v. Immigration and Naturalization Serv., 9 Cir., 1971, 445 F.2d 1362 and Chan v. Rosenberg, 9 Cir., 1971, 445 F.2d 1399, recently overturned the Board’s ruling denying suspension based on use of protected status doctrine. In both of these cases statutory eligibility had been established; thus they are not applicable in the instant case. Our decision in this case, however, is not based on this point, but on the failure of petitioner to establish extreme hardship.


author: JOHN R. BROWN, Chief Judge: DYER, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Louis LANDAY, Defendant-Appellant.
    No. 74-2640.
    United States Court of Appeals, Fifth Circuit.
    May 23, 1975.
    L. Burke Lewis, Atlanta, Ga., for defendant-appellant.
    John W. Stokes, U. S. Atty., E. Ray Taylor, Wm. P. Gaffney, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
    Before BROWN, Chief Judge, and COLEMAN and DYER, Circuit Judges.
   JOHN R. BROWN, Chief Judge:

This appeal seeks to determine the limit to which the non-governmental recipient of a consent judgment entered into as a part of a guilty plea bargain resulting in a suspended sentence under 18 U.S.C.A. § 3651 may force the judgment debtor to fulfill the conditions of that agreement. Because we find that the judgment debtor did all that was necessary to comply with the terms of his sentence, we reverse the revocation of his probation by the District Court.

The appellant, Lewis Landay, was in-dieted on six counts of causing the interstate transportation of forged securities, 18 U.S.C.A. § 2314, arising out of an elaborate check kiting scheme involving two banks. As a result of this scheme one of the banks, the First National of Atlanta, incurred a loss of approximately $60,000. On October 17, 1973 Landay pleaded guilty to three of these counts and the other three were dismissed. On November 9 he signed a consent judgment for $60,423.58 in favor of the First National Bank. A substantial portion of this judgment was immediately satisfied by a consent garnishment of Landay’s account at another bank. On November 16 he was sentenced to three concurrent terms of five years each — six months to be served in a penal institution and the remaining 54 months on probation. As a special condition of this probation Lan-day was to “execute immediately documents necessary to transfer to the bank all assets and property he now owns.” In accordance with this condition, by a formal document the sufficiency of which is in no way doubted, he conveyed to the bank a security interest in his share of his father’s estate which was pending probate in Baltimore, Maryland. On December 13 the bank attempted to get Landay to execute a power of attorney which would have had the effect of an outright assignment of this portion of the estate. Although Landay contends that this would have resulted in a windfall on behalf of the bank, the unsigned assignment is limited by its terms to a maximum of $35,584.10. (Govt. Ex. # 7.) Landay refused to execute this assignment and as a result the Government under immediate pressure from First National moved to revoke his probation. The District Court did so.

Although Landay itemizes four points of appeal in his brief, they are in essence two and we will treat them as such.

I.

First, he attacks the probation condition because by its language it affects “all assets and property he now owns” and so is not limited to the “actual damages” attributable to the counts of the indictment to which he pleaded guilty under the terms of the plea bargain. Although it may be true that the probation condition is not a model of specificity, this lack is not a fatal infirmity here. The rule that limits the restitution amount to the conviction counts, United States v. Taylor, 4 Cir., 1962, 305 F.2d 183, cert. denied, 371 U.S. 894, 83 S.Ct. 193, 9 L.Ed.2d 126; United States v. Mancuso, 5 Cir., 1971, 444 F.2d 691, is designed to eliminate doubt about when this amount has been repaid and so avoid the possibility of a post-sentencing disagreement that ends with the defendant back in jail.

The disagreement with which we are faced in this case does not involve the amount of restitution but rather the method. At the time he passed sentence the Trial Judge had before him a consent judgment in which Landay freely and voluntarily admitted the exact amount the First National claimed he owed. There is no question but that the amount of the consent judgment was the amount of restitution that the Trial Judge contemplated as the condition of probation. Neither could the parties have envisioned any other sum. There was no error in the way the sentence was imposed here.

II.

The real question, and Landay’s second point of appeal, is whether he complied with this condition. We do not find it necessary to rely on those cases that hold that any ambiguity in a sentence is to be resolved in favor of the defendant. Gaddis v. United States, 6 Cir., 1960, 280 F.2d 334; United States v. Martin, 7 Cir., 1972, 467 F.2d 1366. The single ground for revocation of the probation was Landay’s failure to execute the assignment asked for by the bank. After oral argument we asked the parties (including First National as amicus) to submit supplemental briefs on the issue of First National’s legal right under Maryland law to effectuate a transfer of so much of Landay’s share of his father’s estate as necessary to make payment of the balance of the restitution amount ($35,584.10) on the basis of those documents that he had already executed. These briefs reveal that under Maryland law First National need only file in the appropriate Maryland court a Judgment Condemnation Nisi under Md.R.P. G54, prove the claim by means of the consent judgment filed in the Georgia court, and have an absolute judgment entered in its favor. It can then proceed to attach the assets of the estate if necessary. It is clear that Landay did all that was necessary to effectuate the restitution he promised.

In considering the revocation of probation the trial court must convince itself that the defendant has not in good faith attempted to comply with the conditions of his probation. United States v. Savage, 5 Cir., 1971, 440 F.2d 1237, 1239; Hensley v. United States, 5 Cir., 1958, 257 F.2d 681, 684. In light of the attendant circumstances it is our conviction that Landay has not only acted in good faith. He kept the faith. He kept the bargain. Probation could not be revoked for the stated reason.

Reversed.

DYER, Circuit Judge

(dissenting):

This appeal is not about what we should do for the victim who was bilked out of $60,000, but what we should do about the thief who plea bargained a maximum 60 year sentence and $60,000 fine into a 6 months’ sentence plus probation on his promise to make restitution, and now reneges.

The simple fact is that Landay has not complied with the special provision of his probation that he execute “whatever documents may be necessary” to transfer funds to make restitution, but on the contrary has refused to do so. As a consequence, the victim must file suit in Maryland to obtain judgment against the thief because he refuses to execute a limited power of attorney for the release of the funds from his father’s estate. This is not acting in good faith, keeping the faith, or keeping the bargain. This is bad faith and conduct entirely inconsistent with a bona fide effort to accomplish rehabilitation. See Hensley v. United States, 5 Cir. 1958, 257 F.2d 681; United States v. Steiner, 7 Cir. 1957, 239 F.2d 660.

I do not share the majority’s philosophical objections to requiring a thief to make restitution to his victim as a condition of probation, a condition which is, in any event, statutorily authorized. 18 U.S.C.A. § 3651. In my view the Government should be applauded rather than rebuked for having attempted to make the thief live up to his plea bargain, and the district court should be affirmed for having exercised its sound discretion in revoking Landay’s probation. I dissent from Part II.

      . The amount was $24,839.48 leaving not more than $35,584.10 due the First National.

      . The formal sentence prescribed:
      the execution of the remainder of this sentence be, and the same hereby is suspended until the further order of the court, and that the defendant be placed upon probation for the period of FIFTY-FOUR (54) MONTHS with two SPECIAL CONDITIONS: 1. That he execute immediately documents necessary to transfer to the bank all assets and property he now owns. 2. That he engage in employment during his period of probation approved by the Probation Officer.

      . The agreement provided:
      As security for the repayment of the obligation, I hereby pledge, transfer, convey, assign and grant to the Bank a continuing general lien upon and security interest and title in and to all my right, title, interest and expectancy in and to the estate of my father, Irving Landay, deceased, filed for probate in the Orphans Court of Baltimore County, Maryland, on or about June 5, 1973, or under any other Will or intestacy laws should the said Will be successfully contested, and all proceeds thereof.
      In his letter of transmittal to the executor of the estate he provided:
      By this letter, I hereby authorize and direct you to pay to the Bank, to the extent of $35,584.10, all of the monies in your possession attributable to my interest in the estate, both now and coming into your possession in the future. This authorization and direction shall remain in force until such time as you have paid, out of my interest in the estate, the full indebtedness of $35,584.10, or until my interest in the estate is depleted, whichever first occurs.
      You are hereby authorized to execute in my name and on my behalf, any and all instruments, documents, or other papers necessary or incidental to accomplish the foregoing, as fully as if they had been executed by me personally.

      . It is uncontested that Landay’s interest in the estate was sufficient to pay the remaining amount he owed to the bank.

      . 18 U.S.C.A. § 3651 provides in pertinent part:
      While on probation and among the conditions thereof, the defendant—
      May be required to pay a fine in one or several sums; and
      May be required to make restitution or reparation to aggrieved parties for actual damages or loss caused by the offense for which conviction was had; and May be required to provide for the support of any persons, for whose support he is legally responsible.

      . Nevertheless I share many of my Brother Coleman’s doubts about the wisdom of using restitution as a condition for a suspended sentence.

      . First National’s counsel begged off.

      . The reason First National’s counsel begged off (see note 7, supra) may have been that in August 1974, prior to the filing of the Government’s brief on the merits and the argument before us in December 1974, First National through prestigious counsel in Baltimore filed such papers including certified copies of the Georgia consent judgment.

      . The only objection raised in the Government’s brief to the above-outlined procedure is the weak one of the possibility that a Maryland court would not give full faith and credit to the consent judgment because it was entered into under duress. As the brief goes on to concede, however, a consent judgment is considered to be a contract between the parties and is binding upon them.

      . Reversal is on the basis that so far he has kept the bargain. Obviously, it assumes that he will continue to do so. This means that appellant may not in any way in the courts of Maryland or elsewhere resist First National in effectuating the unqualified transfer of Lan-day’s interest in this estate up to the amount due First National.

      . I concur in Part I of the majority opinion.


author: GROOMS, District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Noble C. BEASLEY and James H. Finley, Defendants-Appellants.
    No. 74-1339.
    United States Court of Appeals, Fifth Circuit.
    May 23, 1975.

      Ralph Kennamer, Mobile, Ala. (Court appointed), for Beasley.
    Vernon Z. Crawford, Mobile, Ala., Jonathan Shapiro, Boston, Mass., for Finley.
    C. S. White-Spunner, U. S. Atty., Irwin W. Coleman, Jr., Asst. U. S. Atty., Mobile, Ala., for plaintiff-appellee.
    Before GOLDBERG and RONEY, Circuit Judges, and GROOMS, District Judge.
   GROOMS, District Judge:

Appellants, Finley and Beasley, were indicted with Walter C. Clewis and Maynard H. Williams for conspiring to interfere with interstate commerce by extortion in violation of the Hobbs Act, 18 U.S.C. § 1951. The jury found appellants guilty but acquitted Clewis and Williams. The indictment alleges that between April 15, 1970, and February 15, 1973, that each of the appellants conspired with the co-defendants to extort monies from the promoters, agents, employees, or artists of eight named shows. Defendants were alleged to have attempted to obtain the payment of such monies for “imposed, unwanted, [and] superfluous services” of a corporation known as Soul Productions, Inc., by the use of “actual and threatened force and fear of economic loss by means of boycotting, picketing of said shows and obstruction of radio advertising and ticket sales outlets and destruction of advertising placards.”

Appellants assign an array of errors, including the (1) sufficiency of the indictment, (2) sufficiency of the evidence, (3) action of the court in permitting the government to question the defendant Clewis on cross-examination about statements he had allegedly made prior to the trial and after the conclusion of the alleged conspiracy to agents of the Internal Revenue Service, and in permitting the agents to testify about such statements in rebuttal, (4) refusal of the court to grant a severance to Appellant Finley, (5) admission of prejudicial evidence, and (6) giving of erronéous and prejudicial instructions to the jury.

We will consider first, alleged errors (3) and (5) as noted.

The record reveals more than one instance, on cross of Clewis and on rebuttal of agents Brannan and Coats, where extrajudicial statements were admitted without limitation to Clewis at the time of their admission.

In a lengthy in chambers conference there was a line-by-line consideration of five memoranda of interviews by the agent with Clewis and objections to the court’s permitting the cross-examination of Clewis respecting the same. The court ruled that they could be used for cross-examination purposes and, reserving to the defendants a continuing objection, overruled the objections stating that' “it will be a question for the jury whether or not they will believe the inferences and statements that are made.” There was no motion to limit the evidence to the impeachment of Clewis and no limitation was placed on its use prior to or at the time of its admission.

In its final charge the court admonished the jury as to statements and acts not done during the continuance and in furtherance of a conspiracy, and charged that:

“Otherwise, any admission or incriminatory statement made or act done outside of Court by one person may not be considered as evidence against that person who was not present or any person who was not present and did not hear the statement made or see the act done. Therefore, as I say, statements of any conspirator which are not in furtherance of the conspiracy, or were made before the conspiracy came into being, or after it was terminated, maybe considered as evidence only as against the person making it. . . . ” [Emphasis supplied]

It did not specifically address itself to the statements here involved. Appellants concede that the charge stated the law, but contend that the instruction was too little and came too late.

Among the authorities cited to sustain the contentions so urged are Lutwak v. United States, 344 U.S. 604, 618-619, 73 S.Ct. 481, 97 L.Ed. 593; and United States v. Apollo, 5 Cir., 476 F.2d 156, 163. In Lutwak, the court carefully distinguished between acts which took place after the conspiracy ended which were relevant and declarations of a eo-conspir-ator not in furtherance of the conspiracy. As to the latter the court ruled:

“In the trial of a criminal case for conspiracy, it is inevitable that there shall be, as there was in this case, evidence as to declarations that is admissible as against all of the alleged conspirators; there are also other declarations admissible only as to the declar-ant and those present who by their silence or other conduct assent to the truth of the declaration. These declarations must be carefully and clearly limited by the court at the time of their admission and the jury instructed as to such declarations and the limitations put upon them. Even then, in most instances of a conspiracy trial of several persons together, the application of the rule places a heavy burden upon the jurors to keep in mind the admission of certain declarations and to whom they have been restricted and in some instances for what specific purpose.” [Emphasis supplied]

The court, nevertheless, affirmed as harmless error, since it could find only one instance of such a declaration and there was overwhelming evidence of the defendants’ guilt.

Analyzing that ruling in Apollo, and the effect of a hearsay charge given at the conclusion of the trial, we said:

“Lutwak established a minimum obligation on the trial judge in a conspiracy case in which extrajudicial statements of alleged co-conspirators are proffered to give a cautionary instruction on the limited uses of hearsay testimony, explaining clearly to the jury the requirement that the conspiracy itself and each defendant’s participation in it must be established by independent non-hearsay evidence which must be given either prior to the introduction of any evidence or immediately upon the first instance of such hearsay testimony. See Menendez v. United States, 393 F.2d 312 (5th Cir. 1968), cert. denied, 393 U.S. 1029, 89 S.Ct. 639, 21 L.Ed.2d 572 (1969).
“The Government calls our attention to the charge given by the court at the conclusion of the trial. While it does contain an accurate statement of the role of hearsay evidence in conspiracy cases, it came too late. This delicately dangerous defusing must be firmly in the jury’s minds when the hearsay is proffered. An instruction at the end of the trial cannot correct the erroneous refusal to give the proper cautionary instruction when it was first requested.”

In Apollo there was a request for limiting instructions.

In Upham v. United States, 5 Cir., 328 F.2d 661, after the prosecuting witness had testified differently from what she had previously indicated in a written statement, an F.B.I. agent who took the statement identified it, and it was offered and received as evidence. We noted the absence of a request to limit the evidence to impeachment and ruled:

“It was received without limitations on the purpose for which it could be considered and without objection. It was an extremely damaging statement: While appellant’s counsel did not request an instruction that the statement be considered only as impeaching the witness, the need for such a charge to the jury was so obvious and the failure to give it so prejudicial to the appellant that this Court must notice the failure as ‘[pjlain errors * * affecting substantial rights’ of the accused under Rule 52(b) F.R.Crim. Proe.”

In United States v. Lipscomb, 6 Cir., 425 F.2d 226, where prior inconsistent oral statements of the witness made to a government agent were admitted, no specific cautionary instruction was requested or given. The court citing Up-ham, among other authorities, held:

“We are of the opinion that the failure of the trial judge to limit through cautionary instructions the jury’s consideration of these extra-judicial statements to impeachment purposes requires reversal. Although such an instruction was not specifically requested, it has generally been held that failure to give it amounts to plain error where, as here, the government’s case is weak and the statement is extremely damaging. Jones v. United States, 128 U.S.App.D.C. 36, 385 F.2d 296 (1967); Newman v. United States, 331 F.2d 968 (8th Cir. 1964); Upham v. United States, 328 F.2d 661 (5th Cir. 1964).”

Although there was enough non-hearsay evidence in this record to support a conviction, such evidence was not overwhelming, as in Lutwak, nor so narrowly restricted in the number of statements.

The court erred in failing to limit the effect of the hearsay evidence to the impeachment of Clewis in conformity with the rules prescribed in Lutwak and Apollo.

On February 7, 1973, defendant Clewis, who was the manager of the Mobile Auditorium wrote Don Fox of Beaver Productions in New Orleans and enclosed copies of a contract covering the Curtis Mayfield Concert. Fox replied on the 9th and stated that after talking to Mr. Lambert on the phone they had decided to cancel the concert, giving as a reason therefor that there was a group of black people in Mobile who were asking 10-15% to promote the Curtis May-field show, and that if they did not cooperate those people would picket the show. Also, after talking with Ricky Williams he (Williams) had informed them that the black preachers would boycott the show because it was on Sunday night. During the testimony of witness Lambert, Assistant Manager of the Auditorium, the letter of the 9th of February was offered and received in evidence without limitation and over objections timely made. It was not a business record within the purview of 28 U.S.C. § 1732, was damaging hearsay as to appellants, and was erroneously admitted as to them. Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645; Hussein v. Isthmian Lines, Inc., 5 Cir., 405 F.2d 946; United States v. Shiver, 5 Cir., 414 F.2d 461; United States v. Sherfey, 6 Cir., 384 F.2d 786.

During his cross-examination Clewis offered in evidence and the court admitted the complete record of the minutes of the meetings of the Auditorium Board of Directors. The minutes contain Cle-wis’ reports to the Board and contain extremely damaging hearsay statements as to Beasley and incidentally as to Finley because of his association with Beasley. In the minutes of March 5, 1969, it is stated that: “James Brown (of the James Brown Show) told Mr. Clewis by phone that he would rather not be a part of what seemed to be the threat of a major riot, as Beasley and his group were extreme militants.” From the minutes of February 17, 1971, we quote: “When I returned from the International Promoters Association meeting in New York, it was rumored that blacks were blackmailing promoters of black shows and asking a percentage to be paid to black promoters or they would boycott the building. — I was told if they did not have a black promoter here for this show there would be a boycott so I informed the promoters what I had been told — Mr. Kinsaul said he was told by Dickey Diamond if they did not hire a black promoter, they would be boycotted.”

The fact that the statements of Clewis were included in his reports to the Board did not make them admissible for the truth of what was stated. Their mere recordation imported no guaranty of their truth.

The court in United States v. Burruss, 4 Cir., 418 F.2d 677, referring to the purpose of the Business Record Act, said:

“The act was not designed, however, to facilitate the introduction of hearsay as to which the reporter, if he appeared in person, would not be allowed to testify. The police officer who made the report would not have been permitted to tell what the owner of the car told him, for the purpose of establishing the truth of the owner’s statement. Similarly, if the testimony is reduced to record form it continues to be inadmissible.”

The court erred in admitting the minutes. United States v. Shiver, supra; United States v. Graham, 6 Cir., 391 F.2d 439. See also, Yates v. Bair Transport, Inc. (S.D.N.Y.) 249 F.Supp. 681, where there is an extensive review of the authorities.

We are again presented with the charge held to be error in Mann v. United States, 5 Cir., 319 F.2d 404, 409, cert. den., 375 U.S. 986, 84 S.Ct. 520, 11 L.Ed.2d 474. Mann has been followed, distinguished, explained and qualified. In view of the posture of the case at this point, we deem it unnecessary to further analyze that case or .the decisions directed to it. Upon a retrial the court will not overlook our language in United States v. Wilkinson, 5 Cir., 460 F.2d 725, 734, wherein we ruled:

“We hold today that the use of the Estes’ [Estes v. United States, 335 F.2d 609 (5th Cir. 1964), cert. denied 380 U.S. 926, 85 S.Ct. 884, 13 L.Ed.2d 814] ‘rebuttable presumption’ language and Mann’s ‘So unless the contrary appears’ language, should be discontinued; and where the nature of the case and the remaining portions of the charge do not alleviate the problem created, convictions based upon verdicts returned by juries so instructed will not be allowed to stand.”

Finley’s written motion for a severance was based upon his joinder with Beasley. His brief deals with his joinder with Clewis. Clewis will not be a defendant upon a retrial. But in view of a possible reassignment of the motion as to a joinder with Beasley, we deem it well to observe that severance is a matter committed to the sound discretion of the trial judge. Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 99 L.Ed. 101; Tillman v. United States, 5 Cir., 406 F.2d 930, 934-935, cert. den. 395 U.S. 830, 89 S.Ct. 2143, 23 L.Ed.2d 742. We find no abuse of the court’s discretion in denying the motion.

The other alleged errors referred to herein, and others referred to in the briefs, are without merit.

The case is reversed for a new trial as to both appellants.

Reversed.

      . “(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.”

      . In response to Clewis’ initial denial that Finley and Beasley had approached him and wanted five percent commission on all black shows in the Mobile Municipal Auditorium, Brannan testified:
      “A He [Clewis] stated that Finley and Beasley had approached him and wanted five percent commissions on all black shows in the Municipal Auditorium.
      “A He said he told them that Soul Productions existed being Mr. Finley and Mr. Beasley and Mr. Williams, and these people wanted five percent, and if they were not paid the show would be boycotted by the black people, no advertising would be conducted in any of the black businesses and that any posters put up by other than this organization would be torn down.”
      On further cross, Clewis testified:
      “Q All right sir. Now, at that time,' on February 22nd, did you tell Agent Coats there that Mr. Beasley informed you that he wanted to get in the production business?
      A Yes sir, he did.
      Q Now, did you tell him that, ‘later on in 1969 James H. ‘Doc’ Finley phoned him’— that’s you — ‘phoned and told you that he and Beasley had their own productions company, Soul Productions, Incorporated, and they wanted five percent of the gross take on every black show that came to Mobile, Alabama?’ .
      Well, did they tell you that they wanted five percent of the gross take on every black show?
      A That they promoted?
      Q Yes sir.
      A That they promoted or worked with. Yes sir. But that’s normal throughout the country.”
      “Q I am asking did you tell the agents that Mr. Finley told you that he would guarantee that no posters or billboards would be torn down and no blacks would boycott or demonstrate at the auditorium.
      A Where they put the placcards and things. Yes sir.
      Q Sir?
      A Where they put their placcards and all, yes sir, they would not be torn down where they put their placcards.
      Q Where they put their placcards?
      A Yes sir.
      Q Where they put their placcards?
      A Yes sir.
      Q What about a boycott and demonstration, did they say there would be no demonstrations?
      A They never told me nothin about demonstrations. Since I think of October ’70 I never heard that word.”
      In rebuttal Coats testified:
      “A Finley further stated that they could guarantee no posters or billboards would be torn down and no blacks would demonstrate or boycott the auditorium.
      Q Now, the last paragraph on that first page, do you see that, sir?
      A Yes sir.
      Q Did Mr. Clewis tell you that?
      A Yes sir.”
      On further cross Clewis testified:
      “Q Did you further tell those agents that on that same day in that same interview that Mr. Finley told you or stated that they could guarantee no posters or billboards would be torn down and that no blacks would demonstrate or boycott the auditorium?
      A Yes sir.”
      In further rebuttal Coats testified:
      “A Clewis stated that it was along about this time that Beasley informed him that he wanted to get in the promotion business. Shortly after this in 1969 James H. ‘Doc’ Finley phoned him and told him that he and Beasley had their own productions company, Soul Productions, Incorporated, and that they wanted at least five percent of the gross take on every black show that came to Mobile, Alabama.”

      . “As a general rule it is reasonable to infer that a person ordinarily intends all of the natural and probable consequences of acts knowingly done or knowingly omitted. So, unless the evidence in this case leads you to a different or contrary conclusion, you may draw the inference and find that the accused intended all of the natural and probable consequences which one standing in like circumstances and possessing like knowledge should reasonably have expected to have resulted from any acts knowingly done or knowingly omitted by him.”