author: COFFIN, Chief Judge.

text:
    Laurette R. RAYMOND et al., Plaintiffs-Appellees, v. RIEGEL TEXTILE CORPORATION, Defendant-Appellant.
    No. 73-1151.
    United States Court of Appeals, First Circuit.
    Submitted July 16, 1973.
    Decided Sept. 20, 1973.

      Shane Devine and Devine, Millimet, Stahl & Branch, Manchester, N. H., on brief for defendant-appellant.
    Dort S. Bigg, and Wiggin, Nourie, Sundeen, Pingree & Bigg, Manchester, N. H., on brief for plaintiffs-appellees.
    Before COFFIN, Chief Judge, McEN-TEE and CAMPBELL, Circuit Judges.
   COFFIN, Chief Judge.

This is an appeal from an award of damages for injuries resulting from an accident in which appellee, Therese Raymond, a child of twelve, was burned when a nightgown made of flannelette material manufactured by appellant burst into flames within two seconds of contact with a hot grill on an electric range.

The law applied in this diversity suit by the court below was the law of New Hampshire: “One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer . . . . ”

The district court as trier of fact found that the “flannelette material was unreasonably dangerous to the user” because of “its short ignition rate and the lack of any effective fire retardant materials in the fabric.” The record indicates that from the evidence presented the district court’s findings are adequately supported.

Appellant challenges the court’s award on the ground that the material in question met the standards of flammability established by the federal government under the Flammable Fabrics Act, 15 U.S.C. §§ 1191 et seq. Appellant further asserts that the 1967 amendment to the Act providing that “this chapter is intended to supersede any law of any State . . . inconsistent with its provisions”, 15 U.S.C.A. § 1203, precludes New Hampshire from applying any other standard.

The central issue presented by this case is, therefore, whether the applicable New Hampshire standard of tort liability is “inconsistent” with the provisions of the federal Act. The Flammable Fabrics Act provides for injunction, seizure of materials, and criminal penalties, for violation of flammability standards promulgated by the Secretary of Commerce pursuant to 15 U.S.C.A. §§ 1193 and 1201. The Act makes no provision for private relief for those harmed in accidents involving flammable fabrics.

The legislative history indicates that the 1967 amendments which included the “supremacy clause” were, as a group, intended to increase the protection of consumers. The amendments were designed to permit the Secretary of Commerce “to continually update flammability standards to keep pace with new technological processes developed by the industry”. 1967 U.S.Code Cong. & Admin.News, p. 2134. Up until that time, because legislative action was required, no new standards had been promulgated for fourteen years. By creating a means for the Secretary of Commerce to make revision through administrative process, the Congress hoped to facilitate an improvement of the applicable standards which were then thought to be deficient. We note that at the time of this case the standards had not as yet been updated.

The evident solicitude of Congress for the plight of burn victims who are most often the very young and the aged 7must be taken into consideration when interpreting the “supremacy clause”. We hold, therefore, that New Hampshire’s application of its strict liability standard in tort actions involving injury from burning clothing is not “inconsistent with [the] provisions” of the Flammable Fabrics Act.

The district court considered appellant’s compliance with federal standards as relevant to a defense to the claim, see Schreiber & Rheingold, Products Liability 1:60 (P.L.I. 1967); 1 Frumer & Friedman, Products Liability § 8.07 [1]. However, the federal standard was rejected as a measure of defectiveness or unreasonable danger under New Hampshire law. The district court measured “unreasonable danger” in light of approximately normal conditions like those in effect when a garment is being worn and is accidentally and non-negligently exposed to heat or flame. The judge, as trier of fact, found that the ignition rate of the garment in question left no time for instinctive reaction between the time of impingement of the flame and the time the material burst into flames. This is a standard fully consistent with the Restatement Rule which is geared to protect the consumer from conditions not contemplated or apparent that are unreasonably dangerous for normal handling and consumption. Restatement (Second) of Torts § 402A, comments g & h (1965).

It is an accepted principle that standards of criminal statutes need not control tort recovery:

“A tort is not the same thing as a crime, although the two sometimes have many features in common .” Prosser, The Law of Torts 3d ed. 7 (1964).
“Criminal cases may be useful as guides to the type of conduct which the law will condemn or excuse, and the existence of a criminal statute may indicate a legislative policy which the courts will further by creating tort liability. But such conclusions do not always follow, and the criminal law must be regarded as a very unreliable analogy to the law of torts.” Id. at 9.

The dichotomy between criminal and tort law has been codified in the Restatement of Torts: “Compliance with a legislative enactment or an administrative regulation does not prevent a finding of negligence where a reasonable man would take additional precautions”. Restatement (Second) of Torts § 288C (1965). While this section applies to negligence cases, it also reflects a general assumption that criminal law has no necessary implications for tort law: an “enactment or regulation may . provide only for criminal liability, and not for civil liability ... In such eases the initial question is whether the legislation or regulation is to be given any effect in a civil suit. Since the legislation has not so provided, the court is under no compulsion to accept it as defining any standard of conduct for purposes of a tort action.” Id. at § 286 comment d.

Since the Flammable Fabrics Act did not provide private civil remedies and does not preclude state development of such remedies, the states are not limited to applying the federal criminal and regulatory standards in civil cases involving burns from ignited fabrics.

Affirmed.

      . Restatement (Second) of Torts § 402A (1965) adopted by New Hampshire in Buttrick v. Lessard, 110 N.H. 36, 260 A.2d 111 (1969).

      . It does not appear from the record whether the argument concerning the supremacy clause was made to the district court. In any event, that court did not discuss the clause in its opinion. Instead, it addressed itself to the claimed inadequacy of the federal standards. See, e. g., E. Swartz, Products Liability — The Torch Cases, 76 Case & Comment 5-6 (1971).

      . 15 U.S.C.A. §§ 1195 and 1196.

      . The Act provides for hearings where findings about the materials in question can be made and regulations promulgated, 15 U.S. O.A. § 1193(b). It also provides for challenge by interested parties, § 1193(e)(1), and for continuing study of new testing methods and new methods of reducing flammability, § 1201.

      . See 1967 U.S.Oode Cong. & Admin.News, p. 2132.

      . Id. at 2133; “Each year in the United States alone more than 8,000 persons die from burns and another 300,000 are hospitalized. A special heartbreak is that 40 percent of these victims are children under 10 years of age.” James H. Winchester, New Techniques Improve the Care of Burns, The Modern Hospital, Vol. 108, No. 3, p. 101 (March, 1967).

      . See LaGorga v. Kroger Co., 275 F.Supp. 373 (W.D.Pa.1967) (refusal to grant judgment n. o. v. for defendant where the jury awarded damages for burns due to a jacket that both parties stipulated was not in violation of 15 U.S.C.A. § 1191 et seq.) ; Ingalls v. Messner, 11 Wis.2d 371, 105 N.W.2d 748 (Wis.1960) (sustained recovery in tort suit for burns where the fabric met Federal Flammability Standards) ; Sherman v. Low-enstein & Sons, Inc., 28 A.D.2d 922, 282 N. Y.S.2d 142 (2d Dept.1967) (defendant’s contention that he could not be held liable because of compliance with 15 U.S.C.A. § 1191 was rejected).

      . Appellant’s other contention concerning an exhibition of burning a fabric in the courtroom is also without merit. The trial judge has discretion in admitting evidence, Walker v. Firestone Tire & Rubber Co., 412 F.2d 60, 63 (2d Cir. 1969), and while we might have found it error to permit the demonstration before a jury, we find no fault with the court’s ruling.

      . Bee also Hubbard-Hall Chemical Co. v. Sil-verman, 340 F.2d 402 (1st Cir. 1965). The court in applying the Federal Insecticide, Fungicide and Rodenticide Act stated: “Nor is it argued that in enacting the Federal . . . Act, Congress had occupied the whole field of civil liability between private parties in tort actions .... [D]e-fendant’s product having had its impact in Massachusetts upon plaintiffs’ intestates, the governing law is the local common law of this Commonwealth.” Id. at 405; Stevens v. Parke, Davis & Co., 9 C.3d 51, 107 Cal. Rptr. 45, 507 P.2d 653 (1973) (compliance with Federal Food, Drug and Cosmetic Act did not preclude tort liability) ; Arata v. Tonegato, 152 Cal.App.2d 837, 314 P.2d 130 (Dist.Ct.App.1957) (same) ; Contra, Lewis v. Baker, 243 Or. 293, 413 P.2d 400 (1966) (Food and Drug Administration approved drug is as a matter of law reasonably safe).


source: Caselaw Access Project

author: MERRILL, Circuit Judge:

license: Public Domain

text:
    SECURITY FIRE DOOR COMPANY, a corporation, Plaintiff-Appellant, v. COUNTY OF LOS ANGELES et al., Defendants-Appellees.
    No. 71-2654.
    United States Court of Appeals, Ninth Circuit.
    Sept. 7, 1973.

      Joseph Paul Bregman (argued), Gel-fand, Malamed, Susman & Bregman, Beverly Hills, Cal., for plaintiff-appellant.
    Mark G. Ancel (argued), Baker, An-cel & Redmond, Los Angeles, Cal., Edward F. Mannino (argued), Philadelphia, Pa., J. W. Malsbury, Deputy County Counsel, Los Angeles, Cal., Kenneth P. Kimmel, Beverly Hills, Cal., Philip Mirecki, Lawrence S. Ross, Beverly Hills, Cal., Baker, Ancel & Redmond, Los An-geles, Cal., for defendants-appellees.
    Before MERRILL, HUFSTEDLER and CHOY, Circuit Judges.
   MERRILL, Circuit Judge:

Security Fire Door Company (“Security”) has brought this private antitrust action alleging a conspiracy among the defendants-appellees to prepare specifications for a county hospital construction project in such a manner as to exclude all competition upon the dumbwaiter system to be installed as a part of the project, with the result that defendant-appellee Guilbert, Inc., was the only supplier qualified to bid. Security asserts that this conduct violates § 1 of the Sherman Act, 15 U.S.C. § 1, and California’s Cartwright Act, Cal.Bus. & Prof.Code § 16720. It seeks treble damages. Upon motion of defendants-appellees, the action was dismissed for lack of subject-matter jurisdiction, Fed. R.Civ.P. 12(b)(1), and failure to state a claim upon which relief could be granted, Fed.R.Civ.P. 12(b)(6). This appeal followed.

Defendants-appellees, other than the County and Guilbert, were architects and representatives of the County who prepared plans and specifications for the hospital project. The complaint alleges that defendants-appellees conspired to, and did in fact, prepare dumbwaiter specifications as follows:

“General-Automatic Loading Specifications:
The Dumbwaiter Contractor shall provide the dumbwaiter with a Guilbert Cargomaster System, or a system by Security, Peele or Lamson, of a design which has been in successful use for at least three years and arranged for automatic handling of cars, including the following materials and services: (Guilbert Cargomaster System No’s and Specifications used to establish quality, operations, size and function).”

It is alleged that the specifications were “intentionally and deliberately drawn and interpreted by said defendants in such a manner so as: to exclude from public competition on said project all manufacturers and producers of dumbwaiters, save and except defendant, GUILBERT, INC.; to discriminate against all manufacturers and producers of dumbwaiter systems, save and except defendant, GUILBERT, INC.; to create a facade of free competition among manufacturers when, in fact, there was none. * * *”

The question presented is whether this complaint alleges a conspiracy in restraint of trade in violation of § 1 of the Sherman Act and the California Cartwright Act. We hold that it does not and accordingly affirm.

The alleged conspiracy here was between the supplier of a product and the purchaser (and its representatives). It is difficult to conceive how such a “conspiracy” can effect a restraint of trade in the antitrust sense.

Once a purchaser’s choice of product has been exercised competition is, of course, at an end. However, a purchaser is free to choose the product he desires without rendering himself an antitrust conspirator. The proscription against restraint of trade in this context seeks only to assure that the choice of product has been made freely under circumstances where the play of competition has been available rather than in response to anticompetitive factors such as coercion on the part of the supplier or agreements between suppliers not to compete with each other. If anticompetitive factors have foreclosed a free choice by the purchaser, he is not thereby converted into a conspirator. He is, instead, a victim.

Here the choice of product by the purchaser, Los Angeles County, was expressed in the specifications. There is nothing alleged in the complaint to suggest that this choice was made other than in an atmosphere of free competition among suppliers. So far as the complaint alleges, each supplier was perfectly free to tout the virtues of his particular dumbwaiter system in an effort to secure favorable specifications. It would appear that the architects simply favored the Guilbert system. In doing so they and their principals can hardly be charged with an antitrust conspiracy.

Security’s complaint appears to be that under California’s competitive bid statute the choice should not have been made at that time, and it should not have been based upon the characteristics and features specified as desirable; rather the choice should have awaited the outcome of the bidding procedure, and it should have been based upon factors of cost.

The competitive bid statute may well serve to limit the freedom of public purchasers to make specific choices on the basis of preference rather than cost. However, a violation of the letter or spirit of a competitive bid statute, unaccompanied by anticompetitive factors bearing upon the exercise of choice of product, does not create an antitrust problem. Even a direct contract for the Guilbert system, without any pretense of putting the job out to bid (and thus a clear violation of the competitive bid statute), would not in itself have constituted a restraint of trade under the Sherman Act if the selection of Guilbert had been made in an atmosphere free from anticompetitive restraints.

Judgment affirmed.

      . The Cartwright Act was patterned after the Sherman Act. All parties agree that if a Sherman Act violation is alleged in this complaint, a Cartwright Act violation is also and that the reverse is true. Accord, Wid-dows v. Koch, 263 Cal.App.2d 288, 69 Cal. Rptr. 464 (4th Dist. 1968).

      . The District Court did not reach this question. It held that since the alleged restraint of trade was pursuant to governmental action, recovery was precluded by Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 D.Ed. 315 (1943), where government action by a state was exempted from application of the Sherman Act. Appellees support the judgment of the District Court upon that ground and also upon the ground that Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), and United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965), provide exemption from application of the antitrust laws in cases involving efforts to secure favorable policy decisions through influencing public officials. In response, appellants contend that these exemptions do not apply under the circumstances of this case, relying on George R. Whitten, Jr., Inc. v. Paddock Tool Builders, Inc., 424 F.2d 25 (1st Cir.), cert, denied, 400 U.S. 850, 91 S.Ct. 54, 27 L.Ed.2d 88 (1970), where it was held that the Parker v. Brown and Noerr/Pennington exemptions do not apply in cases involving commercial dealings with government; that those engaged in such dealings should be subject to the same antitrust limitations as apply in dealings with private consumers. The court there reversed summary judgment for defendants and remanded for a determination of whether an antitrust violation had occurred.
      Since we hold that no antitrust violation is alleged, we need not reach the question of exemption. We assume, arguendo, that Whitten correctly holds that the exemptions do not apply in a case such as this.

      . Whitten (supra note 2) is quite a different case involving a different sort of conspiracy ■ — one between the supplier and its dealers and representatives to eliminate competition and thus to achieve a favorable exercise of choice by the purchaser not based on the free play of competition. A violation of § 2 of the Sherman Act as well as § 1 was alleged. In remanding to the District Court to ascertain whether a violation of the Sherman Act had occurred, the court noted that “Paddock’s conduct may on inspection prove to be the muscle flexing of a budding monopolist or it may prove to be no more than a vigorous selling effort. * * * ” 424 F.2d at 34.


author: CHOY, Circuit Judge:

text:
    Lawrence STEWART, Plaintiff-Appellee, v. Frank C. PEARCE et al., Defendants-Appellants.
    No. 71-1875.
    United States Court of Appeals, Ninth Circuit.
    Sept. 17, 1973.

      Keith C. Sorenson, Dist. Atty., James M. Parmelee, Chief Civ. Deputy Dist. Atty., Redwood City, Cal., for defendants-appellants.
    Dennis J. Roberts, of Kennedy & Rhine, San Francisco, Cal., for plaintiff-appellee.
    Before TRASK and CHOY, Circuit Judges, and TAYLOR, District Judge..

       The Honorable Fred M. Taylor, United States District Judge for the District of Idaho, sitting by designation.

   CHOY, Circuit Judge:

This is an appeal from a district court order granting Stewart a preliminary injunction. The injunction mandates appellants Pearce and other officers and Governing Board members of San Mateo College (the College) to reinstate Stewart as an instructor in English because his procedural due process rights under the Fourteenth Amendment were violated. We affirm.

Since June of 1968, Stewart has been employed by the College as an instructor in English, and was under contract with the College for the 1970-71 academic year.

During the 1969-70 school year Stewart participated in several campus antiwar protest activities which were critical of the Vietnam war, and in one instance particularly disparaging of the College administration. On July 28, 1970 pursuant to a state statute, Pearce, Dean of Instruction, by letter ordered Stewart to undergo a psychiatric examination to determine his mental competency to perform his duties. Stewart, on vacation at the time, failed to receive that letter, but did receive a similar letter from Ewigleben, the president of the College, dated August 5, 1970. On advice of counsel, and claiming the College administrators’ order was in bad faith, Stewart refused to, submit to the psychiatric examination. No reason for ordering the examination was given by appellants until September 17, 1970, when it was admitted that the 1969-70 activities were the cause.

Upon Stewart’s refusing to submit to the psychiatric examination, Pearce on September 2, ordered him removed from his classroom teaching duties arid reassigned to assisting the librarian without reduction in compensation. Stewart exhausted the College grievance procedures, which resulted in the Governing Council of the Faculty Senate recommending that Stewart be returned to his teaching duties. The College, however, did not heed this recommendation and told Stewart that his library assignment was to continue. Having worked in the library for six weeks in the hope of being returned to teaching, Stewart stopped reporting to the library. On November 25, the College initiated action to dismiss him pursuant to California Education Code §§ 13403-08 for refusal to perform regular assignments without reasonable cause. The mental incompetence proceedings were then dropped.

Stewart thereupon filed this action in the district court for a declaratory judgment, a temporary restraining order, and damages under the Civil Rights Act, 42 U.S.C. § 1983 and 28 U.S.C. § 1343. In granting the preliminary injunction requiring Stewart’s immediate reinstatement to his teaching duties, the district court held requisite the minimal due process safeguards of a statement of reasons, notice of hearing, and a hearing in this situation where both the unexplained psychiatric examination order and removal from the classroom were involved.

Appellants make two contentions challenging the district court’s order. First, they contend that Stewart had adequate remedies at law available in the state courts which should have been pursued before a federal action was brought. This argument is foreclosed by Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L.Ed.2d 492 (1960) where the Court held that failure to exhaust state court remedies does not defeat a claim under the Civil Rights Act since “[t]he federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.” Id. at 183, 81 S.Ct. at 482. See also Whitner v. Davis, 410 F.2d 24, 28 (9th Cir. 1969).

Appellant’s second contention is that no due process rights attaeh when an employee is assigned to other duties — in this case, to work in the library; that the transfer of assignment does not involve the deprivation of any interest protected by the due process clause. However, this overlooks the unexplained psychiatric examination order. Since the removal and transfer from the classroom were the consequence of the refusal to submit to that order, the validity of the order must be determined.

We hold the order was constitutionally invalid absent the prior giving to Stewart of reasons, notice of a hearing, and a proper hearing. A hearing is required when any charge is made that “might seriously damage [a person’s] standing and associations in his community .... For ‘[w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.’ ” Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972) citing Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971).

The order by the College to report for a psychiatric examination implied that there existed both reasonable grounds for the order and mental unfitness for the job. Moreover, the order created a “stigma, an official branding” of Stewart. Wisconsin v. Constantineau, supra at 437, 91 S.Ct. 507. “Only when the whole proceedings leading to the pinning of an unsavory label on a person are aired can oppressive results be prevented.” Id. Cf. Jablon v. Trustees of California State Colleges, 482 F.2d 997 (9th Cir., 1973).

Stewart raises several additional arguments for affirmance based on the alleged deprivation of other constitutional rights. Since we hold that his right to due process has been violated, we need not reach these further issues.

Affirmed.

      . Stewart’s employment contract is similar to the one described in Board of Regents v. Roth, 408 U.S. 564 at 566 n. 1, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1970). His formal notice of appointment contained only scant information as to starting date, salary, assignment to the English division and teaching assignment for fifteen units in both fall and spring. There is no further written evidence of a contract, but the trial court’s findings clearly refer to the existence of one.

      . The activities included distributing peace literature, carrying signs, and asking students to boycott classes on November 15, 1969, the Vietnam war moratorium day. Also, on May 6, 1970, immediately after the Kent State shootings, Stewart was one of many speakers before a gathering of students in the student union cafeteria. There, in an emotional speech he sharply criticized both the war and the College president. Finally, on May 11, Stewart participated in a “guerilla theater” vignette in which he portrayed a symbolic authority figure who ends his performance by burning a copy of Roberts’ Rules of Order.

      . California Education Code § 13411 provided :
      No employee shall be suspended on a charge of incompetency due to mental disability until the governing board has appointed an independent recognized psychiatrist to examine him, nor unless the psychiatrist reports in writing to the governing board that the employee is, in his opinion, suffering from mental disability of such character as to render him incompetent to perform his duties. The employee against whom the charge is filed shall submit to the examination, but shall be entitled to be represented thereat by a psychiatrist or physician of his own choice, and the report of the psychiatrist or physician selected by him shall be filed with the governing board at the request of the employee. The employee shall, upon request, and before action by the board, be furnished with a complete copy of all reports made by the psychiatrist appointed by the governing board.
      The section has since been amended to provide for a written statement of facts and an opportunity to appear within ten days to explain or refute the charges. See California Education Code § 13411(b) (West Supp. 1973).

      . Stewart’s working in the library after being ordered to report there pending the grievance proceedings did not constitute a waiver of his right to a proper hearing. Waiver of constitutional rights is not lightly inferred and every reasonable presumption against such a waiver is indulged. Fuentes v. Shevin, 407 U.S. 67, 94-95, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972).


author: PER CURIAM.

text:
    Sammie L. NELSON, Petitioner-Appellant, v. John MORIARTY, Superintendent of Massachusetts Correctional Institution at Walpole, Massachusetts, Respondent-Appellee.
    Misc. No. 73-8048.
    United States Court of Appeals, First Circuit.
    Submitted Aug. 21, 1973.
    Decided Sept. 20, 1973.

      Sammie L. Nelson, pro se on application for certificate of probable cause and petition for emergency relief.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   PER CURIAM.

Petitioner, Sammie L. Nelson, is presently confined at the Massachusetts Correctional Institution, Walpole, Massachusetts, on, inter alia, a sentence for rape and abuse of a child (statutory rape). This is an application for a certificate of probable cause, the district court having dismissed Nelson’s petition for a writ of habeas corpus on an opinion by a magistrate, and refused a certificate. Petitioner has also moved for emergency relief consisting of an order that the district court conduct an evi-dentiary hearing on petitioner’s claim that he was denied effective assistance of counsel at his trial, and an order that he be provided with an investigator to assist him in producing exculpatory witnesses for the hearing.

Petitioner claims that his honest belief that the prosecutrix of the statutory rape charge was over sixteen years' of age should constitute a defense, of constitutional dimensions, to statutory rape. The effect of mens rea and mistake on state criminal law has generally been left to the discretion of the states. See, e. g., Powell v. Texas, 392 U.S. 514, 535-536, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968); Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957); Packer, Mens Rea and the Supreme Court, 1962 Sup.Ct. Rev. 107. The Supreme Court has never held that an honest mistake as to the age of the prosecutrix is a constitutional defense to statutory rape, see, e. g., id. at 140-41, and nothing in the Court’s recent decisions clarifying the scope of procreative privacy, see, e. g., Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Stanley v. Georgia, 394 U. S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), suggests that a state may no longer place the risk of mistake as to the prosecutrix’s age on the person engaging in sexual intercourse with a partner who may be young enough to fall within the protection of the statute. Petitioner’s argument is without merit.

We agree with the magistrate that petitioner’s allegations that the trial court admitted various allegedly unreliable, hearsay, or irrelevant testimony do not.raise due process issues of constitutional magnitude and do not entitle petitioner to habeas corpus relief. We similarly agree that petitioner has not exhausted available state remedies with respect to other claims of prejudicial action by the prosecutor.

The only claim that may merit further discussion is petitioner’s allegation that he was denied effective assistance of counsel. This claim also forms the basis of petitioner’s motion for emergency relief, since this relief would consist essentially of ordering a hearing on this aspect of petitioner’s habeas corpus claim and assisting him in its presentation. Petitioner alleges that his counsel failed to confer with him adequately before trial and failed to conduct an adequate investigation, and that therefore petitioner was unable to call certain exculpatory witnesses.

In order to be granted federal habeas corpus relief, it is elementary that the petitioner must have exhausted his available state remedies. 28 U.S.C. § 2254(b). The ineffective assistance of counsel claim was heard before a Special Master appointed by the Massachusetts Supreme Judicial Court; the Special Master filed a report recommending that the judgments be affirmed; and the report was confirmed by a single justice of the Supreme Judicial Court. Petitioner has filed a timely claim of exception and bill of exceptions, and it appears that the matter is presently before the Supreme Judicial Court. Ordinarily, this pendency of the state appeal would end our inquiry, since while the claim is still being heard in the state courts this court will not entertain the same claim on habeas corpus in the absence of unusual circumstances. “We cannot too strongly condemn the practice of proceeding with post trial relief in two courts simultaneously, except in the unusual circumstance that the state court proceeding is not going ahead.” Belbin v. Picard, 454 F.2d 202, 204 (1st Cir. 1972). Moreover, appeal from the decision of a single justice to the full Supreme Judicial Court is ordinarily required for exhaustion. Id.

Petitioner claims, however, that further pursuit of this state appeal would be futile. At the hearing before the Special Master, petitioner allegedly was inadequately represented by counsel, in that his counsel failed to secure the presence of the same exculpatory witnesses which his prior counsel also failed to produce at the original trial. The Special Master allegedly relied in large part on the absence of these witnesses in making his findings. Petitioner claims that review of these findings by the Supreme Judicial Court will thus be fruitless since only a full rehearing, with adequate counsel, will bring out the testimony of these witnesses and prove petitioner’s claim.

Petitioner does not state what issues are being raised in his state appeal. Presumably he could present the issue of inadequate representation of counsel at the Special Master’s hearing, or such possible defects as failure to grant continuances necessary to secure the presence of witnesses, to the full Supreme Judicial Court. See, e. g., Mass.Gen.L. c. 211 § 5; c. 211 § 3; Buchanan v. O’Brien, 181 F.2d 601 (1st Cir. 1950). Moreover, even if these issues have not as yet been raised the Supreme Judicial Court has broad powers to allow new exceptions to be raised. See, e. g., Mass. Rules of Court 2:35, 351 Mass. 731, 764 (1967); Mass.Gen.L. c. 211 § 3. If these issues are or could be raised on petitioner’s appeal, moreover, the appeal would not be futile since it could result in a rehearing, which, barring a third recurrence of petitioner’s putative misfortune with counsel, would be as likely to vindicate petitioner’s claim as the federal court. Thus, petitioner has given no reason why pursuing his claim in the Supreme Judicial Court would be impossible, or if possible, why it would indeed be futile. Petitioner has not satisfied his exhaustion requirement, and has not stated facts sufficient to justify a relaxation of the requirement on grounds of the futility of exhaustion.

The certificate of probable cause is denied, and the motion for emergency relief is denied.


text:
    RANSBURG ELECTRO-COATING CORP. v. LANSDALE FINISHERS, INC. and Automatic Finishing Systems, Inc. Appeal of AUTOMATIC FINISHING SYSTEMS, INC.
    No. 72-1975.
    United States Court of Appeals, Third Circuit.
    Submitted Under Third Circuit Rule 12(6) July 25, 1973.
    Resubmitted Under Third Circuit Rule 12(6)
    Sept. 4, 1973.

      Joseph Gray Jackson, Edward Lovett Jackson, Eugene Chovanes, Jackson, Jackson & Chovanes, Philadelphia, Pa., for appellant.
    John T. Synnestvedt, J. Donald McCarthy, Synnestvedt & Lechner, Philadelphia, Pa., and Clyde F. Willian, Robert L. Harmon, Hume, Clement, Hume & Lee, Brinks, Willian, Olds & Cook, Ltd., Chicago, 111., for appellees.
    Submitted Under Third Circuit Rule 12(6) July 25, 1973
    Before SEITZ, Chief Judge, and AL-DISERT, Circuit Judge.
    Resubmitted Under Third Circuit Rule 12(6) Sept. 4, 1973
    Before SEITZ, Chief Judge, and AL-DISERT and HUNTER, Circuit Judges.
   OPINION OF THE COURT

PER CURIAM.

The question presented is whether on a motion for summary judgment the district court, 345 F.Supp. 299, properly decided the question of non-party control of a previous patent infringement litigation. The court found that there had been non-party control of the litigation and invoked res judicata to decide a subsequent action pertaining to the same patent. We reverse and hold that the question of control of the previous litigation was for the court as a fact-finder.

The district court had before it an action by Ransburg against Automatic Finishing Systems (AFS) and Lansdale, a customer of AFS. It determined that AFS had controlled the defense of a previous infringement action brought in Georgia by Ransburg against Standard Container, also a customer of AFS. The court invoked the doctrine of res judica-ta against AFS and entered summary judgment in favor of Ransburg. It permitted the action to proceed < to trial against the co-defendant Lansdale only.

We have jurisdiction in this appeal even though the summary judgment was not a final judgment as to all parties. F.R.Civ.Proc. 54(b) does not affect the appealability of orders “granting . . . injunctions,” 28 U. S.C. § 1292(a)(1). Rains v. Cascade Indus., Inc., 402 F.2d 241, 243 (3d Cir. 1968).

It is well established that an appellate court will “look at the record on summary judgment in the light most favorable to . the party opposing the motion. . . . ” Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed. 2d 458 (1962). “The sufficiency of a non-party’s control and participation in litigation is, . . ., a question of fact, to be proved affirmatively by the party invoking the conclusive force of the judgment.” IB Moore, Federal Practice ¶ 0.411 [6] at 1566-67, Standard Acc. Ins. Co. v. Doiron, 170 F.2d 206, 209 (1st Cir. 1948). We are obliged, therefore, to ascertain whether the issue of AFS control over the previous litigation was sufficiently controverted as to require its resolution by the fact-finder.

The question of control is pertinent to controlling legal principles, exemplified by the Restatement of Judgments, § 84:

A person who is not a party but who controls an action, individually or in co-operation with others, is bound by the adjudications of litigated matters as if he were a party if he has a proprietary or financial interest in the judgment or in the determination of a question of fact or of a question of law with reference to the same subject matter or transaction; if the other party has notice of his participation, the other party is equally bound.

Although the evidence adduced in the summary judgment proceedings seems heavily weighted in favor of Ransburg, preponderance of the evidence is not the test in a summary judgment proceeding; rather the test is whether a genuine issue of material fact remains after examination of pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits. AFS argues that certain aspects of the conduct of Standard’s litigation counsel in Georgia demonstrated an independence of trial strategy beyond the control of AFS.

After examination of the record, we are persuaded that the control issue is sufficiently controverted as to present a question for the court as a fact-finder.

The order of the district court granting summary judgment will be reversed and the case remanded for proceedings not inconsistent with this opinion.

      . Ransburg relies upon evidence that the accused electrostatic spray system in the Standard case was purchased by Standard from AFS; Standard was not using and had no intention of using the accused system, it refused to become involved in the litigation with Ransburg and told AFS if it wanted to “take care of the litigation” Standard had no objection; Standard refused to pay any of the financial cost of the defense and AFS agreed to take care of all costs; AFS did “take care of the trial” and preparation for trial; and AFS either refused or was unable to give its “assurances” that it could or would be responsible for the appeal, as a result of which Standard terminated the appeal and the district court determination became final.
      Additionally, Ransburg emphasizes that while officers and employees of AFS appeared as witnesses in the Standard suit and attended regularly, no one from Standard appeared and that AFS retained the same defense counsel to represent it in another infringement suit filed by Ransburg against AFS.

      . AFS relies on separate evidence to draw a different inference from the Ransburg evidence. AFS contends that Standard and AFS could have been sued jointly in New Jersey; that electing to pursue Standard alone in Georgia, Ransburg in a sense forfeited any right to bind AFS by that litigation. AFS emphasizes that the trial attorney for Standard was known to Standard, had been used by Standard in a suit prior to the Ransburg-Standard litigation, and was retained by Standard before AFS agreed to pay the costs of the Standard defense. AFS explains the presence of its personnel at the Standard trial and their assistance in the preparation of the defense: Standard’s having ceased the use of the accused system, no one at Standard was familiar with its operation ; that because AFS personnel were familiar with the Standard system they participated in preparation for trial and performed the necessary tests; that decisions were actually made by the attorney in charge of the case, Dana Raymond, and not by AFS. AFS cites one instance in which its judgment or advice was not accepted by the attorney — rather, he overruled AFS’ strategy. AFS claims that this demonstrates it could not veto trial decisions of Standard’s attorney and, therefore, did not control him. Other AFS evidence discloses that the association of AFS personnel with Dana Raymond was occasioned by Raymond’s need for information; that Standard’s management was called by Raymond on occasion; that Raymond was the one actually making the decisions.
      Also AFS contends Standard did not intend to abandon use of the accused system, and contrary to Ransburg’s assertion, was not unconcerned with the outcome of the litigation ; that at one time Standard did not intend to use the system but later Standard arranged for AFS to install another system in Mississippi. Finally, AFS claims the dropping of the appeal was done by Standard, that AFS was not informed until the action had been taken by Standard, at a time when AFS could not do anything about it. AFS argues that Ransburg’s contention that Standard dropped the appeal because AFS could not provide “sufficient assurances” to Standard and Raymond that the costs of the appeal would be taken care of is a speculative argument. AFS contends many reasons could have motivated Standard’s decision.


author: EUGENE A. WRIGHT, Circuit Judge:

text:
    The BLACK COALITION, an unincorporated association, et al., Plaintiffs-Appellants and Cross-Appellees, v. PORTLAND SCHOOL DISTRICT NO. 1 et al., Defendants-Appellees and Cross-Appellants.
    Nos. 71-2503, 71-2493.
    United States Court of Appeals, Ninth Circuit.
    Sept. 25, 1973.

      Glen H. Downs (argued), Legal Aid Service, L. A. Aschenbrenner (argued), Charles J. Merten, John H. Clough, of Marmaduke, Aschenbrenner, Merten & Saltveit, Jay Folberg, Joseph Morehead of Legal Aid Service, Portland, Or., for appellants.
    Clifford N. Carlsen, Jr. (argued), William Stiles, Martin B. Vidgoff of Miller, Anderson, Nash, Yerke & Wiener, Portland, Or., for appellees.
    Before DUNIWAY, ELY and WRIGHT, Circuit Judges.
   EUGENE A. WRIGHT, Circuit Judge:

In this class action for a declaratory judgment in favor of the class and in-junctive relief in favor of three named plaintiffs, the district court was asked to rule that certain disciplinary procedures of the Portland, Oregon School District No. 1 were constitutionally infirm. The court held that the procedures for effecting an expulsion were unconstitutional in part, but that in all other respects the procedures complied with due process requirements. The court denied equitable relief to the three individual plaintiffs. All parties appealed to this court. We affirm the judgment of the district court in all respects.

I. FACTS

The deputy superintendent of schools for Portland School District No. 1 announced “Disciplinary Procedures” in December 1969. These rules contained the following components:

(a) An explanation of the procedure for suspending a student;
(b) An explanation of the procedure for expulsion of a student; and
(c) An explanation of the substantive grounds for disciplinary action.

At issue in the present lawsuit is the constitutionality of these “Disciplinary Procedures,22 as applied in each of the following cases.

1. Gerald Brown. As the result of an alleged assault on a fellow student on January 6, 1970, Gerald Brown was suspended from Roosevelt High School on January 19, and his parents were notified thereof by letter on the same day. The parents were told that Gerald was suspended “pending an investigation for a possible recommendation to the Principal, [defendant Arthur] Westcott, for an expulsion from school.” The January 6 assault was given as the reason for the investigation. The letter did not give the name of the alleged assault victim but Gerald and his parents testified that they knew the basis for the charge. In accordance with the District’s procedures no hearing was held prior to Gerald’s suspension.

Somewhat contemporaneously, a petition was filed in the Juvenile Division of the Multnomah County Circuit Court, alleging the delinquency of Gerald Brown. The high school vice-principal recommended to Principal Westcott that Gerald remain suspended pending the outcome of the Juvenile Court hearing. When it was learned that the hearing was not scheduled until late in February, the school administration determined that Gerald should be readmitted to school, which was done on February 2.

No further disciplinary action was taken against Gerald but the Juvenile Court found him guilty of the assault and reprimanded him. In that proceeding Gerald and three others had stated that he acted in self-defense.

2. Rita Brown. Gerald’s sister, Rita Brown, was suspended from Roosevelt High from January 23 to February 3, 1970, pending a hearing on another Juvenile Court complaint. Her parents were promptly informed of the suspension and the reason therefor and she, too, was allowed to return to school on February 3 because of the delay encountered in Juvenile Court. No hearing was held either before or after her suspension.

The petition filed against her in Juvenile Court alleged an assault on two other girls, both Caucasians. She was found guilty on one charge and was reprimanded. No further disciplinary action was taken against her by the school authorities.

3. Edward Lockridge. Edward Lock-ridge was suspended without a hearing from Grant High School on January 26, 1970 for disruptive influence in class and an assault on another student on that day. The vice-principal of Grant made an investigation to determine whether Lockridge should be expelled. In part because of his long history of assaultive and disruptive behavior, expulsion was recommended and Lock-ridge’s mother was so informed on February 3.

Lockridge’s mother asked for a conference with the principal of Grant as provided in the Disciplinary Procedures. She also asked that she and her son be allowed to bring counsel to the conference, to confront and cross-examine complaining witnesses and to introduce evidence on Lockridge’s behalf. In accordance with the District’s rules, these special requests were denied and, on February 11,1970, this action was filed.

The conference, scheduled for February 13, was postponed pending a disposition of Lockridge’s motion for a temporary restraining order which was heard and denied on February 25, 1970. When the conference with the principal was rescheduled for March 6, neither young Lockridge nor his parents appeared. The principal then informed him and his mother by letter that the boy had been expelled for the remainder of the school year. A further conference with the Area Superintendent of Schools was not requested. In his deposition, Lockridge admitted the assault on the other student on January 26.

II. STANDING

Plaintiffs have attempted to mount an attack on the entire disciplinary framework, whether or not applicable to their cases. It is obvious that they have no standing to make such a broad brushed assault. Communist Party v. Subversive Activities Control Board, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625 (1961). As the Supreme Court said in the Communist Party ease:

“[T]he role of the judiciary in a government premised upon a separation of powers . . . precludes interference by courts with legislative and executive functions which have not yet proceeded so far as to affect individual interests adversely.” 367 U.S. at 72, 81 S.Ct. at 1397.

Gerald and Rita Brown were suspended for relatively short periods pending disposition of their cases in Juvenile Court. These suspensions were effected without a prior hearing and their permanent school records now indicate that they were suspended for alleged assaults on other students. Each has standing to litigate the constitutionality of that part of the disciplinary procedures which permits suspension without a prior hearing, and each is representative of a class which was suspended in a similar manner. Each may also properly raise the contention that the disciplinary procedures are unconstitutionally vague insofar as they provide that a student may be disciplined for assaulting another student.

Edward Lockridge also has standing to object to his suspension without a prior hearing and his expulsion pursuant to regulations allegedly “void for vagueness.”-

Furthermore, he may assert on behalf of the class he represents the contention, accepted by the district court, that the expulsion procedures are unconstitutional for failure to permit the student to confront and cross-examine adverse witnesses and to produce witnesses to testify on his own behalf. The existence of a defense to Loekridge’s individual claim for relief has no effect on the court’s obligation to consider and rule on those issues of law which are common to the claims of Lockridge and the other class members. Mersay v. First Republic Corp. of America, 43 F.R.D. 465, 469 (S.D.N.Y.1968); 3B Moore’s Federal Practice ¶ 23.06-2, p. 23-326.

Plaintiffs do not, however, have standing to challenge on vagueness grounds those portions of the regulations and procedures pursuant to which no individual plaintiff was disciplined. Gesicki v. Oswald, 336 F.Supp. 371 (S. D.N.Y.1971). These individuals “cannot represent a class of whom they are not a part.” Bailey v. Patterson, 369 U.S. 31, 32, 82 S.Ct. 549, 550, 7 L.Ed.2d 512 (1962).

Nor does the Black Coalition have standing to represent those students disciplined under other regulations. While the Black Coalition purports to include within its membership all Black students at Roosevelt High School including, undoubtedly, students disciplined under other portions of the regulations and procedures, an association has standing to represent its members in a class suit only if “there is a compelling need to grant [it] standing in order that the constitutional rights of persons not immediately before the court might be vindicated.” Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920 (2d Cir. 1968). There is no reason in the present case why such individuals as would be or have been prejudiced by any alleged unconstitutionality in the regulations and procedures could not come forward and assert their own claims in court. There being no compelling need to grant the Black Coalition standing, we decline to do so.

III. THE COMMON ISSUES OF LAW

A. TEMPORARY SUSPENSION WITHOUT A PRIOR HEARING

Without hearings, the student plaintiffs were suspended for periods ranging from six school days to six weeks. They contend that they could not constitutionally be suspended from classes without some type of hearing. See Pervis v. LaMarque Independent School District, 466 F.2d 1054 (5th Cir. 1972); Williams v. Dade County School Board, 441 F.2d 299 (5th Cir. 1971); cf. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). See also Stricklin v. Regents of the University of Wisconsin, 297 F.Supp. 416 (W.D.Wis.1969).

The requirement of a prior hearing will depend primarily on the nature of the penalty imposed, the extent to which the underlying facts are in dispute, and the need for swift action to preserve order and discipline within the school. The courts have disallowed expulsions and long-term suspensions unaccompanied by hearings which comport with the standards of due process of law. Perms, supra; Williams, supra; Wasson v. Trowbridge, 382 F.2d 807 (2d Cir. 1967); Woods v. Wright, 334 F.2d 369 (5th Cir. 1964); Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961). But brief suspensions without a hearing have been more readily tolerated. Linwood v. Board of Education of City of Peoria, 463 F.2d 763 (7th Cir. 1972); Dunn v. Tyler Independent School Dist., 460 F.2d 137 (5th Cir. 1972), and cases cited therein at 145.

Brief suspensions are often justified by the interest of school officials in maintaining an atmosphere conducive to learning. The injury caused to assaultive and disruptive students by brief suspensions is minimal compared to the danger posed to the normal functioning of an educational institution by the continued presence of such students. Linwood, supra; Dunn, supra.

Plaintiffs in the present case have taken the position that no student may be suspended for any period of time without a prior hearing. We reject that as a rule of law. Whether the suspensions handed out to Lockridge or the Brown children were of such duration that a due process hearing was required at some point is a question not before us, the parties having agreed to withdraw this problem of “line drawing” from the court’s consideration. We therefore find no error in the district court’s refusal to find that plaintiffs’ constitutional rights were violated in this regard.

B. VAGUENESS.

The plaintiffs challenge the disciplinary regulations as unconstitutionally vague. It is not clear to what extent the void for vagueness doctrine applies to school disciplinary regulations. Compare Soglin v. Kauffman, 418 F.2d 163, 167-168 (7th Cir. 1969) with Esteban v. Central Missouri State College, 415 F.2d 1077, 1087-1089 (8th Cir. 1969). See also Linwood, supra.

“[But] all [courts] seem to agree that the same specificity is not required in college rules as is necessary in criminal statutes.” Sword v. Fox, 446 F.2d 1091,1099 (4th Cir. 1971).

See also Whitfield v. Simpson, 312 F. Supp. 889, 898 (E.D.Ill.1970):

“[G]reater flexibility may be permissible in regulations governing high school students than college codes of conduct because of the different characteristics of the educational institutions, the differences in the range of activities subject to discipline, and the age of the students.”

Under no view could the regulations as applied to these individual plaintiffs be regarded as too vague. Chapter 4, Section A, Paragraph 12 of the Regulations of Portland School District No. 1 provides:

“A pupil whose presence is seriously detrimental to the best interests of the school may be suspended or expelled in accordance with administrative rules and procedures established by the Superintendent.” (Emphasis supplied.)

Disciplinary Procedures in the Portland Public Schools,-as promulgated in a bulletin from the office of the Superintendent, December 3, 1969, further provide :

“Abuses that most often necessitate disciplinary action that may range from a conference with a teacher to an expulsion or exclusion are:
*•***•**
“4. Assaults, . . .”

The named plaintiffs were suspended for committing assaults on others. In no way can it be said that these regulations and procedures were so vague that the plaintiffs were unable to determine that their conduct made them subject to suspension or expulsion.

As we have noted previously, plaintiffs lack standing to challenge the remaining regulations and procedures on vagueness grounds.

C. EXPULSION WITHOUT A DUE PROCESS HEARING

The district court held that the expulsion procedures were unconstitutional for failing to provide a hearing at which the student could be represented by counsel and, through counsel, present witnesses on his own behalf, and cross-examine adverse witnesses. Other courts have held that a hearing incorporating these safeguards must be held before or shortly after a child is expelled or suspended for a prolonged or indefinite period. Esteban v. Central Missouri State College, 277 F.Supp. 649 (W.D.Mo.1967). See also Goldberg v. Kelly, supra, and its companion, Wheeler v. Montgomery, 397 U.S. 280, 90 S.Ct. 1026, 25 L.Ed.2d 307 (1970). See, generally, C. Wright, The Constitution on the Campus, 22 Vand.L.Rev. 1027 (1969); W. Seavey, Dismissal of Students: “Due Process,” 70 Harv.L.Rev. 1406 (1957). We agree and therefore affirm the district court’s holding that the expulsion procedures followed by defendant school board were unconstitutional.

IV. INDIVIDUAL RELIEF

A. THE BROWNS.

Because of our holding in Parts II A and II B of this opinion that the suspensions of the Brown children were constitutional, no question of individual relief from the impact of those suspensions is presented. However, a different issue is presented by the Browns’ contention that their constitutional rights were violated because their permanent school records indicate that they were suspended in January 1970 for assaultive conduct, although the school district has held no hearings on either matter.

Even assuming that there is a right to an unblemished permanent school record, which can be denied only in accordance with due process, we do not see that the right was violated here. The records show that each of the Brown children was suspended in January 1970. This correctly recites the facts. Further, the record in each case is supported by the findings made by the Juvenile Court that assaults did take place. An educational institution is certainly entitled to rely on a factual determination made in a court of law.

B. EDWARD LOCKRIDGE.

Although the district court found the expulsion procedures followed by defendants to be unconstitutional, it denied equitable relief to plaintiff Lock-ridge. We agree. It is undisputed that Lockridge had a long history of assaultive and disruptive behavior. Lockridge admitted the assault upon a student considerably smaller than himself on the day in question and admitted frequent encounters with the same student over the previous few years. In short, Lock-ridge admitted all of the essential facts which it is the purpose of a due process hearing to establish. There being no reason to order defendant to reopen Loekridge’s case and hold a new hearing, ' the district court properly declined to do so.

V. CONCLUSION

The judgment of the district court is in all respects affirmed.

      . During the trial of the case the plaintiffs called to the attention of the court the situation of a fourth person, Colin Thompson. Thompson was not made a party plaintiff in accordance with Rules 15, 21, Fed.R.Civ.P. Therefore plaintiffs are in no position to contend that issues which Thompson might have had standing to raise as a representative plaintiff are properly before the court. See Rule 23, Fed.R.Civ.P.


author: PER CURIAM: HUFSTEDLER, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Denver Gene RICHARDSON, Defendant-Appellant.
    No. 73-1245.
    United States Court of Appeals, Ninth Circuit.
    Sept. 18, 1973.
    Terry Amdur (appeared), of Amdur, Bryson, Caplan & Morton, Marina del Rey, Cal., for defendant-appellant.
    Brendan D. Lynch, Asst. U. S. Atty., (appeared), William D. Keller, U. S. Atty., Eric A. Nobles, Joel Levine, Asst. U. S. Attys., Los Angeles, Cal., for plaintiff-appellee.
    Before HUFSTEDLER and WRIGHT, Circuit Judges, and NIELSEN, District Judge.

       Of the Southern District of California.

   PER CURIAM:

Richardson appeals from his conviction for failure to report for a physical examination in violation of 50 U.S.C. App. § 462. Trial was to the court, which found Richardson not guilty on a second count of failure to report for induction. We affirm.

Appellant challenges on hearsay grounds the admissibility of a stamped entry, “Failed to Report,” on the minute sheet of his Selective Service file. The entry was admissible under 28 U.S.C. § 1733(a). United States v. Hudson,. 479 F.2d 251 (9th Cir. 1972); United States v. Grans, 472 F.2d 597 (9th Cir. 1972).

Appellant contends that a prima facie showing that his I-A classification was without basis in fact is a defense to a prosecution for failing to report for a preinduction physical examination. The law is to the contrary. In United States v. Heinrich, 470 F.2d 238 (9th Cir. 1972), the court, sitting en banc, held that a prima facie showing by a registrant that he is entitled to a classification other than I-A does not relieve him of the duty to report for a physical examination ordered pursuant to the existing I-A classification.

Richardson also challenges the sufficiency of the evidence to sustain his conviction. Appellant chose not to offer any evidence in his defense. Under these circumstances, with the Selective Service file entry in evidence, the proof was sufficient.

HUFSTEDLER, Circuit Judge

(dissenting) :

Appellant registered with his local board in 1967 and was classified I-A on March 9, 1970. In April 1970 he submitted information which would have justified his reclassification as III-A (severe hai'dship). The board rejected his claim and the appellant exhausted his administrative remedies. He was thereafter ordered to report for his preinduction physical on November 2, 1970. An unsigned, stamped entry was placed in his Selective Service file, “Failed to Report.” He was sent another order to report for a physical on January 28, 1971. He reported and was found acceptable. In June 1971 appellant was ordered to report for induction. Appellant was indicted for failing to report for the November 2, 1970, examination and for failing to report for induction in June 1971. The district court acquitted him of failing to report for induction, finding that there was no basis in fact for the refusal of the board to reclassify him III-A. He was convicted for failing to report for his physical, based entirely upon the anonymous entry in his file.

Appellant raises two points on appeal: (1) Under section 1628.11(c) of the Selective Service Regulations (32 C.F.R'. § 1628.11(c) (1971)), effective at all times here material, appellant could not have been ordered to report for prein-duction physical examination absent a finding by the board that his induction would shortly occur, and the board did not make that determination; and (2) the court erred in overruling his objection to the hearsay entry “Failed to Report” and in denying his motion for judgment of acquittal.

Section 1628.11(c) provided that a registrant in classifications other than I-A, I-A-O, and 1-0 might be ordered for a physical “if [the local board] determines that his induction may shortly occur.” The Government’s case rested solely on the Selective Service file, and nothing in the file suggests that appellant’s board made any such finding. The district court found on ample evidence that the board’s denial of III-A classification had no basis in fact. Therefore, but for the board’s own error of law the appellant would have been classified III-A as of the date he was sent his notice to appear for his physical on November 2, 1970. Surely it would be anomalous to say that the board can excuse its failure to make the requisite section 1628.11(c) finding because it had erroneously maintained appellant in the I-A classification. The legality of the board’s order to report for a physical should be tested by putting appellant in the position he would have been in had the board legally classified him.

As a III-A registrant, he could not have been ordered to report on November 2, 1970, and his conviction should be reversed.

The majority’s reliance on United States v. Heinrich (9th Cir. 1972 en banc) 470 F.2d 238 is misplaced. In Heinrich the registrant had been validly classified I-A before receipt by his local board of information which presented a prima facie claim for a II-S classification. Prior to performing its duty to reopen his classification, the board ordered Heinrich to submit to a physical examination. The Heinrich majority declared that the “narrow issue” it was deciding was that “[t]he presentation of a prima facie claim for reclassification, by one already validly classified I-A,” did not compel the invalidation of an order to report for a preinduction physical. (470 F.2d at 239.) The majority expressly noted that, under United States v. Brandt (9th Cir. 1970) 435 F.2d 324, a registrant erroneously classified I-A cannot be prosecuted for failure to appear for his physical. (470 F.2d at 239.) In the case at bench, appellant’s request for a III-A had been improperly denied by the local board (and all administrative remedies exhausted) before the order for the preinduction physical was issued. Accordingly, appellant’s I-A classification was invalid at the time he was ordered to report for the physical; and this case is controlled by United States v. Brandt, supra.

I recognize that we are bound by the law of this circuit expressed in United States v. Hudson (9th Cir. 1972) 479 F.2d 251. Hudson permitted the admission of an anonymous hearsay entry contained in a Selective Service file over objections that the entry was hearsay and that no proper foundation was laid for its receipt. Although I must follow Hudson, I cannot do so without expressing my view that Hudson is plainly wrong, not only for the reasons expressed by Judge Lumbard in dissent, but also because it conflicts with prior decisions within our circuit and with controlling Supreme Court authority.

In Hudson, as in the case at bench, there was no foundation whatever laid for the receipt of the challenged entry. The person who made the entry was never identified in any way in either case. Additionally, there was no showing in either case that the facts recorded were personally observed by the entrant or by the entrant’s subordinates. (LaPorte v. United States (9th Cir. 1962) 300 F.2d 878, 882.) The admission of such an entry over appropriate objection is flatly contrary to our decisions in Olender v. United States (9th Cir. 1954) 210 F.2d 795 and Independent Iron Works, Inc. v. United States Steel Corp. (9th Cir. 1963) 322 F.2d 656.

The burden was on the Government to lay a foundation for the admission of the entry. If the burden were placed on a criminal defendant to prove lack of foundation, it would impermissibly shift the burden of proof. (See McAbee v. United States (9th Cir. 1970) 434 F.2d 361 (semble); Olender v. United States, supra, 210 F.2d at 801; cf. Yaich v. United States (9th Cir. 1960) 283 F.2d 613.)

Of greater moment, however, the Hudson rule permitting admission of the challenged hearsay entry constitutes a violation of appellant’s Sixth Amendment right to confrontation and cross-examination. (See, e. g., Dutton v. Evans (1970) 400 U.S. 74, 91 S.Ct. 1, 27 L. Ed.2d 213; California v. Green (1970) 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489; Barber v. Page (1968) 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255; Pointer v. Texas (1965) 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923.) In Dutton and Green the Supreme Court, while refusing to detail a theory that would determine the validity of all hearsay exceptions, did set forth general guidelines for the proper application of the confrontation clause to hearsay problems, guidance which was disregarded in the Hudson decision.

The Green Court held that the right of confrontation is satisfied as long as “the declarant [of prior statements introduced at trial] is . . . subject to full and effective cross-examination.” (399 U.S. at 158, 90 S.Ct. at 1934.) This standard of cross-examination, of course, seeks to assure the reliability at trial of statements previously made by witnesses. Exceptions to the hearsay rule have survived attack under the confrontation clause only when the evidence has clear “indicia of reliability.” (Dutton v. Evans, supra, 400 U.S. at 89, 91 S.Ct. 1. See Mancusi v. Stubbs (1972) 408 U.S. 204, 213, 92 S.Ct. 2308, 33 L.Ed.2d 293.) Nothing about the unidentified entry made in the registrant’s Selective Service file brings it within any recognized exception to Green and Pointer. (Cf. Smith v. Illinois (1967) 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (denial of cross-examination as to real name and address of key prosecution witness violated the Sixth Amendment).) No foundation existed upon which any assumption could be indulged about the reliability of the entry.

The Sixth Circuit in Phillips v. Neal (1971) 452 F.2d 337, following Smith and Dutton, has held that the identity and qualifications of authors of reports are such critical factors that introduction into evidence of an anonymous entry in hospital records violates defendant’s Sixth Amendment right to confrontation. The reliability of anonymous entries in a Selective Service file is no more self-proving than an anonymous entry in a hospital record.

I would reverse.

      . Section 1628.11(c) was revoked December 6, 1971, 36 Fed.Reg. 23372, 23380-81.

      . We have previously held that this view of the law does not conflict with the dictum in McKart v. United States (1969) 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194, which indicated that an invalid classification would not be a defense for failure to report for physical examination, since McKart involved an erroneous interpretation by the board of a statutory provision rather than a disregard of clear deferment standards. (United States v. Brandt, supra, 435 F.2d at 326 n. 2; United States v. Hayden (9th Cir. 1971) 445 F.2d 1365, 1369-1370.)


author: PER CURIAM: WINTER, Circuit Judge

text:
    Neeta WEBB, Appellant, v. Robert E. NOLAN, M.D., Appellee.
    No. 72-2250.
    United States Court of Appeals, Fourth Circuit.
    Argued May 8, 1973.
    Decided Sept. 18, 1973.
    Neeta Webb, pro se.
    Ralph M. Stockton, Jr., Winston-Salem, N. C. (J. Robert Elster and Hudson, Petree, Stockton, Stockton & Robinson, Winston-Salem, N. C., on brief), for ap-pellee.
    Before BRYAN, Senior Circuit Judge, and WINTER and WIDENER, Circuit Judges.
   PER CURIAM:

Neeta Webb, pleading she was a resident and citizen of California, sought damages in the District Court from Robert E. Nolan, a resident and citizen of North Carolina, for alleged medical malpractice, laying jurisdiction of the action on diversity of citizenship. After an evidentiary hearing, the trial court, August 28, 1972, sustained the defendant’s motion to dismiss, finding the evidence insufficient to establish the plaintiff’s citizenship elsewhere than in North Carolina when the action was commenced. Plaintiff appeals.

Upon consideration of the briefs, oral argument and the record, this court concludes that the finding of the District Court cannot be held clearly erroneous.

The judgment on appeal is affirmed upon the opinion of the District Judge. Webb v. Nolan, 361 F.Supp. 418 (MDNC 1972).

Affirmed.

WINTER, Circuit Judge

(dissenting):

The district court found and concluded that Miss Neeta Webb was not a citizen of California, but was a citizen of North Carolina, and therefore the district court lacked jurisdiction of her suit against defendant, a citizen of North Carolina, because there was not diversity of citizenship. The majority treats this as a finding of fact and concludes that it cannot be held to be clearly erroneous. To me, the finding is not solely one of fact, but rather is a mixed question of fact and law. To the extent that it was factual, I think that the finding was clearly erroneous, and as a legal conclusion I think it was incorrect. I respectfully dissent.

Until July, 1971, there appears to be no dispute that Miss Webb was a citizen of California. She had been born there in 1908, and although living a substantial part of her childhood and early adulthood in North Carolina and elsewhere, she returned to California in 1954 and obtained a teaching position in a California public school. She opened and maintained a bank account with a California bank. She registered to vote in California and had voted there with substantial regularity. She rented an apartment in California and acquired furniture. She claimed California as the state of her domicile when she filed income tax returns.

After her removal to California, Miss Webb’s family continued to live in North Carolina, and it is not disputed that she would return to North Carolina during her summer vacations. After the death of other members of her family, she obtained ownership of the family home in 1961 which she used thereafter for vacations and holidays.

On August 31, 1967 plaintiff sued defendant for malpractice allegedly committed when he undertook to treat her during an earlier occasion when she was in North Carolina. During the trial of the case which began in March, 1971, Miss Webb submitted to a voluntary dismissal. She returned to North Carolina in July, 1971, and remained there to and including March 14, 1972, when she filed the instant case. Her avowed purpose for returning and remaining was to conduct this litigation in which she concluded to proceed pro se. She took one year’s leave of absence without pay from her California teaching position. Since she was a tenured teacher, she had the right to return to the same position at the same pay the following year.

When she filed suit on March 14, 1972, she alleged that she was a citizen of California and the defendant a citizen of North Carolina. Her pleadings bore her North Carolina address, and there is no question but that she was then physically residing in the family homestead, a twelve-room house which was largely furnished. When diversity of citizenship was contested, Miss Webb strenuously insisted that she had every intention of returning to California, that her North Carolina home was a holiday or vacation house, and that she was still “living” in California. She maintained a bank account in California and had personal property, mostly furniture, stored there. She had also contracted to buy a building lot in California and made a substantial down payment.

The law seems clear that to effect a change of citizenship from one state to another there must be residence in the new domicile and an intention to remain there permanently or indefinitely. The law is clear also that the presence or absence of diversity of citizenship between the parties is to be tested as of the time that suit is filed. Gaines v. Dixie Carriers, Inc., 434 F.2d 52 (5 Cir. 1970); Paudler v. Paudler, 185 F.2d 901 (5 Cir. 1951), cert, den., 341 U.S. 920, 71 S.Ct. 742, 95 L.Ed. 1354 (1951); Pannill v. Roanoke Times Co., 252 F. 910 (4 Cir. 1918); Wehrle v. Brooks, 269 F.Supp. 785 (W.D.N.C.1966) aff’d per curiam 379 F.2d 288 (4 Cir. 1967); Wright, Law of Federal Courts §§ 26, 28 (1970).

The district court found Miss Webb to be a citizen of North Carolina because of the concurrence of the following facts: (1) she returned regularly to North Carolina for vacations; (2) she had a North Carolina physician and a North Carolina address; (3) she had owned a house in North Carolina since 1961 (erroneously stated by the district court to be 1971) and had resided there continually since 1971; (4) every room in the house was furnished to some degree and she listed the house for North Carolina property taxes in 1971 and 1972; (5) she was not employed in California on the date suit was filed nor was she seeking employment there; and (6) although she was not registered to vote in North Carolina, she was eligible to register in that state.

To my mind, these facts do not demonstrate an intention to remain in North Carolina permanently or indefinitely. It would follow that California was not surrendered as the state of citizenship. Of course a plaintiff’s statement of his intention is to be viewed with circumspection and perhaps greater credence given to a plaintiff’s acts, because in many instances they are a more reliable indicator of his true state of mind than a mere verbal statement. But in the instant case, the persuasive acts taken by plaintiff are not counter to the conclusion that she had not surrendered California as her domicile in favor of North Carolina. She had not severed connections with California in regard to permanent employment. At the time suit was filed, she was on leave of absence, and she assured us at the argument of this appeal that she had returned to her position in California when school resumed in the fall of 1972 and was teaching there when her case was argued except for the few days that she was required to travel to Richmond for the argument. Although eligible to register to vote in North Carolina, she did not avail herself of this privilege; and she assured us at argument that she had voted in California since the suit was filed. She readily admitted that she had used the North Carolina address when she filed her 1971 federal income tax return, but she offered the reasonable explanation that she was entitled to a refund of overpaid taxes and she wanted the check directed to the place that she was physically present. She maintained her bank account in California, although, quite reasonably, she asked that bank statements be mailed to her in North Carolina. As before stated, she stored personal property in California and continued payments on her acquisition of real estate in that state. Her acts before suit was filed all corroborate her expressed intention not to remain in North Carolina indefinitely or permanently. Her acts after suit was filed provide even greater support for this conclusion, although, standing alone, they could not be given compelling effect to dispel the possibility that a sophisticated litigant might take them improperly to confer jurisdiction.

Miss Webb was physically present in North Carolina when suit was filed; but viewing the legal test of domicile in North Carolina as physical presence coupled with an intention to remain there permanently or indefinitely, I cannot conclude that the record supports a finding of the latter factor. Since I conclude that she remained a citizen of California, I would reverse.

       Although plaintiff appears to be a very intelligent woman, she is relatively unschooled in the law, and effective presentation of her case has suffered. Before the district court she declined to answer a number of interrogatories, the answers to which were highly relevant to the question of her citizenship, and defendant did not seek an order requiring her to answer. The information about her right to return to her California teaching position was extracted from her by questions during oral argument. The same is true with respect to certain of the other factual statements in this opinion. When questioned, she did not seem to demonstrate an awareness of the legal implications of the questions, and her answers to the court’s questions were not inconsistent with her pleadings and formal responses to interrogatories to the extent that she answered them.


author: MOORE, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Paul VARIO, Appellant.
    No. 1059, Docket 73-1592.
    United States Court of Appeals, Second Circuit.
    Argued July 18, 1973.
    Decided Sept. 12, 1973.
    Certiorari Denied Jan. 7, 1974.
    See 94 S.Ct. 867.

      Jerome Lewis, New York City (H. Elliot Wales, New York City, on the brief), for appellant.
    Robert E. Lindsay, Atty., Tax Div., Dept, of Justice, Washington, D. C. (Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks and John P. Burke, Attys., Tax Div., Liam Coonan, Sp. Atty., Dept, of Justice, Washington, D. C., Robert Morse, U. S. Atty. for the Eastern District of New York, Brooklyn, N. Y., of counsel), for appellee.
    Before MOORE and OAKES, Circuit Judges, and GURFEIN, District Judge.

       Hon. Murray I. Gurfein, United States District Judge for the Southern District of New York, sitting by designation.

   MOORE, Circuit Judge:

This is an appeal from a judgment of conviction entered after a trial by jury, Jacob Mishler, Chief Judge, presiding. The jury found appellant Paul Vario guilty on all three counts of an indictment charging him with conspiracy to obstruct the Treasury Department’s collection of income taxes in violation of 18 U.S.C. § 371 (Count I) and with wil-fully and knowingly submitting income tax returns for 1965 and 1966, which he did not believe to be true, in violation of Section 7206(1) of the Internal Revenue Code of 1954 (Counts II and III). Vario was sentenced to consecutive three-year terms on Counts II and III; a five-year sentence was imposed on Count I to be served concurrently with the sentences imposed on Counts II and III. Vario was also fined a total of $20,000.

On this appeal appellant raises four points which he urges require that this Court reverse his conviction. For the reasons discussed below, we affirm the conviction.

At trial the government attempted to prove that Vario had wilfully and knowingly submitted false income tax returns in 1965 and 1966 in that he had failed to disclose the fact that he was engaged in a gambling or “policy” operation which produced gross income for him. This was not a “net worth” ease, and the government did not attempt to show that Vario had received specific sums of money, that he had made large bank deposits, or that he lived above his reported income. Rather, through the testimony of government undercover agents and of others who were involved in a policy business, the government sought to establish that Vario was active in such an operation and that it produced income for him which he had failed to report.

The undercover agents and former policy writers testified to extensive contacts with Vario’s co-conspirators in connection with a policy business. Their testimony also revealed that they had had some contacts with Vario in connection with their policy business. While the contacts between these witnesses and Vario were not as extensive as those between the witnesses and Vario’s co-conspirators, the evidence as a whole was entirely sufficient to support the jury’s verdict and is not here challenged.

Vario’s first claim of error stems from - an attempt by the government to establish an admission by Vario that he had been involved in a policy business during 1965 and 1966 by introducing evidence that Vario had pleaded guilty to a gambling charge for activities which occurred during 1965 and 1966. While the proper way to introduce evidence of a prior conviction is to produce the judgment of conviction signed by the sentencing judge or a transcript of the relevant proceedings before the court (See Rule 803(22), Proposed Rules of Evidence for United States Courts and Magistrates, 56 F.R. D. 183, 303, 318-319; United States ex rel. Lasky v. LaVallee, 472 F.2d 960, 964 (2d Cir. 1973)), the government offered only a copy of the clerk’s docket entries. The docket entries were received in evidence with the court stating that the government should also produce a “certified or exemplified copy of the judgment of conviction * * (Transcript at 402). No such copy of the judgment of conviction was produced by the government.

The docket entries indicated that in 1966 Vario had pleaded guilty in state court to three counts of contempt of court (for failing to testify before a grand jury) and one count of conspiracy to violate the New York bookmaking law. Vario argues that once the court indicated that it would admit the docket entries as an admission that he had been involved in gambling during 1965 and 1966, he had no choice but to waive his Fifth Amendment right to silence and to testify that he had entered a plea of guilty pursuant to an agreement between his attorney and the district attorney's office whereby he would serve only seven months in jail on all four matters. Vario also testified that it was one of the conditions of his agreement to plead guilty to all four charges against him. Vario said that while he was guilty of the contempt of court charges, he was innocent of the bookmaking charge and had pleaded guilty to it only because that was part of the agreement his attorney had arranged.

In addition to being forced to waive his Fifth Amendment privilege, Vario argues that in explaining his plea of guilty to the bookmaking charge, he had to inform the jury that he was guilty of contempt of court for refusing to testify before a grand jury. This admission, says Vario, did not add to his credibility in the eyes of the jury.

The government’s position is that by actually taking the stand and admitting the accuracy of the docket entries, Vario waived any objection to the admission of that exhibit. Furthermore, the government asserts that Vario’s attorney indicated on two occasions that Vario would testify on his behalf and that on neither occasion was there a hint that this testimony was “forced” by the introduction of the docket entries regarding the state court guilty pleas. During a discussion of whether the government was going to produce a certified copy of the judgment of conviction, Vario’s attorney interjected: “I think it is going to be moot because the defendant is going to take the stand * * (Transcript at 435). During a discussion of the jury charge concerning the right of a defendant not to testify, Vario’s attorney stated: “If a man does not fight for himself, he is very rarely acquitted.” (Transcript at 620).

While this Court certainly does not approve the government’s attempt to establish a guilty plea by docket entries without any explanation as to why a certified copy of the judgment of conviction or of the transcript of the proceedings was not produced, we agree that in this case by testifying in his own defense and admitting the accuracy of the docket entries, Vario waived his objection to them.

As his next assignment of error Vario claims that the district court improperly commented upon his attorney’s closing argument. In that argument defense counsel had reverted to the “Golden Rule” standard for jury determination — a standard long since rejected by this Court. Specifically, counsel in effect asked the jurors whether if any of them, their friends, or members of their families ran afoul of the law, they would not wish the jury to apply the Golden Rule. Counsel actually told the jury that “the juror’s creed is an exemplification of what we call the Golden Rule.” (Transcript at 663). Since this is not an applicable standard, the trial judge quite properly advised the jury that “You must be impartial and objective. No one is to judge themselves, that is not the system of justice.” (Transcript at 811). See United States v. Birnbaum, 373 F.2d 250, 258 (2d Cir.), cert. denied, 389 U.S. 837, 88 S.Ct. 53, 19 L.Ed.2d 99 (1967).

Appellant next argues that the district court erred in refusing to strike the testimony of rebuttal witness Detective Robert Donohue. As part of the government’s case-in-chief, Detective Frank Fortuna testified that in August, 1965, he had investigated a burglary at Var-io’s home. While there Fortuna stated that Vario had shown him a small metal box containing three stacks of money which Vario stated amounted to $15,000. During his testimony Vario denied that he had ever had $15,000 in his house, that he had ever kept money in a metal box, or that he had told Fortuna that there was $15,000 in the box. Vario also denied showing any other police officer a metal box containing currency at the time of that burglary. On rebuttal Robert Donohue was called to testify that he, too, had investigated the August, 1965, burglary of Vario’s home and had seen a metal box containing three stacks of currency.

Vario himself then pointed out to his attorney that, despite the existence of an order excluding witnesses from the courtroom, Donohue had been in court on the previous day during Fortuna’s testimony. Vario’s attorney moved to strike Donohue’s testimony, which motion was denied.

When called upon by the court for an explanation of this violation of the court’s exclusion order, the government stated that Donohue had attended the trial previously only because his partner, Detective Fortuna, was expected to testify. The government further stated that at the time of Fortuna’s testimony, it was not expected that Donohue would testify, and that Donohue’s testimony was necessitated only by Vario’s denial.

Violation of an order excluding witnesses does not automatically bar a witness from testifying. Holder v. United States, 150 U.S. 91, 92, 14 S.Ct. 10, 37 L.Ed. 1010 (1893). In this case, the trial court was convinced that there was no intentional violation of his order. (Transcript at 609). The court ruled that the testimony should not be stricken only after specifically requesting of Vario’s attorney a showing of the prejudice Vario had suffered as a result of this violation of the exclusion order. No such showing was made, nor could there have been such a showing.

The fact that Donohue had been in court to hear Fortuna’s testimony was called to the jury’s attention. This case is unlike United States v. Nazzaro, 472 F.2d 302 (2d Cir. 1973) in which this Court found error where the district court failed to exclude an agent whose “credibility was a crucial element in the government’s case * * (472 F. 2d at 313 n.12). While Donohue’s testimony was helpful to the government in attacking Vario’s credibility and in establishing that Vario had gross income which he was concealing, it cannot be said that either Donohue’s testimony or his credibility was “crucial” to the government’s case. The trial court did not err in refusing to strike Donohue’s testimony.

Appellant’s final assignment of error is that the district court erred in permitting the government to introduce evidence that tended to show that Vario was receiving police protection. This evidence consisted of the testimony of a Special Agent of the Internal Revenue Service who had conducted surveillance of certain activities in which Vario was involved. The Agent stated that during 1965 he had observed Vario and co-conspirator DePasquale standing outside a house looking up and down the street. Shortly thereafter, a police car drove slowly by. Vario and DePasquale entered a vehicle and drove to an intersection where the same police ear came up behind the vehicle in which Vario and DePasquale were riding. The cars then drove off together. Taken as a whole, it was for the jury to decide whether the Agent’s testimony would support an inference that Vario and DePasquale were receiving police protection.

Vario’s attorney objected to the admission of this testimony at trial and here argues that this evidence had no probative value but served only to indicate that Vario “was a bad man, deserving of conviction on whatever charge the government sought to bring against him. [citation omitted] It really added little as to what gross income [came] into his hands. Nor did it evidence that he was in the policy business as opposed to any other illicit endeavor.” (Appellant’s Brief at 16-17).

The rule in this .Circuit regarding the introduction of another crime (here, by inference, bribing policemen) is that such evidence is admissible only if it is substantially relevant to some other purpose than to prove criminal character. United States v. Bozza, 365 F.2d 206, 213 (2d Cir. 1966); United States v. Keilly, 445 F.2d 1285, 1288 (2d Cir. 1971), cert, denied, 406 U.S. 962, 92 S.Ct. 2064, 32 L.Ed.2d 350 (1972).

In this case evidence tending to show inferentially that Vario had paid for police protection was properly admissible to show (1) that Vario’s activities generated sufficient income to enable him to pay for such protection, which, another agent testified, would have cost between $900 and $1,000 per month; (2) that Vario had a source of income which he was concealing; and (3) that there was a relationship between Vario and his alleged co-conspirator DePasquale. United States v. Bonanno, 467 F.2d 14, 17 (9th Cir. 1972), cert, denied, 410 U.S. 909, 93 S.Ct. 964, 35 L.Ed.2d 271 (1973); Hanger v. United States, 398 F.2d 91, 102 (8th Cir. 1968), cert, denied, 393 U.S. 1119, 89 S. Ct. 995, 22 L.Ed.2d 124, reh. denied, 395 U.S. 971, 89 S.Ct. 2106, 23 L.Ed.2d 761 (1969). The admission of this type of evidence must of necessity be dependent to a great extent upon the trial judge’s discretion. Such evidence would naturally be prejudicial to a defendant. On the other hand, if it is related in a reasonable way to the particular crime charged, the trial judge must weigh the effect of possible prejudice against relevancy. We cannot say that the trial judge here misread the scales. See 1 Wigmore, Evidence § 29a (3rd ed. 1840).

Judgment affirmed.

      . There were two co-conspirators named in the indictment, Henry Younger and Stephen DePasquale. DePasquale died before trial; Younger pleaded guilty to Count IX and received a suspended sentence, a $1,000 fine, and two years probation.

      . Conspiracy to commit offense or to defraud the United States. If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.
      sj: s¡« ;H
      18 U.S.C. § 371.

      . Any person who—
      (1) Declaration Under Penalties of Perjury— Wilfully makes and subscribes any return, statement or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter; * * * shall be guilty of a felony and, upon conviction thereof, shall be fined not more than $5,000, or imprisoned not more than three years, or both, * * *. § 7206(1) Internal Revenue Code of 1954.

      . For 1965 and 1966, Vario reported income of $7,280, his salary, as president of Fountainbleu Florists.