author: TIMBERS, Circuit Judge:

text:
    Michael and Cynthia PRIDE, minors, by their mother and next friend Bulena Pride, et al., Plaintiffs-Appellants, v. The COMMUNITY SCHOOL BOARD OF BROOKLYN, NEW YORK SCHOOL DISTRICT #18, et al., Defendants-Appellees.
    No. 637, Docket 72-2371.
    United States Court of Appeals, Second Circuit.
    Argued March 7, 1973.
    Decided June 18, 1973.

      James I. Meyersohn and Nathaniel R. Jones, N. A. A. C. P., New York City (I. Frederick Shotkin and Delson & Gordon, New York City, on the brief), for plaintiffs-appellants.
    Alfred Weinstein, New York City (Norman Redlich, Corp. Counsel of the City of New York, and Stanley Buchs-baum, New York City, on the brief), for defendants-appellees.
    Before LUMBARD, HAYS and TIMBERS, Circuit Judges.
   TIMBERS, Circuit Judge:

This appeal is from the denial of a motion for a preliminary injunction sought by a group of parents of black and other non-white children residing in Tilden Houses, a public housing development in Brooklyn, on behalf of themselves and others similarly situated, to require the Community School Board for District No. 18 to assign their children to schools within the district in accordance with past practice.

After a two day hearing in the Eastern District of New York, Jacob Mish-ler, Chief Judge, an order was entered on November 13, 1972 (1) finding no likelihood of success on the equal protection claims raised; (2) finding no irreparable harm from the denial of the preliminary injunction; and (3) refusing to rule on the alleged violations of local administrative procedure.

Under the applicable standards for review of the denial of a motion for a preliminary injunction, and under the rules for refusal of pendent jurisdiction, we affirm.

I.

BACKGROUND FACTS

In view of the importance of the facts to the resolution of this controversy and in view of our limited scope of review of the district court’s findings of fact which are not clearly erroneous, Fed.R. Civ.P. 52(a), we shall summarize here the controlling facts that provide the underpinning for the district court’s conclusions of law which we affirm.

The center of the instant controversy is an eight-building public housing complex known as Tilden Houses, located in the predominantly black Brownsville section of Brooklyn. During the period from at least 1958 until 1971, the school-aged children residing in Tilden Houses were assigned to one of five public elementary schools in the nearby, predominantly white, Canarsie section of Brooklyn. The specific assignment depended on the address of the Tilden Houses building where the child lived. During that period, under the New York Education Law, the City Board of Education was responsible for the school assignments of New York City children.

In 1969, the New York City School Decentralization Law (Article 52-A) was enacted. Ch. 330, § 4 [1969] N.Y. Laws, N.Y. Education Law, art. 52-A, § 2590 et seq. (1970). Under that statute, the great bulk of the authority for management of the City’s pre-kinder-garten, nursery, kindergarten, elementary, intermediate and junior high schools was allocated to the various community school districts to be established pursuant to § 2590-b(2) of Article 52-A. Included therein is the general power to “manage and operate the schools and other facilities under [a district’s] jurisdiction,” § 2590-e(4), which presumably contains the authority to assign students to particular schools within the district.

The resulting district lines placed the five schools to which Tilden Houses children formerly had been assigned in Can-arsie’s Community School District No. 18 (District 18). Accordingly, a number of parents of Tilden Houses children scheduled to enter school in 1971 registered their children at the schools to which residents of their specific buildings formerly had been assigned. On May 24, 1971, however, District 18 entered into an agreement with Brownsville’s Community School District No. 23 (District 23), the geographical boundaries of which included Tilden Houses, whereby Tilden Houses were to be zoned into District 23 for the school year beginning September 1971. This agreement purportedly was effected in compliance with procedures established on March' 10, 1971 by the Office of the Deputy Chancellor of the City school system in a document known as Special Circular No. 58.

Word of this agreement led Mrs. Joan Boatright, a Tilden Houses resident, to check with the Central Zoning Unit, referred to in Circular No. 58, as to the proper school district for registration of Tilden Houses children. Mrs. Boatright was given a letter advising her of the procedures for inter-district zoning proposals, including the need for recommendation by the Central Zoning Unit. A handwritten postscript beneath the signature of John Dudley of the Central Zoning Unit read as follows: “The agreement for rezoning of the Tilden Houses were not plans recommended by the Central Zoning Unit.” Relying on this and other assurances, several Tilden Houses mothers who, prior to the inter-district agreement, had registered their children for kindergarten in P.S. 244, reported at that school on the first day of the school year beginning September 1971. Despite the unquestioned validity of those registrations, District 18 refused to enroll the children, basing its action entirely on the agreement with District 23. As a result, no kindergarten children from Tilden Houses were enrolled in any District 18 schools for the school year beginning September 1971, with the exception of a limited number granted admission because of the attendance of siblings. The parents were assured, however, of admission in the following year.

The controversy predictably came to a head as the September 1972 school year approached. The position of District 18 continued to be that, while Tilden Houses children already attending schools within the district might continue to do so, no new Tilden Houses children would be allowed to enroll in District 18 schools. Several Tilden Houses parents nevertheless insisted that their children had a legal right to attend District 18 schools, and that such right had been acknowledged the previous year by District 18 officials. An inquiry at the Office of the Deputy Chancellor by Rev. Wilbert B. Miller, a leader of the Tilden Houses parents group, .indicated strong support by the City Board for the parents’ position. In a letter dated July 6, 1972 from Assistant Superintendent of Schools Henrietta B. Per cell to Reverend Miller, the City Board’s stance was stated in part as follows:

“[T]he Deputy Chancellor on his own behalf and that of the Chancellor, wrote to Community School Board 18 informing them of their responsibility to register and assign the pupils from the Tilden Houses. As of this date, we have received no assurances that these directives will be implemented.
Therefore, let me assure you that this office will take all necessary steps to effectuate compliance with the Chancellor’s directive. The schools are presently closed for the summer and certain difficulties are thereby presented, nevertheless, we will proceed towards enforcing what we see as our legal responsibility.”

On August 14, a letter from Deputy Chancellor Irving Anker to Reverend Miller further assured the right of the Tilden Houses children to attend their zoned schools, and stated that “[i]f there are any children denied admission to their zoned schools, they have a right to notify this office and to appeal to this office if appeals to Community School Board 18 are ineffective.”

District 18 nevertheless remained rigid. Therefore, on September 8, 1972 (three days before the scheduled opening of school), Deputy Chancellor Anker, on behalf of the Chancellor, issued an order placing District 18 in trusteeship, pursuant to § 2590-4(1) (a) of Article 52-A. Assistant Superintendent Daniel Sehreiber was appointed trustee “for the purpose of ensuring compliance with the instructions previously issued by this office with regard to the registration of the students from the Tilden Houses.”

On September 11, Assistant Superintendent Sehreiber went to District 18’s Junior High School 285 to determine whether the district was prepared to recognize his authority as trustee. The doors to the school were closed. The following day, Sehreiber and his aides went to P.S. 244, where he knew the Til-den Houses parents had gathered. There he found general intransigence on the part of the principal and employees of the school, and a sit-in by the Canar-sie parents. He directed the Tilden Houses parents to move into the school’s auditorium for the purpose of registering the children. The forms distributed to the parents, while differing to some extent from those normally used for registration, requested the same essential information as the official forms. The next problem was to assign the children to particular schools within the district. Sehreiber, being unfamiliar with past practice in that regard, asked the parents to indicate on the child’s registration form the school to which he would have been assigned under the pre-decen-tralization policy of assignment based on address. This was meant to insure compliance with the trusteeship instructions to register the children for District 18 schools as in past years. He then instructed the parents to report with their children on Wednesday, September 13, to the schools they had indicated.

On September 13, the District 18 schools were closed by order of the Community School Board. Sehreiber returned to P.S. 244 where most of the Tilden Houses parents were again assembled, and gave them new registration forms to complete, this time identical to those normally used. Schreiber’s aids performed a like function at the other District 18 elementary schools. The completed forms were then delivered to the District 18 Community School Board for the purpose of assigning children to specific schools.

Shortly thereafter, District 18 decided to retreat to some degree from its earlier position. The Community School Board Superintendent Harvey Garner notified the Tilden Houses parents who had registered their children on September 12 and 13 that the children would be accepted for enrollment in District 18. The children, however, would not be assigned in accordance with past practice (i.e. to one of five schools, depending on the building occupied), but rather all would be assigned to P.S. 135. Word of this decision reached the office of the Deputy Chancellor, resulting in a letter dated September 15 from Deputy Chancellor Anker to Acting Superintendent Garner and Mr. Jack Zimmer, the President of the District 18 Community School Board. That letter set out Special Circular No. 58’s procedures for in-tra-district zoning changes and asked the two named officials to “submit the proposed intra-district zoning changes to the Chancellor and the Central Zoning Unit as quickly as possible.”

On September 19, Mr. Zimmer responded on behalf of District 18 as follows:

“Dear Mr. Anker:
After a careful study of the utilization figures of all the elementary schools in District 18, Community School Board District 18 reached a unanimous conclusion that all Tilden Houses youngsters in grade one will be placed in P.S. 135, 684 Linden Blvd. pending a decision of the appeal from Community School Board District 18 to the Central Board of Education, for the following reasons:
1. It is the only school which at present has available seats.
2. We believe that it is educationally sound for Tilden Houses youngsters to be picked up by bus and brought to one school for their educational experience rather than being distributed throughout the District.
3. The lunchroom facilities are adequate.
4. Tilden Houses children have been received by this school in the past so that this will not create any radical change.
Once again we ask you to bear in mind that this proposal is in no way to prejudice our appeal which is currently before the Central Board of Education.
Very truly yours,
/s/ Jack Zimmer
Jack Zimmer
President
Community School Board
District 18”

This proposal was approved by the Central Zoning Unit without comment. It is to that zoning change that the instant motion for preliminary injunction was directed. As the district court observed, the question for decision was considerably narrower than the complaint on the merits (which raised issues of integration levels throughout the district) would suggest: “The motion seeks nothing more than a mandatory injunction directing the authorities to assign these eleven first graders in accordance with practices in existence prior to the assignment of the children to P.S. 135.” On that issue, the court, in an opinion filed November 13, 1972, found that plaintiffs had failed to demonstrate a likelihood of success either on the issue of unlawful motivation or of unlawful effect of the assignment of the Tilden Houses children to P.S. 135; found that plaintiffs had failed to show that irreparable harm would result from the denial of the requested preliminary injunction; and refused to reach the local issues of whether the procedures outlined in Special Circular No. 58 had been followed, and whether the inter-district agreement between Districts 18 and 23 was valid. Accordingly, the motion for preliminary injunction was denied.

For the reasons stated below, we affirm.

II.

EQUAL PROTECTION CLAIM

(A) Preliminary Injunction Standard

We repeatedly have emphasized the heavy burden on a party seeking the extraordinary remedy of preliminary injunctive relief. The standard that has evolved is that the moving party “assume [s] the burden of demonstrating either a combination of probable success and the possibility of irreparable injury or that [it has] raised serious questions going to the merits and that the balance of hardships [tips] sharply in [its] favor.” Stark v. New York Stock Exchange, 466 F.2d 743, 744 (2 Cir. 1972) (emphasis added); Checker Motors Corp. v. Chrysler Corp., 405 F.2d 319, 323 (2 Cir.), cert. denied, 394 U.S. 999 (1969). We find that standard to be particularly appropriate here where there is a strong public interest in the outcome of the dispute. See, e.g., Gulf & Western Industries, Inc. v. Great Atlantic & Pacific Tea Co., 476 F.2d 687, 692-93, 698-99 (2 Cir. 1973); Exxon Corp. v. City of New York, 480 F.2d 460, (2 Cir. 1973).

With this standard in mind, we turn to an examination of the evidence adduced at the hearing below, recognizing that in reviewing the denial of a motion for a preliminary injunction our role is limited. “A clear abuse of discretion . . . must be shown to an appellate court in order to obtain a reversal of the trial court’s denial of temporary injunctive relief.” Checker Motors Corp. v. Chrysler Corp., supra, 405 F.2d at 323; Dino de Laurentiis Cinematografica, S.p.A. v. D-150, Inc., 366 F.2d 373, 374-75 (2 Cir. 1966).

(B) Probability of Success

The district court’s conclusion that “plaintiffs have not shown the requisite likelihood of success” was based on what it found to be a failure of proof with respect to the following alleged facts:

“(1) that excluding Tilden Houses children from the first grade of P.S. 244 on September 11th and 12th was racially motivated;
(2) that the almost exclusive attendance of one race in three elementary schools in the district is the result of present or past discriminatory action by the state, [citing Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 26 (1971)] ;
(3) that the action of Community School Board No. 18 in assigning the children to P.S. 135 created or aggravated segregation at P.S. 135;
(4) that there is a causal connection between the Community School Board’s alleged practices and policies and the claimed condition of unequal educational opportunities.” (footnote omitted).

The district court’s findings, taken together, that plaintiffs had failed to adduce evidence to support the foregoing claims led it to conclude that plaintiffs had not satisfied their burden of demonstrating either intent to discriminate or a de facto discriminatory effect. We agree.

(1) Discriminatory Motive

The parties have devoted much of their efforts, both at the hearing below and on this appeal, to the question whether proof of a discriminatory motive on the part of the appellees is an element of appellants’ case, either in the sense that it must precede an inquiry into the effect of the allegedly discriminatory action, or, indeed, in the sense that unlawful intent alone will entitle appellants to the relief requested. We shall consider each of these matters separately.

It is now well established that a plaintiff alleging unlawful discrimination in violation of the equal protection clause of the Fourteenth Amendment is not required to prove that a discriminatory motive preceded the unlawful effect. In Wright v. Council of the City of Emporia, 442 F.2d 570 (4 Cir. 1971) (en banc), the Fourth Circuit reversed the grant of an injunction against the establishment of a new school district, despite the discriminatory effect of the re-districting plan, because neither a “modification of the [existing] racial balance” nor a retention of “as much . separation of the races as possible” was the “dominant purpose” of the re-districting. 442 F.2d at 572. The Supreme Court, in reversing, 407 U.S. 451 (1972), emphatically rejected the Fourth Circuit’s approach:

“This ‘dominant purpose’ test finds no precedent in our decisions. It is true that where an action by school authorities is motivated by a demonstrated discriminatory purpose, the existence of that purpose may add to the discriminatory effect of the action by intensifying the stigma of implied racial inferiority. . . . But as we said in Palmer v. Thompson, 403 U.S. 217, 225 [1971], it ‘is difficult or impossible for any court to determine the “sole” or “dominant” motivation behind the choices of a group of legislators’, and the same may be said of the choices of a school board. Thus, we have focused upon the effect — not the purpose or motivation — of a school board’s action. . The existence of a permissible purpose cannot sustain an action that has an impermissible effect.”

407 U.S. at 461-62 (emphasis added). Cf. Chance v. Board of Examiners, 458 F.2d 1167, 1175-76 (2 Cir. 1972). Upon the facts before us, therefore, it is not enough to say, see infra, that the evidence before the district court failed to disclose a likelihood that appellants will prove that appellees assigned the Tilden Houses children to P.S. 135 with an intent to discriminate against them, if appellants successfully can demonstrate that those assignments in fact discriminated against them.

The second possible importance of alleged unlawful motive, as claimed by appellants, is to lay the basis for relief in and of itself. As the Supreme Court noted in Palmer v. Thompson, 403 U.S. 217, 225 (1971), that is a position not without some support in the cases. In Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 231 (1964), for example, the Court stated, “[w]hatever non-raeial grounds might support a State’s allowing a county to abandon public schools, the object must be a constitutional one, and grounds of race and opposition to desegregation do not qualify as constitutional.” Similarly, in Gomillion v. Lightfoot, 364 U.S. 339 (1960), the Court said:

“When a State exercises power wholly within the domain of state interest, it is insulated from federal judicial review. But such insulation is not carried over when state power is used as an instrument for circumventing a federally protected right. This principle has had many applications. It has long been recognized in eases which have prohibited a State from exploiting a power acknowledged to be absolute in an isolated context to justify the imposition of an ‘unconstitutional condition’. What the Court has said in those cases is equally applicable here, viz., that ‘Acts generally lawful may become unlawful when done to accomplish an unlawful end, and a constitutional power cannot be used by way of condition to attain an unconstitutional result.’ ” 364 U.S. at 347-48 (citations omitted).

The effect of that language, however, was severely undercut in Palmer. As the Court there observed, despite the potential impact of language in Griffin and Gomillion, the focus of those cases “was on the actual effect of the enactments, not upon the motivation which led the States to behave as they did.” 403 U.S. at 225. The Court recalled that “no case in [the Supreme Court] has held that a legislative act may violate equal protection solely because of the motivations of the men who voted for it.” 403 U.S. at 224. Presumably the same would apply to the motives which led to action by the Community School Board and the individual appel-lees.

That does not end our inquiry, however, as to the relevance of a finding of official unlawful intent. In Wright v. Council of the City of Emporia, supra, as quoted above, the Supreme Court observed that “where an action by school authorities is motivated by a demonstrated discriminatory purpose, the existence of that purpose may add to the discriminatory effect of the action by intensifying the stigma of implied racial inferiority.” 407 U.S. at 461. It is therefore appropriate to consider the evidence adduced at the hearing on the issue of the motive of appellees.

In our view, the record below clearly supports the district court’s conclusion that at this stage there is insufficient evidence to impute to Community School Board No. 18 and the individual appellees a racial motivation in assigning the Tilden Houses children to P.S. 135 rather than to P.S. 244. While we recognize that the instant dispute has been both a product and cause of severe racial tensions among the affected parent and resident groups, appellants have not demonstrated a sufficient probability of proving racial motivation on the part of appellees.

The only possible evidence of official ill-motive was the testimony of appellant Sarah Tatum. In relating the events of September 12, 1972, Mrs. Tatum testified that, after most of the Tilden Houses parents had gone into the auditorium of P.S. 244 to be registered by Assistant Superintendent Schreiber, she remained in the hallway while her son went to the school lavatory. Also in the hallway were a number of parents of children who previously had attended P.S. 244, most of them white. She testified that the following occurred:

“At this point Mr. Garner, the Acting Superintendent of District 18, walked into the hall.
And they [the P.S. 244 parents] were saying — they threw up their hands — ‘I thought you said they wasn’t coming in here.’
He walked over to the group and he said, ‘Calm yourselves down. I promised you they were not going to come in. We have held out this long and they haven’t gotten in.’
He said, ‘They aren’t coming in now.’
They said, ‘Do we have your word?’
He said, ‘You have my word. You can go home. Calm yourselves down. You have my word.’ ”

Viewed in context, this exchange aroused the suspicions of Mrs. Tatum and the other appellants as to Mr. Garner’s neutrality and objectivity. It would be both misleading and improper to ignore either the immediate setting or the broader atmosphere of fear and distrust in which the opposing groups were operating. Cf. Reitman v. Mulkey, 387 U.S. 369, 373 (1967); Kennedy Park Homes Association v. City of Lackawanna, 318 F.Supp. 669, 694 (W.D.N.Y.), aff’d, 436 F.2d 108 (2 Cir. 1970), cert. denied, 401 U.S. 1010 (1971). Nevertheless, since this was the only hard evidence of unlawful motivation adduced, it was not unreasonable for the court to have concluded that appellants failed to show that the decision to exclude the Tilden Houses children from P.S. 244 — a decision that resulted in their being assigned to a comparable, nearby school also in District 18 — was motivated by an intent to discriminate against them on the basis of race. For the narrow purposes of Wright — i. e. to determine whether the existence of a discriminatory motivation served to intensify the stigma of implied racial inferiority — such evidence is of even less probative value.

The critical remaining question, to which we now turn, is whether appellants demonstrated a probability of proving a discriminatory effect, apart from that resulting from the alleged unlawful motive.

(2) Discriminatory Effect

As indicated above, the Supreme Court has made it clear that it is the effect of state action that is to control a claim for relief under the equal protection clause of the Fourteenth Amendment. In other words, if appellants have demonstrated a reasonable probability that they can prove that the assignment of Tilden Houses children to P.S. 135 rather than in accordance with prior practice served to discriminate against them in violation of the equal protection clause, then they are entitled to the preliminary injunction requested, regardless of the presence or absence of unlawful motive.

The statistical evidence below disclosed that the racial composition of the five elementary schools in question, as of October 29,1971, was as follows:

School % Utilization % "Negro" "Puerto % Rican" "Other"

P.S. 135 91 53 11 36

P.S. 233 79 48 12 40

P.S. 235 98 53 11 36

P.S. 244 88 46 8 46

P.S. 268 105 70 10 20

Focusing on the two schools principally at issue, it will be noted from the above that P.S. 244, the transferor school, is slightly less utilized than P.S. 135, the transferee school. As the evidence made clear, however, the critical question for present purposes is utilization in a particular grade. In the first grade, the subject of this appeal, P.S. 244 has 101 registered children in four classes, an average of 25 per class. P.S. 135 has 104 first grade children in five classes, an average of 21 per class. On a utilization criterion, therefore, the assignment of Tilden Houses children to P.S. 135 would be at least numerically justifiable.

As a constitutional matter, however, the essential question is whether there is a racial imbalance between the two schools rising to a level which violates the equal protection clause. We note first that “[t]he constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole," nor is there a requirement of any particular racial balance or mix. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 24 (1971); Lawlor v. Board of Education of the City of Chicago, 458 F.2d 660, 662 (7 Cir. 1972). Indeed, at least one court has held that there is no right to a precise racial balance within even a single school district, the guarantee only extending to the availability of a “unitary” school system. Bradley v. School Board of City of Richmond, 462 F.2d 1058 (4 Cir. 1972) (en banc), aff’d per curiam by equally divided Court sub nom. School Board of City of Richmond v. State Board of Education of Commonwealth of Virginia, 412 U.S. 92 (1973). If anything, the authority of Swann would appear to be even more compelling where a school system is asked to reinstate a past alignment, perhaps outdated, rather than to dissolve a dual, segregationist assignment practice. See also Keyes v. School District No. 1, Denver, Colorado, 445 F.2d 990, 1006 (10 Cir. 1971), rev’d, - U.S. - (1973); Norwalk CORE v. Norwalk Board of Education, 298 F.Supp. 213 (D.Conn.1969), aff’d, 423 F.2d 121 (2 Cir. 1970).

In the present case, the difference in black enrollment in the two schools involved is only 7 per cent. In Swann, the Court permitted variations in black enrollment ranging from 9 per cent in one school to 38 per cent in another. Other cases have tolerated considerably greater disparities, even in the context of court-ordered desegregation plans. The point is not that these variations are justifiable in the abstract. Rather, they reflect the reality that every school system is different and “every plan must take into consideration the unique characteristics of the school district to be served. What may be practical in one district may not be applicable in another.” Thompson v. School Board of the City of Newport News, Virginia, 465 F.2d 83, 86 (4 Cir. 1972) (en banc); Green v. County School Board of New Kent County, 391 U.S. 430, 439 (1968).

Here, the assignment of Tilden Houses children to P.S. 135 reflects a rational decision within the scope of the Community School Board’s discretion. It was aimed at balancing the sizes of the first grade classes in the district’s schools without seriously affecting the racial balance within the district. We are unable to conclude otherwise simply on the basis of the 7 per cent difference in black enrollment between the two schools affected. Certainly such difference is not one of constitutional significance.

(C) Irreparable Harm

We turn now to the second branch of the preliminary injunction standard: whether plaintiffs sustained their burden of demonstrating irreparable harm. The district court held that “[p]laintiffs have . . . failed to show that irreparable damage will accrue through denial of the preliminary injunction.”

In contending that the court erred in reaching that conclusion, appellants focus on the venerable expression of concern in Brown v. Board of Education, 347 U.S. 483, 494 (1954), that to separate black school children from “others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” While we fully recognize the anguish and frustrations that have been present throughout this controversy, the record before us fails to demonstrate any likelihood that appellants will suffer irreparable harm as the result of the denial of their motion which was directed solely at the assignment of the Tilden Houses children to P.S. 135.

There are many obvious distinctions between this case and Brown. What we deem most relevant, and dispositive on the question of irreparable harm, are the facts that (1) the instant case is not one involving segregation, either de jure or de facto; and (2) the assigned school, P.S. 135, is one likely to provide an educational experience at least as productive and beneficial as that offered by P.S. 244 — not in an unlawful “separate but equal” sense, but in a permissible “alternative” sense.

The irreparable emotional harm which the Court in Brown feared would result from the preservation of a segregated school system has not been shown to be a real danger in the present case. As we have stated above, there is insufficient evidence in the record to suggest either an intent to separate these children from the white children in the district, or an accomplishment of that end. The children have been assigned to a school with a 53% black enrollment rather than to one with a 46% black enrollment — in a school district with a total black registration of 32%. Absent any evidence whatsoever of the kind of psychological impact from this re-assignment urged by appellants on appeal, it would have been improper to enjoin the school board on this elusive ground.

We recognize that a finding of this sort of harm to the children is not essential where an invidious discrimination itself is shown. The test to be applied in cases alleging de facto racial discrimination is whether artificial barriers have been imposed by the school district which have resulted in a denial of equal educational opportunity to the affected group. Deal v. Cincinnati Board of Education, 369 F.2d 55, 59-60 (6 Cir. 1966), cert. denied, 389 U.S. 847 (1967).

The record before us clearly negates any such assertion here. Uncontradict-ed evidence disclosed that the educational opportunity at P.S. 135 was in all respects equivalent, and in many respects superior, to that available at P.S. 244. The testimony of Acting Superintendent Garner revealed, for example:

1. That the reading and mathematics scores as measured by the City’s Metropolitan Achievement Test are higher on each grade level at P.S. 135 than at P.S. 244. The similarity in background of the student bodies of the two schools therefore suggests a superior educational program at P.S. 135.
2. That the percentage of permanently-appointed teachers at P.S. 135 is 97%, as compared with 73% at P.S. 244, indicating a higher percentage at the latter of either per diem substitute teachers or full-time teachers who have not met state standards for certification.
3. That the lunch room facilities at P.S. 135 are less crowded and better maintained than those at P.S. 244.
4. That there are less than half the number of bused students at P.S. 135 than at P.S. 244, indicating fewer safety hazards associated with busing.
5. That, as stated above, the first-grade classes at P.S. 135 are less crowded.
6. That the parents and surrounding community of P.S. 135, in stark contrast to their counterparts at P.S. 244, have been receptive to the enrollment of Tilden Houses children.
7. That the school has been equipped with additional personnel qualified to deal with any special or additional services required by the Til-den Houses children.

The district court found that there are other comparisons between P.S. 135 and P.S. 244 which are favorable to P.S. 135. That is not to say of course that racial discrimination in District 18 could be overcome by providing a comparable, or even a better, facility for Tilden Houses children. Any such theory was buried by Brown. Nevertheless, even where there is insufficient evidence of motive in separating the races, or insufficient evidence of an adverse result from such separation, the state is still under a duty to provide equal educational opportunity on a non-discriminatory basis. Upon the facts before us, we are satisfied that the District 18 Community School Board adequately discharged that duty in assigning Tilden Houses children to P.S. 135. í

On the basis of the district court’s findings of fact, which are supported by clear and convincing evidence, we hold that appellants have not demonstrated a likelihood that irreparable harm will result from the denial of their motion for a preliminary injunction.

(D) Balance of Hardships

Finally, in reviewing the district court’s denial of the motion for a preliminary injunction, we must consider whether the balance of hardships tipped so sharply in favor of the moving party, the appellants, as to have warranted the grant of preliminary relief. The question here is not as simple as assessing which party stands to suffer more from the grant or denial of the injunction. What is involved is an evaluation of where the equities lie, considering in addition to the hardships such factors as the uncertainty of the questions raised and the probable outcome of the dispute on the merits.

In the present case, an examination of the balance of hardships necessarily involves many of the same elements referred to in our discussion of whether irreparable harm had been shown. We shall not repeat them here. We believe that appellees have fairly summarized the situation: “The children have not been wrenched from a school earlier attended by them. A temporary injunction would not restore them to ‘status quo’. It is a fair inference that their education will not be advanced by a mid-semester transfer to a different class conducted by a different teacher in a different school.” And that is reinforced by the passage of time since the district court’s decision.

Accordingly, in view of the improbability that appellants will succeed at trial on the merits of their claims and their failure to demonstrate a likelihood of irreparable harm or that the balance of hardships tips decidedly in their favor, we hold that the district court correctly denied the motion for preliminary injunction.

III.

STATE ADMINISTRATIVE CLAIMS The complaint also raises questions of the validity of the re-assignment of the Tilden Houses children to P.S. 135 as a matter of state law. Essentially, the claim is that the procedures outlined in Special Circular No. 58, see note 3, supra, were not followed at two stages: (1) the May 24, 1971 inter-district agreement between District 18 and District 23; and (2) the September 19, 1972 request for an intra-district zoning change whereby all first-grade Tilden Houses children would be assigned to P.S. 135.

The district court refused to rule on the merits of those claims. It held that “assuming the violation and invalidity of the agreement, such actions did not establish or maintain segregation or deny equal educational opportunities to Black children from Tilden Houses. These claims are state claims that do not reach Constitutional grounds.”

Treating these claims as ones of pendent jurisdiction, the threshold question is whether the district court had the power to determine what in all respects are issues of state law. In United Mine Workers v. Gibbs, 383 U.S. 715 (1966), the Supreme Court analyzed the problem as follows:

“Pendent jurisdiction, in the sense of judicial power, exists whenever there is a claim ‘arising under [the] Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . .,’ U.S.Const., Art. Ill, § 2, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional ‘case’. The federal claim must have substance sufficient to confer subject matter jurisdiction on the court. Levering & Garrigues Co. v. Morrin, 289 U.S. 103. The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff’s claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole.” 383 U.S. at 725 (emphasis by the Court) (footnotes omitted).

We have no doubt that the district court had the power to decide the issues of state law presented to it: there was a substantial federal constitutional claim which vested the court with subject matter jurisdiction; the state and federal claims derived from a “common nucleus of operative fact” (i. e., the re-assignment of Tilden Houses children in a manner not in accordance with prior practice); and the state and federal claims comprised one “constitutional ease” so that appellants normally would be expected to try them in one proceeding.

As the Court in Gibbs made clear, however, that does not end the inquiry, for the constitutional jurisdiction over the state claim — the “power”— “need not be exercised in every case in which it is found to exist. It has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiff’s right.” 383 U.S. at 726. See also Leather’s Best, Inc. v. S. S. Mormaclynx, 451 F.2d 800, 809, 811 (2 Cir. 1971).

The Court in Gibbs also indicated certain guidelines with respect to the kinds of considerations that should enter into the exercise of pendent jurisdiction discretion. On the side of asserting jurisdiction over pendent state claims, the prevailing factors are “judicial economy, convenience and fairness to litigants”, 383 U.S. at 726, particularly where “the state claim is . . . closely tied to questions of federal policy”. 383 U.S. at 727. E. g., Leather’s Best, Inc. v. S. S. Mormaclynx, supra, 451 F.2d at 811. The Court also suggested that refusal to exercise pendent jurisdiction might be proper to avoid “[njeedless decisions of state law . . . both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law.” 383 U.S. at 726. E. g., Catalano v. Department of Hospitals of City of New York, 299 F.Supp. 166, 175 (S.D.N.Y. 1969). This would include cases where the federal claims are dismissed before trial because of insubstantiality, compare Rosado v. Wyman, 397 U.S. 397, 404-05 (1970) (dismissal of federal claim for mootness; proper exercise of discretion to decide state claim); Gem Corrugated Box Corp. v. National Kraft Container Corp., 427 F.2d 499, 501 n. 1 (2 Cir. 1970) (dismissal of federal claim by stipulation; proper exercise of discretion to decide state claim); where the state issues substantially predominate, see General Foods Corp. v. Struthers Scientific and Int’l Corp., 297 F.Supp. 271, 275-76 (D.Del.1969); or where the state questions are both difficult and unresolved, and would be better served by review in a state proceeding, e. g., Winnick v. Manning, 460 F.2d 545, 550 (2 Cir. 1972).

At the very least, the present case appears to fall into the latter category. The pendent claims involve questions solely of local administrative law, heretofore not directly decided in any case of which we are aware. Here, as in Win-nick, the state issues “would have required the district court to make a detailed review of [New York City decentralization] procedures and decisions under state law. The state courts provide an adequate and more suitable forum for these claims.” 460 F.2d at 550.

We hold that, while the district court had the power to decide the pendent claims under Gibbs, it did not abuse its discretion in declining to do so.

In affirming the district court’s denial of appellants’ motion for preliminary injunction, we suggest to the district court that it expedite further proceedings in this case, as it so commendably has done to date, with a view to the earliest possible date for trial on the merits consistent with the rights of the parties — in the interest of preventing this situation from infecting yet another school year;

Affirmed.

      . The City Board of Education map entitled “Utilization of School Buildings and Data on large-scale Housing (as of October 29, 1971)”, received in evidence as Defendant’s Exhibit A, shows all of the Tilden Houses to be within the borders of District 23 rather than District 18. The record does not disclose either the origin of the practice of assigning Tilden Houses children to schools in what is now District 18, or the authority for continuing to do so subsequent to decentralization.

      . As outlined in a letter to Deputy Chancellor Percell from Deputy Superintendent David Marcus of District 23, the agreement was as follows:
      “Tilden Houses — Rockaway to Stone Avenues Dumont to Livonia Avenues
      to be zoned into District 23 for Elementary and Jr. H.S. for school year commencing September 1971.”
      The letter was co-signed by Samuel D. Wright, President of Community School Board 23, and by two officials of District 18, Max Meyers (then the Community Superintendent) and Jack Zimmer (President of the Community School Board).

      . Special Circular No. 58 states in pertinent part:
      “ZONING PROCEDURES FOR ELEMENTARY, INTERMEDIATE AND JUNIOR HIGH SCHOOLS
      1. The decision as to whether a new school building is intended to serve the children of one district or more than one district shall be made by the Chancellor.
      2. In the zoning of schools under their jurisdiction, community school boards shall be subject to applicable Federal laws and State laws and administrative policies.
      3. All proposed 'intra-district zoning changes, by the community superintendent and the community school board, including those related to the opening of new schools, shall be reviewed by the Central Zoning Unit for the Chancellor. These changes in the form of proposals should be forwarded no later than March 1 of each school year. The Central Zoning Unit shall act within ten days, if it recommends disapproval of the proposal, and set forth its objections based on policy, apprising the district of the reasons. The district shall have a reasonable time in which to review, revise or oppose the recommendations of the Central Zoning Unit, or to request a hearing before the decision of the Chancellor is made. Requests for consideration of changes in existing zone lines may also be made by parents or community groups to the community school board(s) concerned.
      4. For all inter-district zoning changes, plans or changes involving the zoning of new schools, the re-zoning of existing schools, proposals for the relief of overcrowding or for improved integration, etc., the community school board seeking the change should first obtain the approval of the other community school board (s) affected or from whom relief or assistance is requested. In the case of zoning of new schools affecting more than one district, the community school board in which the new school is located shall have the responsibility of initiating the necessary consultation.
      Proposed zoning changes should he sent to the Office of the Deputy Chancellor not later than October 1 for a February opening and not later than January 1 for an opening scheduled for September of the following school term. The proposed zoning or re-zoning shall be in accord with city-wide policies concerning the use of space. If after mutual discussion the two districts fail to reach agreement, the matter should be appealed to the Office of the Chancellor, attention of the Deputy Chancellor, forwarding at the sam.e time, supporting correspondence and data. The Chancellor shall have the power to require such changes as are necessary and desirable. The Chancellor’s decision shall be forwarded no later than December 1 for a February opening and March 1 for a September opening.
      5. The Central Zoning Unit and Office of School Buildings will provide the districts concerned with the necessary data required for planning.
      6. In all zoning matters community school boards shall consult with parent groups affected by the proposals.
      7. The Chancellor may request from each community school board such data as may be necessary.
      8. The Chancellor shall maintain current maps of district boundary lines and school zone lines, which shall be open to public inspection.
      9. Where zoning proposals agreed upon by the community superintendent and the community school board involve transportation, they shall be reviewed by the Transportation Committee and recommendations made to the Chancellor for his decision.
      10. In every case where the Chancellor makes a decision concerning schools under the jurisdiction of the community school boards, they shall have a right of appeal in accordance with Section 2590-g(10) and Section 2590-l of the Decentralization Law.”

      . Mrs. Boatright testified that the handwritten addendum was already affixed to the letter at the time it was handed to her.

      . For purposes of focusing on the issues, the instant dispute will be treated as principally involving P.S. 244. In fact, two of the named plaintiffs registered their children at District 18’s P.S. 235 and P.S. 233, respectively. At the 1972 registration conducted by Assistant Superintendent Schreiber (discussed infra), some children also were registered at P.S. 135 and P.S. 268. Those five schools constituted the places of attendance of Tilden Houses children in the pre-decentralization years.

      . Throughout this period District 18 was also engaged in an ongoing dispute concerning the assignment of junior high school students from Tilden Houses. Indeed, according to the testimony of Assistant Superintendent Sehreiber, it was District 18 Acting Community Superintendent Garner’s direction not to register any Tilden Houses children in Junior High School 285 which provided the immediate impetus for the placing of District 18 in trusteeship. Late in the day on September 11, however, District 18 agreed to follow the mandate of the central authorities with respect to the placement of junior high school students. Assistant Superintendent Sehreiber immediately abandoned his trusteeship over the district’s junior high schools. Prom that point on, the trusteeship was limited to the elementary schools.

      . The appeal referred to in this letter is an administrative proceeding before the New York State Commissioner of Education in which the sole issue is whether the inter-district agreement between Districts 18 and 23 is of continued vitality beyond the school year 1971-72.

      . A simultaneous request to direct Tilden Houses junior high school students to Junior High School 252 rather than Junior High School 285 was quickly rejected as unacceptable. No similar objection was received with respect to the elementary school plan.

      . The suggestion has been made that this standard may be inapplicable in a civil rights case once a prima facie showing of discriminatory effect has been made. It is true that, where the appropriate showing is made at a trial on the merits, the burden will shift to the defendant. Chance v. Board of Examiners, 458 F.2d 1167, 1176 (2 Cir. 1972). While that rule may be relevant in evaluating a plaintiff’s likelihood of success at trial, it does not change the basic equation by which a motion for preliminary injunction is assessed. We therefore see no reason to apply any different standard in a civil rights or other constitutional action than in any other case at this procedural stage. See, e. g., Inmates of Attica Correctional Facility v. Rockefeller, 453 F.2d 12, 20 (2 Cir. 1971).

      . A rather pointed contradiction in the evidence concerned the presence of black parents among the P.S. 244 contingent protesting the registration of Tilden Houses children. During the testimony of appellant Mrs. Bulena Pride, for example, a colloquy ensued during which the court inquired whether any black parents of children at P.S. 244 objected to the Til-den Houses children. Mr. Jones, counsel for appellants, responded, “There was at the most one black parent who may have spoken out.” Acting Superintendent Garner, however, testified that when he arrived at P.S. 244 on September 12, “there were large numbers of neighborhood peo-pie, ■which included both blacks and whites. And I have the names, if you care for me to identify those people of the black community who were present.” Garner further testified, in response to a question about the position of the P.S. 244 parents:
      “Both black and white parents of 244— and I point out that there are twelve to fifteen black members of the Executive Board of the P.T.A. at 244 — had taken the unanimous position that they couldn’t accept any new children to their school because of their concern for the very crowded conditions on many of the grades.”
      While we do not belabor the importance of this inconsistency in the evidence, we do note that perhaps some of the sting of Mr. Garner’s statement to the parents (set out in the text following this note) is relieved by the presence of even some black parents among the group.

      . We take particular note in this regard of the continuing attempt by District 18 to exclude Tilden Houses residents from all of its schools right from the outset of decentralization.

      . As of June 29, 1972.

      . The figures for all elementary schools in District 18 as of October 29, 1971 disclose a racial composition among the approximately 13,000 students of 32% “Negro”, 6% “Puerto Rican” and 62% “Other”. Three of the thirteen schools had a combined black and Puerto Rican enrollment of less than 2%, while a fourth had a black and Puerto Rican enrollment of 89%. But see note 14, infra.

      . We emphasize again that the wide variations in racial mix in the schools throughout District 18 is of no legal consequence on this appeal. The sole issue here is the constitutionality of the assignment of Tilden Houses children to P.S. 135 rather than to that and other schools in accordance with past practice.

      . See, e. g., Robinson v. Shelby County Board of Education, 467 F.2d 1187 (6 Cir. 1972), where the figures stated in the dissenting opinion demonstrate that the desegregation order permitted the retention of several virtually one-race schools. Id. at 1188-1205.

      . A similar inquiry into tlie relative merits of district schools is reflected in tlie opinions of tlie district and circuit courts in Keyes v. School District No. 1, Denver, Colorado, 313 F.Supp. 61, 78-81 (D. Colo.1970), aff’d in part, 445 F.2d 990, 1003-04 (10 Cir. 1971), rev’d, - U.S. - (1973).

      . Tilden Houses children would be bused to either school, both being more than one mile from the students’ home addresses.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jose Torres GUZMAN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Pablo Campos LOPEZ, Defendant-Appellant.
    Nos. 72-1709, 72-1216.
    United States Court of Appeals, Ninth Circuit.
    Dec. 26, 1972.
    Rehearing Denied May 8, 1973.
    Certiorari Denied Oct. 15, 1973.
    See 94 S.Ct. 251.

      John A. Mitchell (argued), of Mitchell, Schmidt & D’Amico, San Diego, Cal., Nancy Ann Baker (argued), San Leandro, Cal., for defendants-appellants.
    Shelby R. Gott, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., San Diego, Cal., for plaintiff-appellee.
    Before TRASK and CHOY, Circuit Judges, and ANDERSON, District Judge.

       Hon. J. Blaine Anderson, United States Judge for the District of Idaho, sitting by designation.

   PER CURIAM:

These consolidated appeals are from judgments of conviction following jury verdicts of guilty on a three-count indictment charging conspiracy to import, importing, transporting and concealing approximately 2.2 pounds of heroin, in violation of 21 U.S.C. § 174. We affirm.

The evidence adduced at the trial reveals that Lopez, Guzman and Baca smuggled the heroin across the Mexican border in the spare tire of Baca’s 1968 Dodge Charger through the port of entry at Calexico, California. An informant contacted the Customs Agent on two occasions. He identified appellants and Baca by name. He described the vehicle to be used with accurate particularity and gave the license number, as well as when and where the appellants would be in Mexicali and the kind of narcotic involved. It was also shown' that Customs Agents, acting on this information, began surveillance of Baca’s car in Mexicali, Mexico, and arrested the three shortly after they crossed the border, the arrest taking place some six miles from the port of entry.

The testimony of the Customs Agents established that surveillance was temporarily lost while the car went down a dirt road in Mexicali, and then the car subsequently reappeared. The area in which the ear disappeared is notoriously infested with narcotic dealers. When the car reappeared, the surveillance was constant until the actual time and place of arrest some six miles outside of Cal-exico, California.

At the trial it was shown that the government’s main witness, Baca, had made a statement before the magistrate that he, alone, was responsible for the heroin and that Lopez and Guzman had nothing to do with the transaction. It was also shown that Baca was allowed to plead guilty to a less serious offense than that charged against the appellants. There was also evidence that the appellants offered Baca $20,000.00 to take the “rap” for them. This offer was allegedly made between the time of the arrest and arraignment before the magistrate.

The informant who gave the Customs Agents the tip was never identified in court. The trial judge interviewed the Customs Agent on this subject, in camera, and ascertained that the informer had been reliable on previous occasions and that he was not a party to the transaction, nor present when the narcotics were seized. On the basis of the interview with the Customs Agent, the trial judge denied appellants’ motions to reveal the identity of the informant.

Appellants cite many alleged errors in the proceedings and trial, only a few of which we feel merit discussion. Appellants argue that denial of the motions to reveal the identity of the informant and to suppress the evidence gained from the search of Baca’s vehicle constitutes reversible error. This argument assumes that the search of Baca’s vehicle was not a border search and that for the search to be made, there must be probable cause. We do not share this assumption. We hold that the search of Baca’s vehicle was a border search and that pursuant to the provisions of 19 U. S.C. § 1581, the question of probable cause becomes irrelevant. As we stated in Alexander v. United States, 362 F.2d 379, at 381 (9th. Cir. 1966):

“. . . [T]he Congress has in effect declared that a search which would be ‘unreasonable’ within the meaning of the Fourth Amendment, if conducted by police officers in the ordinary case, would be a reasonable search .if conducted by Customs officials in lawful pursuit of unlawful imports.”

Thus, the reliability and identity of the informant are not crucially important factors when a border search is in question and from the record it is apparent that the trial judge took precautions to insure that all parties were treated fairly as to this issue.

The question of what constitutes a “border search” has been sufficiently discussed in this circuit, Rodriguez-Gonzales v. United States, 378 F.2d 256 (9th Cir. 1967). We do hold that the search of Baca’s car is sufficiently analogous to the situation in Rodriguez-Gonzales, where the search took place fifteen hours after crossing and twenty miles from the border, to qualify as a valid border search. Thus, there was no error on the part of the trial judge in denying the defendants’ motion.

The defendants also charge that the evidence was insufficient to sustain the conviction of the appellants. Viewing the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), Mosco v. United States, 301 F.2d 180 (9th Cir. 1962), we find that a jury could reasonably,find the appellants guilty as charged in the indictment.

Appellants’ other allegations of error do not merit discussion. Appellants were fairly tried and fairly convicted. The Judgment of the District Court is affirmed.


author: CHOY, Circuit Judge:

text:
    UNITED CALIFORNIA BANK, a California banking corporation, Plaintiff, v. Robert N. FADEL et al. Robert N. FADEL, Defendant/Cross-Claimant/Cross-Defendant/Appellant, v. The HARTFORD ACCIDENT AND INDEMNITY COMPANY and United States of America, Department of Internal Revenue Service, Defendants/Cross - Defendants/Cross - Claimant (Hartford)/Appellees.
    No. 71-1374.
    United States Court of Appeals, Ninth Circuit.
    July 12, 1973.

      Alvin D. McNeil, San Francisco, Cal., Theodore S. Tabah, Encino, Cal., for appellant.
    Johnnie M. Walters, Asst. Atty. Gen., Washington, D. C., Richard W. Nichols, Asst. U. S. Atty., Sacramento, Cal., Johnson, Davies, Greve & Clifford, Sacramento, Cal., Milton M. Newmark, Lafayette, Cal., Thomas W. Olson, Jr., Sacramento, Cal., McCormick & Williams, Los Angeles, Cal., John K. Derham, Joseph A. Kiernan, San Francisco, Cal., for appellees.
    Before MERRILL, CARTER and CHOY, Circuit Judges.
   CHOY, Circuit Judge:

Fadel appeals from an order dismissing his cross-claim for lack of jurisdiction over the subject matter. We dismiss on another ground.

The principal suit arose when United California Bank brought an interpleader action to determine the ownership of funds in a savings account standing in the name of Robert N. Fadel. Defendants Hartford Insurance Group, United States and Fadel each answered and asserted an interest in the funds. Hart-' ford’s claim was based on an assignment from Fadel. The United States asserted a federal tax lien on the funds. Fadel’s answer included a cross-claim in which he sought to demonstrate that he was not the taxpayer against whom the United States should proceed to satisfy the lien and that Hartford should be declared liable for the unpaid taxes based on the actions of its agent. Fadel sought a declaration that he was not liable to the United States for unpaid taxes.

Hartford twice sought dismissal of Fadel’s cross-claim for lack of subject matter jurisdiction under Rule 13(g). The district judge found that the cross-claim related substantially to the claims of Hartford and the United States to the bank account. Hartford then contended that the district court lacked jurisdiction over the cross-claim since Fadel sought to avoid or challenge a tax assessment without first paying the assessment. The ' district court granted the motion on the basis of 26 U.S.C. § 7421 which prohibits suits to restrain the assessment or collection of federal taxes.

We must first determine on our own motion whether the dismissal of Fadel’s cross-claim is a final judgment which enables us to entertain an appeal. If not, we must dismiss for want of jurisdiction whether or not appellee has moved for dismissal. Atkins, Kroll (Guam), Ltd. v. Cabrera, 277 F.2d 922, 923 (9th Cir. 1960).

Rule 54(b) of the Federal Rules of Civil Procedure provides:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one pr more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

The rule is intended to prevent piecemeal litigation and provides a process of certification in which a district judge can certify a claim for appeal only if he makes an express determination that there is no just reason for delay and an express direction for the entry of judgment. Rule 54(b) must be strictly complied with although there are instances where a collateral order can have the required finality for an appeal. See 6 J. Moore, Federal Practice ¶ 54.31 (2d ed. 1972).

Here the cross-claim related substantially to the monies involved and the other claims spawned by the interpleader. The cross-claim was an ingredient of the interpleader and was not separable or collateral. Certification by the district court was required. 6 J. Moore, Federal Practice ¶ 54.35 [2] (2d ed. 1972). Since the district court did not certify the dismissal of the cross-claim, this appeal is dismissed. See Illinois Tool Works, Inc. v. Brunsing, 378 F.2d 234, 236 (9th Cir. 1967); Metal Coating Corp. v. National Steel Construction Co., 350 F.2d 521, 522 (9th Cir. 1965); Matanuska Valley Lines v. Neal, 229 F.2d 136, 138 (9th Cir. 1955).


text:
    C. Merritt WINSBY, Appellant, v. JOHN OSTER MANUFACTURING CO. and Gimbel Brothers, Inc.
    No. 72-1256.
    United States Court of Appeals, Third Circuit.
    Submitted Feb. 6, 1973 under Third Circuit Rule 12(6).
    Decided June 28, 1973.

      T. Lawrence Palmer, Kirkpatrick, Lockhart, Johnson & Hutchison, Pittsburgh, Pa., for appellant.
    Kim Darragh, Meyer, Darragh, Buckler, Bebenek & Eck, Pittsburgh, Pa., for' appellees.
    Before BIGGS and GIBBONS, Circuit Judges and HUYETT, District Judge.
   OPINION OF THE COURT

PER CURIAM:

In this products liability suit, plaintiff was required, despite timely objection, to proceed to trial before a six-man jury per force of local Rule 21(C) of the United States District Court for the Western District of Pennsylvania. The jury returned a verdict in favor of defendants, judgment was so entered, and the court below denied plaintiff’s motion for a new trial. This appeal followed.

Plaintiff asserts that the Seventh Amendment to the Constitution, 28 U.S.C. § 2072, and F.R.Civ.P. 48 (see 28 U.S.C. § 2071 and F.R.Civ.P. 83) all prohibit reduction in the size of the 12-man jury in civil cases by means of a district court rule. The Supreme Court has, however, by its recent decision in Colgrove v. Battin, — U.S. -, 93 S.Ct. 2448, 37 L.Ed.2d 522 (1973) (filed June 21, 1973), resolved such doubts as to the propriety of a district court’s unilateral reduction in the size of the 12-man jury, and plaintiff’s challenge is thus foreclosed.

Plaintiff also claims that the trial court’s instructions to the jury were inadequate on the theory of strict liability, § 402A of the Restatement (Second) of Torts. On review of the charge, we find no error in this regard.

The judgment of the district court will be affirmed.

      . Jurisdiction rests on diversity of citizenship, 28 U.S.C. § 1332 (1970).

      . Rule 21(C) of the United States District Court for the Western District of Pennsylvania provides: “C. Civil Action Juries. In all civil jury eases the 4'ury shall consist of six members.”

      . The opinion of the district court is reported at 336 F.Supp. 663 (W.D.Pa.1972).


text:
    Frankie V. JOSEPH, Petitioner-Appellant, v. LOUISIANA STATE PENITENTIARY et al., Respondents-Appellees.
    No. 73-1619
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 24, 1973.

      Frankie V. Joseph, pro se.
    William Guste, Atty. Gen., S. J. Dileo, Jr., Sp. Counsel, Criminal Div., Baton Rouge, La., for respondents-appellees.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

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

   PER CURIAM:

Frankie V. Joseph, a prisoner of the State of Louisiana, filed a Civil Rights complaint seeking monetary damages from the director of state correctional institutions and several prison officials, for alleged mistreatment because he is an “Islam Muslim.” The district court granted leave to file the complaint in forma pauperis, and subsequently dismissed it on motion of the defendants. Leave to appeal in forma pauperis was denied by the district court but granted by this Court.

It appears that the complaint stated a claim for damages at least for wrongfully placing and keeping Joseph in solitary confinement and for abusing him while there. See Sostre v. McGinnis, 2 Cir. 1971, 442 F.2d 178. “[I]t must be remembered that prisoner petitions, no less than any other complaint filed in Federal Court, may not be dismissed on the pleadings ‘unless it appears to a certainty that the plaintiff would not be entitled to recover under any state of facts which could be proved in support of his claim.’ ” Campbell v. Beto, 5 Cir. 1972, 460 F.2d 765.

Vacated and remanded.

      . 42 U.S,C. § 1981 et seq.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Edward A. BECKELHYMER, Jr., Defendant-Appellant.
    No. 72-3455
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 20, 1973.

      George P. Kazen, Laredo, Tex., for defendant-appellant.
    Anthony J. P. Farris, James R. Gough, Alvin A. Horne, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.

       Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N. Y., 431 F.2d 409, Part I (5th Cir. 1970).

   ON PETITION FOR REHEARING

Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

PER CURIAM:

The opinion of this court dated May 15, 1973, is withdrawn and the following opinion is adopted as the opinion of the court.

Beckelhymer was convicted by a jury on six counts charging violations of certain provisions of the Gun Control Act of 1968 and on one count charging that he conspired to violate the provisions of that law. The court imposed a sentence of five years imprisonment on each substantive count, but suspended all of these sentences and placed the defendant on probation for five years for each count with the probation periods to run concurrently. The court also imposed a sentence of five years imprisonment and a 10,000 dollar fine on the conspiracy count. The imprisonment on this count was likewise suspended and Beekelhy-mer was placed on probation conditioned on the payment of the fine in monthly installments. On this appeal the defendant contends that the evidence was insufficient to support any of the jury verdicts.

The record contains ample evidence from which the jury could properly have found that Beckelhymer conspired to violate the provisions of this Act. The concurrent sentence doctrine makes it unnecessary to examine the defendant’s claims that the jury verdicts on the substantive counts were unsupported by evidence. E. g., United States v. Stone, 472 F.2d 909 (5th Cir. 1973); United States v. Payne, 467 F.2d 828 (5th Cir. 1972). The judgment appealed from is

Affirmed.

      . Specifically, three violations of 18 U.S.O. § 922(b)(3) and three violations of 18 U.S.O. § 922 (m).


text:
    Abelardo FLORES and Edward M. Devora, on their own, and on behalf of a class of persons similarly situated and too numerous to mention, Plaintiffs-Appellants, v. GEORGE BRAUN PACKING COMPANY, DIVISION OF LEONARD & HARRAL PACKING COMPANY, et al., Defendants-Appellees.
    No. 73-1489
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 17, 1973.
    Rehearing and Rehearing En Banc Denied Nov. 8, 1973.

      Frank Herrera, Jr., San Antonio, Tex., for plaintiffs-appellants.
    Marion R. McClanahan, L. W. Gibbs, San Antonio, Tex., for defendants-appel-lees.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

       Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N.Y., 431 F.2d 409, Part I (5th Cir. 1970).

   PER CURIAM:

The plaintiffs, slaughterhouse workers who are on strike against their employers, contend that the Immigration and Nationality Act, i. e., 8 U.S.C. §§ 1101(a) (15) (a) (ii), 1182(a) (14), and 1324, and the regulations implementing those provisions, 29 C.F.R. § 60.1, et seq., create a private right of action against their employers, based on the alleged employment of Mexican nationals who illegally entered the United States. We follow the holding of the Tenth Circuit in Chavez v. Freshpict Foods, Inc., 456 F.2d 890 (1972), cert. denied, 409 U.S. 1112, 93 S.Ct. 925, 34 L.Ed.2d 695 (1973), which determined that no such private remedy exists.

The order of the district court dismissing the complaint is

Affirmed.


text:
    106 FORSYTH CORPORATION d/b/a Paris Theatre, Plaintiff-Appellant, v. Julius F. BISHOP, In his capacity as Mayor of the City of Athens, Etc., et al., Defendants-Appellees.
    No. 72-1389.
    United States Court of Appeals, Fifth Circuit.
    July 19, 1973.
    Rehearing Denied Nov. 2, 1973.
    D. Freeman Hutton, Atlanta, Ga., Robert Eugene Smith, Towson, Md., R. Bruce Lowry, Athens, Ga., for plaintiff-appellant.
    Joseph J. Gaines, Athens, Ga., for defendants-appellees.

      Before TUTTLE, CLARK, Circuit Judges. COLEMAN and
   PER CURIAM:

On the authority of Paris Adult Theatre I v. Slaton, - U.S. -, 93 S.Ct. 2628, 37 L.Ed.2d 446 [1973], the judgment appealed from is affirmed. The opinion of the district court is reported at 362 F.Supp. 1389 [Athens Division Middle District of Georgia, 1972].

In affirming the court below we hold that premising the revocation of a movie house license upon a violation of a valid state law or city ordinance forbidding the exhibition of sexually explicit material does not violate the right of free speech vouchsafed under the First Amendment.

Moreover, we find no constitutional infirmity in the revocation procedures under the circumstances of this case. We do not reach the question whether the city council hearing combined with the right of the losing party to seek certiorari from the Superior Court, Georgia Code 19-101, which is granted only when “sanctioned” by the Superior Court judge, Georgia Code 19-203, would provide the full adversary judicial determination of obscenity required by the Supreme Court before final restraint. Freedman v. Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 13 L.Ed.2d 649; Paris Adult Theatre I v. Slaton, supra, - U.S. at -, 93 S.Ct. at 2628.

Whatever question may be raised about the nature of the review afforded under the Georgia law and the right to have supersedeas pending final appeal thereafter under other circumstances, no such question stated is present here. The trial court stated

defense counsel stated in open court that in the event of a ruling in this case favorable to the mayor and council the defendants would withhold actual revocation until plaintiff has had full opportunity to exhaust all appellate review.

Thus, the plaintiff is assured that it will get its question whether these showings were protected by the First Amendment finally determined by the highest court of the State of Georgia, and then have an opportunity to have that decision reviewed in the Supreme Court of the United States if it desires to do so, before any restraint by way of revocation of its license can occur.

We express no opinion as to whether the Georgia obscenity statute, Ga. Code § 26-2101, or that portion of the Athens city ordinance promulgated pursuant to Ga. Code § 23-3401 et seq. which defines “sexual conduct” are constitutional in all respects. The construction and interpretation of these Georgia laws and ordinances is a task for the Georgia courts, United States v. 12 200-Ft. Reels, - U.S. -, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973) (#70-2, June 21, 1973, 41 L.W. 4961); Paris Adult Theatre I v. Slaton, supra. An abstract federal review of all possible applications of these provisions would be improper. The right of the plaintiff to have the First Amendment issues resolved in a federal form will be adequately protected if it is accorded at the time when the city specifically attempts to apply either regulation more broadly than the new standards enunciated by the Supreme Court will permit.

Affirmed.


text:
    SONESTA INTERNATIONAL HOTELS CORPORATION, Plaintiff-Appellant, v. COLONY SQUARE COMPANY et al., Defendants-Appellees.
    No. 73-1597.
    United States Court of Appeals, Fifth Circuit.
    July 5, 1973.

      Charles R. Holman, Jr., William R. King, Atlanta, Ga., for plaintiff-appellant.
    R. Neal Batson, Oscar N. Persons, J. Randolph Pelzer, Atlanta, Ga., for defendant-appellee.
    Before JOHN R. BROWN, Chief Judge, and COLEMAN and DYER, Circuit Judges.
   PER CURIAM:

Sonesta International Hotels Corporation brought this action in the district court seeking specific performance or, in the alternative, damages for the breach of a letter of intent entered into by it and Colony Square Company, a real estate developer, to cooperate in the development of a hotel to be constructed by Colony and to be leased by Sonesta. After Sonesta had presented its evidence Colony moved for an involuntary dismissal with prejudice pursuant to Fed. R.Civ.P. 41(b), and the motion was granted. This appeal followed.

In its findings of fact and conclusions of law the district court carefully analyzed the letter of intent, as well as the extensive negotiations that preceded and followed it. Based on this review, the district court concluded that the letter did not create a binding contract with enforceable obligations; that, if the letter imposed on Colony an obligation of good faith bargaining, that obligation had been met; and that Colony was not estopped from contesting the effect of the letter of intent. Our examination of the record convinces us that the district court’s findings of fact are not clearly erroneous, that it applied the proper legal principles to those facts, and that the ultimate construction placed on the contract is correct.

Affirmed.


author: PER CURIAM.

text:
    William J. HART and Paul A. Stackhouse, Appellants, v. UNITED STEELWORKERS OF AMERICA, AFL-CIO-C.L.C., and I. W. Abel, President, Appellees.
    No. 72-2022.
    United States Court of Appeals, Third Circuit.
    Submitted Under Third Circuit Rule 12(6) July 2, 1973.
    Decided July 12, 1973.

      J. W. Mellvaine, California, Pa., Hor-mell, Tempest, Bigi & Melenyzer, Monongahela, Pa., for appellants.
    Michael H. Gottesman, Washington, D. C., and Carl Frankel, James D. English, Pittsburgh, Pa., for appellees.
    Before GIBBONS and HUNTER, Circuit Judges.
   OPINION OF THE COURT

PER CURIAM.

In this action two members of the United Steelworkers of America, alleging that the Union violated the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-34 by declaring them ineligible to run for union office because of their age, sought injunctive relief requiring that the Union facilitate their candidacies. The district court denied injunctive relief and this court denied injunctive relief pending appeal. Meanwhile on February 13, 1973 the election of union officers for a four-year term was held. The officers elected took office on June 1, 1973. Also, prior to February 13, 1973 the plaintiffs became sixty-five years of age. They are now both beyond the age protected by the Age Discrimination in Employment Act of 1967 and beyond the age of eligibility for union office set forth in the union constitution. No injunctive relief can be given to plaintiffs in these circumstances, and the case is moot. E.g., Golden v. Zwickler, 394 U.S. 103, 89 S. Ct. 956, 22 L.Ed.2d 113 (1969); Colpo v. Highway Truck Drivers, Local 107, 305 F.2d 362 (3d Cir.), cert. denied, 371 U.S. 890, 83 S.Ct. 188, 9 L.Ed.2d 123 (1962).

This appeal will be dismissed and the case remanded to district court where the judgment appealed from will be vacated as moot. See United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950).


text:
    Donald GARDNER and Richard Eagen, Plaintiffs-Appellants, v. Samuel T. JOYCE, Sheriff, Indian River County, et al., Defendants-Appellees.
    No. 73-1452
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 25, 1973.

      Douglas S. Lyons, Miami, Fla. (Court-appointed), for plaintiffs-appellants.
    Fred R. Ober, Miami, Fla., for defendants-appellees.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

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

   PER CURIAM:

Gardner and Eagen brought this civil rights action for damages under 42 U.S. C.A. § 1983, alleging that certain summary disciplinary action taken against them while they were being held in the Indian River County Jail violated their constitutional rights. After a jury trial which .resulted in a verdict for the county sheriff and the chief jailer, Gardner and Eagen appealed. They argue here that they should have received a directed verdict on the question of due process, that their court-appointed attorney should receive compensation under the Criminal Justice Act, 18 U.S.C.A. § 3006A, that they were prejudiced by the admission of certain evidence even though it was ultimately excluded, and that the district court erroneously refused two of their requested jury instructions. We affirm.

There were two incidents which gave rise to these damage claims. The first, involving Gardner, resulted in his being placed in administrative segregation for seven days following his use of vulgarity toward a jailer; the jailer had just returned a letter which had not complied with the jail’s outgoing mail procedures.

The second incident began with a jailer’s concern over a dirty dayroom being occupied by the plaintiffs and four other prisoners. When questioned by the chief jailer about the mess, Gardner and Eagen became abusive and intractable. The chief jailer left to get some additional help; when he returned with several deputies, Gardner and Eagen refused to cooperate and Gardner broke off a length of wood from a broom handle for a weapon. The deputies then used mace to subdue Gardner, and, after he dropped a sharpened spoon, Eagen was also subdued and taken away. Each man received seven days of administrative segregation. It is undisputed that there was no written notice of charges and no hearing prior to the imposition of the segregation in either incident.

Plaintiffs’ first contention is that the summary disciplinary action taken violated Fourteenth Amendment due process as a matter of law. We do not agree. Although this court is never reluctant to protect the civil rights of all citizens, including prisoners, see, e. g., Cruz v. Hauck, 5 Cir. 1973, 475 F.2d 475, when a constitutional claim is aimed at the internal administrative decisions of jails and prisons, those decisions are accorded great deference. Royal v. Clark, 5 Cir. 1971, 447 F.2d 501; Krist v. Smith, 5 Cir. 1971, 439 F.2d 146; Flint v. Wainwright, 5 Cir. 1970, 433 F.2d 961; Haggerty v. Wainwright, 5 Cir. 1970, 427 F.2d 1137; Conklin v. Wainwright, 5 Cir. 1970, 424 F.2d 516; cert. denied, 400 U.S. 965, 91 S.Ct. 376, 27 L.Ed.2d 385; Diehl v. Wainwright, 5 Cir. 1970, 419 F.2d 1309; Granville v. Hunt, 5 Cir. 1969, 411 F.2d 9.

Without considering the rights that other prisoners may have under other circumstances, our review of this record and the applicable law convinces us that the actions of these jail officials, about which there was some dispute, did not require a directed verdict on the question of whether the plaintiffs’ due process rights had been violated.

The plaintiffs’ three remaining arguments require little attention. First, the request for attorney’s fees under the Criminal Justice Act for an attorney appointed under 28 U.S.C.A. § 1915 to assist a prisoner in a § 1983 suit finds no support or authority in the CJA. Cf. Dragon v. United States, 5 Cir. 1969, 414 F.2d 228. Secondly, the evidence and testimony about the hacksaw blade sent to Eagen, which was improperly admitted but then correctly excluded, was not so prejudicial as to require a reversal, especially in light of the cautionary instruction given by the district judge and the absence of a motion for a mistrial. See Conner v. United States, 5 Cir. 1963, 322 F.2d 647, cert. denied, 1964, 377 U.S. 907, 84 S.Ct. 1167, 12 L.Ed.2d 178. Finally, the plaintiffs’ requested instructions — defining due process and noting the irrelevance of plaintiffs’ guilt — were, when the district court’s charge is read as a whole, not improperly refused as unnecessarily repetitive or improper statements of the law. See Brents v. Freeman’s Oil Field Service, Inc., 5 Cir. 1971, 448 F.2d 601; McGuire v. Davis, 5 Cir. 1971, 437 F.2d 570; Lind v. Aetna Casualty & Surety Co., 5 Cir. 1967, 374 F.2d 377.

Affirmed.

      . The administrative segregation consisted of a prisoner’s being removed from his normal cell and transferred to a vacant, but regulation cell for the period of the segregation. During this time, a prisoner is not allowed visitors, mail, or canteen privileges. He is fed the normal prison diet, however, and the segregation cell provides the same physical facilities as are afforded the other prisoners.

      . Both Gardner and Eagen claimed that they were segregated for twenty-one days, but the jail records and the defendants’ witnesses indicate that the punishment lasted only seven days.


author: AINSWORTH, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Burt McCRAY, Defendant-Appellant.
    No. 73-1458
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 23, 1973.
    Certiorari Denied Oct. 23,1973.
    See 94 S.Ct. 300.
    Charlene H. Sorrentino, Federal Public Defender, Miami, Fla. (Court appointed) , for defendant-appellant.
    Robert W. Rust, U. S. Atty., Michael P. Sullivan, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

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

   AINSWORTH, Circuit Judge:

Burt McCray was indicted on October 16, 1972 on two counts relating to narcotics violations. One count charged him with aiding and abetting in the possession of heroin with intent to distribute it, and the second count charged him with aiding and abetting in the distribution of heroin, in violation of 21 U.S.C. § 842(a)(1) and 18 U.S.C. § 2. The case was tried before the district judge without a jury. Because the district judge found that there was reasonable doubt that McCray had the right to exercise dominion and control over the heroin, he acquitted him on the first count. McCray was found guilty, however, of the second count, and sentenced to fifteen months’ imprisonment plus three years’ parole. We affirm.

The essential facts are clear. McCray himself testified that he helped an undercover agent, Detective Lindsay, not then known to appellant to be a police officer, purchase heroin from a drug dealer, Wackenhut. McCray participated by directing Wackenhut to Lindsay and by instructing Wackenhut to supply Lindsay with the heroin Lindsay wanted.

Appellant contends that he committed no crime, apparently on the theory that he did not have a financial interest in the transaction and did not possess or control the heroin. Appellant relies on a number of cases decided under a prior statute dealing with the “sale” of narcotics. See, e. g., Henderson v. United States, 5 Cir., 1959, 261 F.2d 909; Adams v. United States, 5 Cir., 1955, 220 F.2d 297; United States v. Sawyer, 3 Cir., 1954, 210 F.2d 169. But as we explained most recently in United States v. Johnson, 5 Cir., 1973, 481 F.2d 645, the rule of law has changed since those cases. It is now illegal to aid and abet in the distribution of heroin without regard for whether the defendant actually performed the act of sale. The Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. §§ 802(8), 802(11), defined “distribute” as “to deliver” and “deliver” was defined as the “actual, constructive, or attempted transfer of a controlled substance, whether or not there exists an agency relationship.” See also United States v. Workopich, 5 Cir., 1973, 479 F.2d 1142. In United States v. Anthony, 5 Cir., 1973, 474 F.2d 770, we explained the definition of an aider and abettor: “Aiding and abetting means to assist the perpetrator of the crime. . To be an aider and abettor requires that a defendant ‘associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seeks by his action to make it succeed.’ ” Here McCray actively participated with a desire to see the crime of distributing heroin succeed.

When defendant McCray told the district judge that he did not feel guilty of the crime charged, the district judge correctly pointed out that aiding and abetting, as well, constituted a violation of the law. There is sufficient evidence to support the district judge’s finding that defendant McCray was guilty on count two in the indictment. Affirmed.

      . Section 842(a) (1) reads as follows:
      (a) It shall be unlawful for any person'—
      (1) who is subject to the requirements of part C to distribute or dispense a controlled substance in violation of section 829 of this title ....

      . Section 2 reads as follows:
      (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
      (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

      . McCray testified as follows:
      Q. What, exactly, did happen between you and Detective Lindsay?
      A. Well, when I come inside of the Paradise he was sitting at the restaurant part in the Paradise and as I walked in,
      I was going to order a sandwich and he asked me did I know where he could purchase some heroin.
      I told him I didn’t have any; I know where he could get some.
      I went outside and got Wackenhut and when I come back inside, Wackenhut asked him how much did he want and he said two bags, and—
      Q. You came back inside?
      A. Yes.
      Q. Did you introduce Wackenhut to the agent, Detective Lindsay?
      A. No, I didn’t.
      Q. What happened when you came inside?
      A. When I come inside we walked over to Detective Lindsay and Wackenhut asked him what did he want. He said he wanted three bags. I said, “Just give him what he wants,” and in the process of Wackenhut giving it to him, I walked off.
      I didn’t even see them — whether he gave him the money or not.
      Q. When you first went outside, after Detective Lindsay asked you whether you could get some heroin for him, and you went outside, did you have any conversation, at that time, with Wackenhut?
      A. I told him someone inside wanted some.
      Q. Did you tell him what he wanted?
      A. Yes.
      Q. What did you say to him?
      A. I said, “Wackenhut, somebody inside wants some heroin,” and we walked back in there together.

      . The district judge responded as follows to McCray’s comment that he did not feel guilty:
      THE COURT: It is because you don’t understand the law. You really came here and told the Court, Mr. McCray that you did violate the law. You went out and arranged for a fellow to come in and sell some heroin.
      Now, you are under the impression that you have to be the seller. You don’t have to. If you just help the other fellow by getting them together and arranging the thing, if you don’t get a nickel, you are still guilty of this charge, and that’s what you don’t understand.
      You just don’t go around finding heroin for people, because it is against the law, even if you think that it is often done. It is against the law.
      There is no question but that you helped this fellow Wackenhut at least give or turn over to another fellow, three bags of heroin, because you admit that, you see.