author: CRAVEN, Circuit Judge:

text:
    VIRGINIA ELECTRIC AND POWER COMPANY, who sues for the Use and Benefit of Insurance Company of North America, Appellee, v. WESTINGHOUSE ELECTRIC CORPORATION and Stone & Webster Engineering Corporation, Appellants.
    No. 73-1212.
    United States Court of Appeals, Fourth Circuit.
    Argued June 4, 1973.
    Decided Oct. 3, 1973.

      James L. Sanderlin, Richmond, Va. (Robert E. Payne, McGuire, Woods & Battle, Richmond, Va., on brief) for appellant Westinghouse Electric Corp.
    Charles W. Laughlin, Richmond, Va. (J. Edward Betts, Christian, Barton, Parker, Epps & Brent, Richmond, Va., on brief) for appellant Stone and Webster Engineering Corp.
    Edward A. Marks, Jr., Richmond, Va. (Frank B. Miller, III, Albert M. Orgain, IV, and Sands, Anderson, Marks & Clarke, Richmond, Va., on brief) for appellee.
    Before HAYNSWORTH, Chief Judge, and CRAVEN and WIDENER, Circuit Judges.
   CRAVEN, Circuit Judge:

Virginia Electric and Power Company (VEPCO) brought this action on April 16, 1969, on its own behalf and on behalf of its insurer and partial subrogee, Insurance Company of North America (INA), to recover damages resulting from the failure of one of VEPCO’s power generating stations. The defendants are Westinghouse Electric Corporation, builder of the station, and Stone and Webster Engineering Corporation, the engineers. Jurisdiction was founded on diversity of citizenship under 28 U. S.C. § 1332.

The defendants moved to dismiss the action urging that INA, by virtue of the subrogation, was the real party in interest under Fed.R.Civ.P. 17 and must prosecute the action as plaintiff. Since INA is a Pennsylvania corporation, its joinder as party plaintiff would destroy diversity jurisdiction and require dismissal because defendant Westinghouse is also a Pennsylvania corporation. Alternatively, the defendants urged that INA was an indispensable person who could not be made a party (because to do so would destroy diversity jurisdiction) and that under Fed.R.Civ.P. 19(b) the action should be dismissed. The district court denied the motion to dismiss and certified, under 28 U.S.C. § 1292(b), that a controlling question of law was involved as to which there existed a substantial ground for difference of opinion and that an immediate appeal would materially advance the litigation. We granted an interlocutory appeal to determine whether the district court properly concluded VEPCO could pursue this action for the entire loss and that the action could continue without joinder of INA. We think so, and affirm.

I.

On January 22, 1967, a failure occurred at VEPCO’s Mount Storm Generating Station, resulting in alleged losses of approximately $2,200,000. There was in effect an insurance policy issued by INA securing VEPCO against the risk of additional operating costs due to physical damage or loss to facilities. The policy contained a $100,000 deductible clause. Pursuant to the policy, INA originally paid VEPCO $1,900,000.

VEPCO then brought this action on its own behalf for $200,000 (the $100,000 loss uninsured under the deductible provision of the insurance policy plus $100,000 alleged expediting expenses) and for $1,900,000 for its insurer, INA. VEPCO also instituted a separate action against INA for an alleged balance owing under the insurance policy of approximately $200,000. VEPCO and INA settled that action, and VEPCO received an additional $50,000 from INA, leaving VEPCO with an unreimbursed loss of $150,000. In consideration of the settlement, VEPCO and INA agreed that INA would furnish counsel and have exclusive control over the present action and that INA would prosecute VEPCO’s claims for the remaining uninsured loss. Additionally, VEPCO executed a subrogation agreement whereby INA was subrogated to the rights of VEPCO against Westinghouse and Stone and Webster.

The district court, construing the agreement of cooperation and the instrument of subrogation, found “that VEP-CO has retained a pecuniary interest and that standing is retained by virtue of its intent to recover the uninsured loss.” This finding is not contested on appeal. The district court then held that VEPCO as a real party in interest could proceed in the action to attempt to recover the full loss. The court concluded that INA was also a real party in interest and that the question of INA’s joinder was to be determined under Rule 19. The district court found: (1) that nonjoinder would not prejudice the parties, (2) any danger of double claims against the defendants could be protected against by appropriate decrees; (3) no other adequate forum existed for the resolution of the dispute in view of the interstate character of the dispute and the problems involved in obtaining personal jurisdiction in a state court. The court determined that in equity and good conscience the action should proceed among the parties before it without joinder of INA.

II.

About the best that can be said for Fed.R.Civ.P. 17 is that it conveys a certain amount of correct information about naming plaintiffs. C. Wright, Law of Federal Courts § 70, at 293-94 (2d ed. 1970). Originally intended to incorporate the more permissive practice of equity to permit persons having an equitable or beneficial interest to sue in their own names, it is now thought by some commentators to serve only to confuse the already complex problems of determining whether diversity of citizenship exists. 6 C. Wright & A. Miller, Federal Practice & Procedure: Civil § 1541. Intended to expand the class of those who may sue to include persons having an equitable or beneficial interest, the rule is unfortunately susceptible to efforts to prevent prosecution of claims as illustrated by this appeal. Ingenious counsel are enabled to present yet another “decision point” resulting in extravagant expenditures of time and effort before ever reaching the merits. See J. Frank, American Law, The Case for Radical Reform 65 (1969).

“Rule 17(a) is a barnacle on the federal practice ship. It ought to be scraped away. . . . Rules 19, 17(b) and substantive rules as to stating a claim for relief are adequate without interjecting the meaningless, logically inconsistent commands of the real party in interest rule . . . . ” Kennedy, Federal Rule 17(a): Will the Real Party in Interest Please Stand?, 51 Minn.L.Rev. 675, 724 (1967).

The meaning and object of the real party in interest principle embodied in Rule 17 is that the action must be brought by a person who possesses the right to enforce the claim and who has a significant interest in the litigation. Whether a plaintiff is entitled to enforce the asserted right is determined according to the substantive law. In a diversity action such as this one, the governing substantive law is the law of the state. While the question of in whose name the action must be prosecuted is procedural, and thus governed by federal law, its resolution depends on the underlying substantive law of the state.

In the present case it appears that VEPCO has both a sufficient interest in the litigation and is entitled under the substantive law to recover for the entire loss resulting from the failure of its generating station. VEPCO retained a significant pecuniary interest in the litigation. Thus this is not a case where an insurer-subrogee has paid an entire loss suffered by the insured and is the only real party in interest who must sue in his own name. United States v. Aetna Casualty & Surety Co., 338 U.S. 366, 380-381, 70 S.Ct. 207, 94 L.Ed. 171 (1949). In addition to having a sufficient interest in the litigation, VEPCO, as subrogor, is entitled under the substantive law to bring suit for its entire loss. VEPCO, being entitled to enforce the right, may bring this action even though INA will ultimately receive the major portion of any recovery.

To allow VEPCO to maintain this action for the entire loss accords with the purposes of Rule 17. Under the common-law practice, a subrogee or assignee could enforce his rights only in the name of his subrogor or assignor. The original purpose of Rule 17 was to liberalize party rules, i. e., to allow an assignee or subrogee to enforce his rights in his own name. The permissive function of Rule 17 has been accomplished, and Rule 17 now serves primarily a negative function. It is to enable a defendant to present defenses he has against the real party in interest, to protect the defendant against a subsequent action by the party actually entitled to relief, and to ensure that the judgment will have proper res judicata effect. In view of its current purpose, to protect defendants against subsequent suits, Rule 17 will not bar a suit by a real party in interest which will have the effect of preventing a multiplicity of suits.

Where there is partial subrogation, there are two real parties in interest under Rule 17. Either party may bring suit — the insurer-subrogee to the extent it has reimbursed the subrogor, or the subrogor for either the entire loss or only its unreimbursed loss. If either the subrogor or subrogee brings suit, joinder is often appropriate upon proper motion by the defendant. But joinder is not appropriate, and certainly not required by Rule 17, for the purpose of destroying diversity jurisdiction and requiring dismissal. Even without joinder the partial subrogee is generally precluded from bringing a subsequent action against the defendants where a judgment has been rendered in a suit by the subrogor for the entire loss. Multiplicity of suits, one by the subrogor for his loss and one by the subrogee for the reimbursed loss, is thus prevented as fully as if joinder were compelled.

In the present case INA will clearly be precluded from subjecting Westinghouse and Stone and Webster to further suits. Under the cooperation agreement between VEPCO and INA filed with the court, INA has full and exclusive control of the litigation. It is settled under the applicable substantive law that any judgment will have full res judicata effect as to INA in these circumstances.

Thus we conclude that the district court properly allowed the suit to continue with VEPCO as the party plaintiff. “It would result in unnecessary hardship and confusion to hold that such a company [as INA], entitled to partial subrogation, . . . must go into a state court and try over again issues that [will be] settled in the federal court. There is nothing in modern practice which sanctions any such absurdity.” Virginia Electric & Power Co. v. Carolina Peanut Co., 186 F.2d 816, 821 (4th Cir. 1951).

As noted, the modern function of Rule 17 is to prevent the defendant from being subjected to subsequent suits. In Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968), the Court stated that one of the primary considerations under Rule 19 in whether to allow a suit to continue where a party cannot be joined is the protection of a defendant from multiple litigation, or inconsistent relief. 390 U.S. at 10, 88 S.Ct. 733. In view of this overlap between Rule 17 and Rule 19, we think the emphasis in a case such as this should be on whether under Rule 19 the action should be allowed to continue without joinder of the absent party. That an absent person who cannot be joined is a real party in interest does not conclude the matter — the court must determine whether, in equity and good conscience, the action should proceed without the person.

III.

It is clear that a partial subrogee is a person to be joined if feasible under Fed.R.Civ.P. 19(a). United States v. Aetna Casualty & Surety Co., 338 U.S. 366, 381-382, 70 S.Ct. 207, 94 L.Ed. 171 (1949). However, here the partial subrogee, INA, cannot be joined without destroying diversity jurisdiction, and Rule 19 by its own terms exhibits concern that the courts not be deprived of jurisdiction by unnecessary joinder. Fed.R.Civ.P. 19(a). In such a case the court must consider the four factors enumerated in Rule 19(b) to determine whether in equity and good conscience the action should proceed, or should be dismissed, the absent person being regarded as indispensable. “Whether a person is ‘indispensable,’ that is, whether a particular lawsuit must be dismissed in the absence of that person, can only be determined in the context of particular litigation.” Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 118, 88 S.Ct. 733, 742, 19 L.Ed.2d 936 (1968).

A review of the four interests which must be considered by the district court in its discretion demonstrates that the court below properly allowed the action to continue without joinder of INA. First, it is difficult to see how a judgment in this action might be prejudicial to either INA or the parties before the court. INA has control of the litigation and the opportunity to fully litigate its derivative rights arising out of subrogation. The defendants have failed to show how they would be prejudiced on the merits by nonjoinder of INA. Second, if any prejudice were shown, it can be avoided by the shaping of relief. Third, it is clear that a judgment rendered in INA’s absence will be fully adequate to protect both INA and the parties and the public interest in the termination of disputes on the merits. The defendants have not sought any affirmative relief against VEPCO and do not suggest they would seek affirmative relief against INA if it were joined. Also because of INA’s control of the suit, it will be bound by any judgment in favor of the defendants. Fourth, it is not clear that plaintiff would have an adequate remedy in the courts of either Virginia or another state against both Stone and Webster and Westinghouse. INA, the partial subrogee, is thus clearly not an “indispensable” party to this litigation. See United States v. Aetna Casualty & Surety Co., 338 U.S. 366, 382 n. 19, 70 S.Ct. 207 (1949); Peoples Loan & Finance Corp. v. Lawson, 271 F.2d 529, 532 (5th Cir. 1959), cert. denied, 362 U.S. 903, 80 S.Ct. 613, 4 L.Ed.2d 555 (1960). The district court below correctly allowed the action to continue without joinder of INA.

Accordingly, for the reasons stated, the decision of the district court is

Affirmed.

      . VEPCO executed a cooperation agreement which provided in part:
      Vepco also agrees that the conduct of the continuing action to recover against Westinghouse and/or S. & W. for such claims shall be under the exclusive direction and control of the Insurer .... (7) Vepco and I.N.A. further agree that counsel for I.N.A. shall represent its claims, if any, against Westinghouse and/or S. & W. for uninsured loss, claim for which is in the sum of $150,000.00, but it shall be under no obligation for costs and expenses incurred in the prosecution of such claims conjunctively with those to which I.N.A. is subrogated.

      . The subrogation instrument provided in relevant part :•
      . . . Vepco hereby subrogates the Insurer to all of its remaining rights of recovery against Westinghouse Electric Corporation and/or gtone & Webster Engineering Corporation . . . for the losses and claims and damages resulting from an occurrence on January 22, 1967, at its Mount Storm Power Station, Mt. Storm, West Virginia

      . Counsel for INA lias now represented to the court that INA is willing to execute an agreement binding it to any final judgment in this action. Brief for appellee at 22.

      . Fed.R.Civ.P. 17(a) provides:
      (a) Real Party in Interest. Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in his own name without joining with him the party for whose benefit the action is brought; and when a statute of the United States so provides, an action for the use or benefit of another shall be brought in the name of the United States. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest ; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.

      . 6 C. Wright & A. Miller, Federal Practice & Procedure: Civil § 1542, at 639, § 1543 at 643-44 (1971) [hereinafter cited as Wright & Miller]; 3A J. Moore, Federal Practice ¶ 17.02 at 53 (2d ed. 1970) [hereinafter cited as Moore].

      . United States v. 936.71 Acres of Land, 418 F.2d 551 (5th Cir. 1969); Hoeppner Constr. Co. v. United States ex rel. Mangum, 287 F.2d 108 (10th Cir. 1960); Moore, ¶ 17.07 at 224-25. See also Travelers Indem. Co. v. Westinghouse Elec. Corp., 429 F.2d 77 (5th Cir. 1970); Standard Accident Ins. Co. v. Loliman, 295 F.2d 261 (7th Cir. 1961).

      . Cf. Gas Serv. Co. v. Hunt, 183 F.2d 417 (10th Cir. 1950).

      . See also City Stores Co. v. Lerner Shops, 133 U.S.App.D.C. 311, 410 F.2d 1010 (1969). AVhere an insured lias been fully recompensed but appears as a party, the insured is a nominal party only. The insured’s citizenship is not considered for purposes of diversity of citizenship, and upon timely motion the insurer-subrogee must be substituted as the party plaintiff. Link Aviation, Inc. v. Downs, 117 U.S.App.D.C. 40, 325 F.2d 613 (1963). In the present ease, the subrogation is only partial, and it is only the citizenship of the plaintiff, VEPCO, which is considered in determining diversity. C. Wright, Law of Federal Courts §§ 28-29 (2d ed. 1970).

      . Miller v. Tomlinson, 194 Va. 367, 73 S.E.2d 378 (1952); Glens Falls Ins. Co. v. Sherritt, 95 F.2d 823 (4th Cir. 1938); Carozza v. Boxley, 203 F. 673 (4th Cir. 1913). Va. Code Ann. § 38.1-31.2 (Supp.1970) provides that an insurer-subrogee may bring suit in its own name, but this is permissive and does not prevent the subrogor from suing for the entire loss.

      . Wright & Miller, § 1543, at 643-44. See Interstate Fire Ins. Co. v. Sayers, 468 F.2d 1361 (5th Cir. 1972); Jackson Mfg. Co. v. United States, 434 F.2d 1027 (5th Cir. 1970).

      . Notes of Advisory Committee on Rules, Fed.R.Civ.P. 17, 28 U.S.C.A. at 16.

      . Celanese Corp. v. John Clark Indus., Inc., 214 F.2d 551 (5th Cir. 1954). See generally United Fed’n of Postal Clerks, AFL-CIO v. Watson, 133 U.S.App.D.C. 176, 409 F.2d 462, 470-471 n. 34, cert. denied, 390 U.S. 902, 90 S.Ct. 212, 24 L.Ed.2d 178 (1969).

      . United Fed’n of Postal Clerks, AFL-CIO v. Watson, 133 U.S.App.D.C. 176, 409 F.2d 462, 470, cert. denied, 396 U.S. 902, 90 S.Ct. 212, 24 L.Ed.2d 178 (1969). It is urged that INA is already a party to the litigation by virtue of its being named a use plaintiff and because of the presence of its counsel. AVe think neither factor makes INA a party and that VEPCO may properly represent INA. See cases cited note 9 supra.

      . Aetna, 338 U.S. at 381-382, 70 S.Ct. 207; Kansas Elec. Power Co. v. Janis, 194 F.2d 942, 944 (10th Cir. 1952); National Garment Co. v. New York, C. & St. L. R.R., 173 F.2d 32 (8th Cir. 1949).

      . Joyner v. F & B Enterprises, Inc., 145 U.S.App.D.C. 262, 448 F.2d 1185 (1971). Under substantive law the partial subrogee may be collaterally estopped from bringing a subsequent action and any recovery by the subrogor is impressed with a trust in favor of the subrogee. See Braniff Airways, Inc. v. Falkingham, 20 F.R.D. 141 (D.Minn.1957). Also, as here, the subrogee may agree to be bound by the judgment. Urrutia Aviation Enterprises, Inc. v. B. B. Burson & Assoc., 406 F.2d 769 (5th Cir. 1969).

      . Patterson v. Saunders, 194 Va. 607, 74 S.E.2d 204, cert. denied, 345 U.S. 998, 73 S.Ct. 1132, 97 L.Ed. 1405 (1953).

      . See Gargis v. B. F. Goodrich Co., 386 F.2d 534 (3d Cir. 1967); Hoeppner Constr. Co. v. United States for use of Mangum, 287 F.2d 108 (10th Cir. 1960); Peoples Loan & Finance Corp. v. Lawson, 271 F.2d 529 (5th Cir. 1959), cert. denied, 362 U.S. 903, 80 S.Ct. 613, 4 L.Ed.2d 555 (1960); Celanese Corp. v. John Clark Indus., Inc., 214 F.2d 551 (5th Cir. 1954); Potomac Elec. Power Co. for use of Royal Indem. Co. v. Babcock & Wilcox Co., 54 F.R.D. 486 (D.Md.1972); Maryland for use of Geils v. Baltimore Transit Co., 37 F.R.D. 34 (D.Md.1965).

      . C. Wright, Law of Federal Courts § 70, at 296 (2d ed. 1970).

      . Fed.R.Civ.P. 19(a) provides:
      (a) Persons to be Joined if Feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and his joinder would render the venue of the action improper, he shall be dismissed from the action.

      . Fed.R.Civ.P. 19(b) provides:
      (b) Determination by Court Whenever Joinder not Feasible. If a person as described in subdivision (a) (l)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

      . Patterson v. Saunders, 194 Va. 607, 74 S.E.2d 204, cert. denied, 345 U.S. 998, 73 S.Ct. 1132, 97 L.Ed. 1405 (1953).

      . It further appears that commencement of suit in another court may now be barred by the statute of limitations. 7 C. Wright & A. Miller, Federal Practice & Procedure: Civil § 1608, at 80 (1972).

      . See Moore, ¶ 19.14 [1]; 7 C. Wright & A. Miller, Federal Practice & Procedure: Civil § 1608 (1972).


source: Caselaw Access Project

author: JAMES HUNTER, III, Circuit Judge:

license: Public Domain

text:
    Frank M. GAITO, C-7482, Appellant, v. Joseph R. BRIERLEY, Appellee.
    No. 72-1977.
    United States Court of Appeals, Third Circuit.
    Submitted Under Third Circuit Rule 12(6) July 2, 1973.
    Resubmitted Under Third Circuit Rule 12(6) Sept. 4, 1973.
    Decided Sept. 21, 1973.

      Errol S. Miller, Pittsburgh, Pa., for appellant.
    Robert W. Duggan, Dist. Atty., Robert L. Eberhardt, J. Kent Culley, Asst. Dist. Attys., Pittsburgh, Pa., for appellee.
    Submitted Under Third Circuit Rule 12(6) on July 2, 1973.
    Before GIBBONS and HUNTER, Circuit Judges.
    Resubmitted Under Third Circuit Rule 12(6) on Sept. 4,1973.
    Before ALDISERT, GIBBONS and HUNTER, Circuit Judges.
   OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

Frank Gaito appeals from an order of the United States District Court for the Western District of Pennsylvania denying, after an evidentiary hearing, his petition for a writ of habeas corpus. Gaito’s sole contention is that two required appearances before a jury in his prison clothes deprived him of his fourteenth amendment right to due process of law.

Gaito was convicted in 1959 in the criminal courts of Allegheny County, Pennsylvania, on charges of burglary, assault with intent to kill, and a violation of the Pennsylvania Uniform Firearms Act of 1939. A series of appeals and petitions culminated in the granting of a new trial by the Supreme Court of Pennsylvania because it found that an oral confession which the prosecution had introduced in the first trial was involuntary. Commonwealth ex rel. Gaito v. Maroney, 422 Pa. 171, 220 A.2d 628 (1966).

At his second trial, it is undisputed that Gaito was transported from the State Correctional Institution at Pittsburgh to the jury selection in his prison garb. This prison garb consisted of matching brown denim shirt and pants, work shoes, and a heavy dark brown corduroy coat. According to the affidavit of Edward Anent, a prison official, it was standard policy to take men to court in prison garb unless the court order specified that they were being sent for trial, in which event a suit would normally be furnished. Since Gaito’s court order “only stated [that] he was to be brought to court,” he was not provided with a suit. Consequently, while the jury was being chosen, appellant sat in the courtroom in his prison clothes. No objection to this procedure was made on that day by either appellant or his court-appointed attorney.

The next morning, according to Gaito’s testimony at the evidentiary hearing, his sister brought his civilian clothes to the prison, but a guard refused to permit him to return to his cell to put them on. Then, while he was waiting for his trial to start, appellant says that another prisoner told him about a recent decision from the Eastern District of Pennsylvania which purportedly held that it was prejudicial error to try a man in his prison clothes. Based on this information, Gaito himself asked the trial judge to declare a mistrial so that a new jury could be picked. This motion was denied, and appellant’s trial began with him dressed in his prison garb in full view of the jury. Several witnesses testified during the morning, and at the lunch recess Gaito obtained his civilian clothes which he wore for the rest of the trial. He was again found guilty and, after exhausting his state remedies, he filed the present habeas corpus petition.

In refusing to grant a writ of habeas corpus, the district court stated:

“Assuming, without deciding, the law to be that the appearance of a defendant before the jury in prison clothes is a violation of due process without a specific showing of actual prejudice, ... I find factually that the clothes in which the petitioner appeared were not reasonably identifiable as prison clothes. The petitioner testified that at times he had his coat on and at times he had it off. But neither the coat, the shirt, nor the pants bore any numbers, letters, or insignias. There were no identifying or branding marks on the uniform, with or without the coat. To me, then, and presumably to the jury, the clothes, which were clean and pressed and in no way demeaned the petitioner, appeared to be work clothes rather than prison clothes. There is no contention that any other circumstances of the retrial marked the petitioner as a prisoner.' Therefore, having failed to sustain his burden of proving that the clothes which he wore were probably discerned by the jury to be prison clothes, the petitioner will be denied a writ of habeas corpus.”

Although there is some authority to the contrary, we accept the majority view that compelling a defendant to appear before a jury in his prison clothes unconstitutionally infringes his due process right to be presumed innocent until proven guilty. E.g., Bentley v. Crist, 469 F.2d 854 (9th Cir. 1972); Hernandez v. Beto, 443 F.2d 634 (5th Cir. 1971), cert. denied 404 U.S. 897, 92 S.Ct. 201, 30 L.Ed.2d 174 (1971); Brooks v. Texas, 381 F.2d 619 (5th Cir. 1967); Commonwealth v. Keeler, 216 Pa.Super. 193, 264 A.2d 407 (1970); Miller v. State, 249 Ark. 3, 457 S.W.2d 848 (1970); People v. Shaw, 381 Mich. 467, 164 N.W.2d 7 (1969); People v. Zapata, 220 Cal.App.2d 903, 34 Cal.Rptr. 171 (1963), cert. denied 377 U.S. 406, 84 S.Ct. 1633, 12 L.Ed.2d 495 (1964); Eaddy v. People, 115 Colo. 488, 174 P.2d 717 (1946); Collins v. State, 70 Okl.Cr. 340, 106 P.2d 273 (1940); Shultz v. State, 131 Fla. 757, 179 So. 764 (1934). See Watt v. Page, 452 F.2d 1174 (10th Cir. 1972). Consequently, the issue which we must now decide is whether the district court was clearly erroneous in its factual finding that the clothes in question “were not reasonably identifiable as prison clothes.”

Several photographs were taken of appellant in the attire which he was required to wear before the jury. We have examined these photographs, and it seems to us probable that at least some of the jurors recognized this attire as a prison uniform. The government argues that this is unlikely since the clothes worn by Gaito bore no markings and were of a type commonly worn by working men such as gas station attendants or delivery men. This is not persuasive, however, in light of the following testimony from Gaito:

“Q. Was anyone else in the courtroom that day [of the trial] ?
* * * •» * *
“A. Not in the courtroom, no.
“Q. Did you see an> people in the building wearing those kind of clothes ?
“A.- Yes, there was about five or six other guys up there for trials, hearings or trials that day.
“Q. And what were the other facts about those people that distinguished them from the rest of the people in the building, in addition to their uniform?
“A. We all had these same kind of clothes on.
“Q. The same kind of clothes on. Were they walking alone or—
“A. No, no, they were being led by the sheriffs.
“Q. The other people in the jury room, the other men, were they all wearing coats and ties ?
“A. Everybody that I know of all had civilian clothes on, yes, sir.
“Q. So you were the only one in uniform when your jury was selected?
“A. Yes, sir.”

On redirect, Gaito reiterated his direct testimony:

“Q. Mr. Gaito, on the discussion of this jacket, whether it was distinctive, you have told us before that a number of other men were seen wearing similar uniforms in the halls of the courtroom before proceedings.
“You saw them. You assumed other people saw them, and they were handcuffed to deputy sheriffs or someone. Were they wearing jackets like that?
“A. Yes sir.
“Q. Were there any other jackets like that, anybody else wearing jackets like that that you saw ?
“A. Not no civilians, not that I knew of.”

In addition to Gaito’s testimony, his court-appointed attorney, who was called as a government witness, made the following statements on cross-examination:

“Q. Mr. Zamos, was anyone else in the courtroom dressed in garb similar to Mr. Gaito when the jury was selected?
“A. Not that I can recall.
“Q. Were any of the prospective jurors dressed in working uniforms?
* * * * * *
“A. Not as I can recall.
“Q. How were the male jurors dressed ? ’
“A. Ordinary garb, civilian garb.
“Q. Coats and ties ?
“A. Coats, ties, yes.
“Q. Had you ever seen men dressed like Mr. Gaito was? Have you ever seen men in this kind of uniform before?
“A. Yes.
“Q. Where had you seen them ?
“A. In the criminal courts.
“Q. In the chambers, in the hallways?
“A. Both.
“Q. And when they appeared in the hallways of the various courts, you heard Mr. Gaito’s testimony that they were handcuffed to deputy sheriffs when they were dressed this way.
“Is that your recollection, too, whenever you saw people dressed this way in the hallways, they were handcuffed to deputy sheriffs ?
“A. Sometimes, sometimes not.
“Q. But sometimes they were dressed that way, is that right ?
“A. Yes.”

After careful consideration of both the above testimony and the pictures of appellant, we conclude that the clothes worn by Gaito during jury selection and on the first half day of trial were reasonably identifiable as prison clothes and that the district court’s finding to the contrary was clearly erroneous and must be rejected.

The government asserts that even if there was error in requiring appellant to appear before the jury in prison garb, the error was harmless beyond a reasonable doubt because Gaito himself admitted on cross-examination that he had been in the penitentiary. The problem with this argument is that there is no way to know why appellant made this admission. He knew that the jury had already seen him in his prison uniform, and he may have believed that there was no point in trying to conceal the fact that he was a prisoner. For this reason alone, we cannot say the error made by the state trial court was harmless beyond a reasonable doubt.

The order of the district court denying the writ of habeas corpus will be reversed. The case is remanded to the district court to issue a writ of habeas corpus unless the Commonwealth of Pennsylvania grants Gaito a new trial within a reasonable period of time to be prescribed by the district court.

      . United States ex rel. Diamond v. Social Service Dept., 263 F.Supp. 971 (E.D.Pa. 1967).

      . See Hall v. Cox, 324 F.Supp. 786 (W.D.Va.1971); Xanthull v. Beto, 307 F.Supp. 903 (S.D.Tex.1970); McFalls v. Peyton, 270 F.Supp. 577 (W.D.Va.1967), aff’d 401 F.2d 890 (4th Cir. 1968), cert. denied 394 U.S. 951, 89 S.Ct. 1292, 22 L.Ed.2d 486 (1969).

      . We agree with the Fifth Circuit’s observation in Hernandez v. Beto, 443 F.2d 634, 637 (5th Cir. 1971), that “[a] defendant may not remain silent and willingly go to trial in prison garb and thereafter claim error.” This would constitute a voluntary waiver of his right which would negate the necessary element of compulsion. For example, a prisoner may want to appear in prison garb as part of a trial strategy designed to evoke jury sympathy. In the present case, the government contends that appellant’s claim that he was required to appear before the jury in his prison garb was purposely manufactured because appellant was offered civilian clothes before the trial but refused to accept them. The government points to nothing in the record to support this assertion, and we have not found anything. Under these circumstances, we cannot find a voluntary waiver.


author: TRASK, Circuit Judge:

text:
    Clyde BATES, Plaintiff-Appellant, v. Louis S. NELSON, Warden of San Quentin Prison at San Quentin, California, Defendant-Appellee. Manuel Joe CHAVEZ, Plaintiff-Appellant, v. Louis S. NELSON, Warden of San Quentin Prison at San Quentin, California, Defendant-Appellee.
    Nos. 71-3042, 71-3043.
    United States Court of Appeals, Ninth Circuit.
    Aug. 9, 1973.
    Certiorari Denied Jan. 7, 1974.
    See 94 S.Ct. 877.

      Ezra Hendon (argued), Berkeley, Cal., for plaintiff-appellant Bates.
    Roderick P. Bushnell (argued), Bushnell & Caplan, San Francisco, Cal., for plaintiff-appellant Chavez.
    Charles R. B. Kirk, Deputy Atty. Gen. (argued), Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Joyce F. Nedde, Deputy Atty. Gen., San Francisco, Cal., for defendant-appellee.
    Before HAMLIN and TRASK, Circuit Judges, and SOLOMON, District Judge.

       Honorable Gus J. Solomon, Senior United States District Judge, for the District of Oregon, sitting by designation.

   TRASK, Circuit Judge:

This is an appeal from the district court’s denial of petitioners’ writs of habeas corpus. The consolidated appeal is the latest in a long series of judicial proceedings since appellants were originally indicted on six counts of murder and one of arson for an incident on April 4, 1957, when gasoline and lighted matches were thrown into a bar; six persons died, others were seriously injured. Bates, Chavez and Manuel Hernandez were jointly tried before a jury and convicted on' all counts. The jury fixed the punishment of Bates and Chavez at death and that of Hernandez at life imprisonment. Their convictions and sentences were upheld by the Supreme Court of California. People v. Chavez, 50 Cal.2d 778, 329 P.2d 907 (1958), cert. denied, Chavez v. California, 358 U.S. 946, 79 S.Ct. 356, 3 L.Ed.2d 353; Bates v. California, 359 U.S. 993, 79 S.Ct. 1126, 3 L.Ed.2d 982. This is the second federal habeas corpus proceeding brought by appellants and the fifth time this case has been before this court. In 1959, Chavez and Bates filed habeas corpus petitions. Relief was denied; this court reversed and remanded for the trial court to verify the accuracy of certain transcribed statements and to determine whether certain photographs which had been admitted in the state trial violated the accuseds’ rights of due process. Chavez v. Dickson, 280 F.2d 727 (9th Cir. 1960). On remand, the district court again denied the applications; this court affirmed in 1962. Chavez v. Dickson, 300 F.2d 683 (9th Cir.), cert. denied, 371 U.S. 880, 83 S.Ct. 151, 9 L.Ed.2d 116 (1962). Bates and Chavez filed the present petitions in 1963. The first order, disposing of some issues and ordering a hearing on others, was entered on February 24, 1964. Bates v. Dickson, 226 F.Supp. 983 (N.D.Cal.1964). The district court entered its final order denying the petitions on June 29, 1966. This court affirmed, Bates v. Wilson, 385 F.2d 771 (9th Cir. 1967). Petition for certiorari was granted by the Supreme Court and the Supreme Court in Bates v. Nelson, 393 U.S. 16, 89 S.Ct. 50, 21 L.Ed.2d 21 (1968), in a per curiam order vacated and remanded the cause for reconsideration in light of Burgett v. Texas, 389 U. S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968). This court in turn remanded the cause to the district court for consideration of newly announced principles. Bates v. Wilson, 406 F.2d 555 (9th Cir. 1969). The district court’s order denying the petition was filed in Bates v. Nelson, 333 F.Supp. 896 (N.D.Cal. 1971). This court has jurisdiction under 28 U.S.C. § 2253.

A complete statement of the facts is reported in People v. Chavez, 50 Cal.2d 778, 329 P.2d 907 (1958). It is undisputed that appellants together with a co-defendant, Hernandez, and another man, Brenhaug, originally charged with the same offenses but whose indictment was set aside, were present at the Mecca Bar in Los Angeles on the evening of the fire. Following a fight, appellants and Hernandez were physically ejected from the bar and Brenhaug subsequently left the bar and joined with the other men. The evidence and testimony presented at trial indicated that the four men, upset that they had been thrown out of the bar, returned to the Mecca Bar later with a can of gasoline they had purchased and proceeded to spread the gasoline into and around the entrance of the bar. The building was ignited with lighted matches thrown by one and the deaths and injuries of people inside resulted. Appellant Chavez asserted an alibi defense alleging he went home after being ejected from the bar and stayed there. Appellant Bates did not contest his involvement in the offense but urged that he was so intoxicated that he could not have formed the requisite mens rea to have committed the offenses charged. On this appeal appellants challenge the extra-judicial statements made by their co-defendant, Hernandez, which were admitted into evidence although Hernandez never testified at the trial. The government concedes this constituted error under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), but it urges, and the district court ruled, that the Bruton error was harmless beyond a reasonable doubt. Appellants also challenge extra-judicial statements made by Brenhaug which were admitted into evidence after Brenhaug had testified and was subjected to cross-examination and was excused as a witness. The district court ruled the Brenhaug statement was admissible because he testified and was cross-examined at trial. Mitchell v. United States, 434 F.2d 230 (9th Cir. 1970), cert. denied, 402 U.S. 946, 91 S.Ct. 1636, 29 L.Ed.2d 115 (1971). The challenged statements were presented to police during police interrogation. Hernandez’ first statement was made during an interrogation session with him alone. Hernandez’ second statement and the Brenhaug statement were part of a joint statement by the four men, in which Brenhaug related his version of the incident, Hernandez added his version, Bates claimed he could not remember anything because of his intoxication and Chavez stated the others were lying. Brenhaug’s portion of the joint statement was not totally consistent with his testimony at trial. The government presented the earlier Brenhaug statement to bolster Brenhaug’s trial testimony which had been subjected to impeaching cross-examination. Bates claims a second error based on Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). Burgett held that prior convictions which had been obtained in violation of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, could not be used to support guilt or to enhance punishment. The district court held that any Burgett error was harmless beyond a reasonable doubt. The prior convictions were for offenses between 1937 and 1947. Two were Dyer Act convictions, two were for burglary and grand theft, and one was for escape. All of the convictions except the escape conviction were allegedly obtained upon the appellants’ guilty plea. There is no positive showing that Bates had been represented or that he affirmatively waived representation by counsel in any of the cases except the escape conviction.

I. Effect of the Bruton Error

On remand to the district court, the court was forced to consider whether a Bruton error constituted reversible error under the circumstances of this case. Two Supreme Court cases have decided that a violation of the Bruton rule does not require an automatic reversal. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), and Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972). This court recently stated the standard for review of such error in United States v. Steed, 465 F.2d 1310 (9th Cir.), cert. denied, 409 U.S. 1078, 93 S.Ct. 697, 34 L.Ed.2d 667 (1972):

“Reversal, however, can be avoided only if, after close and careful review of the facts and circumstances of each case, a reviewing court is able to declare a belief that the violation was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] (1967).” 465 F.2d at 1318.

Depending on the circumstances of the individual case, this court has recently held that a Bruton error was reversible error in United States v. Sidman, 470 F.2d 1158 (9th Cir. 1972):

“We cannot say that the Bruton error was harmless beyond a reasonable doubt. Other evidence linking Clifford to the robbery was not overwhelming. . . . Testimony by two eyewitnesses who identified Clifford as one of the robbers was not strong. The remaining evidence was Carroll’s testimony that Clifford told him that he and Sidman robbed the bank. The jury’s assessment of this evidence, had it not heard Carroll testify to Sidman’s confession, is highly problematical.” 470 F.2d at 1171.

This court in Steed determined that a Bruton error there was harmless error:

“From our analysis and appraisal of the record, we have reached the conclusion that the proof of Steed’s guilt, based on admissible evidence, was abundantly established. It is our belief, to paraphrase the quote above from Schneble, that the minds of an average jury would not have found the Government’s case significantly less persuasive had the testimony as to Hintz’ admissions to Miss Coch, made out of the presence of Steed, been excluded.
“The violation of the Bruton rule, in light of the facts and circumstances of this case, constitutes harmless error beyond a reasonable doubt.” 465 F.2d at 1319.

These cases indicate that this court has interpreted Supreme Court rulings regarding the harmless error rule so that an “overwhelming-evidence test” is appropriately applied in determining whether a specific error is harmless or reversible error. See Note, Harmless Constitutional Error: A Reappraisal, 83 Harv.L.Rev. 814 (1970).

The district court judge ruled that the quantum of untainted evidence was such that he had no trouble in ruling that the Bruton error was harmless beyond a reasonable doubt. Viewing the admission of the Hernandez statements as a denial of appellants’ sixth amendment right to confrontation, the district court pointed out that Hernandez’ statements merely corroborated other forceful prosecution evidence. The judge felt Hernandez’ statements did no more than provide a neat summary of the events of the evening of the offense. The crucial facts, the judge concluded, were established by other competent evidence. It was his opinion that the jury would have reached the same verdicts even without the Hernandez’ admissions. An independent and careful review of the entire record convinces us that he is clearly correct.

Appellants contend in the first instance that the Bruton rule should also apply to Brenhaug’s out-of-court statement which was admitted into evidence after Brenhaug had concluded his testimony and after Brenhaug’s cross-examination had been concluded. Appellants reason that the purpose of the Bruton rule should extend to the situation where, as here, evidence of a co-defendant’s admission is presented without the opportunity to cross-examine the co-defendant concerning the confession. Appellants never explain why Brenhaug was not recalled as a witness so appellants could cross-examine him concerning his out-of-court statements admitted as evidence after his initial cross-examination. Brenhaug was not unavailable for cross-examination in the same sense as a co-defendant who does not take the stand. This court has held recently in United States v. Zito, 451 F.2d 361 (9th Cir. 1971), that Bruton is inapplicable when the co-defendant has taken the stand, subject to complete cross-examination.

If both Brenhaug’s testimony and his out-of-court admission constituted untainted evidence then there is little room for doubt that the Hernandez statements, though violative of the Bruton rule, were paled by the overwhelming quality and quantity of proper evidence and that admission of the tainted statements was harmless error. We believe that such was the case. Even assuming, arguendo, that Brenhaug’s extra-judicial statement should not have been admitted under Bruton, however, the district court’s determination need not be reversed. Brenhaug’s in-court testimony together with that of independent eyewitnesses, established the vital facts needed to sustain a jury verdict against appellants.

Second, appellants both assert that the Bruton error should be deemed reversible error because of the nature of their defenses, which were undermined by the improperly admitted statements. Bates, for example, claims that the Hernandez statements were particularly damaging to his defense of intoxication, i. e., that he lacked the requisite mens rea to form a specific intent to commit the offenses. Although the Hernandez statements portray Bates as the mastermind who engineered and directed the offense, there is substantial independent evidence which was properly admitted which established the same theory. Brenhaug’s testimony and confession, the testimony of the gas station attendant, testimony of eyewitnesses at the bar and circumstantial evidence painted a picture of a man seeking revenge because he was infuriated at his ejection from the bar. Hernandez’ statements merely corroborate other competent evidence in the case. Similarly Chavez claims that Hernandez’ statements were particularly damaging to his defense — that he was not present at the time of the offense. Hernandez’ statements were not the only evidence which linked Chavez with the offenses. Brenhaug’s testimony and confession were unequivocal on the question of Chavez’ presence, even though there were inconsistencies concerning the detailed actions of Chavez at the scene of the offense. There was also eyewitness identification testimony linking Chavez with the offenses and impeaching his alibi defense. There is no merit in Chavez’ contention that the evidence absent the Hernandez statements was less than overwhelming.

II. The Burgett Error

It is also uncontested that the court committed error in admitting evidence of prior convictions against appellant Bates. The Supreme Court has ruled that evidence of such convictions, when invalid under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), may not be used against the defendant to support guilt, Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), to enhance punishment, United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), or to impeach, Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972).

Although the Supreme Court has never ruled specifically that the harmless error doctrine applies to Burgett errors, this court held that such error may be harmless beyond a reasonable doubt under circumstances of a particular ease. Tucker v. United States, 431 F.2d 1292 (9th Cir. 1970), aff’d on other grounds, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) The district court judge in this case was therefore correct in concluding that the harmless error rule is applicable to Burgett errors in this circuit.

We concur with the analysis of Judge Carter, 333 F.Supp. 896 at 899-901, which we adopt, on the effect of the prior convictions in this ease when considered in the light of Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). In view of the overwhelming evidence from independent witnesses reinforced by circumstantial evidence establishing Bates’ complicity and active participation in the crime and negating his defense of “unknowing drunken stupor,” we find that any error in the admission of priors or use of them during the trial was harmless beyond a reasonable doubt within the meaning of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

In the instant case, the prior convictions were introduced by the prosecution to impeach the credibility of appellant Bates. Unlike the situation in Howard v. Craven, 446 F.2d 586 (9th Cir. 1971), the principal issue of the case was not the credibility of the appellant’s story as compared to that of the complainant. Bates’ defense was overwhelmingly impeached, not by evidence of prior convictions, which was relatively unimportant, but by evidence presented in the testimonies of numerous prosecution witnesses. Bates’ defense was that he was too drunk to possess the mens rea necessary to constitute the body of the crime with which he was charged. He introduced evidence that he began drinking before seven in the morning and continued throughout the day and evening before going to the Mecca. He consumed wine, beer, tequila and bourbon. His defense was built around “how much he had drunk and how little he remembered.” Yet the prosecution’s attack upon this defense was not mounted upon prior convictions which would cause Bates’ credibility to be questioned. Instead, the state relied upon independent evidence to show that he could not have been in an alcoholic stupor and remained alert enough to have been substantially responsible for formulating a plan of revenge and effectively participating in its execution. Evidence was produced to show that he worked during the day and that his handwriting on his worksheet in the early afternoon did not appear to be that of a drunken man; .that he drove his truck into the shop and complained of a mechanical malfunction; that he had presence of mind to chew garlic to mask an alcoholic breath; that his supervisor on the job did not observe anything wrong with his ability to walk; that he conversed with and danced with a waitress at the Mecca and participated in a fight; that he became outraged at his treatment and threatened revenge; that he helped formulate the plan, found the bucket, bought the gasoline and was agile and coordinate enough to throw it in the bar and get away from the explosion and fire that resulted; and that he had a conversation with a waitress at the Corner Bar after the fire. His head and his hands seemed to be working, albeit to a horrible purpose. Under these circumstances the Burgett error was harmless beyond a reasonable doubt either to support guilt or to attack credibility and the district court’s decision should be affirmed.

One other argument is made on the basis of Burgett, supra, and of United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). This is that the erroneous admission of at least two of the priors had a prejudicial effect because they resulted in an enhancement of punishment. Governor Brown commuted both death sentences to life imprisonment but limited the life sentence of Bates to one “without possibility of parole.” Bates now suggests that the appropriate relief would be “simply to order the District Court” to issue the writ to the extent of modifying Bates' sentence to life imprisonment. But Bates’ sentence under judicial process was death. The sentence of Chavez was the same, although Chavez was not faced with evidence of priors. The commutation was by an act of executive clemency and the limitations were upon considerations which the executive believed to be appropriate. He did not disclose them.

We know of no authority which we possess, and none has been revealed to us, by which we may review acts of executive clemency.

Having reviewed the record carefully we find no error other than that which appears to us to be harmless beyond a reasonable doubt, and we therefore affirm the judgment dismissing the consolidated actions.

      . The convictions for burglary and grand theft, although involving two separate events, occurred on the same day, indictments were entered at one date, and trials on guilty pleas were held on one date. Sentences were the same for each and ran concurrently with each other. We find no legal significance in their treatment as one or as two convictions for purposes here.

      . The presence of petitioners with Brenhaug and Hernandez in the bar, the fight, the expulsion of petitioners' and Hernandez was witnessed by bartender Fenton, waitresses Chapdelaine and Tolar, and customers Pennebaker, McKibban and Morales.
      Tolar, Morales and McKibban heard one of the group say they would be back and get even.
      Ledgerwood; a gas station attendant, testified that he sold about five gallons of gasoline to Bates and Hernandez which he pumped into a bucket.
      Chapdelaine testified that she saw Bates throw gasoline onto the floor from a bucket and shout “I will get everyone of you in there”; Pennebaker saw Chavez dumping gasoline from a bucket; Chapdelaine also saw Chavez light a book of matches and toss it inside, and there was other eyewitness testimony and circumstantial evidence linking petitioners to the crime.

      . In Coper v. Beto, supra, at 483 n. 12, 92 S.Ct. 1014 at 1019, after declaring that “[i]n the circumstances of this case there is little room for a finding of harmless error . the Court cited Subilosky v. Moore, 443 F.2d 334 (1st Cir.), cert. denied, 404 U.S. 958, 92 S.Ct. 328, 30 L.Ed.2d 276 (1971); Tucker v. United States, 431 F.2d 1292 (9th Cir. 1970), aff’d, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); Gilday v. Scafati, 428 F.2d 1027 (1st Cir. 1970). In each of those cases a harmless error rule had been applied, to Burgett error resulting from the use of Gideon defective convictions for purposes of impeachment. There is reason to believe, therefore, that our decision in applying the rule of harmless error in Tucker, supra at 1293, was proper although Tucker was actually affirmed on different grounds by the Supreme Court.

      . He did state that “[t]he seriousness of Mr. Bates’ crime and his subsequent conduct conclusively demonstrate to me that he should probably never again be released from prison.” He did not refer to any prior record.


author: BARRETT, Circuit Judge.

text:
    NATIONAL INDIAN YOUTH COUNCIL, INTERMOUNTAIN INDIAN SCHOOL CHAPTER, an unincorporated association, et al., Plaintiffs-Appellants, v. Louis R. BRUCE et al., Defendants-Appellees.
    No. 73-1168.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Aug. 14, 1973.
    Decided Sept. 26, 1973.

      Richard L. Young, Native American Legal Defense & Education Fund, Inc., Albuquerque, N. M., for plaintiffs-appellants.
    Robert L. Klarquist, Dept. of Justice, Washington, D. C. (George R. Hyde, Dept. of Justice, Washington, D. C., C. Nelson Day, U. S. Atty., H. Ralph Klemm, Asst. U. S. Atty., Wallace H. Johnson, Asst. Atty. Gen., Salt Lake City, Utah, on the brief), for defendants-appellees.
    Before BARNES, BREITENSTEIN and BARRETT, Circuit Judges.

       Honorable Stanley N. Barnes, Senior Judge of the Ninth Circuit, sitting by designation.

   BARRETT, Circuit Judge.

Plaintiffs below appeal from the dismissal of their amended complaint wherein they sought to close Intermountain School, a Navajo boarding school located in Brigham City, Utah, operated by the Bureau of Indian Affairs (BIA) of the Department of the Interior.

Appellant National Indian Youth Council (NIYC), Intermountain School Chapter, was organized on January 28, 1971. It is a member of a national non-profit corporation with chapters located at BIA boarding schools and other schools across the United States. NIYC was organized to combat by peaceful, non-violent means, the discrimination, racism, and other social problems affecting Indians in general and Navajos at Intermountain School in particular. Appellant Teddy K. Austin and the other individual appellants were students at Intermountain School at the time this action was brought. They are four of the “16-30” NIYC members at Inter-mountain School.

The individual defendants-appellees are officials and employees of the BIA, with the exception of E. A. Leopardi, who is an employee of the Public Health Service.

Intermountain School was created by Congress, Act of March 17, 1949, c. 22, 63 Stat. 14. The premises include what was formerly Bushnell General Hospital, a World War II military facility. The 1949 Act transferred the premises from the War Assets Administration to the Department of the Interior. Attendance at the school is predicated on a written application submitted by a student or guardian accompanied by the parents’ consent. Approximately 1,500 Navajo students were enrolled at the school when this action was commenced. The school has been endorsed by the Navajo Tribal Educational Committee “as long as the need exists” for educating “retarded two or more grades” students at off-reservation federal schools.

The original complaint alleged that the operation of Intermountain School was in violation of the Navajo Treaty of 1868, that it was racially segregated in violation of the Fifth Amendment, and that many of the practices and policies of the school were violative of appellants’ constitutional rights. This complaint was dismissed with leave to amend. In its order dismissing, the trial court held that the suit was improper because of the plaintiffs’ inability to escape the effects of the doctrine of sovereign immunity, their failure to exhaust available administrative remedies, and their failure to set forth allegations in “short and plain” statements as required by Rule 8(a)(2) of the Federal Rules of Civil Procedure.

The amended complaint presented seven causes of action. The first six were directed to the proposition that Inter-mountain School should be eliminated as a Navajo school and replaced with adequate school facilities on the reservation. The seventh was an attack on a “variety of school policies and practices which are illegal.” Again the trial court dismissed, holding that the amended complaint did not overcome the effects of the doctrine of sovereign immunity and for failure to exhaust available administrative remedies. The trial court noted that the amended complaint was “for the most part, merely a restatement of the original complaint, fraught with the same errors and imprecision.”

Appellants have set forth numerous allegations of error on appeal. We will consider only whether the trial court properly applied the doctrine of sovereign immunity in ordering dismissal of the amended complaint. We hold that the Court did not err. See National Indian Youth Council v. Bruce, 366 F.Supp. 313 (D.Utah 1973).

United States District Courts are courts of limited jurisdiction. McCord v. Dixie Aviation Corporation, 450 F.2d 1129 (10th Cir. 1971). No presumptions of federal jurisdiction exist. Commercial Security Bank v. Walker Bank & Trust Co., 456 F.2d 1352 (10th Cir. 1972). Courts may not entertain uneonsented suits which, though nominally against officers of the United States, are in reality against the Government itself. Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963); McQueary v. Laird, 449 F.2d 608 (10th Cir. 1971).

The general rule is that a suit is against the sovereign if “the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,” Land v. Dollar, 330 U.S. 731, 738 [67 S.Ct. 1009, 1012, 91 L.Ed. 1209] (1947), or if the effect of the judgment would be “to restrain the Government from acting, or to compel it to act.” Larson v. Domestic & Foreign Corp., supra, [337 U.S. 682] at 704 [69 S.Ct. 1457, 93 L.Ed. 1628]; Ex parte New York, 256 U.S. 490, 502 [41 S.Ct. 588, 65 L.Ed. 1057] (1921). Dugan v. Rank, supra, 372 U.S. at 620, 83 S.Ct. at 1006.

This action was clearly one against the United States, even though it was not sued in its' sovereign capacity. The judgment sought would expend itself on the federal treasury. The United States did not consent to be sued. The trial court was without jurisdiction.

District courts are also without jurisdiction when confronted with nonjusticiable political questions, such as determining the status of Indian tribes. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Congress has exclusive plenary legislative authority over Indians and all of their tribal relations. Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299 (1903). This court has recognized the plenary power of Congress to control and manage the affairs of its Indian wards. Wolfe v. Phillips, 172 F.2d 481 (10th Cir. 1949), cert. denied 336 U.S. 968, 69 S.Ct. 941, 93 L.Ed. 1119 (1949); Taylor v. Tayrien, 51 F.2d 884 (10th Cir. 1931).

The trial court’s dismissal is further buttressed by the rule that great deference should be afforded to interpretations by the agency charged with the duty of carrying out statutory mandates. Udall, Secretary of the Interior v. Tailman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); Garvey v. Freeman, 397 F.2d 600 (10th Cir. 1968). Credence should be particularly accorded those who are working with treaties. Kolovrat v. Oregon, 366 U.S. 187, 81 S.Ct. 922, 6 L.Ed.2d 218 (1961). Courts cannot substitute their judgment for that of those working with Indians, empowered to exercise discretion. Board of Com’rs of Pawnee County, Okl. v. United States, 139 F.2d 248 (10th Cir. 1943). In no event should a court direct the manner in which discretionary acts are to be performed, nor may it direct or influence the exercise of discretion in making that decision. McQueary v. Laird, supra,. Recognizing then, as we must, the lack of jurisdiction of the trial court in light of the sovereign immunity of the United States, the plenary legislative power of Congress over Indian affairs, and the discretionary authority delegated by Congress to those charged with carrying out statutory dictates relating to Indian affairs, we hold that the trial court did not err in dismissing the amended complaint.

Affirmed.

      . Article VI of the Treaty provides :
      In order to insure the civilization of the Indians entering into this treaty, the necessity of education is admitted, especially of such of them as may be settled on said agricultural parts of this reservation, and they therefore pledge themselves to compel their children, male and female, between the ages of six and sixteen years, to attend school; and it is hereby made the duty of the agent for said Indians to see that this stipulation is strictly complied with; and the United States agrees that, for every thirty children between said ages who can be induced or compelled to attend school, a house shall be provided, and a teacher competent to teach the elementary branches of an English education shall be furnished, who will reside among said Indians, and faithfully discharge his or her duties as a teacher. 15 Stat. 667


author: McWILLIAMS, Circuit Judge.

text:
    Maria Lopez de ROBLES, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
    No. 73-1044.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted July 12, 1973.
    Decided Sept. 7, 1973.

      Gene A. Lucero, Denver, Colo. (Michael A. Wolff, Marilyn T. Meadoff, and Darryl Kaneko, Denver, Colo., on the brief), for petitioner.
    Bruce R. Heurlin, Atty., Dept. of Justice (John L. Murphy, Chief, Government Regulations Section, Crim. Div., Washington, D. C., on the brief), for respondent.
    Before BREITENSTEIN, McWILLIAMS and BARRETT, Circuit Judges.
   McWILLIAMS, Circuit Judge.

Maria Lopez de Robles, a Mexican national, has filed in this court pursuant to 8 U.S.C. § 1105a a petition to review an order of the Immigration and Naturalization Service that she be deported. In our view the order of deportation is proper and should be affirmed.

Robles entered the United States at El Paso, Texas, from Mexico, on July 10, 1968, on a one-month visitor’s visa with five of her children, three of whom were United States citizens. Robles did not return to Mexico at the expiration of her visitor’s visa and has thereafter at all times resisted efforts to deport her. In the interim, Robles bore two additional children in the United States, on July 14, 1970, and September 17, 1972, respectively.

As indicated, deportation proceedings were instituted against Robles and such proceedings culminated in an order that she be deported pursuant to the provisions of 8 U.S.C. § 1251(a)(2). The precise grounds for deportation, and we deem this to be of importance, was simply that she had overstayed the time limitation in her visitor’s visa and accordingly was no longer lawfully within the United States.

Robles concedes that she overstayed her visitor’s visa, but asserts that because of the ameliorative provisions of 8 U.S.C. § 1251(f) she cannot now be deported. In this regard it is Robles’ theory of the case that she obtained her one-month visitor’s visa as a result of fraud and misrepresentation, her fraud and misrepresentation being that when she obtained the one-month visitor’s visa she had a concealed intent not to leave at the end of one month and, on the contrary, intended to stay permanently in the United States, and that had she revealed her true intent she would have been denied a visitor’s visa. Such, according to Robles, brings into play the humanitarian provisions of 8 U.S.C. § 1251(f) and precludes her deportation.

This exact argument has just been considered by us, and rejected, in Preux v. Immigration and Naturalization Service, 484 F.2d 396 (10th Cir., filed September 7, 1973). In Preux, we held that one subject to a deportation order on the grounds that his visitor’s visa had expired could not invoke the provisions of 8 U.S.C. § 1251(f) on the plea that when he obtained his visitor’s visa he did so with fraud and misrepresentation in that he did not intend to leave when his visitor’s visa expired and that he in fact intended to stay permanently in the United States. In thus holding, we reasoned that the provisions of 8 U.S.C. § 1251(f) do not come into play unless the deportation charge and order be in some manner related to the antecedent fraud and misrepresentation in obtaining the visa. In Preux, as in the instant case, the deportation order was based on the simple fact that the visitor’s visa had expired, which grounds was in nowise tied into the alleged antecedent fraud in obtaining the visitor’s visa. On the basis of Preux, then, we hold that Robles cannot avail herself of the provisions of 8 U.S.C. § 1251(f) in her efforts to fend off deportation.

There was evidence that on June 15, 1959, Robles was apprehended when attempting to enter the United States by wading the river near El Paso, Texas, and that she was allowed to voluntarily return to Mexico without any formal deportation hearing or order. Similarly, on April 4, 1967, Robles was denied entry and allowed to return to Mexico when she attempted to gain entry by making a false claim to United States citizenship under the name of Christina Sworez.

Robles argues that the two incidents set forth in the preceding paragraph wherein she sought, unsuccessfully in each instance, to procure entry by fraud, are themselves sufficient to invoke the provisions of 8 U.S.C. § 1251(f). On the one hand, says Robles, those two incidents constitute objective evidence which supports her claim that when she subsequently obtained the one-month visitor’s visa, she had the concealed subjective intent to stay beyond her visitor’s visa. Alternatively, Robles suggests that the two prior occasions where she sought to procure entry by fraud, i. e., wading the river on the first occasion and using the name of another on the second occasion, are in themselves sufficient to bring the provisions of 8 U.S.C. § 1251(f) into play. In this latter connection, counsel seems to argue that 8 U.S.C. § 1251(f) is available as a defense in a deportation proceeding in the situation where one does not gain entry by fraud, but is in fact turned back when attempting to gain entry by fraud, but nonetheless is thereafter somehow able to gain entry into the United States. Counsel commendably concedes that this latter argument is “unique” and that there is no case law in point. We agree that such would be a most unique construction to give 8 U.S.C. § 1251(f) and would permit a bootstrap operation of the rankest order. We also agree that such finds no sanction in the law.

Be all this as it may, in the light of Preux, neither of these two prior incidents where Robles unsuccessfully sought entry by fraud is of any significance. Repeating ourselves, under Preux, the provisions of 8 U.S.C. § 1251(f) are only available when the basis for the deportation order relates in some manner to the antecedent fraud. Here, as in Preux, the reason for the deportation order is the simple and undisputed fact that the visitor in question had overstayed her visa.

Finally, Robles argues in broad terms that her deportation is in violation of the Fifth Amendment. In this regard, she claims that it is unconstitutional to thus break up the Robles family and thereby deprive her children of their constitutional right to a continuation of the family unit. The cases cited in support of the foregoing line of argument are inapposite and we deem the argument itself to be without merit. See, for example, Silverman v. Rogers, 437 F.2d 102 (1st Cir. 1970), and Perdido v. Immigration and Naturalization Service, 420 F.2d 1179 (5th Cir. 1969), and the citation of authority in each. In Silver-man and Perdido, consideration was given to the incidental impact of immigration and naturalization laws on the marriage status and on the family unit where there be minor children involved, and in each case it was concluded that such incidental impact is not in and of itself significant and does not raise constitutional problems.

Order affirmed.


author: BARNES, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. William Gene EATON et al., Defendants-Appellants.
    Nos. 73-1138 to 73-1140.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Aug. 13, 1973.
    Decided Oct. 2, 1973.
    Rehearing Denied in Nos. 73-1139, 73-1140 Oct. 26, 1973.

      Milton Keen, Oklahoma City, for defendants-appellants Eaton and Anderson.
    Oyler & Smith, Oklahoma City, for defendant-appellant Fletcher.
    William R. Burkett, U. S. Atty., Oklahoma City, for plaintiff-appellee.
    Before LEWIS, BARNES, and MC-WILLIAMS, Circuit Judges.

       Honorable Stanley N. Barnes of the Ninth Circuit, sitting by designation.

   BARNES, Circuit Judge:

This is a combined appeal by three individuals, two convicted of armed bank robbery (Anderson and Eaton—18 U.S. C. § 2113(a) and (d)); and one of being an accessory after the fact (Fletcher—18 U.S.C. § 3) by aiding or preventing apprehension of the other two appellants.

The facts need not be reported in detail, as no point is made of the insufficiency of the evidence, except as to appellant Fletcher. Viewing the evidence in a light most favorable to the government, as we must on this appeal, the evidence is clearly sufficient to convict two defendants, provided the various alleged evidentiary and procedural matters raised on this appeal are without merit. We do find them without merit, and affirm the convictions of Anderson and Eaton, but reverse the conviction of Fletcher.

We discuss each issue raised below, after numbering them.

All defendants raise one issue in common: I., the alleged improper examination of witness Sherry (Sherri) Owings (alleged to have been Eaton’s common law wife).

The defendants Anderson and Eaton each raise II., the incompetency as a witness of said Sherry Owings, and III., the error in denying a motion for severance.

Defendant Anderson raises, alone, IV., the court’s denial of his counsel’s motion for a continuance; and V., the court’s denial of a motion for a mistrial when a witness for the prosecution, under cross-examination by counsel for Anderson, mentioned that Anderson was on parole.

Defendant Fletcher claims VI., the trial judge erred in denying him a bill of particulars, and VII., asserts the insufficiency of the evidence to sustain the verdict against him.

I. CROSS-EXAMINATION OF A HOSTILE WITNESS.

It is hornbook law that if a party's own witness (a) surprises him, by (b) testifying materially differently from a prior statement, which differing testimony (e) damages the calling party’s case, then the calling party’s counsel may cross-examine his hostile witness; ask the witness whether or not he made the prior inconsistent statement; and if so, if the witness desires to explain it. Such prior statements are admissible only to impeach or discredit the witness, and are not competent substantive evidence of the facts to which the former statements relate. Brooks v. United States, 309 F.2d 580 (10th Cir. 1962). But if on cross-examination the witness admits the former contradictory statements were made, no further proof is necessary. Ditrich v. United States, 243 F.2d 729 (10th Cir. 1957). Here'there was no clear repudiation by the hostile witness Sherry Owings, of her prior statements made before trial. Bushaw v. United States, 353 F.2d 477 (9th Cir. 1965); Doss v. United States, 431 F.2d 601 (9th Cir. 1970).

After being called by the prosecution, Sherry Owings stated she did not desire to testify. Questions asked by the prosecution established that she was a hostile, evasive witness. The court remarked that “. . . It’s obvious to everyone (she) is very hesitant and reluctant.” (Tr. at 112), and “obviously hostile” (Tr. at 116). The court granted the prosecution permission, without objection, to treat her as a hostile witness, and lead her as on cross-examination (Tr. at 109).

We note that Mrs. Owings had not repudiated her statements made to the F. B.I. prior to trial. In testifying she continued to be evasive. But when asked if she had told the F.B.I. that articles had been thrown out of the auto in which she and Eaton (with Anderson and his wife) had been riding (after discovering the F.B.I. had been making inquiries at a night club with respect to Eaton and Anderson, in the early morning hours of the day after the armed robbery), she testified:

“A I might have (said that) then; I don’t remember saying that.
“Q And you don’t remember now what might have been thrown out of the car?
“A I saw something being thrown out of the car, but I don’t know what it was.”

She was evasive about having seen shot-guns being transferred from one car to another (Tr. 116-117) and whether she talked to Fletcher on the phone the next day. In fact, in at least three instances she originally “failed to remember”, but subsequently confirmed the fact she had talked to F.B.I. agents with respect to the subject matter of the questions originally asked her. Cf. United States v. Barrow (D.C.Pa.1964), 229 F.Supp. 722, aff’d. 363 F.2d 62, cert. denied 385 U.S. 1001, 87 S.Ct. 703, 17 L.Ed.2d 541.

The ruling by the court that she was a hostile witness was completely justified.

II. THE ALLEGED INCOMPETENCY OF THE WITNESS OWINGS.

Sherry Owings’ testimony was objected to by Eaton upon the ground that she was his common law wife. The trial judge excused the jury, heard arguments, and ruled that she was not the common law wife of Eaton.

This witness first met Eaton in June, 1972. The bank robbery occurred October 5, 1972. Prior to meeting Eaton, the witness had been married to Clarence Owings, and was divorced by him in Portland, Oregon on March 12, 1972. She married another man on June 7, 1972, and had that marriage assertedly annulled on June 30, 1972.

While the Oklahoma statutes apparently require a formal ceremony to contract a marriage (43 Okl.Stat.Ann. § 7 (1961)), case law in that state indicates there must be “direct evidence of a contract” between the parties “sufficient to give rise to a marital relation.” (Emphasis added.) Rainey v. Thomas, 203 Okl. 401, 222 P.2d 510 (1950). In that case the Supreme Court said: “. . . the only indirect evidence thereof is admissions of deceased and acts of cohabitation. . . . The cohabitation relied on was irregular and for a limited period of time and does not afford cogent evidence of the contract and is entirely insufficient to give rise to a presumption of the existence of a marital status. Richard v. Richard, 172 Okl. 397, 45 P.2d 101.”

Here, the period of time was certainly limited. The witness testified Eaton had introduced her to his mother as his wife; and to friends (including Anderson) as “his old lady”. She and Eaton registered at motels as husband and wife. Defendant Eaton and Mrs. Owings allegedly “planned to be married in the future,” but “didn’t talk about it.”

“A common law marriage is contractual and must be founded upon a mutual consent between the parties . We can only conclude from the evidence presented in the present case that the deceased and the plaintiff intended and planned to marry at some future date. However, the mere contemplation of marriage does not establish a common law marriage. A common law marriage is based on a present assumption of an existing relationship, not upon what the parties intended or have agreed to do at a future time.” In re Est. of Hornback, 475 P.2d 184 (Okl.1970).
“The burden is upon the person relying upon a common law marriage to establish the same. The judgment of a trial court against the claim of the consummation of a common-law marriage will not be reversed where it appears that the evidence does not preponderate in favor of such claim.” Jackson v. Jackson, 182 Okl. 74, 76, 76 P.2d 1062, 1063 (1938).

This well established rule is peculiarly apposite because the trial judge has the advantage over appellate judges in observing the conduct and demeanor of the witness; in considering his or her evident disinclination to be an honest witness ; or apparent bias, and prejudice. “Good faith, while not controlling, is always one of the principal elements to be considered.” Burdine v. Burdine, 206 Okl. 170, 242 P.2d 148 at 150 (1952).

It was likewise the proper role of the trial judge to consider that Sherry Owings never held herself out as Sherry Eaton; that she testified she and Eaton “didn’t really talk about ‘their relationship,’ ... it was just natural, we were together and I was his old lady and that was it” — that they were going to have to make it legal; and that “they ;planned to get married later for the children.” (Emphasis added.)

The trial court, as finder of the facts under the above quoted law, was justified in finding that defendant Eaton had not sustained the defendant’s burden of proving a common law marriage, or any other marriage between himself and Sherry Owings. And it is doubtful if Anderson has standing to ever raise the question. See 8 Wigmore, § 2228 (1961 Ed.).

III. THE MOTIONS OF EATON AND ANDERSON TO SEVER.

The granting or refusal of such a motion lies within the sound discretion of the trial court. It is error only when that discretion has been abused. United States v. Rodgers, 419 F.2d 1315, 1317-1318 (10th Cir. 1969), and cases cited therein.

Here, the motion for severance was made prior to the trial. There was no reason for it then. The two complaining defendants were indicted on facts arising out of one armed bank robbery occurring on October 5, 1972, in which each of the two allegedly participated.

Eaton maintains he was prejudiced when a government witness referred to Anderson as being “on parole”. (Tr. Vol. III, at 156). Anderson maintains he was prejudiced when government witness proved that Eaton bought a car with a portion of the stolen money. Anderson was prejudiced only as he would be if any testimony hurt his case, and Anderson’s claim of error is entirely without merit.

Eaton’s claim has slightly more basis, but was not prejudicial within Rule 14, Fed.R.Cr.Proc. The prosecution did not bring the fact of parole out: it was brought out by counsel for co-defendant Anderson on cross-examination. And see V., post.

IV. ANDERSON’S MOTION FOR A CONTINUANCE OF TRIAL.

On October 5, 1972, a bank was robbed. Two days later Anderson and Eaton were arrested. On October 10, 1972 they were released on bail. On October 16, 1972, defendant Anderson, represented by counsel, had a preliminary hearing before a magistrate. An indictment was filed, November 22, 1972. An arraignment took place on November 28, 1972. On that date, attorneys Oyler and Smith entered a written appearance for defendants Anderson and Fletcher. Two days later Oyler and Smith withdrew as Anderson’s attorneys. Thereafter, defendants Fletcher and Eaton made various motions, which were denied.

On December 12, 1972, new counsel (Milton Keen) was appointed to represent Anderson. On December 18, 1972 trial was to commence. Mr. Keen asked for a continuance, alleging inability to prepare for trial, and the necessity of going to a funeral on December 19, 1972. The trial judge denied a continuance, but granted Anderson’s motion that he be deemed to have made the same motions as the other defendants had made where applicable. Thus Anderson’s record was saved. The court also recessed for the entire day of December 19, 1972, so that Mr. Keen could attend his funeral.'

During trial, all trial counsel executed a document stating that “full compliance” had been made by the government of all orders entered re discovery. (Tr. Vol. I, at 196; Vol. II, at 74).

Neither prior to trial, during trial, nor on this appeal, has appellant Anderson’s counsel attempted to show how his client was injured by the trial court’s refusal to delay the trial. He cites cases to show that denying one day’s delay is an abuse of discretion; that thirteen days is not, and that therefore the rule must be between 1 and 13 days — “that denial of less than 6 days is abusive.”

Nowhere is it charged that Anderson’s counsel could not do between December 12 to December 18 what he asks us to presume he could have done in six days after December 18th.

No abuse of discretion and no prejudice is demonstrated. We hold there was no error. Cf. United States v. Harris, 441 F.2d 1333, 1335 (10th Cir. 1971).

V. STATEMENT RE ANDERSON “ON PAROLE”.

We have touched upon this in Part III, above. We only add that no immediate motion for a mistrial was made on behalf of any defendant, when the evidence was given by one Knoles, nor was any objection asserted; nor was there any motion to strike made prior to the witness leaving the stand. There was no request for the Court to admonish the jury with respect to anything the witness Knoles had stated.

The proper procedure required in this Circuit when an incident such as this occurs (if we assume it was prejudicial to Anderson), is set forth in McBride v. United States, 409 F.2d 1046 (10th Cir. 1969). That case holds (1) A motion to strike should be made; (2) the witness should be admonished not to volunteer statements (if he had here done so — which is questionable in view of the breadth of Mr. Keen’s questions); and (3) the jury should be admonished to disregard the objectionable statement.

There is here not the slightest suggestion that the prosecution in any way attempted to get any reference to Anderson’s parole into evidence. There was no reason or way for the prosecutor to avoid the problem created by his opponents. This situation required a split-second decision on trial strategy on the part of three defense attorneys in the court-room — but none on the part of the prosecutor.

A delayed motion for a'mistrial was not the proper remedy. As in United States v. DeCarlo, 446 F.2d 883, 884, (9th Cir. 1971), we do not think the “blurted out” reference to parole is a point that “amounts to much.” The evidence as to Eaton and Anderson overwhelmingly demonstrated their guilt.

VI. ERROR IN DENYING FLETCHER A BILL OF PARTICULARS.

Again, this matter is one for the trial court’s exercise of a sound judicial discretion. Cf. “The court may . . .”. (Rule 7(f) Fed.R.Cr.Proc.) United States v. Gleeson, 411 F.2d 1091, 1094 (10th Cir. 1969); King v. United States, 402 F.2d 289 (10th Cir. 1968); Cefalu v. United States, 234 F.2d 522 (10th Cir. 1956).

There is no showing of surprise or prejudice to Fletcher for lack of a Bill- of Particulars. The indictment gave Fletcher the date and place of the armed robbery, the names of the persons he allegedly aided, the offense they had committed, and charged him, in the words of the statute, with being an accessory after the fact. This denial of a Bill of Particulars was not error.

VII. LASTLY, WE REACH THE SUFFICIENCY OF THE EVIDENCE TO CONVICT FLETCHER.

This is the only really difficult issue in this combined appeal. As the trial judge said, “I am ready to concede it’s very, very close, Mr. Oyler, very close.” (R.T., Vol. II at 3).

The government was required to prove three elements against Fletcher, accused of being an accessory after the fact:

First: That the Bank of Verden was robbed;

Second: That Fletcher knew that Eaton and Anderson participated in the robbery; and

Third: That with such knowledge, he in some way assisted them in order to hinder or prevent their apprehension, trial, or punishment.

The first was established clearly by uncontradicted evidence.

While there might exist an inference or supposition that Fletcher knew or suspected his friends knew about the robbei’y, the second and third elements simply do not exist in the record before us — either by a preponderance of the evidence, or most assuredly, “not beyond a reasonable doubt.”

It can be inferred that perhaps Fletcher knew that Eaton and Anderson “pulled” the Verden job; that probably Fletcher was at Spankie’s when the other two defendants heard that the F.B.I. were looking for them (otherwise why would he have shown up at the Knoles’ yard later to permit a transfer of the clothes and weapons from the defendant’s car- elsewhere.) But he might have heard from the bartender or barmaid that the F.B.I. wanted Eaton and Anderson, after Eaton and Anderson had left the Spankie premises so hurriedly. There were but five or six other patrons in the bar at the time, and the exit described in the transcript would hardly go unnoticed by those present in such limited numbers.

We have read with great care the entire transcript of this case, and particularly the testimony of the hostile government witness, Sherry Owings, with respect to identifying Fletcher.

We can conjecture, and guess, and surmise, that Fletcher was present at both Spankie’s and Knoles’, and that he aided and abetted the defendants. Yet, we cannot say his guilt was proved on the last two issues beyond all reasonable doubt.

We affirm the judgment of conviction as to Eaton and Anderson: we reverse the conviction of Fletcher.

Reversed and affirmed.

      . The use of stolen “bait-money” by Eaton to purchase a Buick car for $4,350 cash the day after the robbery was a particularly damning bit of evidence, as were the seriatim numbers of bills previously sold to the bank, and stolen in the armed bank robbery and found in the Mustang owned by Fletcher, which Anderson was driving. When arrested with the stolen money in the auto, Anderson gave police a false name and never explained why.

      . Sherry Owings did not meet the defendant Eaton until at least 2% months after her divorce from Owings on March 12, 1972 was granted. Her divorce was not final until 60 days after it was granted. (§ 107.115(1), Or.Rev.Stats.) She spent another month as the wife of an unnamed person from whom she obtained an annulment. She met Anderson about June 30th, 1902, and started to live with him two weeks later.
      Defendant Anderson had been arrested on other charges in Norman, Oklahoma on August 25, 1972, and was in jail thereafter for two or three weeks. (R.T. at 93, line 20.) Thus, two and one half months (not including his two or three weeks in jail) was the period during which proof of' her marital relations with Owings might be established. During this period she never used the name Eaton or signed any papers in that name.

      . In this case, the bank officer from whom the money was taken identified Anderson and Eaton (Tr. at 21) ; one of the bank employees present during the robbery also identified them (Tr. at 54) ; they were together before and after the robbery (Tr. at 102-104; 132-135; 160-170 ; 285, 302-303); the automobile belonging to Eaton was like the one driven by the robbers (Tr. at 77-78, 202; Plaintiff’s Ex. 17, Tr. at 205) ; Eaton purchased a car the next day with money from the robbery using a false name and address (Tr. at 180-196) ; and Anderson was arrested two days later in possession of money from the robbery and gave the officers a false name at the time. (Tr. at 206-227.) Sawed-off shot-guns were used in the hold-up. Eaton showed Mrs. Knoles one sawed-off shot-gun, and told her of another, carried in a sack in the back seat of the car these defendants used; the rope possessed by the defendants and found with their discarded clothes which they endeavored to dispose of, matched the rope used to tie up the victims of the robbery.

      . After the day of the robbery, October 5, 1972, according to Sherry Owings, she and Billy Anderson, and Mr. and Mrs. Eaton, after dinner, went to a tavern or bar called “Spankie’s” in Oklahoma City. Sherry Owings, who did not know defendant Fletcher, saw Eaton talk to a man whom the witness “thought” was Fletcher.
      “Q Did you see Mr. Fletcher in the Olub that night?
      “A It was dark, I think it was him,. I’m not sure.” (Tr. at 109, lines 1 and 2.)
      Someone said (in the presence of a defendant), “The F.B.I. was looking for them.” (Tr. at 109), that is, looking for “Billy” (Anderson) and “Harold” (Eaton). (Tr. at 110.) The two couples left hurriedly and went to the ICnoles’ apartment. On the way there, “something” was thrown out of the car. (Tr. at 110.) At the Knoles’ the defendants and Mrs. Owings took clothes out of the car, and into the Knoles’ apartment. Shortly thereafter a blue car drove up, with several people in it. One looked like Fletcher, but Mrs. Owings “wasn’t sure” it was he. She told the F.B.I. that Fletcher was present with another blonde bail bondsman in the blue car at 2 :00 a. m. on November 6, 1973, but that “I couldn’t tell for sure.” (Tr. at 116.) She had previously seen Fletcher in his office prior to October 5, 1973 (Tr. at 116.) She saw people transferring “things” from one car to another.
      Mrs. Owings also saw a gun in the trunk of Eaton’s car, 12 inches long, tape around the handle. She couldn’t say if it was a double barrelled shot-gun. (Tr. at 117.) She saw one or two handles, but only one thing that “shown” (sic, shone). (Tr. at 118.)
      Later, on October 6, 1972, she talked to Fletcher on the phone (“I think it was Fletcher; I asked for Fletcher. I assumed it was Fletcher.”) “I asked how Billy was, if he was alright.”
      Mrs. Knoles testified that on the trip of the three couples to Spankie’s on October 5, 1972, Harold Anderson had showed her a double handled-shot-gun, carried in the back seat in a bag; and told her a second shot gun, same size, was in the same bag. (Tr. at 169.)
      Mrs. Knoles saw the transfer of “things” (largely clothing) from one auto to another in the early hours of October 6, 1972, but did not testify whether or not Fletcher participated in such transfer, because she was not asked.