author: PER CURIAM. WILLIAM E. MILLER, Circuit Judge WEICK, Circuit Judge, and O’SULLIVAN, Senior Circuit Judge

text:
    James Jonathan MAPP et al., Plaintiffs-Appellants and Cross-Appellees, v. The BOARD OF EDUCATION OF the CITY OF CHATTANOOGA, etc., et al., Defendant-Appellee and Cross-Appellant.
    Nos. 71-2006, 71-2007, 72-1443 and 72-1444.
    United States Court of Appeals, Sixth Circuit.
    April 30, 1973.
    William E. Miller, Circuit Judge, filed opinion concurring in result.
    Weick, Circuit Judge, and O’Sullivan, Senior Circuit Judge, filed dissenting opinion.
    Avon N. Williams, Jr., Nashville, Tenn., for appellant Mapp in No. 71-2006; Raymond B. Witt, Jr., Chattanooga, Tenn., for appellant Bd. of Ed. in Nos. 71-2007 and 72-1444; Eugene Collins, Chattanooga, Tenn., for appellant City of Chattanooga in No. 72-1443 (Jack Greenberg, James M. Nabrit III, Norman J. Chachkin, Sylvia Drew, New York City, W. Frank Brown, III, Witt, Gaither, Abernathy & Wilson, Chattanooga, Tenn., on briefs).
    Avon N. Williams, Jr., Nashville, Tenn., for appellee Mapp in Nos. 71-2007, 72-1443 and 72-1444; Raymond B. Witt, Jr., Chattanooga, Tenn., for appellee Bd. of Ed. in No. 71-2006; Eugene Collins, Chattanooga, Tenn., for appellee City of Chattanooga in No. 71-2006 (John Henniss, W. Frank Brown, III, Ellis K. Meacham, Chattanooga, Tenn., Jack Greenberg, James M. Nabrit, III, Norman J. Chachkin, Sylvia Drew, New York City, on briefs).
    Before PHILLIPS, Chief Judge, WEICK, EDWARDS, CELEBREZZE, PECK, McCREE, MILLER, KENT and LIVELY, Circuit Judges, and O’SULLIVAN, Senior Circuit Judge, in banc.
   PER CURIAM.

This is a school desegregation case involving the school system of Chattanooga, Tennessee.

The present appeals are from the decisions of District Judge Frank W. Wilson reported in 329 F.Supp. 1374 (E.D.Tenn.1971) and 341 F.Supp. 193 (E.D.Tenn.1972). Appeals have been perfected by the City Board of Education and by the City of Chattanooga and its Mayor. An appeal also has been perfected by the plaintiffs from the decision reported at 329 F.Supp. 1374 (E.D.Tenn.1971).

The appeals originally were heard by a panel of three judges of this court, whose decision was announced on October 11, 1972. The majority opinion of the panel remanded the case to the District Court for further consideration. The dissenting opinion favored affirmance of the judgments of the District Court. Thereafter, a majority of the judges of this court who are in regular active service ordered that the appeals be reheard by the court in banc. Fed.R.App.P. 35, Local Rule 3(b) of this court provides that: “The effect of the granting of a rehearing in banc shall be to vacate the previous opinion and judgment of this court, to stay the mandate and to restore the case on the docket as a pending appeal.”

The comprehensive reported opinions of District Judge Wilson contained a full statement of the issues and pertinent facts, and repetition in this opinion is not required.

Upon consideration of the briefs of the parties, the oral arguments before the court sitting in banc, and the entire record, we affirm the judgments of the District Court for the reasons stated in the opinions of Judge Wilson. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed. 2d 554 (1971); Davis v. Board of Commissioners, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1971); North Carolina State Board of Education v. Swann, 402 U.S. 43, 91 S.Ct. 1284, 28 L.Ed.2d 586 (1971); Brown v. Board of Education [II], 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), Brown v. Board of Education [I], 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); Northcross v. Board of Education of Memphis City Schools, 466 F.2d 890 (6th Cir. 1972); Kelley v. Metropolitan Board of Education of Nashville & Davidson County, Tennessee, 463 F.2d 732 (6th Cir.), cert. denied 409 U.S. 1001, 93 S.Ct. 322, 34 L.Ed.2d 262 (1972); Davis v. School District of City of Pontiac, 443 F.2d 573 (6th Cir.), cert. denied, 404 U.S. 913, 92 S.Ct. 233, 30 L.Ed.2d 186 (1971).

The Board of Education has filed a supplemental record in this court containing statistics said to reflect changes which have occurred after the decisions of the District Court. We decline to consider these statistics in the present appeal. Appropriate relief required by changed conditions is a matter for presentation to and consideration by the District Court. We reemphasize the holding of this court in Kelley v. Metropolitan Board of Education of Nashville and Davidson County, supra: “Like most decrees in equity, an injunctive decree in a school desegregation case is always subject to modification on the basis of changed circumstances.” 463 F.2d at 745-746.

Affirmed. Since both parties appealed, no costs are taxed.

WILLIAM E. MILLER, Circuit Judge

(concurring in the result).

I concur in the result reached by the Court in these appeals.

As I read the opinion of the Supreme Court in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), where vestiges of state-imposed segregation still exist, the district courts have broad powers to fashion remedies that will assure a unitary school system.

A careful review of the record in this case indicates to me that the district judge was not only clearly justified in holding that vestiges of state-imposed segregation still existed in the Chattanooga system, but that he did not abuse his discretion in fashioning remedies within the precepts of the Swann decision. Since for these reasons I concur in the result, I do not feel committed to all of the language, reasons and conclusions set forth in the per curiam opinion of this Court or in the two opinions of Judge Wilson under review reported at 329 F.Supp. 1374 (E.D.Tenn., 1971) and 341 F.Supp. 193 (E.D.Tenn., 1972).

WEICK, Circuit Judge, and O’SULLIVAN, Senior Circuit Judge

(dissenting).

As members of the original panel who wrote the majority opinion from which the en banc hearing was ordered, we respectfully dissent.

Following the en banc hearing, the District Court’s opinion was affirmed, per curiam, without, in our opinion, adequate discussion of the assignment of errors or the merits of substantial and important issues raised on appeal by the School Board and the Board of Commissioners of the City of Chattanooga. The Commissioners were the taxing authority; however, the Board of Commissioners was not made a party initially, but has since been made a party to the judgment without affording it an opportunity to question the merits of the case.

No consideration was given to the supplemental record certified to this Court by the District Court indicating substantial changes in conditions affecting the school system, brought about by mobility of both white and black families, which changes in our judgment impel a remand for consideration before we place our stamp of approval on the District Court’s opinions.

We consider it right to say preliminarily that in our view no decision of the United States Supreme Court has held that in all events and without reference to the good faith and good conduct of the involved school or other state or municipal authorities, there must always be bussing to bring about a mix of the races. Goss v. The Bd. of Educ. of the City of Knoxville, Tenn. (6th Cir., No. 72-1766-1767, decided Mar. 29, 1973).

In the case before us, the District Judge found that the Chattanooga School Board was guilty of no bad faith and that up to February 4, 1972, the Board had, in fact, established a unitary school system “within which no person is to be effectively excluded from any school because of race or color.” This was the command of Alexander v. Holmes County Board of Educ., 396 U.S. 19, 20, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969).

The District Judge’s opinion dealing with the Chattanooga Board’s good faith (not reported) had this to say:

“This lawsuit has been in an area where the law has been evolving, and the Court cannot say that the defendants have acted in bad faith in failing always to perceive or anticipate that development of the law. For example, in all of its orders entered prior to the decision of the United States Supreme Court in the case of Green v. School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), this Court was itself of the opinion that genuine freedom of choice on the part of students in school attendance was compliance with the Equal Protection Clause of the Constitution. While the Board has vigorously contested the plaintiff’s contentions at every stage of this lawsuit, it further appears to the Court that when factual and legal issues have been resolved, the Board has at all times complied or attempted to comply in good faith with the orders and directions of the Court.” (Emphasis added).

There seems now to have developed a view that since Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), nothing other than bussing will satisfy the original command of Brown I and Brown II. This is not so. In the Swann decision the District Court found that the school authorities there involved had flouted the Brown commands. His opinion cannot be read as other than a finding that the school authorities were deliberately maintaining de jure segregation. The opposite is true in Chattanooga. Swann did no more than affirm the District Judge’s finding of deliberate creation or perpetuation of de jure segregation.

We do not read Swann as holding that the Constitution requires that, black or white, a school child must now be denied the right to attend the school of his choice — desirable because of its nearness to his place of residence, or for any other circumstance prompting such choice —solely because of the color of his skin. In our view such a holding would collide with the commands of Brown I and Brown II, 347 U.S. 483, 74 S.Ct. 686 (1954) and 349 U.S. 294, 75 S.Ct. 753 (1955).

Can obedience to Brown I and Brown II be accomplished only by imposition of an Attainder upon so many whose only contribution to the wrongs sought to be alleviated by Brown derives from the circumstance of their birth ? What will be the dimensions of such selective attainting of some, but not others, among the groups that make up our total society? See DeFunis v. Odegaard, Wash. 507 P.2d 1169 (1973). There a divided Supreme Court of the State of Washington held it proper to deny to a qualified student the right to study law at the State University, solely because of his race. This was done so that others of lesser qualifications, but of a different race, could be admitted to the law school.

We have set out above that the District Judge believed that in Chattanooga the schools had been desegregated and that a unitary system had been established. We have affirmed such holding. Mapp v. Board of Educ. of City of Chattanooga, 373 F.2d 75 (1967).

The District Judge then went on to say:

“This lawsuit has been in an area where the law has been evolving, and the Court cannot say that the defendants have acted in bad faith in failing always to perceive or anticipate that development of the law.”

Must every School Board now be expected, clairvoyantly, to guess what new judicial device may be considered by a District Judge to be a better way of serving desegregation, and make fresh adjustments if such device is found permissible by some appellate court? Across the nation, especially in the cities, rapid population shifts have brought about new concentrations of racial groups. Must the courts be ready to move in with fresh commands and new rerouting of buses? The chaos that can be the result is forecast by Chief Justice Burger’s language in Swann.

“It does not follow that the communities served by such systems will remain demographically stable, for in a growing, mobile society, few will do so. Neither school authorities nor district courts are constitutionally required to make year-by-year adjustments of the racial composition of student bodies once the affirmative duty to desegregate has been accomplished and racial discrimination through official action is eliminated from the system. This does not mean that federal courts are without power to deal with future problems; but in the absence of a showing that either the school authorities or some other agency of the State has deliberately attempted to fix or alter demographic patterns to affect the racial composition of the schools, further intervention by a district court should not be necessary.” (Emphasis added.) (402 U.S. at 31, 32, 91 S.Ct. at 1283, 1284.)

We must therefore consider the issues raised on appeal.

I

THE QUOTA SYSTEM

The District Court misconstrued recent decisions of the Supreme Court as requiring racial quotas in the public schools. It ordered “a racial ratio of not less than 30% nor more than 70% of any race in each elementary school within the system with but five exceptions . . . . ” 329 F.Supp. 1374, 1382. The five schools excepted therefrom were found not to be imbalanced on account of past or present discrimination. Similar quotas were ordered for Junior High Schools. Senior High Schools are still under consideration.

In our opinion, the decision in Swann v. Charlotte-Mecklenburg Board of Educ., 402 U.S. 1, 91 S.Ct. 1267 (1971), on which the District Court relied, does not mandate the adoption of quotas in each and every school in the system regardless of where the children reside.

Mr. Chief Justice Burger, who wrote the opinion for the Court said:

“If we were to read the holding of the District Court to require, as a matter of substantive constitutional right, any particular degree of racial balance or mixing that approach would be disapproved and we would be obliged to reverse. The constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole.” (402 U.S. at 24, 91 S.Ct. at 1280).

In Winston-Salem/Forsyth Bd. of Educ. v. Scott, 404 U.S. 1221, 92 S.Ct. 1236, 31 L.Ed.2d 441 (1971), in an Opinion in Chambers, Chief Justice Burger, after quoting the above language from Swann, stated:

“Nothing could be plainer, or so I had thought, than Swann’s disapproval of the 71%-29% racial composition found in the Swann case as the controlling factor in the assignment of pupils, simply because that was the racial composition of the whole school system.” (404 U.S. at 1228, 92 S.Ct. at 1240).

Chief Justice Burger further said:

“The present status of the findings is not clear to me, but the District Court on reconsideration following the remand seems to have thought that it was compelled to achieve a fixed racial balance reflecting the composition of the total county system. The explicit language of the Court’s opinion in Swann suggests a possible confusion on this point. I do not attempt to construe that language, but simply to recite it verbatim: ‘The constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole.’ 402 U.S. at 24 [91 S.Ct., at 1280].” (404 U.S. at 1230-1231, 92 S.Ct. at 1241).

In Deal v. Cincinnati Bd. of Educ., 369 F.2d 55 (6th Cir. 1966), affirming 244 F.Supp. 572 (S.D.Ohio, 1965), cert. denied, 389 U.S. 847, 88 S.Ct. 39, 19 L.Ed.2d 114, we stated:

“Moreover, our refusal to restrict the school board with a mathematically certain formula for the vindication of individual constitutional rights is not an innovation. The right to a trial by an impartial, fairly selected jury, is well established in our law and it has been protected against the same sort of disguised racial discrimination that has been attempted in the school desegregation cases. Eubanks v. State of Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991 (1958); Smith v. State of Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Norris v. State of Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935); Ex parte State of Virginia, 100 U.S. 339, 25 L.Ed. 676 (1879); Strauder v. State of West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1879).
However, it is equally clear that a defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his race on the jury which is to try him nor on the venire or jury roll from which petit jurors are to be chosen. Swain v. State of Alabama, 380 U.S. 202, 208, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Akins v. State of Texas, 325 U.S. 398, 403, 65 S.Ct. 1276, 89 L.Ed. 1692 (1945). While the two situations may not be completely analogous, the potential dangers to a criminal defendant, forced to face a racially imbalanced jury, are at least as great as the intangible, often speculative injuries threatening a student in a racially imbalanced school.” (369 F.2d at 61-62).

The trouble is that the quota system, which in our judgment is alien to a free country, has been extended to other fields and with discriminatory and disastrous results.

We see no occasion for the District Judge to rely on the drastic order of Judge McMillan considered in Swann, supra, or that of Judge Merhige, reversed in Bradley.

The District Court was obviously influenced by the fact that the Supreme Court in Swann affirmed a very broad order of District Judge McMillan. This appears from a colloquy between the Court and counsel for the Board, at the evidentiary hearing, as follows:

“THE COURT: Well, what is your question about what they did? Did they or did they not approve all of the procedures that had been followed in the Mecklenburg case?
MR. WITT: They placed great—
THE COURT: Well, just answer my question, did they or did they not approve every single procedure followed in the Mecklenburg case.
MR. WITT: Yes.
THE COURT: So is there any question about what they did ?
MR. WITT: Yes.” (Tr. 1693-19-20)

But the Supreme Court in Swann pointed out the background of defiance by that Board which occasioned the broad order:

“As the voluminous record in this case shows, the predicate for the District Court’s use of the 71% — 29% ra-

tio was twofold: first, its express

finding, approved by the Court of Appeals and not challenged here, that a dual school system had been maintained by the school authorities at least until 1969; second, its finding, also approved by the Court of Appeals, that the school board had totally defaulted in its acknowledged duty to come forward with an acceptable plan of its own, notwithstanding the patient efforts of the District Judge, who, on at least three occasions, urged the board to submit plans." (Emphasis added.) (Footnotes omitted) (402 U.S. at 24, 91 S.Ct. at 1280).

In our case, prior to the entry of the orders from which these appeals had been taken, no child was excluded from any school on account of color or race. The District Court found that the Board has acted in good faith and has at all times “complied or attempted to comply with the orders and directions of the Court.” The Board was not in default. This distinguishes Swann.

The quota system results in the violation of the constitutional rights of innocent black children and white children in order to redress past violations of the constitutional rights of the plaintiffs. Both black and white children, without their consent or that of their parents, are forced by judicial fiat to be transported away from their homes and neighborhood schools to other strange places and schools, solely because of the color of their skin. These innocent children have committed no offense to justify such treatment. Plaintiffs seem to recognize this fact because one of the assignments of error in their appeal was their claim that the District Court erred in ordering the closing of black schools without ordering a sufficient number of white schools closed. Plaintiffs’ brief states:

“Thus, black youngsters will be required to leave their neighborhoods to go to other schools for all grades or for grades 1-3 in numbers disproportionate to the numbers of blacks.” (Plaintiff-Appellants’ brief, p. 30).

There is no provision in the Constitution which can be read as saying that the races must be mixed in each and every school in the system, and no provision requiring that white children be bussed away from their neighborhood schools in the suburbs, to schools in the inner city, or that black children must be bussed away from their neighborhood schools to schools in the suburbs, in order to achieve a racial mixture or quota.

The Board can hardly be faulted for housing patterns of a community or for the concentration of blacks in the inner city, as these conditions exist in other cities thrpughout the country, regardless of the type of school system in operation, i. e., whether de jure or de facto.

In his book, “Negroes In Cities,” Dr. Karl Taeuber states that residential segregation exists “regardless of the character of local laws and policies and regardless of other forms of discrimination.” He said substantially the same thing in his article, “Residential Segregation,” in the August, 1965 issue of Scientific American.

In Bradley v. School Board of City of Richmond, 462 F.2d 1058 at 1066 (4th Cir. 1972), cert. granted, 409 U.S. 1124, 93 S.Ct. 936, 35 L.Ed.2d 255, 1973, the Court said:

“[T]he root causes of the concentration of blacks in the inner cities of America are simply not known . . . ."

And

“Whatever the basic causes, it has not been school assignments, and school assignments cannot reverse that trend.”

It is, of course, popular to blame the Boards of Education for everything, but it is unfair to require the educational system to dismantle this condition for which it was in no wise responsible.

II

UNITARY SCHOOL SYSTEM

Unlike the District Court, we have experienced difficulty in understanding not only what constitutes a unitary school system, but also what steps the Constitution requires must now be taken to eliminate a de jure system and to bring about a unitary system. Other Judges, legal scholars and writers have had similar difficulty. We suggested in Northcross that the Supreme Court had not defined a unitary school system. Northcross v. Board of Educ. of Memphis, Tenn. City Schools, 420 F.2d 546 (6th Cir. 1969). We were corrected in a concurring opinion written by Chief Justice Burger, wherein he said:

“The suggestion that the Court has not defined a unitary school system is not supportable. In Alexander v. Holmes County Bd. of Educ., 396 U.S. 19 [90 S.Ct. 29, 24 L.Ed.2d 19] (1969), we stated, albeit perhaps too cryptically, that a unitary system was one ‘within which no person is to be effectively excluded from any school because of race or color.’ ” Northcross v. Bd. of Educ. of Memphis, Tenn., 397 U.S. 232 at 236-237, 90 S.Ct. 891, 893, 25 L.Ed.2d 246 (1970). (Emphasis added).

Under this definition the School Board already had achieved a unitary system long before the entry of the orders from which the appeals were taken. While this did not establish racial quotas, or a mixture in all of the schools as desired by plaintiffs, no pupil was excluded from any school on account of his color or race. This is all that Brown I and Brown II ever contemplated. These decisions, in our judgment, did not envision the use of school children to bring about an integration of the races.

III

MAXIMIZING INTEGRATION

The District Court required the Board to establish that it had taken affirmative action to “maximize integration” in all feasible ways as required by Kelley and Robinson. The Supreme Court in Davis v. Board of School Comm’rs of Mobile County, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1971), held that “school authorities should make every effort to achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation.” (402 U.S. at 37, 91 S.Ct. at 1292). We have not found where the Supreme Court has ever required School Boards to “maximize integration”. The difficulty is that the District Court may well have understood the words to require integration of the races by fixed numbers or quotas in each public school in the system, regardless of where the pupils live, and regardless of their economic circumstances. This can be accomplished only by extensive and expensive bussing and by violation of the constitutional rights of both races.

If it is desirable to integrate the races, why not start with adults, rather than to pick on defenseless school children? Of course, it would take an Act of Congress to compel adults to integrate. We doubt that Congress could ever be persuaded to pass such legislation, and if it were so persuaded, such law would clearly be unconstitutional in violation of the First Amendment which guarantees freedom of association. N. A. A. C. P. v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958).

In that case the Court denied enforcement of a state contempt citation against the petitioner, which citation was issued when petitioner refused to disclose its Alabama membership list. The adverse effect on the membership of disclosure of the roster of N.A.A.C.P. was, of course, somewhat speculative. Yet the Court held that the importance of the right of association was so great as to require protection, stating:

“. . . [S]tate action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.” (357 U.S., at 460-461, 78 S.Ct. at 1171).

This principle was reaffirmed in Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960). The language in the concurrence of Mr. Justice Black and Mr. Justice Douglas, is instructive.

“. . . [W]e believe, as we indicated in United States v. Rumely, 345 U.S. 41, 48, at 56, [73 S.Ct. 543, 547, at 550, 97 L.Ed. 770] (concurring opinion), that First Amendment rights are beyond abridgment either by legislation that directly restrains their exercise or by suppression or impairment through harassment, humiliation, or exposure by government. One of those rights, freedom of assembly, includes of course freedom of association; and it is entitled to no less protection than any other First Amendment right as N. A. A. C. P. v. State of Alabama, 357 U.S. 449, at 460, [78 S.Ct. 1163, at 1170, 2 L.Ed.2d 1488], and De Jonge v. Oregon, 299 U.S. 353, at 363, [57 S.Ct. 255, at 259, 81 L.Ed. 278], hold. These are principles applicable to all people under our Constitution irrespective of their race, color, politics, or religion.” (Emphasis added) 361 U.S. at 528, 80 S.Ct. at 419.

“All people” includes children.

It should be pointed out that there is a marked difference between voluntary bussing and induced or forced bussing in the. effect on the children involved and their parents. No one can have any objection to the school system’s furnishing voluntary transportation from the child’s residence to the school nearest thereto. It is something entirely different when the child, solely because of the color of his skin, is assigned away from his neighborhood school, by a court order, and is required to be transported to another school (whether by his parents’ ear or by induced bussing) some distance away from his home.

Brown I speaks of the feeling-of-inferiority effect on children as the result of discriminatory state action where the children are not permitted to attend certain public schools because of the color of their skin. This condition would seem to persist still if children of both races are prohibited by court order from attending schools nearest to their residences, merely because of the color of their skin, and are required to be taken elsewhere to school.

IV

BURDEN OF PROOF

Where a dual system has been maintained, the courts have placed the burden of proof upon the School Board to establish that present racial imbalances in a particular school are not the result of past discriminatory actions, although the eases are not very clear as to just how or in what manner the Board can ever meet such a heavy burden. But in a case like ours, where the Board has always complied with the desegregation orders of the Court, and the plaintiffs have filed motions for further relief whenever new decisions have been announced expanding the rights of plaintiffs in school desegregation cases, it would seem to us to be only fair that plaintiffs should have the burden to prove that they are entitled to such further relief. The Board ought not to have the burden of disproving every contention which the plaintiffs may see fit to make in this case. In our judgment the Court erred in placing on the defendants the burden of proof in resisting plaintiffs’ motion for further relief.

V

PRACTICALITIES

In considering desegregation plans the District Court must take into account the practicalities of the proposals. These include the cost thereof, how such proposals may affect the rights of the children involved in the assignments, induced bussing, and the educational achievement of such proposals.

Boards of Education do not have unlimited funds to adopt any program which they please. Funds can be raised by taxation and appropriation. In the present case the Board of Education does not have the power to levy taxes or to appropriate funds to carry out its programs. Only the Board of Commissioners of the City has such power and authority. That Board was not made a party to the ease in the District Court until after the desegregation orders had been entered by the Court. We would assume that the Board of Commissioners has already appropriated the funds for the 1972-73 school year. If so, we do not know how an expenditure of $500,000 for buses would affect operation of the schools. The District Court has not ordered the Board of Commissioners to appropriate funds to provide for transportation of pupils, and we do not consider in this appeal the question whether it has the power to enter any such order. The Board of Commissioners is entitled, on remand, to a hearing on all issues of the case before any order is entered against it.

We would not affirm the District Court’s opinions, but would remand for an evidentiary hearing to consider the changed circumstances and to proceed not inconsistent with this opinion.

The District Court also should consider Title VIII of the Education Amendments of 1972, and its prohibition against the use of funds appropriated by Congress for bussing.

In our judgment a quota system can discriminate invidiously in favor of one race against other races. Such a system can lower the quality of education and educational achievement, and instead of bringing harmony and good will between the races can polarize them.

      . Ross, “Why Quotas Won’t Work,” Reader’s Digest, Feb. 1973, page 51: “Current effort to atone for past discrimination against minorities is creating new victims by reverse discrimination. Can two wrongs make a right?”

      . Bradley v. School Board of Richmond, 462 F.2d 1058 (4th Cir. 1972), affirmed by an equally divided court in - U.S. -, 93 S.Ct. 1952, 36 L.Ed.2d 771.

      . See 83 Harvard Law Review 81, 82.

      . Many black people opposed forced bussing of their children. At the National Black Political Convention, held in Gary, Indiana (March, 1972), mandatory bussing and school integration were condemned as racist and as preserving a black minority structure.

      . 85 Harvard Law Review 3, 74, 76, 81, 83.

      . Brown I, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); Brown II, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955).

      . Kelley v. Metropolitan County Bd. of Educ. of Nashville & Davidson County, 436 F.2d 856 (6th Cir. 1970).

      . Robinson v. Shelby County Bd. of Educ., 442 F.2d 255 (6th Cir. 1971).


source: Caselaw Access Project

author: GORBEY, District Judge.

license: Public Domain

text:
    Henry J. HOFFMAN, Jr., Plaintiff, Appellant, v. BETHLEHEM STEEL CORPORATION, Defendant, Appellee.
    No. 72-1149.
    United States Court of Appeals, Third Circuit.
    Argued March 1, 1973.
    Decided April 3, 1973.
    Robert E. Kopp, Civil Division, U. S. Dept. of Justice, Washington, D. C., Harlington Wood, Jr., Acting Asst. Atty. Gen., for plaintiff-appellant.
    John McN. Cramer, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for defendant-appellee.
    Before MARIS and ALDISERT, Circuit Judges, and GORBEY, District Judge.
   OPINION OF THE COURT

GORBEY, District Judge.

This action was initiated by Henry J. Hoffman, Jr., pursuant to the Military Selective Service Act of 1967 (the Act), to obtain unearned supplemental unemployment benefit (SUB) credit units. The appeal follows a non-jury trial at which judgment was entered in favor of the defendant, 335 F.Supp. 968.

The issue posed on this appeal is whether the appellant, a returning veteran, should be given SUB credits for the period of his military service. Appellant was initially employed by appellee on May 3, 1966, in a position which was not temporary. On July 29, 1966, the plaintiff was granted a military leave of absence, having been inducted into the armed forces effective August 4, 1966. When the plaintiff was honorably discharged on August 2, 1968, he made a timely application for re-employment. The plaintiff was reinstated to his former position on August 6, 1968. Shortly thereafter, the plaintiff was placed on lay-off status, he was recalled for a period from September 3rd through September 7th, and was once again laid off for almost all of the remainder of the year. As of September 7, 1968, the plaintiff had been credited with seven and one-half SUB credit units, which accrue under Bethlehem Steel’s supplemental unemployment benefit plan (the Plan) and are used at the rate of one credit unit per week of lay-off.

The Plan, which is designed to provide weekly benefits to augment state unemployment benefits, was established by a collective bargaining agreement between the defendant and the United Steel Workers of America, dated July 1, 1962. Under this Plan, the number of weeks for which covered employee receives benefits depends on the number of SUB credit units accrued. The formula by which an employee accrues credits, as set forth in paragraph 2.0 of the Plan, permits an employee to accrue one-half credit for each week “in which he has any of the following hours . . . :

(a) hours work for the company,
(b) hours not worked for which he is paid, such as vacation hours or hours for which he received jury allowance,
(c) hours not worked and not paid for but which were lost because:
(1) he was performing his duties as a member of the grievance committee, or president, vice-president, recording secretary, financial secretary and/or treasurer of the local of the union which is his collective bargaining representative, or
(2) he was absent because of disability for which benefits are payable under Workmen’s Compensation or Occupational Disease Law or the company program of insurance benefits."

On appellant’s return from military service, the company determined that he was not to be given any credits for the period of time spent in the military service. When Hoffman was laid off shortly after his return from military service, the company paid him SUB benefits based on .the seven and one-half credits, which he accrued between his first employment and his entry into the military service. The appellant challenges this determination, asserting that under 50 U.S.C. App. § 459 he must be deemed to have accrued SUB credits during his period of military service. It was stipulated that he would have accrued an additional forty-two and one-half SUB credits if he had continued to work regularly at Bethlehem instead of entering military service. After the company rejected Hoffman’s contentions, he brought this action in the district court which entered judgment for the defendant.

In order to determine the appellant’s rights under the Act, it is necessary to examine the interrelationship between sections 9(b) and 9(c). The courts have consistently held that the statute treats two types of benefits: (1) “seniority, status and pay” and (2) “insurance and other benefits”. Kasmeier v. Chicago Rock Island & Pacific RR Co., 437 F.2d 151 (1971); Accardi v. Pennsylvania RR Co., 383 U.S. 225, 86 S.Ct. 768, 15 L.Ed.2d 717 (1966); Magma Copper Co., San Manuel Division v. Eager, 380 F.2d 318 (1967), rev’d. on other grounds, 389 U.S. 323, 88 S.Ct. 503, 19 L.Ed.2d 557 (1968). Seniority benefits are protected by § 9(b)(B)(i). Insurance and other benefits are protected by § 9(c). Section 9(c) was intended to add certain protections to the veteran and not to take away those which are granted him by § 9(b)(B) and other clauses of § 9(c). Accardi, supra, 383 U.S. at 232, 86 S.Ct. 868. The other benefits clause was added to the Act for the express purpose of entitling employees to receive, while in the service, such benefits as their employers accorded employees on leave of absence. Accardi, 383 U.S. at 231, 86 S.Ct. 768.

If the accrual of SUB credits is an “other benefit”, appellant is entitled to no additional credits. The Plan specifically excludes employees on leave of absence from accruing benefits. A returning veteran’s rights under the Act are no greater than if he had been continuously employed during his military service. Fishgold v. Sullivan Dry Dock and Repair Corp., 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230 (1946); Gauweiler v. Elastic Stop Nut Corp., 162 F.2d 448 (1947).

In determining an employee’s “seniority”, a returning veteran’s rights are not limited to treating him as being on a leave of absence. The Supreme Court stated in Accardi that the intention of Congress “was to preserve for the returning veterans the rights and benefits which would have automatically accrued to them had they remained in private employment rather than responding to the call of their country.” [383 U.S. at 229 and 230, 86 S.Ct. at 771.] .The court in Fishgold recognized that the Act guaranteed the veteran against loss of seniority by reason of his absence and that “his service in the armed services is counted as service in the plant so that he does not lose ground by reason of absence.” (328 U.S. at 285, 66 S.Ct. at 1111)

This court has recognized that the veteran “is protected, while away, to the same extent as if he had been either continuously on the job in the plant or away on furlough or leave of absence for some personal reason.” Mentzel v. Diamond, 167 F.2d 299 (3d Cir. 1948).

The issue therefore is whether the accrual of SUB credits are “seniority” or “other” benefits.

“The term ‘seniority’ is not to be limited by a narrow, technical definition but must be given a meaning that is consonant with the intention of Congress as expressed in the 1940 Act.” Accardi, supra., 383 U.S. at 229, 86 S.Ct. at 771. That intention as described in Fishgold was to insure that returning veterans would not be penalized by reason of their absence from their civilian jobs but rather “to gain by their service to their country an advantage which the law withheld from those who stayed behind.” (328 U.S. at 284, 66 S.Ct. at 1111)

The trial court has properly observed there is a distinction between rights which accrue with the passage of time and those for which some further act is required. Those which accrue with the passage of time are seniority rights which are protected under § 9(b). Those for which some other act is required, such as days of work, are not seniority rights protected by § 9(b) and would not accrue after the veteran returns. Kasmeier, supra. Here the learned trial judge observed that Bethlehem’s SUB benefits are accrued based on hours worked as spelled out in § 2.-0(e)(1)(ii) of the SUB plan. However, when that plan is analyzed, the same “bizarre results” are possible under Bethlehem’s plan as were possible under Accardi. In Accardi the court noted absolutely no distinction was made between a man that worked one day a month for 7 months and one who worked 365 days. This fact made it obvious that severance benefits did not in fact depend upon hours work but upon seniority. Similiarly, in Bethlehem’s plan no distinction is made between an employee who works 1 hour during the week and one who works 40 hours during the week. Each would accrue one-half of a SUB credit. It is illogical to say that a plan which permits the accrual of benefits to employees who worked 7 days out of 365 is based upon the passage of time while a plan which permits the accrual of benefits to an employee who works 1 hour out of 40 is based upon something more than the passage of time. In each, the employee receives credit for a full-time period regardless of the fractional part of the period which he works. This is not like Kasmeier where an employee only received the benefits when he worked the full period.

Accordingly, we find that the SUB credits accrued pursuant to this Plan are seniority rights and as such are protected by § 9(b). Appellant is therefore entitled to the forty-two and one-half additional credits which he would have earned but for his military service.

The decision of the district court will, therefore, be l’eversed.

      . 50 U.S.C.App. § 451 et seq.

      . Paragraph 9.2 of the Plan reads as follows :

        “Military Service”

      “If an employee enters the armed services directly from the employment of the company he shall, while in the service, be deemed for the purposes of the plan to be on leave of absence and shall not be entitled to any benefit. Only the credit units credited to him at the time of his entry into such service shall be credited to him upon his reinstatement as an employee of the company with unbroken continuous service, except as may otherwise be required by law.”

      . These sections read in part as follows:
      § 9(b) [50 U.S.C.App. § 459(b)]
      “(b) Reemployment rights.
      In the case of any such person who, in order to perform such training and service, has left or leaves a position . . . and . . . makes application for reemployment within ninety days after he is relieved from such training and service . . .
      . . . (B) If such position was in the employ of a private employer, such persons shall—
      (i) if still qualified to perform the duties of his position, be restored by such employer or his successor in interest to such position or to a position of like seniority status, and pay; . . ."
      § 9(c) [50 U.S.C.App. § 459(c)]
      “(c) Service considered as furlough or leave of absence
      (1) Any person who is restored to a position in accordance with the provisions of paragraph . . . (B) of subsection (b) shall be considered as having been on furlough or leave of absence during the period of training and service in the armed forces, shall be restored without loss of seniority, shall be entitled to participate in insurance or other benefits offered by the employer pursuant to established rules and practices relating to employees on furlough or leave of absence in effect with each employer at the time such person was inducted into such forces, and shall not be discharged from such position without cause within one year after such restoration.
      (2) It is declared to be the sense of the Congress that any person who is restored to a position in the accordance with the provisions of paragraph (B) of subsection (b) should be so restored in such manner as to give him such status in his employment as he would have enjoyed if he had continued in such employment continuously from the time of his entering the armed forces until the time of his restoration to such employment.”

      . 50 U.S.C.App. § 459(b) (B) (i).

      . 50 U.S.C.App. at § 459(c).

      . While Accardi, supra, refers to § 8(c), Section 8 of the 1940 Act was re-enacted as § 9 of the Selective Service Act of 1948, 62 Stat. 604, as amended 50 U.S.C. App. § 459.

      . Reference paragraph 9.2 of the Plan. The plan in Accardi had a similar provision which precluded employees on furlough or leave of absence from accruing benefits. (371 F.2d at 74)

      . This right was not questioned by the dissenting Justices in Eagar v. Magma Copper, 389 U.S. 323, 88 S.Ct. 503 (1968) (which reversed the court of appeals’ denial of vacation benefits to a returning veteran) who stated: “In dealing with the seniority problems under a like statutory provision, we held that the employee is to be treated as if he kept his position continuously during his stint in the Army. . . . petitioners do not contest [the employer’s] assertion that it does figure the length of vacation for returning servicemen as though they had been constantly on the payroll during the tour of duty in the military.” [Emphasis added.]


author: ROBERT P. ANDERSON, Circuit Judge: PER CURIAM:

text:
    William E. COONS, Plaintiff-Appellant, v. WASHINGTON MIRROR WORKS, INC. and Electric Motors Corp., Defendants-Appellees.
    No. 433, Docket 72-1527.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 31, 1973.
    Decided April 2, 1973.
    Rehearing Filed April 13, 1973.
    Rehearing Denied May 8, 1973.

      Charles Glatzer, New York City, of counsel (Glatzer & Silver, New York City, on the brief), for plaintiff-appellant.
    John F. Scully, New York City (Smith & Griffin, and Richard D. Smith, New York City, on the brief), for Washington Mirror Works, Inc.
    Murray L. Lewis, New York City (Fuchsberg & Fuchsberg, New York City, on the brief), for Electric Motors Corp.
    Before ANDERSON, FEINBERG and MULLIGAN, Circuit Judges.
   ROBERT P. ANDERSON, Circuit Judge:

On June 11, 1969, William Coons, a truck driver, delivered a load of glass to Washington Mirror Works’ Bronx warehouse. As one of the crates of glass was being unloaded by means of an electric overhead hoist designed and installed by Electric Motors, one of the wheels of the hoist slipped off the track along which it moved laterally. As a result, the crate, which weighed approximately 1100 pounds, fell on Coons’ right leg, pinning him to the bed of the truck. Employees of Washington Mirror lifted the crate from his leg, and Coons was rushed to Fordham Hospital, where it was discovered that he had suffered a fracture of the lower leg and severe fracture and dislocation of his right ankle. Coons was able to return to work on March 9, 1970, although until about April 20, 1970 he could serve only as a helper, not as a driver.

The trial of this action was conducted in three stages. First, the issue of Washington Mirror’s and Electric Motors’ liability to Coons was tried to a jury. By a special verdict it held Washington Mirror liable for negligence on the theory of res ipsa loquitur and Electric Motors liable for breach of warranty. This same jury then heard evidence with respect to the damages suffered by Coons and, again by special verdict, awarded him $14,160 for hospital and medical expenses, lost wages, and pain, suffering and disability. The jury specifically declined to award any damages for future pain, suffering and disability. Finally, the cross-claims for indemnification by the two defendants were tried to the court on the basis of the record developed during the first two stages. The trial court, D.C., 344 F.Supp. 653, concluded that each was equally responsible for the accident and therefore awarded each the right to 50% contribution.

Coons’ sole argument on this appeal is that the j-ry awarded him insufficient damages for pain and suffering, past and future, because of an improper evidentiary ruling by the district court and a plainly erroneous omission from its charge. Three witnesses testified during the portion of the trial which dealt with plaintiff’s damages. Coons testified concerning his lost wages, and his past and continuing suffering; a physical therapist described the number and nature of the treatments she had administered to Coons; and a Dr. Tuby gave his expert opinion that Coons would permanently suffer some pain and swelling in his right ankle whenever he performed strenuous work. Coons was then recalled and testified that three days earlier he had been examined by a Dr. Stella, a physician chosen by Washington Mirror, and that under Dr. Stella’s direction Coons’ leg had been x-rayed and that the x-rays had been delivered to Dr. Stella. The trial court ordered the testimony concerning the x-rays stricken, and directed the jury to disregard it and not to draw any inferences from it.

The exclusion of Coons’ testimony concerning the x-rays in the possession of Dr. Stella was not erroneous. The existence of the x-rays and their non-production by Washington Mirror did not give rise to any inference that they supported Coons’ claim of future pain and suffering because they were equally available to Coons, i. e. the actual x-rays taken or others which Coons could have had taken. See McCormick on Evidence, § 272, 656-658 (2d ed. 1972).

In charging the jury, the court noted the failure of Coons to call his treating physician and stated that the jury might “draw such inferences as [it] believe[d] appropriate from this particular feature,” but he did not mention the failure of the defendant Washington Mirror to call Dr. Stella or refer to any inferences which could have been drawn from this. Plaintiff was entitled to the charge that the jury could draw the inference from Washington Mirror’s failure to produce Dr. Stella, who was retained by it and who had examined Coons on its behalf, that if Dr. Stella had testified, he would not have contradicted or qualified the testimony of plaintiff’s medical expert. Laffin v. Ryan, 4 A.D. 2d 21, 162 N.Y.S.2d 730, 734 (3d Dept. 1957). Accord, Rice v. Ninacs, 34 A.D. 2d 388, 312 N.Y.S.2d 246, 249 (4th Dept. 1970). Plaintiff’s counsel neither requested such a charge nor excepted to the charge as delivered and by virtue of his failure to claim this right at trial he is precluded from asserting it here, Rule 51 F.R.Civ.P., unless the omission constituted “plain error.” Finn v. Wood, 178 F.2d 583, 584 (2 Cir. 1950). On the face of the record here, particularly since plaintiff’s counsel strenuously argued this inference in his summation, we do not believe a “miscarriage of justice” has occurred. 5A Moore’s Federal Practice ¶ 51.04 at 2515 (1971).

Therefore, we affirm the judgment of $14,160 in favor of Coons against Washington Mirror and Electric Motors.

Turning to the cross-appeals from the trial court’s assessment of equal liability upon Washington Mirror and Electric Motors, there are two aspects of the findings of fact which were critical to the apportionment of liability. First is the finding that the hoist “was of improper, inadequate design which allowed the wheels . . . to be pulled off . . . by the weight of the load,” and that therefore Electric Motors had breached its warranty and that this breach was a cause of Coons’ accident. Second, the court found that Washington Mirror had been negligent in its operation of the hoist because (1) the crates were dragged along the floorbed of Coons’ truck while they were attached to the hoist, and (2) the crates were improperly slung from the hoist, and that these acts of negligence were causes of the accident. The court, therefore, apportioned the liability equally.

Electric Motors asserts that the two factors found by the district court to have constituted negligence on the part of Washington Mirror also constituted misuse of the hoist, and therefore Washington Mirror cannot recover against Electric Motors for breach of warranty. Washington Mirror contends that the findings of improper slinging and negligent dragging were clearly erroneous and unsupported by the evidence, leaving only the improper design of the hoist as the proximate cause of the accident. We agree with Washington Mirror.

To begin with, it should be noted that these factual findings by the court on the cross-claims are inconsistent with its rulings during the trial on the defendants’ liability to Coons. At that time, the court held that no specific negligent acts by Washington Mirror had been established, and therefore the jury could only conclude there was fault on the theory of res ipsa loquitur. Then on the cross-claims, which, by stipulation, were to be decided on the basis of the same record, the court found two specific negligent acts. The two conclusions are inherently inconsistent. We hold that the court was correct in its original position and incorrect in its later conclusion that Washington Mirror had committed specific acts of negligence.

The only “testimony” concerning improper slinging was offered by counsel for Electric Motors in the course of the leading questions he posed to Earl Cad-well, an expert witness called by Washington Mirror. When he finally asked an acceptably phrased question concerning Washington Mirror’s method of slinging the crates for hoisting, the exchange was as follows:

“Q. If force was applied to the top of the crate, could it cause that crate to topple?
* * * * * *
A. It couldn’t topple if the crate was under suspension in the sling.”

At no time did Cadwell testify that the crates had been improperly slung; indeed, at one point he stated that the crates would not have been properly slung if the method suggested by counsel had been employed. Moreover, neither of Electric Motors’ expert witnesses testified that the crates had been improperly slung from the hoist. Because there was no evidence to support this conclusion by the district court, we are “left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948).

Similarly, there is no evidence to support the trial court’s finding that the dragging of the crates was a proximate cause of the accident. Cadwell attributed the accident to “improper, inadequate design.” William Pariser, the president of Electric Motors and designer of the hoist, testified that in his opinion the accident was caused by “either the cable slipping or the [crate] knocking against something.” Arthur Weber, another expert called by Electric Motors, said that only a “jarring impact” would have caused the hoist to slip off its track, but a steady drag would not have caused this to happen. Because there is no basis in the record to support the trial court’s conclusion that the dragging of the crates was a proximate cause of the accident, we are again constrained to conclude that it was clearly erroneous.

On the other hand, there is ample evidence to sustain the conclusion of both the jury and the court that Electric Motors had improperly designed the hoist and that this caused the accident. Cad-well, Pariser and Weber all testified that two additional wheels on the side of the hoist that fell would have prevented the accident; evidence was introduced to show that just two weeks before this accident such extra wheels had been installed on the other side of the hoist; and Cadwell testified that accepted professional engineering standards mandated the inclusion of such extra wheels in the design of a hoist of this type.

We, therefore, conclude that Washington Mirror is entitled to full indemnification from Electric Motors on account of the breach of its implied warranty of the hoist’s fitness.

The judgment on the verdict in favor of Coons, with his costs is affirmed; the judgments on the cross-claims are reversed and judgment will enter ordering Electric Motors to indemnify Washington Mirror, with its costs, for all damages due by Washington Mirror to Coons under the terms of the judgment in Coons’ favor. The appeal by Electric Motors is denied.

ON PETITION FOR REHEARING

PER CURIAM:

By Petition for Rehearing the plaintiff-appellant, Coons, objects to that portion of the opinion which said that “counsel neither requested such a charge nor excepted to the charge as delivered. . ; and points out that in the course of a discussion on a motion to strike between counsel and the judge in the robing room, his attorney did mention his position with regard to the propriety of drawing an inference from the failure of the defendant Washington Mirror to call as a witness Dr. Stella who had examined the plaintiff on its behalf. He said:

“The argument is that they examined this man, and I say there is an inference, Your Honor, that if they do not produce him, that his testimony would be adverse to them. That is my objection, sir.”

We are of the opinion, however, that this remark made in the course of an argument on a motion to strike certain rebuttal testimony by the plaintiff concerning some x-rays taken of him and delivered to Dr. Stella, was not sufficient notice to the trial judge of plaintiff’s objection to the charge. Plaintiff’s counsel’s statement about the drawing of an inference was made in a context different from that of a discussion relating to the court’s instructions to the jury. The very brief mention by plaintiff’s counsel in the course of an argument on a motion to strike without any reference whatever to the jury charge makes it less than “clear that the trial judge understood the party’s position.” 5A Moore’s Federal Practice ¶ 51.04, at 2521 (2d ed. 1971). The circumstances are not governed by Keen v. Overseas Tankship Corp., 194 F.2d 515 (2 Cir.), cert. denied, 343 U.S. 966, 72 S.Ct. 1061, 96 L.Ed. 1363 (1952), on which appellant’s counsel now relies.

As the opinion in this case made no specific mention of the robing room colloquy, the sentence commencing in line 3 from the bottom of page 866 of the opinion in this case is hereby amended to read as follows:

“Plaintiff’s counsel neither requested such a charge nor excepted to the charge as delivered, although he did briefly assert the propriety of the inference during a colloquy with Judge Levet on the exclusion of Coons’ testimony concerning the x-rays. Because of counsel’s failure to make clear to the trial judge that he was objecting to the charge, he is precluded from asserting it here, Rule 51 F.R.Civ.P., unless the omission constituted ‘plain error.’ Finn v. Wood, 178 F.2d 583, 584 (2 Cir. 1950).”

The opinion is in all other respects reaffirmed and the petition for rehearing is denied.

      . Dr. Tuby never treated Coons; he merely examined plaintiff twice. In fact, during cross-examination it was established that Dr. Tuby’s practice is presently limited to the examination of injured people and the preparation of reports for their lawyers. Coons was treated only by the doctors at Fordham Hospital and a Dr. Winters whose office was near plaintiff’s home in New Jersey, none of whom was called to testify.


author: HOLLOWAY, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Larry HAYES, Defendant-Appellant.
    No. 72-1126.
    United States Court of Appeals, Tenth Circuit.
    May 4, 1973.
    Rehearing Denied June 4, 1973.

      Robert L. Pitler, Denver, Colo., for defendant-appellant.
    Paul D. Cooper, Asst. U. S. Atty., Denver, Colo. (James L. Treece, U. S. Atty., Denver, Colo., on the brief), for plaintiff-appellee.
    Before BARNES, HILL and HOLLOWAY, Circuit Judges.

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

   HOLLOWAY, Circuit Judge.

Defendant-appellant Hayes and his co-defendant Hess were found guilty by a jury of unlawful sale and delivery of LSD in violation of 21 U.S.C.A. § 331 (q) (2) (1968). Their convictions occurred on a retrial after prior convictions were set aside by this court. 10 Cir., 441 F.2d 542. Hess has not appealed his conviction and we are concerned only with that of Hayes.

'The case against Hayes was submitted to the jury on his possible guilt both as a principal and as an aider and abettor under 18 U.S.C.A. .§ 2. The defense was entrapment. After the verdict against him, Hayes was sentenced under the Federal Youth Corrections Act, 18 U.S. C.A. § 5010(b), and this appeal followed.

Defendant Hayes essentially argues on this appeal that the trial court erred: (1) as a matter of law in not requiring the prosecution to produce as a witness the government’s paid informant and participant in the LDS purchase, Mr. Ellerton; (2) in not giving requested instructions that failure to produce Ellerton created a presumption that his testimony would be unfavorable to the prosecution; (3) in not concluding that there was entrapment as a matter of law; (4) in refusing to allow defendant Hayes to testify as to his state of mind in connection with the entrapment defense; and (5) in submitting an instruction on aiding and abetting as a basis of guilt.

First, we consider defendant’s proposition that the trial court erred as a matter of law in not requiring the government to produce its paid informant, Mr. Ellerton, at trial. This contention was raised first in a pretrial motion which was argued to the trial court and denied. At the hearing the court indicated to defendant’s attorney that it would not require the government to call Ellerton as a witness, but the court stated that the government would have to advise defendant of Ellerton’s address so that he could be called as a defense witness, if desired. Defendant’s attorney stated that the defense would call him “[i]f the government would do that.”

Government counsel then advised the court that they had Ellerton’s October, 1969, address but had had no contact with him since that time; that they could not find him for the last trial; that efforts were being made to locate him, which would continue; and that if he were found, defense counsel would be notified. The court accepted this statement by government counsel and entered a subsequent order denying the defense motion for production of Ellerton.

Defendant’s motions after trial raised the question again, but were overruled. On appeal defendant says the conviction must be reversed since the government failed to produce Ellerton and made no showing of a reasonable effort to do so. He argues that Ellerton’s appearance is crucial as corroboration in a case like this where the defense is entrapment. Reliance is placed primarily on Velarde-Villarreal v. United States, 354 F.2d 9 (9th Cir.), and United States v. Clarke, 220 F.Supp. 905 (E.D.Pa.).

Under various circumstances the courts have held the government to a duty to produce an informant or make a showing of a reasonable effort to do so. We are, however, persuaded to agree with the trial court that in this case the government was not obligated to call Ellerton as its own witness. The court accepted as sufficient the undertaking of the prosecution to seek his present location and' furnish it to the defense. We feel this was the proper measure of the government’s duty in this case. The government is not the guarantor of the appearance of its informant at trial, but is required to accord reasonable cooperation in securing his appearance where a timely request is made and his testimony might substantiate a claim of the defense. United States v. Tuck, 380 F.2d 857, 859 (2d Cir.); see also United States v. Makekau, 429 F.2d 1403 (9th Cir.), cert. denied, 400 U.S. 904, 91 S.Ct. 143, 27 L.Ed.2d 141.

On this record we find no merit in defendant’s request for a reversal on the ground that the government failed to show a reasonable effort to ascertain Ellerton’s whereabouts. There was no motion or objection calling for a showing by the government as to such effort following the hearing on the motion to produce Ellerton. Throughout trial no move was made by the defense to raise the issue. The issue was raised in defendant’s motion for a new trial but our record shows only the motion and the order overruling it.

In these circumstances we feel that it was not required that there be a showing or hearing on the reasonableness of the government’s efforts to locate Ellerton. We conclude that there was no error in the handling of matters relating to the production of Ellerton as a witness or information about him.

Second, we will examine defendant’s assertion that the court erred in refusing to give his proposed instructions 10 and 11. The gist of the instructions was that an unfavorable inference may be drawn where the government fails to produce an available witness who has material testimony.

We are not persuaded .by this assertion of error. As stated, our record contains no proof of the availability of Ellerton to testify at trial. The record shows only that at the time of the LSD transaction in 1969 Ellerton was a paid government informant working on a contingency basis and the subsequent representation by the prosecution at the pretrial hearing that they had Ellerton’s October, 1969, address but had had no contact with him since that time and that, at the time of this pretrial hearing, his whereabouts were then unknown. Without deciding whether such instructions are necessary, in any event one essentia] predicate for them — the witness’ availability — was not shown. See United States v. Pugh, 141 U.S.App.D.C. 68, 436 F.2d 222, 226; United States v. Makekau, supra; United States v. Peterson, 424 F.2d 1357, 1362 (7th Cir.), cert. denied, 400 U.S. 958, 91 S.Ct. 357, 27 L.Ed.2d 266. Thus there was no error in refusing the instruction.

Third, we turn to defendant’s argument that he was entitled to a judgment of acquittal because entrapment was shown as a matter of law. He relies considerably on United States v. Bueno, 447 F.2d 903 (5th Cir.) and Liptak v. State, 256 So.2d 548 (Fla.App.).

We are not persuaded that this record demonstrates that the defense was established as a matter of law. Entrapment occurs when the criminal design originates with agents of the government, who implant in the mind of an innocent person the disposition to commit the offense. Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 2 L.Ed.2d 848; Sorrells v. United States, 287 U.S. 435, 442, 53 S.Ct. 210, 77 L.Ed. 413; Martinez v. United States, 373 F.2d 810, 812 (10th Cir.). Where the proof shows that the agents merely afforded the opportunity for commission of the offense, without any creative activity on their part, there is no entrapment. Davidson v. United States, 411 F.2d 75, 77 (10th Cir.).

It is true that there was considerable proof tending to show entrapment, such as defendants’ testimony that Ellerton repeatedly pleaded with them to sell him LSD ; that he said he needed it to sell to pay bills and care for his pregnant wife; that he said otherwise he feared harm from a “syndicate”; and that neither defendant had sold LSD until the incident with Taketa. Moreover there was no contradiction by the informant Ellerton or otherwise of such testimony as to inducements by Ellerton. See United States v. Bueno, supra, 447 F.2d at 906.

However the defendants’ own admissions weakened the entrapment defense. Hayes admitted having given LSD to another person from a few tablets he had been given, but he denied any sale of LSD to anyone. Taketa and Hess testified that there was some price negotiation on the LSD sale. And Hayes admitted he replied to a question from Taketa about getting drugs in the future, saying “yeah, we could possibly do something in the future.” Hayes stated he felt very uncomfortable and said this to get Ellerton and Taketa out of the house. Thus the proof cuts both ways and was in conflict on the- entrapment defense, as well as on Hayes’ degree of involvement.

As stated, defendant Hayes relies on United States v. Bueno, supra, and Liptak v. State, supra, upholding the defense of entrapment as a matter of law where the defense was supported by uncontradicted proof, respectively, of government involvement by furnishing a drug that was later unlawfully sold by a defendant, and the offer of illicit consideration as well as money by a female informant for an unlawful sale. See also Spencer v. State, 263 So.2d 282 (Fla.App.), cert. denied, 267 So.2d 835 (Fla.). We feel that reliance on the cases is misplaced.

First, our record shows no conduct by government agents of such character. Moreover the Supreme Court has recently rejected reasoning similar to that found in the Bueno and Florida cases. See United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (decided April 4, 1973), reversing United States v. Russell, 9th Cir., 459 F.2d 671. The Ninth Circuit had sustained an entrapment defense as a matter of law because of conduct of a government agent in supplying a scarce ingredient essential for manufacture of “speed” which the defendant later unlawfully sold. In reversing, the Supreme Court made it clear that the defense could not be sustained as a matter of law for such “overzealous law enforcement,” and that the entrapment defense turned on the question of predisposition. “It is only when the government’s deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play.” Id. at 436, 93 S.Ct. at 1645.

We are satisfied that in our case this question of entrapment was one of fact on evidence conflicting as to predisposition and involving credibility, see also United States v. Gibson, 446 F.2d 719, 721 (10th Cir.); that it was properly submitted to the jury; and that the jury finding against defendant Hayes is supported by the record.

Fourth, defendant argues that the court erred in not allowing him to testify as to his state of mind. He says he was not allowed to testify as to the reason why the LSD was sold. We will outline the principal matters in the record on this argument.

Hayes refers to the trial court’s refusal to let Hess testify whether the transfer would have taken place but for the influences exerted on Hess by Ellerton. The trial court sustained an objection to the question on the ground that it was one of the ultimate questions the jury had to resolve. The court then also refused to allow Hess to testify whether he was in any other way influenced by Ellerton.

While Hayes was testifying he was not permitted to state how he personally felt about Ellerton when he described a social visit with Ellerton at a girl’s house about a month before the LSD incident. Again Hayes was not allowed to answer why he felt uncomfortable the night of the transfer. In connection with both of these questions there was no offer of proof as to the answer Hayes would have given if he had been permitted to testify. Finally Hayes was asked whether he wanted to sell the LSD, and an objection was sustained to the question and to his answer, “No.”

We cannot agree with the view expressed by the trial court that the testimony should be ruled out because it involved an ultimate question before the jury. Where a defendant’s intent is in issue he should be permitted to testify as to his motive and actual intent or state of mind. Crawford v. United States, 212 U.S. 183, 202-203, 29 S.Ct. 260, 53 L.Ed. 465; United States v. Edwards, 458 F.2d 875, 884 (5th Cir.); Whiting v. United States, 296 F.2d 512, 519 (1st Cir.); United States v. Kyle, 257 F.2d 559 (2d Cir.), cert. denied sub. nom., United States v. Gardner, 358 U.S. 927, 79 S.Ct. 312, 3 L.Ed.2d 301; Krogmann v. United States, 225 F.2d 220, 229 (6th Cir.); Collazo v. United States, 90 U.S.App.D.C. 241, 196 F.2d 573, 581, cert. denied, 343 U.S. 968, 72 S.Ct. 1065, 96 L.Ed. 1364; Haigler v. United States, 172 F.2d 986, 988 (10th Cir.). The fact that the issue of his intent is before the jury does not bar a defendant from his right to face the jurors and tell them his intentions and motives. Crawford v. United States, supra, 212 U.S. at 202-203, 29 S.Ct. 260. And he is entitled to testify whether he would have done the acts in question if inducements or pressures claimed had not existed. Whiting v. United States, supra, 296 F.2d at 519.

We are persuaded, however, that the rulings here against the admission of some testimony were harmless error in the circumstances of this case. They did not affect the defendant’s substantial rights and should be disregarded. 28 U.S.C.A. § 2111; Rule 52(a), F.R.Crim.P.

As stated, as to some questions no offer of proof was made to demonstrate the harm from the rulings. McDonald v. United States, 246 F.2d 727, 729 (10th Cir.), cert. denied, 355 U.S. 863, 78 S.Ct. 95, 2 L.Ed.2d 68. Moreover the defendants had developed the proof in considerable detail on the issues in question. They had shown Ellerton’s repeated entreaties to them and several rejections of them. Hayes testified that the night Ellerton first mentioned buying LSD he said he “was not interested in doing any kind of deal with him.” On the day of the LSD transaction when Ellerton told Hayes he was bringing someone by who had drugs he wanted to sell, Hayes testified he told Ellerton he didn’t want to meet anyone; that Ellerton kept insisting; and that Hayes said he could bring anyone by he wanted to, but added, “I don’t want to do a deal with anyone.”

In view of the proof admitted we are satisfied that the further statements which the defendants sought to make would have had but very slight effect. See United States v. Edwards, supra, 458 F.2d at 884. On the record of all that happened our conviction is sure that the error had but very slight effect and thus the verdict and judgment should stand. Kotteakos v. United States, 328 U.S. 750, 764-765, 66 S.Ct. 1239, 90 L.Ed. 1557.

Lastly appellant claims that the trial court erred by instructing that defendant could be convicted as an aider and abettor under 18 U.S.C.A. § 2. He says the proof is clear that Hayes had told Hess that “ . . . [t]his is your deal.” And appellant refers to other proof showing that Hess carried out the transaction with Taketa. Thus, he argues, the proof did not justify submission of the aiding and abetting instruction.

We have referred earlier to proof showing the involvement of Hayes. We note that Hayes admitted he had indicated the good quality of the tablets when Taketa said “ . . [t]hey better be good or I will be back . . . ”, and that he accepted the money for them, which he says he did because Taketa handed it to him. In describing his own acts connected with the money, Hayes testified: “ . . .1 was just trying to get everyone out of that room, out of the house. I felt very uncomfortable.”

As a whole the proof was sufficient for a reasonable inference that Hayes associated himself with the wrongful venture, that he participated in it as something he wished to bring about, and that he sought by his actions to make it succeed. Nye & Nissen v. United States, 336 U.S. 613, 619-620, 69 S.Ct. 766, 93 L.Ed. 919. We feel there was no error in submitting the aiding and abetting instruction to the jury.

We conclude that no reversible error is demonstrated and accordingly the judgment is affirmed.

      . E. g., United States v. Cansler, 419 F.2d 952 (7th Cir.), cert. denied, 397 U.S. 1029, 90 S.Ct. 1278, 25 L.Ed.2d 540 (dictum); United States v. Tuck, 380 F.2d 857, 859 (2d Cir.) (dictum); Verlarde-Villarreal v. United States, 354 F.2d 9 (9th Cir.); United States v. Moore, 330 F.Supp. 684, 687 (E.D.Pa.) (dictum) aff’d, 446 F.2d 448 (3d Cir.), cert. denied, 406 U.S. 909, 92 S.Ct. 1617, 31 L.Ed.2d 820; United States v. Clarke, 220 F.Supp. 905 (E.D.Pa.); People v. Goliday, 8 Cal.3d 771, 106 Cal.Rptr. 113, 505 P.2d 537 (1973); Eleazer v. Superior Court, 1 Cal.3d 847, 83 Cal.Rptr. 586, 464 P.2d 42; State v. Jones, 247 So.2d 342 (Fla.App.); see also United States ex rel. Drew v. Myers, 327 F.2d 174, 179-182 (3d Cir.), cert. denied, 379 U.S. 847, 85 S.Ct. 88, 13 L.Ed.2d 52. Cf. United States v. Golden, 436 F.2d 941, 947 (8th Cir.) cert. denied, 404 U.S. 910, 92 S.Ct. 236, 30 L.Ed.2d 183; United States v. Wolfson, 322 F.Supp. 798, 819-820 (D.Del.) (dictum) aff’d, 454 F.2d 60 (3d Cir.), cert. denied, 406 U.S. 924, 92 S.Ct. 1792, 32 L.Ed.2d 124.

      . The proposed instructions were respectively those appearing in Federal Jury Practice and Instructions, Devitt and Blackmar, Sections 11.33 and 11.34, Vol. 1, pp. 249-251.

      . The proof was stronger on involvement by Hess in the transactions. Taketa testified that Hayes had said to Hess: “ . . . [T]his is your deal so go ahead.” Taketa said that Hayes stayed over to the side and was sort of semiretired on a bed in the corner of the room. Hess described the LSD sale in question as “ . . . the transaction between Mr. Taketa and myself.”
      Taketa testified that when he and Hess engaged in negotiations, Hess first told him it would take several hours to go and get the LSD and Taketa told him his time was limited. Hess then told Taketa that there were approximately 200 tablets of LSD in the immediate vicinity. Taketa said that they had discussed a price of $1.40 per tablet and that they later negotiated the price down to $1.30 per tablet. Taketa testified that Hayes left for a few moments and came back with a bag containing the tablets. However, both Hess and Hayes testified that Hess had gone out and gotten the tablets.


author: ESTES, District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Cecil STEMBRIDGE and Jessie Lee Stembridge, Defendants-Appellants.
    No. 72-2042.
    United States Court of Appeals, Fifth Circuit.
    April 13, 1973.

      Charles Yarborough, Ft. Worth, Tex. (Court appointed), Sharon Gabert, Ft. Worth, Tex., Bertrand C. Moser, Houston, Tex. (Court appointed for Cecil Stembridge), for defendants-appellants.
    Frank D. McCown, U. S. Atty., W. E. Smith, Asst. U. S. Atty., Ft. Worth, Tex., for plaintiff-appellee.
    Before COLEMAN and SIMPSON, Circuit Judges, and ESTES, District Judge.
   ESTES, District Judge:

Appellants, Cecil Stembridge and Jessie Lee Stembridge, his wife, were each convicted of (1) conspiring, in violation of 18 U.S.C. § 371, with one Gerald Loveless to rob a federally insured bank, in violation of 18 U.S.C. § 2113(a) and (2) aiding and abetting Loveless in the robbery of the bank, in violation of 18 U.S.C. §§ 2 and 2113(a). Cecil was sentenced to imprisonment for five years on Count 1 and 20 years on Count 2; Jessie was sentenced to imprisonment for five years on Count 1 and 10 years on Count 2. The sentences were concurrent for both defendants. We affirm.

On December 2, 1971, the Security State Bank of River Oaks, Texas, a federally insured bank, was robbed of approximately $9,250 by Loveless, who drove up to a drive-in teller’s window and placed in the teller’s drawer a bag containing a fake bomb and a note which read, “There is a bomb in this bag that I can set off by remote control. Give me all the money in one minute or I’ll blow this whole booth up.”

At the trial, Loveless, who pleaded guilty, testified that Jessie had printed the robbery note. Appellants’ main contention in this appeal concerns the testi-. mony of the government’s handwriting expert, James Lile. Lile testified that by comparing the robbery note to handwriting exemplars produced by Jessie and a job application form signed “Jessie Lee Stembridge,” he was able to determine that the same person had prepared the hand-printing on all three exhibits. During a rigorous cross-examination, the defense counsel obtained Lile’s admission that when comparing the robbery note with the exemplars of Jessie’s writing-alone, he was not able to say that the same person printed both. The prosecutor then asked the expert to explain why he could not do so. He answered, “The writings on those nine pages [the exemplars] bear many of the classical characteristics which I have been trained to recognize as attempts of the writer to intentionally disguise or distort normal writing.”

Although recognizing that handwriting/printing exemplars have been held to be identifying physical characteristics outside the protection of the Fifth Amendment privilege against self-incrimination, Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), Jessie contends that her exemplars were improperly used as testimonial evidence. She asserts that the testimony that her exemplars were disguised implies a consciousness of guilt and that implied admission violates her privilege against self-incrimination.

A similar contention was presented to the Second Circuit, in United States v. Izzi, 427 F.2d 293 (2 Cir. 1970), which concluded that the contention was unsupported by the record and, therefore, did not decide the issue. The instant case could also be considered one in which the record does not support the contention, because the record clearly shows that the prosecution obtained the expert’s opinion that the exemplars were disguised not as an implied admission of guilt by Jessie but rather as an explanation of his difficulties in analyzing the handwriting in order to substantiate his analysis after a rigorous cross-examination challenging its validity.

Be that as it may. Prior rulings of this Circuit in comparable situations lead us to reject appellant’s contention.

Although identifying physical characteristics are outside the protection of the Fifth Amendment, Gilbert, supra; Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), certain characteristics, such as voice and handwriting exemplars, require the physical cooperation of the accused in order to obtain valid samples. The accused has not been permitted to frustrate the prosecution’s right to this evidence by simply refusing to give the required exemplars.

In Higgins v. Wainwright, 424 F.2d 177 (5 Cir. 1970), this court held that no constitutional right of an accused was violated by the introduction of evidence that he had refused to speak for identification purposes during a line-up. Also, in United States v. Nix, 465 F.2d 90 (5 Cir. 1972), this court held that it was not improper for the prosecutor in his closing arguments to the jury to comment upon the accused’s refusal to provide a handwriting exemplar as directed by the court and, further, that it was not improper for the court to charge the jury that if it found beyond a reasonable doubt that the accused had failed to provide an exemplar as ordered by the court, it might infer that a comparison of such samples with a questioned signature would have been unfavorable to the defendant and favorable to the prosecution. The Second Circuit has likewise stated that the prosecution “can rely before the grand jury and, if an indictment is returned, at trial, on the strong inference to be drawn” from the refusal of an accused to furnish handwriting exemplars. United States v. Doe, 405 F.2d 436, 438 (2 Cir. 1968).

An attempt to disguise the handwriting in an exemplar is, in effect, a refusal to provide an exemplar, for if an accused were free to disguise his writing, without any sanctions, exemplars would be worthless. Hence it is not improper for the prosecution to show that the defendant attempted to avoid providing a valid handwriting sample by intentionally distorting his handwriting.

Another contention in this appeal is that the job application form could not be used for comparison because there was no proof that Jessie had filled out the form. When she took the stand in her own behalf, Jessie admitted that she had signed the form, but when asked if she had filled it out, she equivocated, “I don’t know if I did or not.” However, Lile testified that the printing on the application form and the handwriting exemplar were produced by the same person. His testimony is sufficient evidence to establish that' Jessie produced the printing on the application form. Indeed, in the proposed Federal Rules of Evidence, such proof is expressly stated to be an “illustration” of “evidence sufficient to support a finding that the matter in question is what its proponent claims.” Since there was no objection at the trial to the use of the form, appellant recognizes that, to be sustained in this court, any error would have to be plain error. If there was any error in using the application form, it does not amount to plain error.

We have considered the remaining contentions of the appellants and have found them without merit.

The judgment of the district court is

Affirmed.

       Rule 901(a) and (b)(3), Rules of Evidence for the United States Courts and Magistrates (approved Nov. 20, 1972, and transmitted to Congress), [56 F.R.D. 183, 331-332] (1972).


author: MERRILL, Circuit Judge: EUGENE A. WRIGHT, Circuit Judge

text:
    James Boyd MACKEY, Plaintiff-Appellant, v. Raymond K. PROCUNIER et al., Defendants-Appellees.
    No. 71-3062.
    United States Court of Appeals, Ninth Circuit.
    April 16, 1973.
    Elizabeth Shelley Mercer (argued), Howard Anawalt, National Legal Program on Health Problems of the Poor, Los Angeles, Cal., for plaintiff-appellant.
    Marjory Winston Parker, Deputy Atty. Gen. (argued), Sacramento, Cal., for defendants-appellees.
    Before MERRILL, WRIGHT, and KILKENNY, Circuit Judges.
   MERRILL, Circuit Judge:

Appellant is a state prisoner, serving a term of imprisonment at Folsom State Prison, Represa, California. He has brought this action charging violation of his civil rights by virtue of alleged cruel and unusual treatment received by him at the California Medical Facility at Vacaville in 1967. With his consent, he had been sent to Vacaville for the purpose of undergoing shock treatment. In his complaint, filed in propria persona, he alleges that, without his consent and not as a part of shock treatment to which he had consented, he was administered the drug, succinycholine, which he characterizes as a “breath-stopping and paralyzing ‘fright drug.’ ” As a consequence of what he calls “this ‘guinea-pig’ treatment” he alleges that he regularly suffers nightmares in which he relives the frightening experience and awakens unable to breathe. He charges the defendants with “deliberate and malicious intentional infliction of mental and emotional distress, causing plaintiff great pain of body and mind, resulting in a severe disturbance.”

Defendants moved to dismiss for failure to state a claim upon which relief could be granted. Fed.R.Civ.P.12(b)(6). In granting the motion, and in concluding that no claim of violation of civil rights was stated, the District Court treated the allegations of the complaint as claims of malpractice and as asking the court to assess the propriety of a particular course of treatment. It is clear, however, that the claims were intended to go far beyond this.

Prior to hearing on the motion to dismiss plaintiff secured the services of counsel in preparation of memoranda in opposition to the motion. These memoranda cast further light on the nature of plaintiff’s claim.

The nature of the drug was discussed. It is recommended as an adjunct to electric-shock therapy and as a relaxant in conjunction with administration of anesthesia. It is not recommended for administration to fully conscious patients, apparently because of its frightening effects. It is asserted in memoranda that the staff at Vacaville is engaged in medical and psychiatric experimentation with “aversive treatment” of criminal offenders, including the use of succinycholine on fully conscious patients. It is emphasized that plaintiff was subjected to experimentation without consent.

Proof of such matters could, in our judgment, raise serious constitutional questions respecting cruel and unusual punishment or impermissible tinkering with the mental processes. In our judgment it was error to dismiss the case without ascertaining, at the least, the extent to which such charges can be substantiated.

The District Court dismissed the complaint as against defendants Pope and Procunier for the further reason that the complaint did riot “specifically allege participation by them in the alleged wrongful conduct. * * * ” The complaint did allege that the administering doctor was “acting under and through the authority” of these defendants. From the elaboration of the claims in memoranda, it would appear that plaintiff seeks to establish general participation in a program of experimentation and is not relying solely on principles of respondeat superior as to these defendants.

While the nature of plaintiff’s claim in all these respects was not stated with specificity in the complaint drafted by him, the memoranda filed in connection with the motion to dismiss clearly indicate what was meant by reference to the “guinea-pig” treatment and to “deliberate and malicious infliction of mental and emotional distress.” Leave to amend the complaint was not sought. However, in response to plaintiff’s memoranda, defendants accepted them as “in the nature of an amendment to the complaint” and as “new allegations.” There can be no doubt that defendants were on notice as to the nature of plaintiff’s claim. Lack of formal articulation in an amended complaint was not protested. If such is felt desirable an amendment could be required.

Reversed and remanded with instructions that the order dismissing the action be vacated, and for further proceedings.

EUGENE A. WRIGHT, Circuit Judge

(dissenting):

Respectfully, I dissent. The record before the district court and before us convinces me that appellant consented to the treatment given him. Malpractice by a physician in a state penal institution does not give rise to a civil rights action. Riley v. Rhay, 407 F.2d 496 (9th Cir. 1969).

      . In brief on appeal the contentions with respect to “aversive treatment’’ arc put even more precisely. It is asserted that defendants are engaged, without patient consent, in a course of medical experimentation to ascertain whether, by instilling of fright and infliction of pain, accompanied by psychological suggestion, behavior patterns can be affected. E. g., Brief for Appellant at 9; at 15 n. 5 and accompanying text.

      . See, e. g., Robinson v. California, 370 U. S. 660, 667, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). Cf. Furman v. Georgia, 408 U.S. 238, 239-240, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); Jackson v. Indiana, 406 U.S. 715, 737, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972).

      . See, e. g., Eisenstadt v. Baird, 405 U.S. 438, 452, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1968). Cf. Roe v. Wade, 410 U.S. 113, 149-154, 93 S.Ct. 705, 725-727, 35 L.Ed. 2d 147 (1973).


author: PER CURIAM.

text:
    UNITED STATES of America, Appellee, v. Charles H. JACKSON, Appellant.
    No. 72-1708.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 11, 1973.
    Decided April 20, 1973.
    Harold L. Holliday, Kansas City, Mo., filed appendix and brief for appellant.
    Bert C. Hurn, U. S. Atty., and Paul Anthony White, Asst. U. S. Atty., Kansas City, Mo., filed brief for appellee.
    Before GIBSON, BRIGHT and ROSS, Circuit Judges.
   PER CURIAM.

A nine-count indictment charged the defendant Jackson with aiding and assisting in the preparation and presentation to the Internal Revenue Service of materially false and fraudulent Individual Income Tax 1040 Forms in violation of 26 U.S.C. § 7206(2). The Government dismissed Counts II, VIII, and IX prior to submission of the case to the jury. The jury found the defendant guilty on Counts I and III and acquitted him of Counts IV, V, VI, and VII.

The defendant argues on appeal- that the District Court should not have allowed admitted documentary evidence to be taken to the jury room and that the District Court erred in refusing to give an instruction relating to the testimony of an accomplice. Finding these contentions meritless, we affirm the conviction.

Judge Oliver first allowed the jury to inspect documentary evidence concerning Counts I and II while in the jury box. However, after the direct and cross-examination of Karen K. Carson, a witness taxpayer involved in Count III, Judge Oliver called a recess and agreed with both the Government and defense counsel that each juror would be given an indexed copy of a full set of all exhibits admitted into evidence in order to expedite the trial and to make it more practical for the jury to view the numerous exhibits.

The defendant argues that this procedure of allowing admitted documentary evidence in the jury room focused undue prominence and emphasis to that evidence. That argument is not well taken. First, defense counsel at trial agreed to the use of this procedure. Second, since only exhibits that were properly admitted into evidence were given to the jurors to take into the jury room, such a procedure was entirely in order. This method of presentation of similar documentary evidence was not only well within the District Court’s discretion but also was a permissible decision for fairly expediting the trial.

Second, the defendant argues that the District Court erred in refusing to allow an instruction relating to the testimony of an accomplice. However, defense counsel did not object in chambers or before the jury concerning the omission of this presently contested instruction. Since the defendant had failed to object to this instruction before the jury retired and since no plain error appears on the record, we reject this argument. Fed.R.Crim.P. 30; United States v. Valez, 431 F.2d 622, 623 (8th Cir. 1970).

Judgment of conviction affirmed.

      . Honorable John W. Oliver, United States District Judge, Western District of Missouri, presided.

      . The defendant is represented by a different counsel on this appeal.

      . We held in United States v. Warner, 428 F.2d 730, 737 (8th Cir. 1970), cert. denied, 400 U.S. 930, 91 S.Ct. 194, 27 L.Ed.2d 191 (1970), also involving a violation of 26 U.S.C. § 7206(2), that “properly admitted illustrative materials may be sent to the jury room.”


author: PER CURIAM:

text:
    AMERICAN OFFSHORE WORKOVER, INC., Plaintiff-Appellee, v. The DOW CHEMICAL COMPANY, INC., Defendant-Appellant.
    No. 72-2711.
    United States Court of Appeals, Fifth Circuit.
    April 27, 1973.

      John M. McCollam, Charles M. Steen, New Orleans, La., for defendant-appellant.
    Richard T. Regan, Metairie, La., for plaintiff-appellee.
    Before COLEMAN and SIMPSON, Circuit Judges, and ESTES, District Judge.
   PER CURIAM:

Defendant-appellant Dowell, a division of The Dow Chemical Company, (Dow-ell) was preparing to diversify its business to include the stimulation of old oil and gas wells (workover) in the Gulf of Mexico. It leased from plaintiff-appellee American Offshore Workover, Inc., (AOW) the vessel “Mr. Don” to be used as a mobile platform for servicing the wells in its offshore workover operations. The term of the lease was for three years and AOW was aware of the purpose for which Dowell had leased the vessel.

Dowell used the vessel for one year in the western Gulf area without complaint, but when it attempted to move further eastward it was advised by AOW for the first time that such area was outside of the navigational capabilities of the “Mr. Don”. Because the navigational limits of the vessel precluded Dowell from working what it regarded as its prime workover market area, and AOW refused to modify the vessel to enable it to work the desired area, Dowell terminated the contract. AOW successfully sued for breach in the court below. We affirm.

The “Mr. Don” was a self-propelled, self-elevating, mat-supported vessel, which meant it jacked up out of the water by supporting its weight on four legs that were attached to a mat which in turn rested on the bottom subsoil of the sea. The ability of such a vessel to support its weight on the bottom depended largely on the consistency of the sub-soil; soft-bottom areas usually failed to provide the requisite support and greatly added to the danger of the vessel’s turning over.

The question whether Dowell was justified in terminating its contract with AOW is answered by examining the correspondence AOW sent Dowell informing the latter of the “Mr. Don” ’s limitations. We' approve the district court finding that such correspondence consisted simply of recommended safety practices because of erratic soil changes on the sea-bottom subject to modification as the situation changed. We reject Dowell’s contentions here as in the court below that it was ordered by the letters to eliminate completely a whole important market area without justifiable cause, and was hence justified in terminating the contract.

The full texts of the two letters AOW sent Dowell are reproduced in the margin. At the onset of the first letter AOW expressly put Dowell on notice that the instructions to follow were subject to change. The letter was equally clear that the limitations imposed on the vessel were made in view of its self-elevating, mat-supported nature and the danger inhering in working in areas with “underconsolidated or very recent clay bottoms”. Indeed, a rather elaborate and cautious empirical “on location” test was ordered to “check bottom conditions to ascertain that sufficient bearing surface exists” to support the vessel. In short, there was no absolute prohibition against work in any area, but no more than a requirement that the sea-bottom be tested to ensure the safety of the vessel and her crew. The district court’s holding was supported by the record, Washington Aluminum Company v. Pittman Construction Company, 5 Cir. 1967, 383 F.2d 798, 804.

We do not discern merit in Dowell’s other contentions, including its attack on the method of computation and amount of damages allowed for the breach of contract.

Affirmed.

      . “July 15, 3968
      The Dowell Division
      Dow Chemical Company
      640 Oil & Gas Building
      1100 Tulane
      New Orleans, Louisiana 70032
      Attention: Mr. M. G. Harding
      Gentlemen:
      Until further notice operations of the Mr. Don in Jacked-up Configuration are not to be conducted in areas with under-consolidated or very recent clay bottoms. Operations will be limited to that portion of the Texas-Louisiana Gulf Coast between 89 cleg. 5' West Longitude and 95 deg. West Longitude.
      The ‘West Delta’ areas which cannot be served include Blocks 50, 57, 80, 85, 108, 110, 127, 128, 145, and 146, other areas east of the line 89 deg. 5' West Longitude are outside our operational capabilities.
      In every case, regardless of the location, the move supervisor will check bottom conditions to ascertain that sufficient bearing surface exists by elevating the vessel two or three feet above the water and holding that position for one hour. If after one hour the bottom soil is holding, the vessel can be elevated to the planned working height. The vessel will be immediately lowered should a list to either Port or Starboard or to the Stern or Bow develop which exceeds three degrees.
      Please be governed accordingly when ordering the vessel to work site. Should you have any questions, please advise. Yours very truly,
      AMERICAN OFFSHORE WORK-OVER, INC.
      /s/ Jack R. Hilder, Jr.,
      Jack R. Hilder, Jr., President”
      “July IS, 190S
      Dowell Division
      Dow Chemical Company
      1100 Tulane Avenue
      New Orleans, Louisiana 70119
      Attention: Mr. Max Harding
      Subject: Mr. Don Operating Limits
      Dear Sir:
      Further to my letter of July 15, 1908, the operations of the M/V Mr. Don are limited to that portion of the Texas-Louisiana Gulf Coast between 89 deg. 30' West Longitude and 95 deg. 0' West Longitude.
      Your inquiry regarding Blocks 22 and 24 of the West Delta area is acknowledged. These blocks are appr- (sic) oved subject to the ‘on location’ test in accordance with the procedure outlined in my letter of July 15, 1908.
      Should you require any additional data, please advise.
      Yours very truly
      AMERICAN OFFSHORE WORK-OVER, INC.
      /s/ Jack R. Hilder, Jr.,
      .Tack R. Hilder, Jr., President”