text:
    UNITED STATES of America, Appellee, v. Demetrios PAPADAKIS and Joseph Novoa, Defendants-Appellants.
    Nos. 264, 275, Dockets 74-1847, 74-1956.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 24, 1974.
    Decided Jan. 10, 1975.
    Certiorari Denied April 28, 1975.
    See 95 S.Ct. 1682.

      Joseph I. Stone, New York City, for defendant-appellant Papadakis.
    Arnold E. Wallach, New York City, for defendant-appellant Novoa.
    Lawrence S. Feld, Asst. U. S. Atty., S. D. N. Y. (Paul J. Curran, U. S. Atty., on the brief), for appellee United States.
    Before WATERMAN, OAKES and GURFEIN, Circuit Judges.
   GURFEIN, Circuit Judge:

Joseph Novoa and Demetrios Papadakis appeal from judgments of conviction entered following a jury verdict rendered after a 13-day trial before Judge Wyatt.

The jury found Novoa guilty under count one of the indictment of conspiracy to obstruct justice in violation of 18 U.S.C. § 371, to commit narcotics offenses in violation of 21 U.S.C. §§ 173, 174 [now repealed] and 18 U.S.C. § 3, and to obstruct communication of information to a federal investigator in violation of 18 U.S.C. § 1510. They also convicted him under count four of conspiracy to violate federal narcotics laws, 18 U.S.C. § 371, and, under counts five through ten, of substantive violations of 21 U.S.C. §§ 173, 174.

Papadakis was originally charged under count four with conspiring with Novoa and others to violate the narcotics laws, but the charge was dismissed by the court before the case was submitted to the jury. The jury found Papadakis guilty under count seven of violating 21 U.S.C. §§ 173, 174; he was acquitted under count six, which charged him with the same offense on a different date.

Novoa was sentenced to a five year term imprisonment on count one to run concurrently with concurrent terms of ten years imprisonment on counts four through ten. Papadakis was sentenced to a term of five years imprisonment to run concurrently with the consecutive five year terms of imprisonment which he is already serving for prior violations of the federal narcotics laws.

Appellants raise several different grounds for reversal on this appeal. We affirm.

The Government’s case was presented primarily through the testimony of three witnesses: Carl Aguiluz, a former police officer and a co-conspirator; Prank Ramos, a co-conspirator and former co-defendant, who pleaded guilty to a lesser charge; and Salvador Boutureira, an admitted participant in the scheme. Viewing the evidence in the light most favorable to the Government, we find that the testimony of these and other witnesses revealed the following pattern of criminal conduct.

In April 1970 appellant Novoa was a police detective with the Special Investigations Unit (“SIU”) of the Narcotics Bureau of the New York City Police Department. Working closely with Aguiluz and a third detective, Peter Daly, Novoa was charged with the duty to investigate and uncover major narcotics offenses occurring within New York City and to apprehend the offenders.

The “100 Kilo” Case

Late in the evening of April 14, while conducting surveillance in lower Manhattan, the three officers became suspicious of four persons, later identified as Emilio Diaz Gonzalez, Jose Luis Muías, Jorge Rodriguez Arraya and Elena Risso, who were driving down Seventh Avenue, making sporadic stops along the way. The three detectives decided to follow the suspects’ car, which eventually left lower Manhattan and proceeded up the West Side Highway, across the George Washington Bridge to the vicinity of Fort Lee, New Jersey. Near the Toll Gate Motel in Fort Lee, the detectives stopped the suspects’ car.

After a brief altercation involving the local police and the manager of the Motel where it turned out the suspects were staying, the three detectives returned to New York City with the four suspects. In the car, Aguiluz asked Gonzalez for identification papers and, upon Gonzalez’ production of three separate passports issued in three different names by three different countries, arrested him for falsifying documents. Aguiluz mentioned to Novoa and Daly that he feared the arrest was invalid, at which point Daly winked and said there was a gun beneath the seat of the suspects’ car.

Having found a ground on which to arrest the suspects, the three detectives returned with them to the Sixth Precinct Station House, where the four were placed under arrest and locked in cells. On a ruse, Gonzalez obtained release from his cell and access to his personal belongings. He grabbed a piece of paper, stuffed it in his mouth and began to eat it. Despite the efforts of Novoa, Daly and Aguiluz to stop him, he was successful in swallowing the paper.

The Seizure

The officers had reviewed the personal effects of the suspects several times, however, and, after examining the remaining papers, remembered that the swallowed paper had contained an address, 210 W. 19th Street, Apartment 4 — F. Leaving Novoa at the Station House, Aguiluz and Daly took keys found on the suspects, went to the address noted, entered the apartment and searched it. They found two heavily locked closets which they could not open. They telephoned Novoa, who secured the aid of Detective John Kid, an expert in picking locks. When Kid had completed his task, the officers discovered that one closet contained a huge supply of what appeared to be heroin or cocaine, wrapped in South American newspapers, packaged in units of a kilo and a half-kilo. A field test showed that the contents were indeed narcotics of high purity; laboratory tests later showed that approximately 40 kilos of heroin and 60 kilos of cocaine had been seized from the apartment and turned over to the Property Clerk at the Police Department.

Not all of the seized narcotics was turned over, however. While they were removing the packages from the closet, Daly suggested to Aguiluz, at a time when Kid was out of hearing, that they keep some narcotics for “flaking,” that is, for planting on a person to create grounds for his arrest. Aguiluz agreed, and Daly placed five kilos — three of heroin and two of cocaine — in a small suitcase which he then placed in the trunk of his car. Novoa appeared at the apartment soon afterwards and was informed by his partners that they had set aside five kilos of narcotics for use in flaking. He said, “Fine.”

It was then about 8:45 a. m. Aguiluz left the apartment to obtain a search warrant. After his return with the warrant, he, Novoa, Daly, and other officers of the SIU met with the press at the apartment. Later in the day, after returning to the Sixth Precinct Station House, Novoa, Aguiluz, Daly, and a fourth SIU officer, Sergeant Gabriel Stefania, split among themselves $1200 in cash seized from the four arrested persons.

The Sale of Five Kilos of Narcotics by the Police Officers

About a week after the seizure, Aguiluz asked Novoa and Daly whether he could retain physical possession of the narcotics which they had set aside. They agreed, and Daly transferred the suitcase with the five kilos of heroin and cocaine to Aguiluz in Novoa’s presence. Several weeks later, the three detectives met to decide what to do with the drugs. After some discussion, they decided to attempt to sell them. Aguiluz recommended that they use his brother-in-law, Boutureira, as an intermediary. Novoa and Daly agreed.

Soon afterwards, Aguiluz took a satchel containing the five kilos to the apartment of his brother-in-law in Greenwich Village. Boutureira agreed to try to sell the drugs. Boutureira then spoke with Ramos, owner of the Cafe Madrid. Ramos, after being given some samples, agreed to sell the drugs. It was agreed that Ramos would try to get $12,500 per kilo of heroin and $9,500 per kilo of cocaine. Ramos was to receive a commission of $500 per kilo sold.

Shortly thereafter, Ramos spoke with appellant Papadakis about a possible purchase, giving him a heroin sample previously supplied by Boutureira. Papadakis agreed to purchase a kilo of heroin for $12,500. The first sale was aborted when Papadakis failed to bring enough cash to pay for the heroin he had agreed to purchase, but on the next day, Papadakis, and an associate, Elissa Possas, brought enough money. They gave the money to Ramos. He called Boutureira, who arrived at the Cafe and was shown the money. He was not introduced to Papadakis or' Possas, but both were pointed out to him. Earlier, Boutureira had hidden a kilo of heroin in a brown paper bag under a board in a vacant lot at 13th Street and Eighth Avenue. Upon seeing that the money was all there, Boutureira told Ramos where the kilo was located and Ramos passed the information to Papadakis, who in turn signalled to a man standing outside the Cafe Madrid in a black leather jacket, who talked to Papadakis, and then left.

Boutureira had informed Novoa, Daly and Aguiluz of the scenario and the three were watching the Cafe Madrid. After they had seen the black-jacketed man enter and leave the Cafe, the three drove to a building opposite the parking lot where the heroin had been hidden. The black-jacketed man arrived on a motorcycle, found and took the heroin, left the lot, and threw the package into a taxi which had pulled up just as he was emerging from the lot. Both the taxi and the motorcycle’ then drove away. Soon afterwards, Possas received a telephone call at the Cafe after which she told Ramos that everything was all right. After Possas and Papadakis left the Cafe, Ramos turned the money over to Boutureira, less his $500 commission.

Boutureira then met Novoa, Daly and Aguiluz and the • four proceeded to the Hotel Taft where they divided equally the $12,500 in proceeds from the sale of the kilo of heroin.

A few days later, Papadakis told Ramos that he would like to buy another, kilo of heroin. Ramos contacted Boutureira, who, this time, placed the kilo in a subway locker at 14th Street and Eighth Avenue. After going to the Cafe, Boutureira learned that Possas and Papadakis had not brought enough money. He refused to make the sale that day, but the next day he accepted $11,000, upon Ramos’ assurance that the balance would be forthcoming. Boutureira told Ramos where the heroin was and gave him the key to the locker which Ramos gave to Papadakis. Shortly after Papadakis had left the Cafe with the key, Possas received a telephone call; she then told Ramos that everything was all right. This time, Boutureira took the money to an East Side apartment, where he hid it.

The next day, Papadakis telephoned Ramos to complain about the quality of the second kilo of heroin. A meeting was arranged between Papadakis and Boutureira, at which Papadakis arrived with an unnamed man, who identified himself as Papadakis’ boss. Boutureira assured the man that he had not altered the heroin, at which point the man accused Papadakis of adulterating the narcotics and asked Boutureira to deal with him directly in the future, if he had more to sell. Sometime thereafter, Ramos gave Boutureira the $1000 due on the second purchase of heroin.

The Government’s evidence also revealed that three more sales were made. One involved a transaction with co-defendant Joaquin Nieves, who was acquitted by the jury on a charge that he had purchased the kilo of heroin. According to the Government’s evidence, Ramos also arranged this sale and, as in the previous sales, acted as the middle man holding the money until the purchaser secured the narcotics. When this was accomplished, he gave the money to Boutureira, minus his commission.

Boutureira now had a total of $24,000 from his second sale to Papadakis and his sale to Nieves. He got in touch with Aguiluz to arrange a meeting. Boutureira, Aguiluz, Novoa and Daly met in Boutureira’s. car, which was parked on 13th Street,' near Sixth Avenue. At that meeting, Boutureira gave each of the others his $6000 share of the proceeds of the two sales.

The last two sales, of the two kilos of cocaine, were made by Boutureira to co-conspirator Lorenzo Cancio. The first sale was of a half-kilo, which Boutureira gave Cancio on consignment. Ramos again acted as the middle man. On the last sale, of one-and-one-half kilos, Boutureira dealt with Cancio directly. Cancio gave Boutureira a total of $18,000, which Boutureira later divided equally with Novoa, Aguiluz and Daly.

The evidence also showed that while Aguiluz was on vacation, Novoa and Daly located the apartment of Elena Risso, one of the four persons originally arrested on April 15. In searching her apartment, the two detectives found $5000 in cash, which they split three ways, giving Aguiluz his share upon his return from vacation.

The Government also introduced testimonial evidence which indicated that Novoa, Daly and Aguiluz had entered into discussions with the attorney for the four suspects arrested in the “100 kilo” seizure to fix the case in return for a bribe. Through Nicholas DeStefano, a bail bondsman, the lawyer, Michael San-tangelo, got in touch with SIU Detective Nicholas Lamattina, who in turn .spoke to Daly and then acted as a middle man in the ensuing negotiations. Novoa, Daly and Aguiluz met with Lamattina, telling him that Santangelo would have to pay the $5000 balance of a former bribe before they would deal with him on the “100 kilo case.” After payment was arranged and completed, the three detectives told Lamattina that they would need $125,000 to fix the case, an amount which Santangelo rejected out of hand. The possibility of further negotiations was ended when Santangelo was discharged by his clients.

The Government also introduced other evidence, some of which appellant Novoa challenges as irrelevant and prejudicial. Testimony was received which demonstrated that on several occasions, prior to, during, and after the period of the conspiracies charged in the indictment, Novoa, Aguiluz, Daly and other members of the SIU retained and divided amongst themselves money seized in the course of various narcotics investigations. Five separate incidents involving such practices were revealed through testimony. In four instances, this evidence showed a relatively simple pattern. If cash was found on the person of a narcotics dealer during an arrest, or on the premises where the arrest was made, SIU detectives including Novoa would later divide the cash among the police officers who participated in the arrest.

More extensive testimony was elicited concerning the fifth incident, involving the arrest of Raoul Leguizamon a narcotics dealer, and Alberto Diaz, an associate, following the use of information obtained through an illegal wiretap installed on the telephone in Leguizamon’s room at the Hotel Taft. $40,000 in cash found in his room after the arrest had been divided among Novoa and others. Afterwards, Leguizamon and Diaz hired Michael Santangelo as their lawyer. Through Lamattina, Santangelo arranged to give a bribe to Novoa, Daly and Aguiluz in the amount of $25,000. The $5000 “debt” which the detectives demanded that Santangelo pay before they would talk to him about a bribe in the “100 kilo case” represented the balance of the Leguizamon bribe.

Finally, the Government introduced evidence to show that a federal investigation into drug importation from South America had been begun in December 1969 after the arrest at the Hotel McAlpin of several South Americans who were alleged narcotics smugglers. Eventually, Albert Seeley, the Customs Service agent in charge of the federal investigation, learned that the persons arrested at the McAlpin had ties to the four persons arrested by detectives Novoa, Daly and Aguiluz on April 15 in the “100 kilo case.” Customs agents approached the SIU to inform them of the connection and of the pending federal investigation. The Government’s evidence revealed in some detail the course of Seeley’s investigation following his initial contact with the SIU. It showed that Novoa, Daly and Aguiluz were aware that a federal investigation was pending into the narcotics importation network that had originally brought into this country the 105 kilos of heroin and cocaine seized by them on April 15.

I

Appellant Novoa seeks reversal of his conviction on the two conspiracy counts (one and four) and on counts five through ten of the substantive counts. He contends that he was denied a fair trial because the Government introduced evidence of criminal activity not charged in the indictment. Specifically, Novoa contends that evidence showing that on several occasions he and other SIU detectives retained and divided money seized from persons they had arrested was prejudicial. The Government asserts that this evidence was admissible to show that appellant engaged in a pattern of conspiratorial criminal conduct, of which the more limited conspiracy to obstruct federal justice charged in count one was a part.

This court has held that evidence of other criminal offenses is admissible if it is relevant for some purpose other than merely to show a defendant’s criminal character, provided that its potential for prejudicing the defendant does not outweigh its probative value. United States v. Deaton, 381 F.2d 114, 117 (2 Cir. 1967); United States v. Bozza, 365 F.2d 206, 213 (2 Cir. 1966).

Obviously in casting the rule in such broad terms we have gone beyond the ancient learning which limited proof of other criminal acts to special categories of matters in issue. It was hardly more than a generation ago that an assiduous law student could recite, almost in the manner of a catechism, the elements such evidence could be used to prove. These familiar molds were 1) knowledge 2) intent and 3) design. 2 Wigmore, On Evidence §§ 300-04 (3d ed. 1940). The rule was rather an easy one to administer. Thus a trespass larceny would ordinarily not admit of proof of similar larcenies. A larceny by trick and device would, on the other hand, admit such proof, for in that case, the alleged criminal act having been proved, the issue still to be proved was intent. There it was thought that although proof of similar offenses would indeed show the defendant to be a knave, it was only right for the jury to know that it was his practice to commit what appeared to be innocent acts with intent to defraud. Logically, most laymen would probably think the distinction of the two examples too subtle, and that common sense suggests that a man who had once committed a burglary is more likely than the ordinary person to be guilty of. the burglary for which he is on trial. The argument for exclusion was not based on a lack of logical relevance, however. The evidence was excluded for fear that an innocent defendant might be convicted merely because he had committed a crime in the past.

During the past few decades, the exceptions allowing admission of proof of prior criminal acts have grown in number to the point that they have engulfed the rule. Despite the efforts of defense lawyers to stem the tide, the flow has been constant. See e. g. United States v. Knohl, 379 F.2d 427, 438-439 (2 Cir.), cert. denied, 389 U.S. 973, 88 S.Ct. 472, 19 L.Ed.2d 465 (1967); United States v. Bozza, supra, 365 F.2d at 212-214; United States v. Kahaner, 317 F.2d 459, 471-472 (2 Cir.), cert. denied sub nom. Corallo v. United States, 375 U.S. 835, 84 S.Ct. 62, 11 L.Ed.2d 65 (1963). Thus, we are by now firmly wedded to the inclusory form of the rule, that evidence of other crimes is admissible, if relevant, except when offered solely to prove criminal character. United States v. Deaton, supra , 381 F.2d at 117. The task of deciding when the exception prevails remains whatever the rule.

On the present appeal, however, it cannot be said that the evidence was offered solely to prove criminal character. The charge of conspiracy to commit criminal acts always requires proof of a course of conduct that will circumstantially prove the corrupt agreement. There is no more convincing proof to a jury than that of a pattern of conduct which unfolds before their eyes.

The arrest of suspects, the appropriation of their cash, the division of the spoils among the officers, the taking of part of the contraband for “flaking” or sale, the solicitation of bribes to conceal the evidence — all these revealed a pattern of conduct engaged in by Novoa and others “of which the crime charged [was] a part.” United States v. Blassingame, 427 F.2d 329, 331 (2 Cir. 1970), cert. denied, 402 U.S. 945, 91 S.Ct. 1629, 29 L.Ed.2d 114 (1971); see United States v. De Sapio, 435 F.2d 272, 280 (2 Cir. 1970), cert. denied, 402 U.S. 999, 91 S.Ct. 2170, 29 L.Ed.2d 166 (1971). The crime charged in this case was a conspiracy to obstruct the lawful operations of the Government and to sell some of the narcotics involved. The evidence would have been properly admitted even in a jurisdiction that still adheres to the “design” exception. Indeed, the evidence showed the existence among a group of SIU officers of a broader conspiracy to obstruct justice, of which the conspiracy charged against Novoa in count one of the indictment was only a part. United States v. Cohen, 489 F.2d 945, 949 (2 Cir. 1973).

Further, at least one of the incidents, that involving the arrest of Leguizamon at the Hotel Taft, was directly connected with acts charged in the indictment, since it was related to the bribery negotiations over the “100 kilo case.” See United States v. Deaton, supra, 381 F.2d at 118.

Appellant asserts that when evidence of similar criminal acts is admitted, the trial judge should instruct the jury as to the limited purpose for which the evidence has been received. See United States v. Colasurdo, 453 F.2d 585, 591 (2 Cir. 1971), cert. denied, 406 U.S. 917, 92 S.Ct. 1766, 32 L.Ed.2d 116 (1972); United States v. Klein, 340 F.2d 547, 548-549 (2 Cir.), cert. denied, 382 U.S. 850, 86 S.Ct. 97, 15 L.Ed.2d 89 (1965). In this case, the judge neither cautioned the jury when the evidence was received nor charged the jury on the matter. However, appellant’s counsel at trial at no time objected to the testimony about these acts as it was elicited, nor did he request a charge on the limited purpose for which the evidence had been received. Failure to raise these issues in the court below precludes review here. United States v. Bozza, supra, 365 F.2d at 214; United States v. Indiviglio, 352 F.2d 276 (2 Cir. 1965) (en banc), cert. denied, 383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663 (1966). In any event, on our analysis, the evidence was itself probative of the conspiracy charged in the indictment.

II

Appellant Novoa’s second basic argument for reversal is that conspiracy counts one and four were multiplicitous and that only a single conspiracy should have been charged. This is the converse of the more usual claim that a number of conspiracies were erroneously charged in a single count.

Count one of the indictment charged Novoa and Daly with conspiracy to obstruct federal investigations into narcotics offenses by withholding evidence and assisting narcotics offenders to violate 21 U.S.C. §§ 173, 174, and to violate 18 U.S.C. § 1510 as well as 18 U.S.C. § 3. Count four charged Novoa, Daly and others with conspiracy to violate 21 U.S.C. §§ 173, 174 by dealing in narcotics. Certain of the overt acts performed in furtherance of each conspiracy were identical, notably the seizure and concealment of five kilograms of narcotics and the subsequent sale of the narcotics.

Appellant contends that a single agreement and a single “course of conduct” were involved in the activity underlying both counts and that there should not have been two conspiracy counts. He relies upon United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260 (1952), to forward his point. Universal C.I.T. has no bearing. That case involved a prosecution for violation of the minimum wage law. There the question was whether Congress intended each underpayment to an employee to constitute a separate crime. The court found that Congress had intended to punish “a course of conduct” — the underpayment of employees — rather than individual instances of underpayment. Id. at 224.

That particular necessity to examine whether single acts were punished as violations by the statute has no bearing on a conspiracy charge where the essence is, as is so often said, the agreement itself. While it is unusual so to charge, there is no reason why people cannot enter into two separate criminal agreements more or less at the same time. See United States v. McKnight, 253 F.2d 817, 819-820 (2 Cir. 1968). If they do, they come within the joinder rule, F.R.Cr.P., Rule 8, subject to severance in the interest of justice. There is no occasion for us to consider whether consecutive sentences could have been given for the two overlapping conspiracies, for that was not done. Cf. Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942). If at the end of the trial only one conspiracy had been shown, appellant could not have been prejudiced by that circumstance, for the first count was broad enough to encompass the fourth count. When a given set of facts may be read to support conviction for either one or two conspiracies, the Government may charge a defendant with two “to meet the different interpretations which might be placed on the evidence by the jury.” United States v. McKnight, supra, 253 F.2d at 819.

Ill

Appellant contends that the Government’s proof failed to show that he had the requisite intent to conspire to violate federal law. The argument is based on the familiar United States v. Crimmins rule, 123 F.2d 271 (2 Cir. 1941). There it was held that a defendant could not conspire to transport stolen securities in interstate commerce without specific knowledge that the securities would be moving in interstate commerce. Appellant argues that the Government did not demonstrate that he knew his acts might bring him within the criminal jurisdiction of the United States. See Ingram v. United States, 360 U.S. 672, 677-679, 79 S.Ct. 1314, 3 L.Ed.2d 1503 (1959).

In view of appellant’s position as a police officer in a special narcotics unit and his official duty not to conceal evidence from federal authorities, his broad contention that he had no knowledge that he might be committing crimes within the federal jurisdiction by stealing evidence and concealing narcotics crimes borders on the frivolous.

Narcotics offenses present an unusual situation where state and federal violations may be the result of the same act. From the Act of Feb. 9, 1909, ch. 100 § 2, 35 Stat. 614, onward, the federal jurisdiction has been made to apply to what are also state crimes. Even the requirement that the defendant know that the narcotic drugs were imported, an original basis for federal jurisdiction, has now been dropped. 21 U.S.C. § 841 (1970). While there may be specifics that differ in the respective statutes, the commonalty of state and federal offenses has led to the formation of joint task forces which include New York City police and federal agents working together. Since narcotics dealers work in rings, information about one suspect may lead to the breaking of an entire combination. That such information is of importance to federal authorities is known by every police officer, especially if he is engaged in the detection of narcotics violations.

In this case appellant knew that there was a federal investigator named Seeley, whom he actually met. Agent Seeley was seeking information about the connection between some South Americans whom federal agents had arrested at the Hotel McAlpin for narcotics smuggling and the people involved in appellant’s arrests in the “100 kilo case” some four months later. When federal agent Seeley learned of a connection between the two arrests, he spoke to SIU officers, including Novoa.

Appellant gave no cooperation and concealed the fact that he and his fellow police officers in the unit were holding “seized” narcotics for sale and that they had taken cash from persons arrested which could have been evidence in a federal investigation. Moreover, they had been dealing with representatives of narcotic defendants to take money for suppressing evidence.

The specific intent to defraud the United States by obstructing and hindering federal law enforcement agencies in the investigation and prosecution of violations of the federal narcotics laws was adequately proved.

Appellant Novoa raises a more serious question of whether the Government proved that he intended to violate 18 U.S.C. § 1510, as part of the conspiracy charged in count one.

On the restricted view of Section 1510 taken by the Fifth Circuit in United States v. Cameron, 460 F.2d 1394 (1972) and the application of the Crimmins rule, no specific intent to inhibit or prevent “any person” from communicating information relating to violations of federal law to a federal criminal investigator was proved, since under Cameron “any person” could not be one of the conspirators themselves. The Government did not prove that appellant and his co-conspirators influenced another person not to give information to federal investigators like Seeley.

We need not decide whether we agree with the Fifth Circuit view of Section 1510. Cf. United States v. Lippman, 492 F.2d 314, 316 (6 Cir. 1974).

Where a conspiracy has multiple objectives, a conviction will be upheld so long as evidence is sufficient to show that an appellant agreed to accomplish at least one of the criminal objectives. United States v. Grizaffi, 471 F.2d 69, 73 (7 Cir. 1972), cert. denied, 411 U.S. 964, 93 S.Ct. 2141, 36 L.Ed.2d 684 (1973); United States v. Tanner, 471 F.2d 128, 140 (7 Cir. 1972); United States v. Mack, 112 F.2d 290 (2 Cir. 1940).

The only caveat in such cases is that an overwhelming amount of evidence relevant only to the unproved part of the conspiracy may have prejudiced the jury. Here we find the evidence admitted was relevant to prove the charge of obstruction of justice, which we sustain. Most of the evidence introduced in support of count one revealed a conspiracy to obstruct justice and hinder the operation of lawful federal government functions in violation of 18 U.S.C. § 371. A conspiracy to obstruct justice under that section includes “any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any department of government.” Haas v. Henkel, 216 U.S. 462, 30 S.Ct. 249, 54 L.Ed. 569 (1910). The facts outlined above show that appellant agreed to impede such lawful function. See Dennis v. United States, 384 U.S. 855, 861, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966); United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966); United States v. Jacobs, 475 F.2d 270, 283 (2 Cir.), cert. denied sub nom. Lavelle v. United States, 414 U.S. 821, 94 S.Ct. 116, 38 L.Ed.2d 53 (1973); United States v. Peltz, 433 F.2d 48, 51-52 (2 Cir. 1970), cert. denied, 401 U.S. 955, 91 S.Ct. 974, 28 L.Ed.2d 238 (1971). That is enough to uphold the verdict on the first count. United States v. Jacobs, supra.

IV

Appellant Novoa raises a different point in connection with his conviction under counts five, nine and ten of the indictment. He contends that the Government failed to prove that he knew the cocaine had been illegally imported, as required by 21 U.S.C. §§ 173, 174. He contends further that the trial judge should not have charged the statutory presumption embodied in section 174, deeming unexplained possession of a narcotic drug sufficient to justify conviction. He objects further to the court’s statement in its charge of the Government’s contention that the fact that the narcotics when originally discovered were wrapped in South American newspapers and that the persons arrested in the 100 kilo case were all South Americans evidenced illegal importation. We find these arguments unpersuasive.

In Turner v. United States, 396 U.S. 398, 418-419, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970), the Supreme Court held that a defendant found to possess less than one gram of cocaine could not be presumed under section 174 to know that the drug had been illegally imported. The Court reasoned that sufficient amounts of cocaine were legally imported or produced in this country to make the presumption invalid in that context. It explicitly declined to decide whether the presumption would operate if a larger amount of cocaine was possessed. 396 U.S. at 419 n. 39, 90 S.Ct. 642.

Since Turner, this Circuit has held that the presumption will be validly applied when large amounts of cocaine are involved. United States v. Gonzales, 442 F.2d 698 (2 Cir. 1970) (en banc), cert. denied, 404 U.S. 845, 92 S.Ct. 146, 30 L.Ed.2d 81 (1971). In Gonzales, we refused to adopt a per se rule but held that in the proper factual context, possession of slightly more than one kilogram of cocaine may be deemed to indicate knowledge of illegal importation. 442 F.2d at 709. The rule has been followed in subsequent cases. United States v. Nathan, 476 F.2d 456, 461 n. 15 (2 Cir.), cert. denied, 414 U.S. 823, 94 S.Ct. 123, 38 L.Ed.2d 56 (1973); United States v. Vargas, 443 F.2d 901, 903 (2 Cir. 1971).

In this case, the evidence indicates not only that the presumption should have been validly entertained by the jury, but also that the jury could have found actual knowledge of illegal importation. The two kilos of cocaine involved in the indictment had been taken from a total supply of 62 kilos of cocaine, which had been found stored with 43 kilos of heroin. The narcotics were wrapped in South American newspapers and had been located through information seized from four South Americans, who possessed South American identification papers. Given these circumstances and Novoa’s knowledge of them, the evidence was sufficient to support the jury’s verdict.

Finally, Novoa asserts that the District Court’s modified Allen charge was improper in that it reminded the jury that the time, effort and money of both the defendant and the Government had been expended in the trial. Such a charge is not radically different from those explicitly approved in prior decisions of this court. See e. g., United States v. Hynes, 424 F.2d 754, 756-757 n. 2 (2 Cir.), cert. denied, 399 U.S. 933, 90 S.Ct. 2270, 26 L.Ed.2d 804 (1970). Indeed, the same charge has been used previously by Judge Wyatt and was approved, without the court’s noting its substance, in United States v. Zane, 495 F.2d 683, 692 (2 Cir. 1974), petition for cert. denied, 419 U.S. 895, 95 S.Ct. 174, 42 L.Ed.2d 139 (1974).

V

Appellant Papadakis challenges his conviction upon the ground that a severance should have been granted under F.R.Crim.Pr. Rule 8 and subsequently during trial under Rule 14.

The indictment, as we have seen, joined as offenses in count one a multiple purpose conspiracy, 1) to defraud the United States by obstructing federal law enforcement agencies in investigating narcotics law violations, 2) to obstruct the communication of such information to a criminal investigator and 3) to commit substantive crimes involving the possession, concealment and sale of narcotics; together with a second conspiracy count (count four) charging only the third element of the first conspiracy. To these two conspiracy counts were also joined various substantive counts against Daly and Novoa (counts two, three and five), these two defendants with Ramos and Nieves (count eight), these two defendants with Ramos alone (counts nine and ten), and finally two substantial counts charging appellant Papadakis with the purchase and sale of heroin on two occasions with Daly, Novoa, Ramos and Possas (counts six and seven).

Appellant Papadakis was not named as a defendant in the conspiracy charged in count one though he was named in one of the overt acts. He was named as a defendant in the conspiracy in count four, but the count was dismissed as to him before the case was submitted to the jury. He was convicted on count seven for purchasing narcotics, but was acquitted on count six. He argues that count one should have been tried separately from counts four through ten.

We note first that we are met here with a claim of error by an appellant whose concurrent five year sentence in this case is merely repetitive of the consecutive five year sentences of imprisonment he had previously been sentenced to by other judges under convictions which have long since become final. In a sense no serious harm resulted from his third conviction.

On the other hand, there may be a certain amour-propre among some narcotics violators in pressing their appeals to which we give heed, in view of the hypothetical possibilities discussed in Benton v. Maryland, 395 U.S. 784, 790-791, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). We shall consider the matters raised as if they were more meaningful.

We consider first the claim that there was an improper joinder under Rule 8. That rule prescribes two tests for joinder. 8(a) relates to joinder of offenses, while 8(b) relates to joinder of defendants. However, when a defendant in a multiple-defendant case challenges joinder of offenses, his motion is made under 8(b) rather than 8(a). See, e. g., United States v. Bova, 493 F.2d 33, 35 (5 Cir. 1974). The question asked by 8(b) is whether the co-defendants “participated ... in the same series of acts or transactions constituting an offense or offenses.”

While the United States Attorney should be careful not to “overjoin” where there is a diversity of offenses as well as diverse defendants, see Cupo v. United States, 123 U.S.App.D.C. 324, 359 F.2d 990 (1966), cert. denied, 385 U.S. 1013, 87 S.Ct. 723, 17 L.Ed.2d 549 (1967), we do not believe that he overstepped the mark on the face of this pleading. The indictment charged all defendants with conspiracy to violate and substantive violations of 21 U.S.C. §§ 173, 174, and the indictment stated that certain of the overt acts committed in furtherance of the conspiracy charged in count one also furthered the conspiracy charged in count four.

In any event, no motion with respect to Rule 8 was made before trial as required by Rule 12(b), and we cannot consider the alleged misjoinder on the face of the indictment as such. United States v. Daniels, 141 U.S.App.D.C. 223, 437 F.2d 656, 661 (1970); Cupo v. United States, supra, 359 F.2d at 993.

That is not conclusive, however, where there has been a severance request at the trial. In such event Rule 14 picks up where Rule 8 leaves off. It provides, in simple terms, that “[i]f it appears that a defendant ... is prejudiced by a joinder of offenses or of defendants . the court . . . may grant a severance of defendants or provide whatever other relief justice requires.” Papadakis argues strongly that the dismissal of the conspiracy count against him before submission to the jury shows that the joinder was improper to begin with. Standing alone, the Supreme Court has rejected it as a conclusive point. Schaffer v. United States, 362 U.S. 511, 515-516, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960). The Court did caution, however, that “in such a situation” the trial judge has a continuing duty to grant a severance if prejudice appears, and must be “particularly sensitive to the possibility of such prejudice.” 362 U.S. at 516, 80 S.Ct. at 948. Yet it is not enough for appellant simply to show he might have a better chance for acquittal in a new trial. He must show substantial prejudice and that the trial judge abused his discretion in refusing to sever. United States v. Borelli, 435 F.2d 500, 502 (2 Cir. 1970), cert. denied, 401 U.S. 946, 91 S.Ct. 963, 28 L.Ed.2d 229 (1971); accord, United States v. Calabro, 467 F.2d 973, 987 (2 Cir. 1972), cert. denied, 410 U.S. 926, 93 S.Ct. 1357, 35 L.Ed.2d 587 (1973); United States v. Projansky, 465 F.2d 123, 138 (2 Cir.), cert. denied, 409 U.S. 1006, 93 S.Ct. 432, 34 L.Ed.2d 299 (1972).

The contention here is that appellant was tarred with the same brush as Novoa and his cohorts, concerning whose corruption there was much evidence that had nothing to do with appellant. We cannot ascribe such a spillover to the joint trial for the very reason that Papadakis was obviously not a “crooked cop” and clearly had no connection with their corrupt activities. United States v. DeSapio, supra, 435 F.2d at 280. Judge Wyatt was careful to charge with respect to each witness who testified only against Novoa that the testimony was not admitted against appellant. And the prosecutor was careful enough not to join appellant in the count one conspiracy which dealt with the obstruction of justice theme as well as the narcotics theme.

It has been doubted in similar contexts that a jury can compartmentalize its collective mind and reject what it has heard. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); Jackson v. Denno, 378 U.S. 368, 388-389, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); Krulewitch v. United States, 336 U.S. 440, 453, 69 S.Ct. 716, 93 L.Ed. 790 (1949) (Jackson, J., concurring). Yet that is what most likely happened here. The jury did not convict Papadakis on both substantive counts with which he was charged. They acquitted him on the count which involved the transaction with the man in the black leather jacket, and convicted him on the other count involving the subway locker. This indicated, in a positive way, a refusal by the jurors to accept guilt by association as the touchstone in their deliberations. See United States v. Jordan, 399 F.2d 610, 615 (2 Cir.), cert. denied, 393 U.S. 1005, 89 S.Ct. 496, 21 L.Ed.2d 469 (1968); Fernandez v. United States, 329 F.2d 899, 906 (9 Cir. 1964).

Moreover, Nieves, another alleged buyer, was acquitted on the substantive count with which he was charged. And Nieves stood to be tarred as much as did Papadakis. The result was a demonstrable tribute to Judge Wyatt’s thoughtful management of the trial and the jury’s careful deliberation, untrammeled by prejudice.

We have considered the other points raised and find them without merit.

Affirmed.

      . Counts two and three, charging Novoa as an accessory after the fact to violations of the narcotics law, 18 U.S.C. § 3 and 21 U.S.C. §§ 173, 174, and with substantive violations of the obstruction of justice statute, 18 U.S.C. § 1510, were severed on the Government’s motion prior to submission to the jury.

      . A third defendant, Joaquin Nieves, was acquitted by the jury on count eight, which charged him with a violation of 21 U.S.C. §§ 173, 174.

      . Daly was indicted along with Novoa and Papadakis, but was a fugitive at the time of the trial.

      . The total seized was 105 kilograms — the 100 kilograms turned over to the Property Clerk, which provided the press with a popular name for the case, and the five kilograms concealed by the three detectives.

      . Possas was indicted along with Novoa and Papadakis, but was a fugitive at the time of the trial.

      . Section 1510 reads in relevant part:
      “§ 1510. Obstruction of criminal investigations

      “(a) Whoever willfully endeavors by means of bribery, misrepresentation, intimidation, or force or threats thereof to obstruct, delay, or prevent the communication of information relating to a violation of any criminal statute of the United States by any person to a criminal investigator;
      “Shall be fined not more than $5,000, or imprisoned not more than five years, or both.
      “(b) As used in this section, the term ‘criminal investigator’ means any individual duly authorized by a department, agency, or armed force of the United States to conduct or engage in investigations of or prosecutions for violations of the criminal laws of the United States.”

      . The Government severed count three, which charged the substantive violation of Section 1510, and it was not considered by the jury.

      . Count five charged Daly and Novoa with receiving five kilograms of heroin and cocaine. Counts nine and ten charged Daly, Novoa and Ramos with the two transactions, each involving one kilogram of cocaine.

      . Defendant had approximately 15 grams of a mixture of cocaine and sugar, 5% of which was cocaine.

      . Rule 8 reads:

        “Joinder of Offenses and of Defendants

      “(a) Joinder of Offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
      “(b) Joinder of Defendants. Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or sepárately and all of the defendants need not be charged in each count.”

      . Rule 14 reads:

        “Relief from Prejudicial Joinder

      “If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance the court may order the attorney for the government to deliver to the court for inspection in camera any statements or confessions made by the defendants which the government intends to introduce in evidence at the trial.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Vanis Ray ROBBINS, Defendant-Appellee.
    No. 74-1363.
    United States Court of Appeals, Sixth Circuit.
    Jan. 23, 1975.
    Eugene E. Siler, U. S. Atty., Lexington, Ky., Leonard A. Sands, Crim. Div., Dept, of Justice, Cleveland, Ohio, David Margolis, Cleveland, Ohio, Peter M. Shannon, Jr., Robert H. Plaxico, Dept, of Justice, Washington, D. C., for plaintiff-appellant.
    Robert Ent, Cincinnati, Ohio, Barry Wehrman, Covington, Ky., for defendant-appellee.
    Before PECK, LIVELY and ENGEL, Circuit Judges.
   PER CURIAM.

Defendant-appellee was indicted for extortion in attempting to collect a gambling debt. A jury was empaneled, and after the government had rested, the appellee made a motion for a directed verdict of acquittal. The district judge, after reviewing the government’s evidence, held that the statute involved (18 U.S.C. § 894) does not apply to the collection of illegal gambling debts. Accordingly, he entered a judgment of acquittal.

The government perfected this appeal pursuant to 18 U.S.C. § 3731, maintaining that notwithstanding the fact that the judgment below was based upon facts established by evidence received at trial, there was no acquittal on the merits and it would not be double jeopardy to try appellee again. We do not agree. Section 3731 reads, in pertinent part, as follows:

“In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.” (Emphasis supplied.)

In interpreting the above statute, the Supreme Court has held that jeopardy has attached and that an appeal may therefore not be perfected from a determination that rests on evidence adduced at trial, United States v. Sisson, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970). Relying on Sisson, this court stated that “[i]f the indictment is dismissed as a result of a stipulated fact or the showing of evidentiary facts outside the indictment, which facts would constitute a defense on the merits at trial, no appeal is available.” United States v. Rothfelder, 474 F.2d 606, 608 (6th Cir.), cert. denied, 413 U.S. 922, 93 S.Ct. 3066, 37 L.Ed.2d 1044 (1973). In the instant case the decision of the district judge rested upon evidence introduced by the government at trial, and therefore, no appeal lies from the judgment of acquittal.

The appeal is dismissed.


author: GURFEIN, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Thomas M. FAHEY, Appellant.
    No. 391, Docket 74-2108.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 13, 1974.
    Decided Dec. 6, 1974.

      Dante M. Scaccia, Syracuse, N. Y. (Love, Balducci & Scaccia, Syracuse, N. Y., on the brief), for appellant.
    Eugene Welch, Asst. U. S. Atty., Northern District of New York, Syracuse, N. Y. (James M. Sullivan, Jr., U. S. Atty., for the Northern District of New York, Syracuse, N. Y., on the brief), for appellee.
    Before FRIENDLY, FEINBERG and GURFEIN, Circuit Judges.
   GURFEIN, Circuit Judge:

Thomas M. Fahey appeals from a judgment of conviction entered on July 19, 1974 after a trial before Hon. Lloyd F. MacMahon and a jury on two counts of income tax evasion for the calendar years 1966 and 1967 in violation of 26 U.S.C. § 7201.

Defendant, a hospital administrator by training and profession, conceived the idea in late 1964 of converting an existing structure of a hospital that was being abandoned into a large nursing home. The hospital board agreed to sell the hospital to Fahey if he could procure the necessary financing. The Marihe Midland Bank of Syracuse indicated that it would enlist several banks in a participating mortgage if Fahey could find partners to provide equity capital and if he could obtain the required regulatory approvals from local, state and federal agencies.

Fahey then arranged with Culotti Construction >Company (“Culotti”) for that company to place him on its payroll as soon as a partnership acceptable to the bank would be formed, on the understanding that the Culotti firm would receive the construction contract.

On November 23, 1964 a partnership acceptable to the bank was formed consisting of Fahey, Theodore G. Metzger, Walker McKinney and Dr. George Simpson. Under that agreement a general partnership was formed. The partners were to share in profits and losses in the following percentages: Fahey, 45%; Metzger, 5%; McKinney, 42.5%; Simpson, 7.5%. There was to be no drawing or salary to any partner. An option on the hospital property was taken by the partnership.

Fahey went on the payroll of Culotti in December 1964 and started to work on architectural changes and governmental approvals. He continued on the Culotti payroll throughout 1965.

During 1965 two new partnership agreements were executed, one in January and one in November.

The January agreement was drafted as a limited partnership. Under that agreement, with McKinney as the general partner, the profit percentages remained the same, but Fahey and Metzger were not to be responsible for losses, the burden falling 85% on McKinney and 15% on Simpson. It provided: “Thomas Fahey or his successor as administrator shall be paid a salary of $20,000 per year. . . . Such salary, for purposes of division of partnership’s net profits and losses, shall be treated as an expense of the partnership.”

Although the limited partnership agreement was signed on January 4, 1965, Fahey was not paid by the partnership in 1965 and he remained on the Culotti payroll that whole year.

The state regulatory authorities refused to accept a limited partnership as the operator of a nursing home, and, accordingly, the general partnership was reestablished on November 5, 1965. This agreement (Ex. 19) continued the profit and loss provisions of the January agreement with again a provision for a salary of $20,000 to appellant in the language previously quoted. Appellant continued, nevertheless, to draw his salary from Culotti.

On April 6, 1966 appellant wrote to McKinney that since Culotti could no longer justify his salary he would require that the partnership assume the expense of his “salary” until July, noting that if Culotti had been able to continue the “salary” it would have been added to construction expense “so that the net expense would have been the same but would have come out of another pocket.” (Ex. 28, A 460).

McKinney agreed to contribute capital to the partnership and appellant began to draw monthly checks to himself from the partnership, beginning in April 1966 while continuing to receive a salary from Culotti.

On the advice of an accounting firm in Syracuse the payments to Fahey by the partnership were treated as salary, and Federal and State Income Taxes were withheld.

Later in 1966 Ernst and Ernst succeeded the former accountants for the partnership and determined to stop withholding Federal Insurance Contribution Act (FICA) and income taxes. They prepared a form for claiming a 1966 FICA tax refund, which appellant signed on November 2, 1966, advising that “[t]he partnership erroneously withheld FICA tax from the salary of Thomas M. Fahey, a bona fide partner of the firm” and noted that “since the partner is required to and will pay self-employment tax, refund of the erroneous payment of $554.50 is requested.” (Ex. 27, A 457).

Construction started in September 1966 and lasted until May 1967. In the calendar year 1966 appellant drew $10,-600 from Culotti and $14,999 from the partnership. Appellant continued on the Culotti payroll until May 1967. For the calendar year 1967 he received $8,330 from Culotti and $11,666.62 from the partnership.

On his 1966 return appellant described his employer as “Culotti Construction Co.” and reported a salary of $10,600 with “other income” shown as $261. By virtue of deductions and exemptions, the taxable income was reduced to $3,742, on which a tax of $419 was computed as due. On his 1967 return appellant again showed Culotti as his employer and his salary as $16,178, with “other income” shown as $905. By means of deductions and exemptions the taxable income was reduced to $7,707 and the total tax computed as $1,324. No mention was made of Walker McKinney Associates, the partnership, on either return, nor was any income from that source reported for either year.

The Government contended that the unreported gross income from the partnership for the year 1966 was $14,994 and for 1967 was $11,666.22. The Government claimed additional taxes due for 1966 of $2,351.50 and for 1967 of $2,880.50.

The trial resulted in a verdict of guilty on each count for wilfully attempting to evade and defeat a tax for each year. Judge MacMahon refused to set aside the verdict.

Appellant contends that the partners had agreed among themselves that the payments to him were to be “draws” rather than salary, that as a matter of law the payments from the partnership were therefore not income and that the indictment should have been dismissed. The “Government notes that appellant’s counsel conceded at the trial that the payments in question were income. No request to charge otherwise was requested. On the basis of the concession, the District Court quite properly charged that the defendant had received income from the partnership during the taxable years which he did not report in each of the taxable years.

Appellant cannot now raise on appeal a point he conceded below, unless the payments involved could not be income as a matter of law. See United States v. Wright, 466 F.2d 1256 (2 Cir. 1972).

We have no doubt, in any event, that the payment of salary to a partner which cannot be construed as a return of his capital is income to him. See 26 U.S.C. § 707(c) re guaranteed payments to a partner; Rogers v. C.I.R., 281 F.2d 233 (4 Cir. 1960) (under the 1939 code without benefit of § 707(c)). See Miller v. Commissioner, 52 T.C. 752, 758 (1969); Falconer v. Commissioner, 40 T.C. 1011 (1963). Even if partnership debt is equated to equity, appellant contributed no capital and was not responsible for any loss.

Appellant further complains that the court failed to charge that the jury could find that appellant relied on advice from Ernst and Ernst that the payments from the partnership were not income, and that the jury should have considered this in determining wilfulness.

While the March 29, 1968 as well as the April 2, 1968 letter of instruction from the accountants was hardly a model of clarity, neither lends significant support to the contention that appellant was advised that his payments from the partnership were not income. If a proper request to charge had been made within the fair bounds of reasonable interpretation of the “advice,” the court would presumably have given it. But no such request was made nor was any exception taken to the charge which failed to mention the purported accountants’ advice and the respective contentions concerning it. F.R.Crim.P. 30. Counsel for the appellant placed emphasis in his summation on the defense of “advice,” and the judge charged specifically that “a good faith misunderstanding of the defendant’s liability for taxes is not an attempt to evade and defeat taxes.” We cannot find the failure to charge, in the circumstances, to be plain error.

The more serious contention is that the Government failed to prove the intent of appellant wilfully to evade the tax so that a juror could reasonably be convinced of his guilt beyond a reasonable doubt. See United States v. De Sisto, 329 F.2d 929, 932 (2 Cir. 1964), cert. denied, 377 U.S. 979, 84 S.Ct. 1885, 12 L.Ed.2d 747. We have concluded that sufficient evidence of intent was established under that standard of proof.

The partnership papers described the payments to appellant as “salary” which was to be treated as an expense of the partnership. The “salary” was to be paid not only to Fahey but, as well, to any successor of Fahey as administrator. In a loan application to the Marine Midland Bank dated August 15, 1966, appellant described his annual income as a salary of $20,000. In a similar loan application dated January 1, 1968 he described his annual income as salary $20,-000 “plus a percentage of profit.” As we have noted, in April 1966, he had asked' that the expense of the salary he had been receiving from Culotti be assumed by the partnership.

While the letter to appellant from Ernst and Ernst called attention only to Schedule K column 4 of the Partnership Return of Income for the year ended December 31, 1966 reflecting “Partners Share of Income, Credits and Deductions,” the return itself prepared by Ernst and Ernst clearly showed in column 6 “Payments to partners — salaries and interest” a payment to Thomas Fa-hey of $14,994. The same comment applies to the 1967 partnership return except that salary to Fahey is listed as $11,666.62. Fahey received the partnership returns for each year and signed at least the 1967 partnership return.

It was also a circumstance for consideration of the jury that appellant failed to apply for the refund of the self-employment tax erroneously paid by the partnership and deducted from appellant’s salary until the following year although appellant needed the money, since such a refund application would have revealed his failure to report the salary from the partnership as income.

Finally, the failure to ask the accountants how to treat the “salary” shown on the partnership return on his own individual return could be taken by a jury as an effort not to learn what his tax obligations were.

It may be noted, too, that appellant did report his salary from the partnership as income for the year 1968, though the Ernst and Ernst transmittal letter accompanying the partnership return did not .change in form. Yet when the Revenue Agent auditing his 1967 return in June 1969, after appellant had already reported his salary from the partnership for the year 1968 asked appellant whether he had any other income than reported, he replied in the negative.

The filing of the income tax returns with knowledge on the part of the taxpayer that he should have reported more income than he did is enough for a finding of wilful intent to defeat and evade the tax. Sansone v. United States, 380 U.S. 343, 351-353, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965). See United States v. Bishop, 412 U.S. 346, 360, 93 S.Ct. 2008, 36 L.Ed.2d 941 (1973).

The court properly charged accordingly. Judge MacMahon specifically charged that “the government must establish beyond a reasonable doubt that the defendant acted with a specific intent to conceal the other taxes known by him to be due.” He charged that the Government must prove beyond a reasonable doubt that defendant “knew he had received more income than he was reporting on his income tax return, and that he knowingly and necessarily made a deliberate choice not to report all of his income for the purpose of evading the tax.” Under the test of Sansone, supra, the charge was correct.

Appellant urges as reversible error the summoning before the Grand Jury after the indictment had been returned of Boers, the manager of the Ernst and Ernst branch and .author of the transmittal letters mentioned above. It was wrong for the prosecutor to do this. United States v. Fisher, 455 F.2d 1101, 1104-1105 (2 Cir. 1972). But we find that the error did not prejudice the appellant. Boers was not called as a witness by the Government. When he testified for the defense he was asked a single question on cross-examination about whether he recalled certain testimony he gave in the Grand Jury dealing with advice given by him to appellant on how to treat his salary. By analogy to Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, we think the testimony used on cross-examination, though wrongfully obtained, was usable for impeachment.

We find the other arguments of appellant to be insubstantial.

Affirmed.

      . Appellant was sentenced to three years imprisonment on each of counts one and two, to run concurrently with each other, and sentenced to pay a committed fine of $10,000 on each of counts one and two. Execution of the prison sentence was suspended and defendant placed on probation for three years.

      . 26 U.S.C. § 7201 provides:
      ■“Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 5 years, or both, together with the costs of prosecution.”

      . 26 U.S.C. § 707 provides: "Transactions between partners and partnership.

        ******

      “(c) Guaranteed payments. — To the extent determined without regard to the income of the partnership, payments to a partner for services or the use of capital shall be considered as made to one who is not a member of the partnership, but only for the purposes of section 61(a) (relating to gross income) and section 162(a) (relating to trade or business expenses).”
      S.Rept.No.1622 to accompany H.R. 8300, 83d Cong., 2d Sess., p. 387 (1954), contains the following explanation:
      “Subsection (c) provides a rule with respect to guaranteed payments to members of a partnership. A partner who renders services to the partnership for a fixed salary, payable without regard to partnership income, shall be treated, to the extent of such amount, as one who is not a partner, and the partnership shall be allowed a deduction for a business expense. The amount of such payment shall be included in the partner’s gross income, and shall not be considered a distributive share of partnership income or gain. A partner who is guaranteed a minimum amount for his services shall be treated as receiving a fixed payment in that amount.”


author: PER CURIAM:

text:
    Paul B. FUGATE, Petitioner-Appellant, v. Rogers MORTON, Secretary of the Interior, Respondent-Appellee.
    No. 74-2128.
    United States Court of Appeals, Ninth Circuit.
    Jan. 23, 1975.
    Certiorari Denied June 23, 1975.
    See 95 S.Ct. 2665.
    W. Edward Morgan, Tucson, Ariz., for petitioner-appellant.
    James D. Whitney, Asst. U. S. Atty., Tucson, Ariz., for respondent-appellee.
    Before VAN OOSTERHOUT, BARNES and HUFSTEDLER, Circuit Judges.

       Honorable Martin D. Van Oosterhout, Senior Circuit Judge, Eighth Circuit, sitting by designation.

   OPINION

PER CURIAM:

Fugate has appealed the District Court’s stay of his case pending a hearing on his removal by the Civil Service Commission. The weight of authority holds such an order by the district court to be nonappealable since it does not meet the finality requirement of 28 U.S.C. § 1291 (1970). Barfield v. Weinberger, 485 F.2d 696 (5th Cir. 1973); Pauls v. Secretary of Air Force, 457 F.2d 294 (1st Cir. 1972); United Transportation Union v. Illinois, 433 F.2d 566 (7th Cir. 1970); Transportation-Communication Div. v. St. Louis-San Francisco Ry., 419 F.2d 933 (8th Cir. 1969); Mayersky v. Celebrezze, 353 F.2d 89 (3rd Cir. 1965). This appeal is therefore dismissed.

(See this Court’s Order of May 23, 1974.)


author: ENGEL, Circuit Judge.

text:
    Thor C. LAUGESEN, Plaintiff-Appellant, v. The ANACONDA COMPANY, Defendant-Appellee.
    No. 73-2205.
    United States Court of Appeals, Sixth Circuit.
    Jan. 10, 1975.

      Donald H. Vish, James E. Milliman, Louisville, Ky., for plaintiff-appellant.
    John E. Tarrant, Bert T. Combs, Martin V. Roach,' Charles R. Simons, Louisville, Ky., for defendant-appellee.

      Before PHILLIPS, Chief Judge, and McCREE and ENGEL, Circuit Judges.
   ENGEL, Circuit Judge.

On October 29, 1971 plaintiff-appellant Thor C. Laugesen was permanently discharged from employment with defendant-appellee Anaconda Company. Fifty-six years old at the time of his discharge, Laugesen had worked for Anaconda since 1958 and for its predecessor in Louisville since 1954. Laugesen brought suit against Anaconda in the district court claiming that he wfas unlawfully discharged because of his age, .in violation of the Age Discrimination^ in Employment Act of 1967, 29 U.S.C. §§ 621— 634.

Laugesen .appeals from a judgment rendered upon a jury verdict in favor of Anaconda, raising important questions concerning the extent to which the guidelines set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) are applicable in a single plaintiff age discrimination case tried to a jury, and equally important, the nature of instructions appropriate in such a case.

We reverse and remand, not because of the McDonnell Douglas contentions, but because the jury instructions taken as a whole failed to make it clear that even if more than one factor affected the decision to discharge Mr. Laugesen, he could nevertheless recover if one factor was his age and it in fact made a difference in determining whether he was to be retained or discharged.

At the time Laugesen was selected for a permanent lay-off and declared ineligible for rehire by defendant Anaconda, he was a purchasing manager whose principal duties were to oversee the purchase of materials used by Anaconda’s Louisville, Kentucky plant to produce aluminum foil and containers. Laugesen’s duties also included purchasing materials for another plant in Fairlawn, New Jersey, which engaged in similar work and was under the general jurisdiction of the Louisville plant. Laugesen had been previously employed by Cochrane Foil Company in Louisville on April 19, 1954 and remained on when that company was acquired by Anaconda in 1958.

The evidence is undisputed that in 1969 and 1970, Anaconda experienced its share of industry-wide economic difficulties which were reflected adversely in its profit and loss picture. Determining that drastic steps to reduce its work force and achieve other economies would be required, it decided in early 1971 to shut down the Fairlawn plant and also to reduce substantially both the hourly rated and salaried personnel in Louisville. The general retrenchment commenced with a re-examination of all of the functions and staff of the company, particularly its older operations. At the same time Anaconda set about to build new plants and engage in other activities which gave promise of more balanced and profitable operations in the future.

Victor B. Torasso, manager, was responsible for all aspects of manufacturing at Louisville including costs and personnel. The immediate implementation of company policy was in his hands. Torasso determined to reorganize the Louisville Division, reduced in scope by elimination of the Fairlawn plant, by consolidating the functions of purchasing agent with those of traffic manager. This and other economies would, he hoped, result in a reduction of salaried personnel at Louisville from 15 to 9. Torasso also evaluated all of the existing personnel with a view to retaining those best qualified to fit into the new organization.

The evaluation of Thor Laugesen, as set forth in the Separation Notice at the time he was discharged on October 29, 1971, forms the principal basis for his claim that he was discharged on account of his age, and hence illegally under the Act.

The Separation Notice form contained evaluations covering seven personal characteristics and included ratings from “excellent” to “poor.” Torasso scored Laugesen “good” in reliability and conduct, and “fair” in terms of quality of work, quantity of work, initiative, attendance and punctuality. Under a section of the report marked “primary-cause of separation and additional comments” Torasso listed the primary cause as “reduction in force” and thereafter noted “too many years in job. Became too close with vendors. Lacks personal strength.”

The case was tried before a jury. In his case-in-chief, Laugesen himself testified and also called Torasso for cross-examination. He further introduced an extensive stipulation of facts, prepared jointly by counsel for the parties and covering many of the particulars of Laugesen’s employment history, pay, and the Separation Notice.

Laugesen testified to his own opinion that he was discharged because of his age. He brought out that the combined job which was left after reorganization was filled by an employee who was at the time 39 years of age. He introduced evidence that the reduction in salaried personnel reporting directly to Torasso had the effect of lowering the average age, 43 to 37 years. The case which Laugesen made was essentially a circumstantial one. He was unable to offer or provide any evidence which directly indicated a policy or intention of using age as a factor in the process of selecting those employees who would be terminated and those who would remain.

I. Application of McDonnell Douglas v. Green

Laugesen makes two claims of error in which he relies principally upon McDonnell Douglas v. Green, supra. These relate to the trial court’s denial of his motion for directed verdict and to its jury instructions on burden of proof.

We note at the outset that McDonnell Douglas addresses itself to “ . the proper order and nature of proof in actions under Title VII of the Civil Rights Act of 1964, 78 Stat. 253.” 411 U.S. at 793, 93 S.Ct. at 1820. We are not, of course, dealing here with Title VII pf the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., but with an entirely separate legislative enactment of the Congress. The similarity, however, between Title VII and the Age Discrimination in Employment Act is hardly accidental. As observed by Judge Tuttle in Hodgson v. First Federal Savings and Loan Association, 455 F.2d 818, 820 (5 Cir. 1972), “With a few minor exceptions the prohibitions of this enactment are in terms identical to those of Title VII of the Civil Rights Act of 1964 except that ‘age’ has been substituted for ‘race, color, religion, sex, or national origin’.”

McDonnell Douglas, a non-jury case, involved an allegation of racial discrimination in the failure to rehire. Justice Powell, writing for the majority, held that the plaintiff bears the initial burden to establish a prima facie case, a burden met in that case by a showing that (1) plaintiff belonged to a racial minority, (2) that he applied and was qualified for a job for which the employer was seeking applicants, (3) that despite his qualifications he was rejected, and (4) that, after his rejection the position remained open and the employer continued to seek applications from-persons with complainant’s qualifications. The Court held that after such a prima facie case had been made out, the burden shifted to the employer to “articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” 411 U.S. at 802, 93 S.Ct. at 1824. Where the employer has done so, the Court held, he has “discharged his burden of proof at this stage” and met the employee’s prima facie case of discrimination. However, the Court held that “the inquiry must not end here.” The employee, at that point, must be “afforded a fair opportunity to show that [the employer’s] stated reason . was in fact pretext.” 411 U.S. at 804, 93 S.Ct. at 1825.

Laugesen claims first that the trial court erred in denying his motion for a directed verdict, asserting that he made out a prima facie case of discrimination under McDonnell Douglas v. Green, which shifted the burden to Anaconda to prove non-discrimination, a burden which he claims was not met here.

There is, of course, a difference between that state of facts which, if unrebutted, requires the court to direct a verdict and that which merely passes the threshold test of sufficiency, leaving to the jury the ultimate decision based upon its determination of the weight and credibility of the evidence. Laugesen’s evidence was at best equivocal. We are convinced that it presented no more than a jury question. The burden was upon him to prove by a preponderance of the evidence that he was unlawfully discharged because of his age. Upon the record here, the question of whether he had met this burden was for the jury. Further, if it was incumbent upon Anaconda to “articulate some legitimate and nondiscriminatory reason” for the discharge, such evidence was in fact introduced by the showing that Laugesen received less favorable ratings than the employee who was retained.

The trial judge did not err in denying Laugesen’s motion for directed verdict.

Laugesen next claims that if he was not entitled to a directed verdict on the basis of McDonnell Douglas v. Green, he was entitled at least to an instruction charging the jury that he had “made out a prima facie case and the burden of proving non-discrimination shifted to the defendant.”

fWhile it may not be unreasonable to assume that in a proper case the guidelines established in McDonnell Douglas v. Green can be applied in age discrimination jury cases, we believe it would be inappropriate simply to borrow and apply them automatically^")

In the first place, the Supreme Court in that case did not attempt to deal with the problems and procedures inherent in the submission of issues to a jury. Further, in speaking for the majority, Justice Powell expressly recognized that “The facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations.” McDonnell Douglas, supra, n. 13 at p. 802, 93 S.Ct. at p. 1824. We do not here decide whether Congress intended that actions under the Age Act must invariably be guided by the law applicable to Title VII cases. That the law is embodied in a separate act and has its own unique history at least counsel the examiner to consider the particular problems sought to be reached by the statute.

As we view the facts here, the burden was initially upon the plaintiff to prove his claim that he was discharged because of his age. Absent an admission by the defendant or a state of facts so clear that no reasonable person would disagree, the issue remained one for the jury and the burden of proof remained with the plaintiff. We note that the Separation Notice, claimed to be proof of discrimination here, was itself capable of more than one construction. The language, “too many years on the job” could have meant that the length of service itself, a factor inevitably related to age, was the basis for discharge regardless of performance, and hence would show discrimination. On the other hand if the language, read in context with other comments, meant that the plaintiff had become complacent, this could reflect considerations of merit and ability, rather than age. Viewed in this light, a dispute of fact was created by plaintiff’s own proofs, and the burden did not shift.

Anaconda’s defense was quite simply that it did not discriminate on account of age in discharging Laugesen. Put otherwise, the defense was simply a denial of the truth of plaintiff’s allegation, supported by evidence that the reason for the discharge was a need to reduce personnel generally, together with proof that the selection of plaintiff for discharge was based upon the relative merits of two men for the one position which remained. This is not a case in which the defense admits the discrimination but seeks to justify it as a bona fide occupational qualification necessary to the normal operation of the business. That defense is specifically recognized in Section 7 of the Act and is an affirmative defense in Title VII cases, Roberts v. Union Co., 487 F.2d 387 (6th Cir. 1973); Phillips v. Martin Marietta Corp., 400 U.S. 542, 91 S.Ct. 496, 27 L.Ed.2d 613 (1971).

Accordingly, we hold that the trial court did not err in its instructions pertaining to the burden of proof and that it properly declined to instruct the jury that the burden of proving non-discrimination had at any time shifted to the defendant.

II. Other Instructions to the Jury

Anaconda asserts that Laugesen’s claims of error in the jury instructions should not be considered because they were not preserved for appellate review by timely objection. F.R.Civ.P. 51. In Gradsky v. Sperry Rand Corporation, 489 F.2d 502 (6th Cir. 1973), we held:

Rule 51, construed in light of Rule 46’s discouragement of formality in procedures, does not require formal objections, but the Rule is satisfied only if it is clear that the judge was made aware of the possible error in or omission from the instructions. E. g. Sears v. Southern Pacific Co., 313 F.2d 498 (9th Cir. 1963). The purpose of the Rule is to inform the court of possible errors in the charge “to afford [the] trial judge opportunity to correct error in his charge before the case is finally submitted to the jury.” Moore v. Stephens, 271 F.2d 119, 120 (6th Cir. 1959). The court, insofar as the instructions were covered by the appellant’s proposals and objections to the appellee’s proposals, was aware of the appellant’s objections to the charge as given. To that extent, the requirements of Rule 51 have been met. However, assignments of error on points not included in the appellant’s proposed instructions nor covered in his objections to the appellee’s proposals are not properly preserved for appeal. Gradsky v. Sperry Rand Corporation, supra, 489 F.2d at 503.

A careful examination of • the record satisfies us that Laugesen’s objections to the instructions were brought in timely fashion to the attention of the trial judge, and were thus properly preserved for our review. Gradsky, supra.

Four specific objections are made to the jury instructions in addition" to the issue previously discussed. Only one do we conceive to be meritorious.

First, Laugesen claims that "the court erred in refusing to instruct the jury upon two distinct theories of recovery: the first, a claim of unlawful discharge, and the second, a claim of unlawful failure to rehire. Laugesen’s complaint is couched solely in terms of charges of wrongful termination. Only one event was proved, the termination itself. While it is true that the termination report issued by Anaconda indicates that Laugesen was determined to be “ineligible for rehire,” this simple statement on the report is not enough to warrant an instruction where the claim was never pleaded. Further, there was never any proof that Laugesen, after his discharge, made an effort to be rehired, nor for that matter, any claim or proof that Anaconda engaged in any rehiring practices. The trial judge was under no obligation to instruct as to a theory not pleaded and in support of which there was no evidence. Flentie v. American Community Stores Corporation, 389 F.2d 80 (8th Cir. 1968).

Second, Laugesen asserts that the trial court erred in failing to instruct the jury that “It did not have to find that Anaconda- had acted with specific discriminatory intent in order tó find for him.” Plaintiff’s reliance upon King v. International Union, 443 F.2d 273 (6th Cir. 1971) as support for the charge requested is misplaced. King does not hold that discriminatory intent is unessential, but rather that its presence may be inferred from a totality of the circumstances. King, supra, at 278. Here the trial court did not specifically instruct on intent, but rather used such terms as “because of his age” and “reasons” for his discharge. We think this was a permissible employment of language which conveyed the law to the jury in understandable terms. The trial court further instructed the jury that they could properly consider circumstantial evidence in considering their verdict. Thus, the judge’s instructions substantially charged the jury in the manner desired by plaintiff without using the specific language requested. Plaintiff cannot complain because of the language difference. Tyree v. New York Central R.R., 382 F.2d 524 (6th Cir. 1967).

Third, Laugesen asserts that the trial judge erred in failing to “instruct the jury in accordance with the regulations promulgated by the Secretary of Labor.” Counsel for Laugesen did not submit any written request to charge couched specifically in terms of any regulations, but rather sought to assert the.right during the colloquy on instructions which preceded final arguments. Counsel requested that the court instruct the jury that all exceptions to the Age Act be construed narrowly and the burden of proving them placed upon the employer. Laugesen relies upon that language in the regulations appearing in 29 CFR § 860.103(e):

“Further, in accord with a long chain of decisions of the Supreme Court of the United States with'respect to other remedial labor legislation, all exceptions such as this must be construed narrowly, and the burden of proof in establishing the applicability of the exception will rest upon the employer, employment agency or labor union which, seeks to invoke it.”

A reading of the complete regulation, 860.103, places the cited subsection in its proper context. The regulation in question is aimed at policies of companies pertaining, for example, to physical fitness, educational requirements or the like, which are differentiations based on factors other than age, but which can in fact have a disparate impact upon older employees, thus imposing upon the employer the duty of showing job-relatedness. Cf. Griggs v. Duke Power, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). The regulation is not intended to shift the burden of proving non-discrimination by the employer in a private single plaintiff age discrimination case where the defense is a selection based upon the relative personal performance characteristics of two employees competing for one job.

There is also no merit to Laugesen’s claim that the trial court erred in failing to instruct the jury that discrimination was also prohibited within the protected age bracket, in accordance with Regulation 860.91. There was no claim here that discrimination did occur within such bracket. Moreover, the trial court nowhere indicated that it was permissible to discriminate within the protected bracket. The fair import of his instructions taken as a whole, Tyree, supra, was quite to the contrary, and thus was not inconsistent with the language of the regulation.

Finally, it is claimed that “in order for plaintiff Laugesen to have recovered under the instructions in the instant case, he would have been required to show that age was the sole reason for his layoff, by reason of the Court’s charge that the Age Discrimination Act makes it unlawful to discharge any individual between the ages of 40 and 65 from his ‘employment merely because of his age.’ ” In addition to objecting to this specific language, Laugesen objected to the failure of the court to instruct the jury that he could recover if the jury was to find that “age was a ‘factor’ or a ‘determining factor’ or a ‘substantial factor’ in selecting plaintiff for discharge.”

We recognize that in evaluating the adequacy of a charge to the jury, it must be taken as a whole. Tyree v. New York Central R.R., supra. If the judge’s instructions properly present the issues and the law as applicable, it is no ground for complaint that certain portions, taken by themselves and isolated, may-appear to be ambiguous, incomplete or otherwise subject to criticism. Gradsky v. Sperry Rand, supra. Thus, the use of the term “merely” is of little consequence unless, construed with the instructions as a whole, it misleads the jury to the prejudice of the plaintiff. Accordingly, we are led to an examination of the entire instructions given.

In formulating his instructions to the jury, the trial judge was without the benefit of any published opinions in this or other circuits which might shed light on proper instructions to a jury in Age Act cases. The record reflects extensive and careful consideration of the problem both by the court and by counsel for the parties.

The general need of Anaconda to reduce its personnel at Louisville because of unfavorable economic conditions wás largely conceded by Laugesen. It was not the general reduction, but rather the selection of Laugesen for discharge as opposed to someone else which formed the crucial issue in his claim that he was discharged because of his age. Since it was obvious that economic conditions had to play an important part in the decision, it was vital for the jury to know that this alone would not dispose of the case if Laugesen’s age induced Anaconda to discharge him instead of someone else.

The concept of causal relationship is variously expressed. In the law of torts, it is frequently said that there can be more than one proximate cause. In King v. Laborers International Union, supra, a Title VII case, this court, speaking of the right of the jury to award damages in the form of lost compensation, stated:

“But where it can be shown that discrimination on the basis of race, color, religion, sex or national origin was, in part, a causal factor in a discharge or refusal to hire the aggrieved party, the aggrieved party is statutorily entitled to damages of lost compensation.” King v. International Laborers Union, supra, 443 F.2d at 279.

The Secretary of Labor, in the regulations interpreting the Age Act speaks in terms of insuring that age “is not a determining factor” in a decision to discharge. 29 CFR § 860.103(c).

Anaconda claims in its brief that the instructions given properly apprised the jury in this regard:

“In essence, if the jury believed that age played any part or had any connection with the decision to terminate Laugesen, it could have found for him under those instructions. On the other hand, under the District Court’s instructions, the jury could only find for Anaconda if it determined that his termination was for bona fide business reasons unconnected with age and in which age was not a factor. The fair inference of' these instructions is that if the jury believed that age played any part in the decision to terminate Laugesen, it should find for him.”

If the instructions given by the trial judge had, in fact, conveyed the ideas attributed to them by Anaconda, there would have been no error. While the instructions make it manifestly clear that the jury should find for the defendant if termination “is for bona fide business or economic reasons in which age is not a factor,” the converse is not stated. Rather the instructions concerning the right of plaintiff to recover state that it is unlawful to discharge an individual “merely because of his age,” and that he has the burden of showing by a preponderance of the evidence “that he was discharged from his job because of his age” without making it clear that it need not have been the sole or exclusive cause.

til] However expressed, we believe it was essential for the jury to understand from the instructions that there could be more than one factor in the decision to discharge him and that he was nevertheless entitled to recover if one such factor was his age and if in fact it made a difference in determining whether he was to be retained or discharged. This is so even though the need to reduce the employee force generally was also a strong, and perhaps even more compelling reason. It is because the instructions did not convey this necessary concept of the law to the jury that we are compelled to reverse and remand for a new trial.

III. Other Assigned Errors

1. Statistical evidence.

Plaintiff alleges that the trial court erroneously admitted into evidence certain bar graphs showing the practices of Anaconda respecting the reténtion and termination of employees by age. His argument is that in a private civil action for individual discrimination rather than a class action, evidence of a gen; eral pattern of age discrimination Or the absence of it is immaterial. We do not agree. McDonnell Douglas v. Green, supra, itself a wholly private action, specifically approves the use of such" statistics. The plaintiff’s arguments go mostly to the weight to be accorded them, an issue for the jury.

2. Damages.

The issue of damages was not submitted to the jury, but was, with the approval of counsel, decided in advance by the trial court. While Laugesen agreed to this method of disposition of the damage issue, he objected at the time of trial to the amount of damages found by the trial court. Since the case is to be re-tried, the questions raised are properly before us for review.

Laugesen claims that it was error for the district court to have offset his lost wages by the amount he received as severance pay, claiming that this amount represents payment for past services. We hold that it was proper to set-off severance pay, if such amount represents payment occasioned by termination, which would not have otherwise been received by Laugesen had he not been terminated. While severance pay may be measured by length of past service, we view it as a payment occasioned by an involuntary termination. As such, it is an amount Laugesen would not have received but for the termination. If he is to recover and be returned to his original position, this amount should be deducted from his lost wages. See Shultz v. Hickok Mfg. Co., 358 F.Supp. 1208 (N.D.Ga.1973). We note that this amount is not claimed to be vacation pay, which has been held to be an amount earned and not occasioned by termination. Cf. Monroe v. Penn-Dixie Cement Corp., 335 F.Supp. 231 (N.D.Ga.1971).

Laugesen also claims that it was error for the district court to have offset the amount he received for teaching and lecturing between the time of his discharge and the trial. Any remuneration that Laugesen received following his discharge should be set off from the damages only to the extent that it actually mitigated his losses. If Laugesen had received such sums during his employment at Anaconda, and could have been expected to continue to receive them, a set-off should be allowed only to the extent that the amount actually received exceeded that which Laugesen would have received had he been employed at Anaconda during the period in question. Only that amount may be set off as mitigation of damages.

Reversed and remanded for a new trial.

      . 29 U.S.C. § 621 et seq.

      . We are not asked here to decide whether there is a right to a jury trial in cases brought under the Age Act. But see Chilton v. National Cash Register Company, 370 F.Supp. 660 (S.D.Ohio 1974), where it was held that there is a right to jury trial on issues of lost wages and benefits in Age Act cases. We note that trial by jury of civil rights cases under Title VII is uncommon, and has been discouraged. See King v. Laborer’s International Union, 443 F.2d 273, 279 (6 Cir. 1973), and cases cited therein. See also Curtis v. Loether, 415 U.S. 189, 196, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974), wherein the Supreme Court declined to rule on the question of right to jury trial under Title VII, while noting that several circuits have viewed back pay as essentially an equitable issue, thus not requiring trial by jury.

      . Other than the distinction between age and race, the most apparent difference between the factual circumstances here and those in McDonnell Douglas, is that Laugesen claims discrimination in discharge, whereas McDonnell Douglas dealt with an allegation of failure to hire.

      . See House Report No. 805, 1967 U.S.Code Cong, and Adm.News, p. 2213 et seq.
      See also Section 2(b) of the Act, wherein Congress declares it to be the purpose of the Act “to promote employment of older persons based upon their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers to find ways of meeting problems arising from the impact of age on employment.”
      The House report recognized that in certain industries, such as the railroad industry, a disproportionately high number of older workers are found in the work force, and comments that: “The committee does not intend the legislation be administered in such a way as to worsen a situation as this, or to prevent an employer from achieving a reasonable age balance in his employment structure. It is expected that the Secretary will recognize these particular situations and treat them according to their individual merits on a case-by-case basis.”

        1967 U.S.Code Cong, and Adm.News, at pp. 2219-2220.
      It is also evident from the Report, that Congress did not desire that the Act be applied formalistically:
      “The case by case basis should serve as the underlying rule in the administration of the legislation. Too many different types of situations in employment occur for the strict application of general prohibitions and provisions.”
      The foregoing language suggests that perhaps the more strict approach which is evident in the treatment of a Title VII race discrimination case in McDonnell Douglas v. Green may not be desirable here. The progression of age is a universal human process. In the very nature of the problem, it is apparent that in the usual case, absent any discriminatory intent, discharged employees will more often than not be replaced by those younger than they, for older employees are constantly moving out of the labor market, while younger ones move in. This factor of progression and replacement is not necessarily involved in cases involving the immutable characteristics of race, sex and national origin. Thus, while the principal thrust of the Age Act is to protect the older worker from victimization by arbitrary classification on account of age, we do not believe that Congress intended automatic presumptions to apply whenever a worker is replaced by another of a different age.

      . Plaintiff requested the court to instruct that: “If the jury believes from the evidence that age was a- factor in the selection of plaintiff Laugesen for assignment to permanent layoff, then the law is for the plaintiff and your verdict shall be for him.”
      Laugesen also requested that the court give the following instruction:
      “But if the jury believes from the evidence that plaintiffs age was not a substantial factor used by defendants in selecting plaintiff for discharge., or for rehire, then your verdict should be for defendant.”
      An amendment later filed to that instruction substituted the term “determining factor” for the term “substantial factor” used earlier.

      . The charge to the jury regarding liability was as follows:
      “Now as you have heard from the statements of counsel, from the arguments, and evidence in this action, the plaintiff, Thor Laugesen, has brought a suit against his former employer on the grounds that he was terminated and declared not eligible for rehire because of his age. He bases his suit on the Age Discrimination Act of 1967, which Congress enacted to prohibit arbitrary age discrimination in employment and to promote the employment of older persons on the basis of their ability. As part of this Act, it is provided, quote, it shall be unlawful for an employer to fail or refuse to hire or discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or provisions of employment because of such individual’s age. The Act further provides, quote, the prohibitions in this chapter shall be limited to individuals who are at least 40 years of age but less than 65 years of age.
      “Thus specifically, the Age Discrimination Act of 1967 makes it unlawful to discharge any individual between the ages of ‘40 and 65 from his employment merely because of his age.
      “Now not every discharge of a person between the ages of 40 and 65 is unlawful under this Act. The Act provides in part, quote, it shall not be unlawful for an employer to discharge an older employee within this age bracket among certain cbnditions. One of them is where the differentiation is based on reasonable factors other than age.
      “Now if the termination of the plaintiff is for bona fide business or economic reasons in which age is not a factor, there can .be no violation of the law, and the discharge would be lawful.
      “The plaintiff in this action has the burden of showing by a preponderance of the proof — of the evidence that he was discharged from hfs job because of his age. As you know, it is contended by the defendant in this case that the discharge is for bona fide and business reasons unconnected with age.
      “Now if you find that the termination was for the reason asserted by the defendant, that would be the end of your investigation; and you should cease your deliberations and return a verdict for the defendant in the case.
      “On the other hand, if you find by preponderance of the evidence that the plaintiff was discharged because of his age and in violation of the statute which I have read you, then you should give consideration to the damages.”

      . We are not asked to decide what relief was proper for the jury to determine and what was for the judge.