author: McLAUGHLIN, Circuit Judge.

text:
    RADIO TELEVISION TECHNICAL SCHOOL, INC., t/a Ryder Technical Institute, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Local 773, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Intervenor.
    No. 73-1127.
    United States Court of Appeals, Third Circuit.
    Argued Sept. 10, 1973.
    Decided Nov. 16, 1973.

      James L. Price, Steinberg, Greenstein, Richman & Price, Philadelphia, Pa., for petitioner.
    Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Acting Asst. Gen. Counsel, N. L. R. B., Robert A. Giannasi, Jonathan G. Axelrod, Washington, D. C., for respondent.
    Richard H. Markowitz, Stephen C. Riehman, Markowitz & Kirsehner, Philadelphia, Pa., for intervenor.
    Before McLAUGHLIN, VAN DUSEN and ROSENN, Circuit Judges.
   OPINION OF THE COURT

McLAUGHLIN, Circuit Judge.

Petitioner, Radio Television Technical School, Inc., t/a Ryder Technical Institute, appeals from the October 10, 1972 order of the National Labor Relations Board which found that petitioner committed an unfair labor practice in violation of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C. § 151 et seq.), herein called the Act. The Board has filed a cross-application for enforcement of its order and Local 773, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, has been granted the right to intervene. We affirm the order of the Board.

. Since 1950 petitioner has been presenting gifts to its employees at Christmas time. Initially, the gifts consisted of such items as sport jackets, wallets, trays, hams, turkeys, etc. In 1965 or 1966 (the precise year was not established in the proceedings below), petitioner began making money payments. At Christmas time in 1970, petitioner withheld making payments to the employees who had joined the Union in the summer of 1970. However, all non-union employees received their Christmas payments.

The matter was submitted to arbitration and the arbitrator found that the payments were made at the discretion of petitioner and therefore legally could be discontinued without subjecting the matter to the collective bargaining process. Since petitioner refused to bargain over the matter, the Union also filed with the Board an unfair labor practice charge against petitioner. Following the outcome of the arbitration proceeding, the Board vacated the arbitrator’s decision and ordered petitioner to make the 1970 and 1971 Christmas payments to the union employees.

The collective bargaining agreement between petitioner and the Union became operative on October 1, 1970. The agreement did not provide specifically for any Christmas payments, Christmas bonuses, or Christmas gifts. The absence of such a provision was the alleged justification for petitioner’s decision to discontinue the payments. The Union, however, has taken the position that the Christmas payments were wages, and as such, could not be altered in view of the existence of the Maintenance of Standards provision of the collective bargaining agreement.

A labor managment dispute involving the status and/or payment of a Christmas bonus is not novel. In 1952, the Second Circuit reviewed an order of the National Labor Relations Board which held that a Christmas bonus was a part of wages and therefore required bargaining pursuant to Section 9(a) of the Act. In affirming the Board’s order, the Court held: “It does, of course, merely beg the question to call them [Christmas bonuses] ‘gifts’ and to argue, however persuasively, that gifts per se are not a required subject for collective bargaining. But if these gifts were so tied to the remuneration which employees received for their work that they were in fact a part of it, they were in reality wages and so within the statute * * * Where, as here, the so-called gifts have been made over a substantial period of time and in amount have been based on the respective wages earned by the recipients, the Board was free to treat them as bonuses not economically different from other special kinds of remuneration like pensions, retirement plans or group insurance, to name but a few, which have been held within the scope of the statutory bargaining requirement.” N.L.R.B. v. Niles-Bement-Pond Co., 199 F.2d 713, 714 (2d Cir. 1952). Accord, N.L.R.B. v. Wheeling Pipe Line, 229 F.2d 391 (8th Cir. 1956); N.L.R.B. v. Electric Steam Radiator Corporation, 321 F.2d 733 (6th Cir. 1963); N.L.R.B. v. Citizens Hotel Company, 326 F.2d 501 (5th Cir. 1964); N.L.R.B. v. United States Air Conditioning Corporation, 336 F.2d 275 (6th Cir. 1964).

Although each of the foregoing cases has held that a Christmas bonus is a wage, the particular facts of each case shall be determinative of whether a Christmas bonus is a wage or a gift. In making such a determination, the following factors shall be considered by the trier of fact: (1) the consistency or regularity of the payments; (2) the uniformity in the amount of the payments; (3) the relationship between the amount of the bonus and the remuneration of the recipient; (4) the taxability of the payment as income; and (5) the financial condition and ability of the employer. See, e. g. N.L.R.B. v. Wonder State Manufacturing Company, 344 F.2d 210, 214 (8th Cir. 1965).

The record before us reveals that Christmas bonuses were given consistently and regularly since 1950 and for at least four years prior to the execution of the 1970 collective bargaining agreement, all employees received cash payments at Christmas time. Notwithstanding petitioner’s assertions and allegations to the contrary, the Board found that petitioner adhered to an established pattern or formula in calculating its Christmas payments to instructors and laboratory assistants at the Allentown institution. Although the record does not convince us that a precise mathematical formula had evolved, there is substantial evidence to show that petitioner’s payments constituted a pattern to the extent that they were based upon the employees’ length of service and the nature and scope of their employment responsibilities. Furthermore, the Board’s decision is strengthened by the fact that the Christmas payments were admittedly based on such employment-related considerations as supervisory recommendations, work performance, work attitudes and longevity and the fact that petitioner subjected payments in excess of $25.-00 to withholding and social security taxes. In light of these findings, petitioner’s argument that its Christmas payments were unrelated to the employees’ work, and thus not “wages” under Section 8(d) of the Act, must f^il. Since these payments were in fact “wages”, petitioner was under a statutory duty to submit the matter to the collective bargaining process. Petitioner’s failure to do so constituted an unfair labor practice in violation of Section 8(a)(5) and (1) of the Act. N.L.R.B. v. Katz, 369 U.S. 736, 737, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962); Leeds & Northrup Company v. N.L.R.B., 391 F.2d 874, 877 (3d Cir. 1968).

Petitioner further alleges that the Board committed error by refusing to defer to the decision of the arbitrator. We cannot agree with this assertion. Although it is the well established policy of the Board to encourage settlement of labor-management disputes through the machinery of arbitration, the Board is not duty bound to defer to every decision of an arbitrator. Spielberg Manufacturing Company, 112 N.L. R.B. 1080 (1955) ; Flintkote Co., 149 N.L.R.B. 1561 (1964). However, the Board’s deferral policy is strictly voluntary. N.L.R.B. v. Acme Industrial Co., 385 U.S. 432, 87 S.Ct. 565, 17 L.Ed.2d 495 (1967); Carey v. Westinghouse Electrical Corp., 375 U.S. 261, 270-272, 84 S.Ct. 401, 11 L.Ed.2d 320 (1963) ; N.L.R.B. v. Plasterers’ Local Union No. 79, 404 U.S. 116, 137, 92 S.Ct. 360, 30 L.Ed.2d 312 (1971). The Board has heretofore set aside those arbitration awards where it clearly has appeared that “the arbitration proceedings were tainted by fraud, collusion, unfairness, or serious procedural irregularities or that the award was clearly repugnant to the purposes and policies of the Act.” International Harvester Company, 138 N.L.R.B. 923, 927 (1962), aff’d sub nom. Ramsey v. N.L.R.B., 327 F.2d 784, 788 (7th Cir. 1964), cert. denied 377 U.S. 1003, 84 S.Ct. 1938, 12 L. Ed.2d 1052 (1964); Collyer Insulated Wire, 192 N.L.R.B. 837, 839-843 (1971); Spielberg Manufacturing Company, supra at 1082.

In the case before us, the arbitrator found that petitioner’s Christmas payments were voluntary gifts and as such could be unilaterally discontinued in its sole discretion. Since this finding clearly ignored a long line of Board and court precedent declaring Christmas bonuses to be an element of wages and therefore subject to collective bargaining, the Board’s independent inquiry into and refusal to follow the arbitration award was proper. International Harvester Company, supra; Collyer Insulated Wire, supra; Spielberg Manufacturing Company, supra. And, where the Board disagrees with the decision of the arbitrator, “the Board’s ruling would, of course, take precedence * * Carey v. Westinghouse Electric Corp., supra, 375 U.S. at 272, 84 S. Ct. at 409.

Finally, petitioner contends that the Union waived its right to the 1971 Christmas bonus because of its failure to press for this item during the 1971 contract negotiations. However, a waiver cannot be lightly inferred. It clearly and unmistakably must be established before it can be relied upon as a bar to recovery. N.L.R.B. v. Wisconsin Aluminum Foundry Co., Inc., 440 F.2d 393, 399 (7th Cir. 1971); Timken Roller Bearing Co. v. N.L.R.B., 325 F.2d 746, 751 (6th Cir. 1963), cert. denied 376 U. S. 971, 84 S.Ct. 1135, 12 L.Ed.2d 85 (1964); N.L.R.B. v. Perkins Machine Co., 326 F.2d 488, 489 (1st Cir. 1964); Proctor Manufacturing Corporation, 131 N.L.R.B. 1166, 1169 (1961). The record contains no substantial evidence in support of petitioner’s claim that the Union clearly and unmistakably waived its right to the 1971 Christmas bonus. Rather, it reasonably can be inferred therefrom that since the 1970 Christmas bonus issue had not been finally adjudicated when the 1971 negotiations commenced, the parties mutually recognized the probable futility of discussing the matter any further and tacitly agreed that the ultimate resolution would control the payment or non-payment of the 1971 Christmas bonus.

For the reasons set forth above, the October 10, 1972 order of the Board shall be enforced.

      . It should be noted that although petitioner operates three (3) educational institutions located in New Jersey and Pennsylvania, laboratory assistants and instructors at the Allentown, Pennsylvania facility are the only employees of petitioner who are subject to the provisions of a collective bargaining agreement.

      . Article IV, entitled Maintenance of Standards, reads as follows:
      “a) Protection of Conditions
      “The EMPLOYER agrees that all conditions of employment relating to wages, hours of work, and overtime differentials shall be maintained at not less than the highest standards in effect at the time of the signing of this agreement and the conditions of employment shall be improved wherever specific provisions for improvement are made elsewhere in this agreement * * *
      “This provision does not give the EMPLOYER the right to impose or continue wages, hours and working conditions less than those herein contained in this agreement.”

      . Under Internal Revenue Code, “Gross income does not include the value of property acquired by gift * » *” 26 U.S.O. § 102. Thus an employer must withhold income tax and social security taxes only from “wages for employment performed for the employer by the employee,” 26 C.F.R. §§ 31.3102-1, 31.3401(a)-! (1973). Accord, General Telephone Co. of Florida v. N. L. R. B., 337 F.2d 452, 454 (5th Cir. 1964).

      . Petitioner’s financial condition and ability are not factors in this litigation. Petitioner did not present an economic defense for its discontinuation of the Christmas bonuses, and could hardly do so while continuing to pay bonuses to all non-union employees.


source: Caselaw Access Project

author: KILKENNY, Circuit Judge. COFFIN, Chief Judge

license: Public Domain

text:
    Anthony SOUZA, Petitioner-Appellant, v. Francis A. HOWARD, Warden, Adult Correctional Institutions, Respondent-Appellee.
    No. 73-1099.
    United States Court of Appeals, First Circuit.
    Heard Sept. 7, 1973.
    Decided Nov. 27, 1973.

      Ralph J. Gonnella, Providence, R. I., for appellant.
    Donald P. Ryan, Asst. Atty. Gen., with whom Richard J. Israel, Atty. Gen., was on brief, for appellee.
    Before COFFIN, Chief Judge, and KILKENNY  and CAMPBELL, Circuit Judges.

       Of the Ninth Circuit Court of Appeals, sitting by designation.

   KILKENNY, Circuit Judge.

Appellant’s claims grow out of his indictment, trial and conviction in the superior court of the state of Rhode Island and his five day incarceration in the Cumberland County jail in that state. He, with another, was convicted of first degree murder in a jury trial. The conviction was affirmed by the supreme court of that state. R.I., 292 A.2d 214 (1972).

The germane facts, as supported by the record and as found by the Supreme Court of Rhode Island, are relatively simple. On the evening of August 4, 1964, two men, with handkerchiefs masking the lower half of their faces, entered a package liquor store in the city of Cranston. Two people were in the store at the time, the owner and his 14 year old part-time assistant, Michael Smith'. One of the masked men pointed a gun at the owner and demanded the location of the money. The owner was shot when he responded, “What money?”. The gunless robber inspected the cash register and reported that it was empty. The gunman for a second time demanded the whereabouts of the money and when he received no response, twice shot the owner. The robbers, taking a jug of wine, then left the store and Smith called the police. The owner died shortly after admission to a hospital.

About one year later, appellant Souza and his codefendant, Camerlin, were arrested and indicted for the murder of the owner. Shortly after the arrest, appellant was committed to the Men’s Reformatory as a deferred sentence violator. On that day, he was taken to the office of the attorney general where Smith identified him as one of the two men who had entered the store on the night of the slaying. This was not a line-up identification. Instead, Smith, by use of a one-way mirror, first looked at appellant in an adjoining room. At that time, Smith said that appellant looked like the gunless robber, the one who pushed him aside going to the cash register. Appellant, said Smith, was not the one who did the shooting. Smith was then taken into the adjoining office where he confronted appellant. Again, he said that appellant looked like the man who had gone to the cash register and pushed him aside on the night of the slaying. Appellant, on request, then held a handkerchief over the lower portion of his face. Viewing appellant in this partial mask, Smith positively identified appellant as the one who did not use the gun. He said that appellant was the man who pushed him aside in going to the cash register, took a jug of wine from the shelf and ran out of the store with the gunman.

Smith had at least three minutes to observe the men involved in the holdup in a room that was well lighted by long fluorescent lights. He was pushed aside by the man who went to the cash register and who passed very close to him on his return. The record is clear that Smith was very alert in observing the appearance of both men. His description to the police immediately after the robbery identified the gunman [Camer-lin] as wearing dark trousers, a T-shirt and a dark sweater with a red stripe running through it. Appellant was described as wearing a baggy T-shirt and dark trousers. On the trial, these descriptions were fully corroborated by appellant’s ex-wife who described what her husband and Camerlin had been wearing that evening and by a woman sitting in a car opposite the store who was made suspicious by the manner in which the two men made entry. She made it a point to carefully observe their clothing as they left the store.

During the year following the crime, Smith participated in between 20 to 30 identification procedures on other persons before putting his finger on appellant. At no time during those procedures had he identified any of those presented as participants in the robbery. There is no substantial discrepancy between the description of appellant he gave to police at the time of the crime and the description he gave in the in-court identification of appellant.

While appellant’s bill of exceptions was pending in the Rhode Island Supreme Court, he presented to that court a writ of habeas corpus. In the writ he alleged a violation of due process based on a suggestive identification procedure. He later asserted, in his brief, that it was constitutional error for the trial judge to admit the in-court identification without a prior evidentiary hearing. The supreme court treated the writ as a motion to enlarge the record and ordered a hearing before the superior court. A transcript of that hearing, now before us, was made a part of the record before the supreme court in connection with petitioner’s still pending bill of exceptions. The Rhode Island Supreme Court held the out-of-court identification proceeding was unnecessarily suggestive and vi-olative of due process. However, the in-court identification was sustained on the ground that there was clear and convincing evidence it was based on observations entirely independent of the alleged tainted show-up. The admission in evidence of the out-of-court identification was held to be harmless beyond a reasonable doubt.

ISSUES

1(a). Was the out-of-court identification constitutionally impermissible, and, if so, 1(b) did the out-of-court identification so taint the in-court identification so as to make the latter inadmissible ?

II. Should the district court have held an evidentiary hearing ?

IDENTIFICATION

1(a). We commence our analysis with the statement that the facts in this case bear little, if any, resemblance to those in Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969), appellant’s principal case. There, the Supreme Court held that the suggestive elements in the identification procedure made it all but inevitable that the witness would identify the accused whether or not he was, in fact, “the man” and held that the procedure so undermined the reliability of the identification as to violate due process. Foster, about six feet in height, was placed in the line-up with two other men, both six or seven inches shorter in height. The accused wore a leather jacket similar to one the witness said he observed under the overalls worn by the robber. When the witness could not identify the accused, the former was brought into a room and seated across the table from the witness in a one to one confrontation. The witness was still uncertain as to whether the accused was one of the robbers. Some seven to ten days later, the accused was again placed in a lineup of five men with neither of the shorter men in the previous line-up included. It was not until this time that the witness made the positive identification.

The question of whether suggestiveness alone requires the exclusion of identification evidence was not decided by the Supreme Court until presented in Neil v. Biggers, 409 U.S. 188, 198-199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), some time subsequent to the decision of the Rhode Island Supreme Court in the case before us. After reviewing its previous identification decisions of Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), and its then most recent case, Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L. Ed.2d 387 (1970), it noted that Foster v. California, supra, was the only case to that date in which the Court found the identification procedures to be constitutionally impermissible. The Court in Biggers went on to hold that the admissibility of this type of evidence must be viewed in the light of the totality of circumstances and, if in such circumstances, the identification is reliable, then the evidence is admissible even though the confrontation procedure is suggestive. The factors to be considered in evaluating the likelihood of misidentification:

“. . . [I]nclude the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” (409 U.S. 199, 93 S.Ct.).

Applying the Biggers formula to the record before us, we find ourselves in disagreement with the conclusion reached by the Rhode Island Supreme Court. We are of the view that the out-of-court identification in the Rhode Island Attorney General’s Office was not in violation of applicable constitutional standards. When observed, with others in similar clothing, through the one-way glass, Smith said the appellant looked like the man who had pushed him. Smith then met appellant face to face and again said that he looked like the gunless intruder who passed him in the liquor store. Immediately following, Smith looked at appellant with a handkerchief over the bridge of his nose and the lower portion of his face, and then positively identified him. This, with the precise description givén by Smith to the police of the clothing worn by the robbers, particularly the clothing worn by appellant, together with his physical characteristics, was sufficient to make the pre-trial confrontation constitutionally permissible. We are confident that if the Supreme Court of Rhode Island had been aware of the Biggers guidelines, it would have arrived at the same conclusion.

1(b). Although, in our opinion, the out-of-court identification is not constitutionally violative of appellant’s rights, we need not rest our decision on that ground. Smith’s in-court identification is clear and positive and that identification is supported by substantial evidence that appellant was, in fact, the unarmed robber. Our independent search of the record forces us to agree with the finding of the Rhode Island Supreme Court that the in-court identification in this case was made on the basis of observations entirely independent of those made at the confrontation in the office of the attorney general and that any evidence before the jury concerning the out-of-court identification constituted harmless error beyond a reasonable doubt under the principles enunciated in Gilbert v. California, 388 U.S. 263, 274, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and their progeny.

The detail of Smith’s in-court identification is remarkable. His direct and cross-examination cover 127 pages of the transcript. Most of the direct and cross-examination was devoted to Smith’s identification of appellant and his co-defendant. Despite the vigor and thoroughness of the cross-examination, Smith remained steadfast in the positiveness of his identifications. Here, as in Biggers, the lapse of time between the murder and the confrontation is a negative factor. Be that as it may, Smith’s description of appellant as to approximate height, weight, complexion, color of hair, build and clothing was more than ordinarily thorough. The testimony is undisputed that he made no previous identification at any of the numerous show-ups, line-ups or other showings. His record, as in Biggers, was thus a good one as he had previously resisted whatever suggestiveness which might have been inherent in a show-up. Under the totality of all of the evidence, we find no substantial chance of erroneous identification.

Entirely independent of the identification problem is the evidence of appellant’s ex-wife who positively linked him to the commission of the crime. She testified that Camerlin met her husband on the night in question and that appellant and Camerlin left her home together. Her description of the clothing worn by appellant and his companion corresponds to the description given by Smith. She testified that appellant called her later that evening and said, “We didn’t make out too good.” Later he requested her to read an article in the paper which concerned the death of the storeowner. After reading the article the appellant’s wife asked, “What about it?”. Appellant responded, “That was Louis and I that did it.” Appellant told her that they were looking for a place to “Break-in” and that they “Came across this liquor store and went in with handkerchiefs across their mouths.” He told her that his companion held the gun on the owner and asked where the money was. When the owner laughed, his companion shot him. He again asked for the money, then twice shot the owner. He told her that on the way out they picked up a gallon of wine, that he pushed Smith aside and then stole an automobile which they abandoned at the Cranston Street Armory. Additionally, she testified that appellant was worried about the handkerchief he had dropped and was about to turn himself over to the police. She further testified that she was with her husband when he threw a newspaper wrapped package in the water near the Washington Bridge and told her that it contained the gun which was used. He later pointed out the liquor store as the one where the murder had occurred. Appellant’s ex-wife’s testimony is corroborated by Smith’s description of the robbers and the clothing worn by them. It is undisputed that the unarmed robber took a jug of wine and that an automobile was stolen and later found at the Cranston Street Armory. The description of the robber’s clothing by Mr. and Mrs. Fon-taine, who observed them from across the street, is essentially the same as the description of the clothing given by Smith and appellant’s ex-wife. Consequently, aside from the in- and out-of-court identifications by Smith, the record clearly demonstrates guilt. Where, as here, there is independent evidence of guilt beyond a reasonable doubt, the error, if any, in the admission of the identification evidence is harmless. United States v. Counts, 471 F.2d 422, 425-426 (CA2 1973).

Appellant’s argument that the harmless error rule does not apply in a “Sto-vall type situation” is answered in Sto-vall itself, where the Court, in speaking of the impracticability of making retroactive the Wade and Gilbert rules, said: “. . .At the very least, the processing of criminal calendars would be disrupted while hearings were conducted to determine taint, if any, in identification evidence, and whether in any event the admission of the evidence was harmless error.’’ 388 U.S. 293, 300, 87 S.Ct. 1967, 1971, 18 L.Ed.2d 1199. [Emphasis supplied.] Gilbert v. California, 388 U.S. 263, 272, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), recognizes the same rule.

EVIDENTIARY HEARING

Although the contention in the main is foreclosed by our conclusions on the previous issues, we now address ourselves to appellant’s claim that he was entitled to an evidentiary hearing in the district court on whether the in-court identification was tainted by the pretrial show-up. He argues that Gilbert v. California, supra, and subsequent Supreme Court cases require such a hearing.

At the outset, we must recognize the limits of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), and 28 U.S.C. § 2254(d), as measured by us in Leavitt v. Howard, 462 F.2d 992, 995 (CA1 1972), where, in pertinent part, we said:

“. . . [T]he federal court is bound by the state court’s finding of historical facts unless the petitioner offers convincing evidence that they are erroneous.” (Page 995).

and continuing, we said:

“Even if the state court’s legal theory were incorrect, ... its findings of fact are nevertheless presumed correct unless its legal error either distorted the focus of its hearing, or made it impossible to infer the factual findings on which the court based its legal conclusions.” Id. p. 996.

In Leavitt, we recognized that a careless interpretation of the principles involved in Townsend would upset “. [T]he careful adjustment of the sensitive state and federal interests made by the Supreme Court in that and other cases, . . . .’’Id. p. 995. Leavitt makes it clear that it is the duty of the federal courts to neither deny the petitioner an evidentiary hearing when such is required under Townsend and 28 U.S. C. § 2254(d), nor to abort the power of the state courts as triers of the fact when an evidentiary hearing is unnecessary.

Appellant says that the state should have produced Smith at the state court hearing on the enlargement of the record.- The only evidence produced was connected with appellant’s demand for counsel at the time of the show-up and a few hazy details on the identification procedure. Although appellant raised the taint issue in his habeas petition, he offered no evidence that the confrontation was sufficiently suggestive to taint the in-court identification. For that matter, his attorney resisted practically all attempts of the attorney general to develop from appellant what actually occurred in the attorney general’s office. Consequently, the Rhode Island Supreme Court was compelled to rely on the transcript of the trial in order to assess whether there were sources of identification independent of the suggestive pre-trial show-up.

We agree with the district court that a three-way inquiry is sufficient to resolve the issue: (1) did appellant have an opportunity in the state court to present evidence on the issue; (2) was the record adequate for determination of the issue; and (3) is a state appellate court which makes its findings on the record before it, a state court trier of fact within the meaning of Townsend or a state court of competent jurisdiction on a factual issue within the meaning of 28 U.S.C. § 2254(d).

Since the state court trial was conducted prior to the decision in Stovall v. Denno, supra, we -recognize that incentive might have been lacking for the appellant to make a record at the trial undermining the identification. Consequently, if appellant never had an opportunity to supplement the trial transcript on this issue, it would be a factor in favor of a hearing. Here, however, it is clear that appellant had an opportunity to present this type of evidence at the supplementary hearing. In his petition for a writ of habeas corpus, he alleged:

“. . . The testimony of the said Smith, resting upon this illegal ‘show-up’ so tainted my trial and conviction as to render it illegal and void.”

Beyond that, his personal plea for a hearing on the petition included the language :

. . I request this Court to hold a hearing at which time 1 be (sic) permitted to testify as to the facts and circumstances [surrounding the illegal detention and interrogation-at the Attorney General’s Office and the purported identification by said Smith] and present such other evidence through witnesses and documents as will substantiate the facts above alleged and to be made (sic) a part of the record of this court.” (Emphasis supplied.)

From this it is clear that appellant could have challenged the reliability of the Smith in-court identification at the time of the state court’s supplemental hearing in precisely the same manner as he later attacked the identification in his state court appellate brief. The transcript on the supplemental hearing ordered by the Rhode Island Supreme Court consists of 85 typewritten pages. Approximately 10 pages of that transcript consist of a cross-examination of appellant on what he recalled of Smith’s show-up identification. That appellant had an opportunity to prove his habeas corpus claim of an illegal show-up and that such a show-up tainted his trial and conviction is beyond question.

This is not a case such as Cooper v. Picard, 428 F.2d 1351 (CA1 1970), where the absence of detail as to the pre-trial confrontation necessitated an evidentiary hearing. Here, any possible gaps in the trial record as to details of the pre-trial identification were remedied by the opportunity to present evidence on his claim at the supplementary hearings. Additionally, in the state court trial Smith was subjected to extensive cross-examinations by appellant’s counsel and counsel for his co-defendant. We are convinced that the record before the state supreme court, and now before us, fully supports that court’s finding that the in-eourt identification was clearly independent of the alleged taint of the pre-trial procedure and that the state court properly utilized the guidelines of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1969), in arriving at its findings and decision.

Finally, we must dispose of appellant’s contention that a state appellate court is not a state court trier of fact within the meaning of Townsend or a state court of competent jurisdiction on a factual issue within the meaning of 28 U.S.C. § 2254(d).

He argues that the Rhode Island Supreme Court was not authorized to decide on the cold record that the in-court identification was not tainted with the pre-trial show-up. He says that only a trial court can make such a determination. Appellant’s position on this issue cannot be reconciled with the action taken by the Supreme Court in Neil v. Big-gers, supra, where it held that although a pre-trial identification might have been suggestive, nevertheless, under the totality of circumstances, the witness’ in-court identification was reliable. There, in passing on the cold record, the author of the majority opinion said:

“. . . Weighing all of the factors, we find no substantial likelihood of misidentification. The evidence was properly allowed to go to the jury.” [409 U.S. page 201, 93 S.Ct. page 383.]

Only two jurisdictions have passed directly on the subject and they have decided adversely to appellant’s contention. They held that a reviewing court has authority to decide on the record the independent sources of in-court identification. United States ex rel. Harris v. State of Illinois, 457 F. 2d 191 (CA7 1972); United States v. York, 138 U.S.App.D.C. 197, 426 F.2d 1191, 1193 (1969); Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230, 1248 (1968). In those cases, the courts of appeals concluded that there is no sound reason why a state appellate court, when the record is adequate, should not make findings on the issue. Be that as it may, we need not here decide whether in all instances, the findings of a state appellate court must be recognized as falling within the perimeter of Townsend and the requirements of 28 U.S.C. § 2254(d). Here, the appellant deliberately invited the Rhode Island Supreme Court to try the issues presented by his habeas petition. One of the issues was the alleged taint of the in-court identification. A hearing was held on the petition in which appellant appeared and testified. He now finds himself in the awkward position of trying to challenge the findings which are grounded on his affirmative action. In these circumstances, we hold that the Rhode Island Supreme Court had jurisdiction to pass on the issue and that we are bound to respect its finding that the in-court identification was not tainted by what occurred at the show-up in the attorney general’s office. Consequently, we conclude that the district court was under no obligation to hold an eviden-tiary hearing on the issue presented to and decided by the state supreme court.

CONCLUSIONS

It is our conclusion that the evidence with reference to the pre-trial and in-court identifications was admissible in the trial. Beyond that, we hold that the in-court identification was not tainted with pre-trial identification and that even though such a taint existed, independent evidence of appellant’s guilt is so clear that the admission of the tainted evidence was harmless beyond a reasonable doubt.

The judgment of the district court dismissing appellant’s habeas corpus petition without a hearing is affirmed.

COFFIN, Chief Judge

(concurring).

While I concur in the decision to affirm, I think it unnecessary at this time for this court to attempt to give content to the Biggers “totality of circumstances” standard for judging the reliability of arguably suggestive out-of-court identifications, when our decision today may rest as easily upon the strength of the in-eourt identification and harmless error. The Biggers formula, as applied by other circuits, is presently wide open, embracing an as yet limitless range of suggestive identifications. See, e. g., United States v. Evans, 484 F.2d 1178 (2d Cir. 1973); Rudd v. Florida, 477 F.2d 805, 807 (5th Cir. 1973). Application here does not add any sense of limits or weights to Biggers’ compendious phrase.

      . State v. Camerlin, 108 R.I. 524, 277 A.2d 291 (1971).

      . “. . . When I saw this I was sure that this was one of the men that held up and killed Mr. MaeDougal. This man was not the man that had the gun . . . , but the man who pushed me and then looked in the cash register. . . . There is no question in my mind that this man X saw today at the Attorney General’s Office is the same man that pushed me during the holdup. . . . ” [Excerpt Smith Statement to Police, July 28, 1965].


author: ELY, Circuit Judge:

text:
    Lillian M. MATISE, as personal representative of Granville C. Matise, Deceased, Appellant, v. AMERICAN FOREIGN STEAMSHIP CO., Appellee.
    No. 72-1345.
    United States Court of Appeals, Ninth Circuit.
    March 8, 1974.
    As Amended on Denial of Rehearing April 4, 1974.

      Eric J. Schmidt (argued) San Francisco, Cal., for appellant.
    John A. Flynn (argued) Graham & James, San Francisco, Cal., for appellee.
    Before MERRILL and ELY, Circuit Judges, and EAST, District Judge.

       Honorable William G. East, Senior United States District Judge, District of Oregon, sitting by designation.

   OPINION

ELY, Circuit Judge:

This appeal arises from a suit brought by Granville C. Matise, a seaman, against American Foreign Steamship Corporation, in which Matise alleged that $510.00 of his earned wages had been unlawfully withheld from him. He sought the recovery of these wages and claimed the double wage penalty allowed to seamen for wages withheld without sufficient cause. The District Court, in a trial without jury, found that there was no unlawful withholding and entered judgment for the shipowner. We reverse.

Briefly, the facts of the case are these: Matise signed articles of employment as an oiler for a foreign voyage aboard the S.S. American Hawk, appel-lee’s vessel, on January 11, 1969 in Long Beach, California. He was discharged for good cause on March 19, 1969 in Saigon, South Vietnam, in the presence of the ship’s captain, the United States Vice Consul, and two United States Coast Guard officials. The captain was advised by the Vice Consul and Coast Guard officials that the shipowner did not have a duty to pay the cost of transportation to repatriate Matise, since his discharge was for good cause. These officials were not acting within their official authority in so advising the ship’s captain. The shipowner was obliged by treaty and by the laws of the government of South Vietnam to remove all persons brought to South Vietnam by the ship. At that time, however, South Vietnam prohibited American seamen from carrying United States currency ashore and required that the ship’s safe containing currency be sealed. Thus, Matise could not simply be paid the wages that were due him and put ashore. Furthermore, an airline ticket for transportation to the United States from Saigon could only be purchased with United States currency. With the approval of the Vice Consul, the ship’s captain was granted permission by South Vietnamese Customs to break the seal on the vessel’s safe and withdraw the amount necessary to purchase an airline ticket to the United States, $510.-00. The ship’s captain then purchased, or arranged for his agent to purchase, the ticket, which was given to Matise. In the presence of the Vice Consul, the two Coast Guard officials, and the ship’s captain, Matise was given a Wage Voucher signed by the captain in the amount of $118.45. The cost of the airline ticket had been deducted from the full amount of wages due Matise, and $118.45 was the remainder. While there is some dispute as to whether or not the seaman signed the Wage Voucher while in Saigon, the Voucher indicates on its face that it was signed by Matise in San Francisco. After arriving in the United States, Matise was signed off the ship’s articles by the U. S. Shipping Commissioner in San Francisco. The Commissioner required Matise to sign a release as a condition to the latter’s receiving any part of his wages. Matise took the release and the Wage Voucher as prepared by the captain to the shipowner, which in turn required Matise to sign the Voucher in order to receive any of his wages. On these facts, the District Court found that the $510.00 used to purchase the airline ticket to repatriate Matise was a partial payment of wages and that there was therefore no unlawful withholding.

Here, the questions are: (1) Was there an unlawful withholding of Ma-tise’s wages? (2) If so, was the unlawful withholding without sufficient cause ?

As a general principle of maritime law, when a seaman is discharged for good cause in a foreign port, the seaman’s misconduct is, in effect, a breach of the seaman’s contract with the ship and terminates the shipowner’s obligation to bring the seaman home. Norris, The Law of Seamen (3rd Ed.) Vol. 1, Section 420 (1970); Ward v. United States, 66 F.Supp. 237 (D.C. 1946). Furthermore, by statute, the wages of a seaman on a foreign voyage become due and payable within twenty-four hours after the cargo has been discharged or within four days after the seaman has been discharged, whichever first occurs. 46 U.S.C. § 596. Failure to pay the seaman within the statutory time limit, without sufficient cause, subjects the shipowner to double wage penalties. 46 U.S.C. § 596.

The appellee argues that since maritime common law only requires a shipowner to pay wages to a seaman discharged for cause, the ship’s captain effectively paid Matise part of his wages by buying him a ticket home. The appellee’s argument cannot stand in view of the far-reaching protection of seamen’s wages which is now provided by statute. As the Supreme Court said in Isbrandtsen v. Johnson, 343 U.S. 779, 784, 72 S.Ct. 1011, 1015, 96 L.Ed. 1294 (1952):

“Congressional legislation now touches nearly every phase of a seaman’s life It deals specifically with his shipping articles and the payment to him of his wages . . . . It insures the payment to him of the balance of [his] wages upon completion of his voyage or shortly after discharge. It deals explicitly with the final payment of wages.”

The shipowner in this case did not pay part of Matise’s final wages in Saigon, as it argues, since the $510.00 was not paid to Matise but to an airline. Although the appellee contends that the transportation money spent on Matise’s alleged behalf is equivalent to the payment of wages to Matise, the applicable statutes explicitly and unequivocally provide that the wages due are to be paid to the seaman, 46 U.S.C. §§ 596-597. Furthermore, the shipowner here was acting to some extent in its own behalf, in view of its legal obligation to remove all persons, including a discharged seaman such as Matise, whom it had transported to South Vietnam. Even, however, had the money been spent entirely for the benefit of Matise, it could not be treated as a partial payment of his wages and thereby deducted from the total amount of wages that hé had earned and to which he was entitled. In Gonzales v. Isthmian Steamship Co., 1958 A.M.C. 97 (E.D.Pa.1957), the shipowner paid for a lawyer and incurred related expenses for the benefit of a seaman held in jail on charges of assault. Although the seaman had signed an agreement with the ship allowing the expenditures to be paid as an advance on his wages, the District Court refused to allow the shipowner to deduct the amount of the expenses from the seaman’s wages. The Court said: “. . . except as expressly provided by law, a seaman cannot give up any right to wages, or any remedy for the recovery of wages, even by agreement.” 1958 A.M.C. at 105. In so writing, the court followed the rule of Isbrandtsen v. Johnson, supra, which held that only those specific deductions and set-offs designated by statute could be withheld from a seaman’s wages. In Isbrandtsen the Supreme Court held that regardless of the validity of the shipowner’s claim against the seaman, the shipowner may not withhold the seaman’s wages to satisfy those claims. The Supreme Court wrote:

“Congress has gone so far in expressly listing such deductions and set-offs that it is a fair inference that those not listed may not be made. It thus remains for the courts to determine only what are the deductions or set-offs for derelictions of duty that are listed by Congress, rather than to determine which of the deductions or set-offs once known to the general maritime law Congress has failed to exclude. Congress, in effect, has excluded all of them except those which it has listed affirmatively.” 348 U.S. at 789, 72 S.Ct. at 1017.

The statutory scheme enacted by Congress does not provide for set-offs or deductions for return transportation expenses, and Isbrandtsen has been applied to bar the deduction of repatriation costs from a seaman’s wages. In Schwark v. S. S. Rio Macareo, 249 F. Supp. 375 (E.D.La.1966), a seaman was discharged for good cause in a foreign port, just as was Matise in our case. An agreement in the articles of the ship provided that the ship was not obligated to pay the cost of repatriating any crew-member discharged for cause. Nevertheless, the court held that as a matter of law, the ship could not offset the cost of repatriating the seaman against his wages, even though the court found that the ship had a valid claim against the seaman for that amount. See also Swain v. Isthmian Lines, Inc., 360 F.2d 81 (3d Cir. 1966), wherein the shipowner was required to restore wages and pay a double wage penalty for withholding from a seaman’s wages the cost of medical treatment paid by the ship, a cost for which the seaman was admittedly liable; Keen v. United States, 199 F. 2d 151 (2d Cir. 1952), wherein a shipowner who had deducted from a seaman’s wages the cost of medical treatments and transportation to the United States was assessed double penalty wages; Shilman v. United States of America Shipping Administration, 164 F.2d 649 (2d Cir. 1947), cert. denied, 333 U.S. 837, 68 S.Ct. 608, 92 L.Ed. 1122 (1948), wherein the Second Circuit held that a seaman discharged in a foreign port is entitled to receive all his earned wages, without any deductions whatsoever except those specifically authorized by statute; Ventiadis v. C. J. Thibodeaux & Co., 295 F.Supp. 135 (S.D.Tex. 1968), wherein it was held that although a seaman had signed a release, left the ship at his own request, and was flown at company expense to his home port in-Greece, he was nevertheless entitled to double penalty wages for the repatriation costs deducted from his wages.

The foregoing authorities make it clear that the shipowner, in deducting transportation costs from Matise’s wages, unlawfully withheld those wages within the meaning of 46 U.S.C. § 596. Furthermore, the case law has, for at least two decades, provided full notice to shipowners seeking to avoid the imposition of double wage penalties that only those deductions from wages that are allowed by statute are lawful. As the court remarked in Swain v. Isthmian Lines, Inc., supra:

“It has been eminently clear in the law, at the very least since the Supreme Court case of Isbrandtsen Co. v. Johnson in 1952 that a deduction from wages for medical expenses such as were incurred by appellee in the instant case is wrongful as falling outside the proper deductible instances .... This question, therefore has been closed for some time.” 360 F.2d, at 83 (footnote omitted).

It is therefore clear that the shipowner in our case cannot claim that it had “sufficient cause” to withhold a portion of Matise’s wages because of reliance on the general maritime law which did not require a shipowner to pay the cost of repatriating a seaman discharged for good cause. As we have previously indicated, this argument has been without merit since the Supreme Court decided Isbrandtsen v. Johnson, supra, over twenty years ago.

The only remaining question is whether the shipowner can avoid double wage penalties because Matise signed the Wage Voucher and mutual release before the shipping commissioner. Where, as here, a seaman has been compelled to sign a release and Wage Voucher in order to receive wages which the shipowner admits are due, the release has been set aside by the courts as having been executed under duress. In Prindes v. S. S. African Pilgrim, 266 F. 2d 125 (4th Cir. 1959), a seaman was logged two days’ pay for failing to return to his ship one hour before the posted sailing time as his contract required. At the termination of the voyage the seaman was offered his earned wages minus the logged pay, but before he could receive any payment he was required by the ship to sign a Wage Voucher and a mutual release. The court, in holding that the Wage Voucher and release were invalid, declared: “It is well settled that a seaman is entitled to double wages or ‘waiting time’ under 46 U.S.C.A. § 596, if wages concededly due are tendered only upon condition that he will release disputed claims.” 266 F. 2d at 127. And in Isthmian Lines, Inc. v. Haire, 334 F.2d 521 (5th Cir. 1964), the shipowner contended that the seaman’s right to maintenance and cure monies was foreclosed because of a mutual release that the seaman had executed before the shipping commissioner when his earned wages were paid. The Fifth Circuit, in affirming the District Court’s judgment in favor of the seaman emphasized:

“The Shipping Commissioner is no roving arbiter of all of the disputes between ship and seaman. He is given no power to resolve unliquidated demands for cure, for maintenance .... Moreover, as a principle of ordinary law —land-locked, seagoing, or amphibious • — a release for payments for amounts admittedly due lacks consideration.” 334 F.2d at 523. See 46 U.S.C. § 597, which provides that any court having jurisdiction may on good cause shown set aside a release signed before a shipping commissioner and take such action as justice may require. See also Garrett v. Moore-McCormack Co., 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239 (1942), and Pacific Mail S. S. Co. v. Lucas, 258 U.S. 266, 42 S.Ct. 308, 66 L.Ed. 614 (1922).

Matise was misinformed in Saigon by the Vice-Consul, the two Coast Guard officers, and his captain by their representations to him that he could “be forced to spend his own money to send him back home.” Furthermore, he was compelled to sign the release and Wage Voucher in order to receive the remainder of his wages that admittedly were due. In these circumstances, we hold that neither the Wage Voucher nor the release can in any manner be treated as a waiver by Matise of his claim or a factor tending to show that the shipowner had “sufficient cause” to withhold a part of Matise’s wages.

Reversed.

      . Matise died during the pendency of his suit. The State of Maryland appointed Lillian M. Matise as his Personal Representative, and, pursuant to stipulation, the District Court substituted her as the plaintiff in the action.

      . 46 U.S.C. § 596 reads, in pertinent part:
      “The master or owner of any vessel [making foreign voyages] . . . shall pay to every seaman his wages . . . within twenty-four hours after the cargo has been discharged, or within four days after the seaman has been discharged, whichever first happens Every master or owner who refuses or neglects to make payment in the manner hereinbefore mentioned without sufficient cause shall pay to the seaman a sum equal to two days’ pay for each and every day during which payment is delayed beyond the respective periods, which sum shall be recoverable as wages in any claim made before the court


author: INGRAHAM, Circuit Judge:

text:
    Charles Donald BELCHER, Plaintiff, v. BIRMINGHAM TRUST NATIONAL BANK et al., Defendants, W. E. Belcher Lumber Company, Inc., Defendant-Appellant, American Appraisal Company, Appraiser-Appellee.
    No. 72-3318.
    United States Court of Appeals, Fifth Circuit.
    Dec. 12, 1973.
    Rehearing and Rehearing En Banc Denied March 7, 1974.
    See also, D.C., 348 F.Supp. 61.
    W. Eugene Rutledge, Birmingham, Ala., for W. E. Belcher Lumber Co.
    Reid B. Barnes, W. E. Gibson, Birmingham, Ala., for American Appraisal Co.
    Charles E. Clark, Birmingham, Ala., for C. D. Belcher.
    Robert H. Loeb, Birmingham, Ala., for Robena B. Davis.
    Before WISDOM, DYER and INGRA-HAM, Circuit Judges.
   INGRAHAM, Circuit Judge:

This appeal is a byproduct of the settlement of a suit between the majority and minority shareholders of the W. E. Belcher Lumber Company, Inc. After settlement of this suit, it was necessary to obtain an appraisal of the company’s assets, and the district court appointed a Special Master, W. A. Jenkins, for this purpose. The Master engaged the American Appraisal Company of Milwaukee, Wisconsin, to conduct the appraisal, and the court approved his action. The dispute here concerns the fee charged by American for its work. Although American’s client was the Special Master, its fee was assessed against Belcher (the majority interest), and the company is unhappy about the amount which the court, on the basis of the Master’s petition, ordered it to pay. We vacate the court’s order regarding the amount of the fee and reverse its decision awarding prejudgment interest to American.

I.

The relevant portion of the district court’s order provides as follows:

“After careful consideration of all the evidence involved and the governing principles, the Court is of the opinion that a total fee of $33,300 (over and above the amount of $25,000 paid by the receiver on January 13, 1969 as an advancement to said American Appraisal Company for its services rendered) plus interest on said unpaid principal of $33,300 at 6% per annum from January 13, 1969, would be reasonable compensation for said American Appraisal Company.”

The first issue is whether there is evi-dentiary support for the court’s conclusion that a total of $58,300 is reasonable compensation for the appraisal work done by American. The district court gave no further explanation than that quoted above for its decision. Thus to resolve this issue it has been necessary to reconstruct, as best an appellate court can, the evidence as it was presented to the trial court. Our conclusion is that the district court’s decision is amply supported by this record.

The pervasive problem is that we are unable to ascertain, with sufficient certainty, the basis for the court’s award of $58,300. American submitted a total claim for $80,520.81. It was based on two invoices involving two different phases of the total appraisal. One invoice related to the inventory of lumber located at Belcher’s various mills and was for $22,220.81. The other invoice was for $58,300 and covered the appraisal of the company’s other assets such as equipment and buildings. Because the court’s award equals the amount of the latter invoice, Belcher assumes that the court decided to give nothing for the lumber inventory and accordingly reduced the total bill by $22,220.81, leaving the $58,300 figure. Belcher then points to the evidence, in the form of a computer printout prepared by American, establishing that American’s costs for the total appraisal were $64,253.84 and reasons that' $16,266.97 of the $80,520.81 total claim is unsupported by any evidence. Belcher has labeled this $16,000 figure an “unknown”. We agree with Belcher that there is an absence of evidentiary support for this charge; an award of any more than $64,253.83 would not have been justified on this record. We are unconvinced, however, that Belcher will be required by the court’s order to pay $16,000 for the alleged unknown charge.

The argument has some appeal at first blush, but is unpersuasive when set against the record here. In the first place, Belcher assumes that the $58,300 awarded by the court includes the unsupported $16,000 figure. This assumption is unwarranted; it is founded on the proposition that because the court’s award was the exact amount demanded for the non-inventory phase of the appraisal, the court must have given nothing for the inventory. The conclusion is thus reached that the $58,300 includes at least a portion of the unsupported $16,000. But it is undisputed that an inventory was conducted and that substantial man hours were exhausted in completing this aspect of the appraisal. It is unrealistic to presume that the court awarded American nothing for its labors toward preparing an inventory of Belch-er’s lumber while awarding the full amount for the other aspects of the appraisal. This all or nothing argument is not persuasive.

Instead of the almost mechanistic approach taken by Belcher, we believe that the court’s statement in its order that $58,300 was “reasonable compensation” means exactly that. The court was faced with American’s bill for $80,000, a computer printout establishing its cost at $64,000 and vociferous arguments from Belcher that any amount over $30,000 was- too much. The court resolved the conflict by awarding what it believed was a reasonable amount — $6,-000 less than the company’s established cost and $22,000 less than the amount billed.. The computer summary of American’s costs furnishes adequate evi-dentiary support for this decision unless there is some other reason to conclude that the decision is unreasonable.

The question arises because American’s original proposal to the Special Master recited a fee of $45,000. This was to include both a current appraisal and an appraisal as of 1963; at the Master’s direction the latter appraisal was abandoned. American subsequently submitted an $80,000 bill, although its costs were established at $64,000. In light of these developments we have carefully scrutinized the record to make certain that the court's decision awarding $58,300 to American is a fair resolution of this case. Although the discrepancy between the proposal and the fee awarded by the court is indeed significant, we find that the court’s decision is reasonable and fair under the circumstances of this ease.

There was testimony that a variance, sometimes by as much as 20%, often results between a fee recited in a proposal and the final fee charged after the work has been performed. A variance of this nature could apparently occur on most any job being conducted under normal conditions. Evidence was introduced to support American’s contention that the appraisal of Belcher’s property was accompanied by problems not generally encountered with other appraisals. Although the evidence does not support American's original claim that Belcher was uncooperative in the actual taking of the inventory, there were difficulties which arose prior to the time the actual count began. At one point it was contemplated that a court order might be required in order to secure Belcher’s cooperation. It was not, but this is only one example of the rather unusual circumstances surrounding the entire appraisal process. In short, there is support for the district court’s implicit conclusion that the appraisal, including both the inventory and the non-inventory aspects, was not conducted under normal conditions nor under the conditions contemplated at the time the original proposal was made.

Moreover, it came as no surprise that the fee demanded exceeded the fee quoted in the proposal. American was aware that its costs were going above the estimate and notified its client, the Special Master, of this development. The court was likewise informed, at an early date and prior to the time any invoices were submitted, that American was experiencing difficulties with the appraisal and that there would be a substantial variance between the proposal and the final fee. The final product of American’s endeavor was a thorough and accurate appraisal. There is no indication that this desirable result could have been obtained in some other manner or by the expenditure of less time and effort by American. The evidence belies the conclusion that the district court simply plucked the $58,300 figure from the air and decided to award this amount as compensation to American. This is not to say that another figure might not also represent reasonable compensation, but we cannot say under all the circumstances of this case that the district court acted unreasonably, unfairly or without a basis for its decision.

We hold, therefore, that the district court’s decision regarding the amount of compensation to American is sustained by the record. Nevertheless the problem remains: we are unable to conclude that the district court did not consider the unsupported $16,000 in reaching its conclusion to award a total of $58,300. It is therefore appropriate to vacate the court’s order and remand with directions that the court reexamine its decision in this regard.

II.

The second and final issue is whether the district court erred in allowing American to recover prejudgment interest on the portion of the court’s award not covered by American’s earlier advancement. On January 13, 1969, Belch-er made a payment of $25,000 to American. This amount was deducted from the court’s total award of $58,300, leaving $33,300; on this amount the court awarded prejudgment interest of $7,045.06 from January 13, 1969, the date the advancement was made, until July 24, 1972, the date of the court’s decree.

To the general rule in Alabama that interest is not allowed on unliquidated demands, Grand Bay Land Co. v. Simpson, 207 Ala. 303, 92 So. 789 (1922), there are two interrelated exceptions: (1) when the amount of damages are capable of being ascertained by mere computation; and (2) when the damages are complete at a particular time and can be determined as of such time in accordance with fixed rules of evidence and known standards of value. Mobile & O. R. R. v. Williams, 219 Ala. 238, 121 So. 722, 730 (1929). A typical case illustrating the application of these exceptions is Atlanta & B. Air Line Ry. v. Brown, 158 Ala. 607, 48 So. 73 (1908). Brown involved a trespass action against the railroad for damages to Brown’s crops. The Supreme Court of Alabama reasoned that the standard for determining damages was the value, of the crops at the time they were destroyed. The court held that Brown was entitled to prejudgment interest because “where the damages claimed are for property which has been destroyed or injured, which has an ascertainable money value, it is proper to instruct the jury to add, to the damage ascertained, interest from the date when the injury was done.” Id. at 78.

Roe v. Baggett Trans. Co., 326 F.2d 298 (5th Cir., 1963), illustrates the type of situation in which prejudgment interest is not allowed. The question there was whether the ■ owner-lessor (Roe) of motor trucks was entitled to prejudgment interest from the lessee-motor carrier (Baggett) on amounts due under equipment leases providing for payment to Roe of a certain percentage of revenue from shipments of government property. A special master had previously been appointed to supervise an accounting, and the dispute on appeal concerned only the matter of pre judgment interest on the amount determined due. Judge Gewin succinctly summarized the applicable law. “The Alabama decisions . . • . clearly hold that prejudgment interest runs only on such sums as are certain or are capable of being made certain.” Id. at 301. Applying these principles the court held that Roe was not entitled to pre judgment interest. The following statement explains the rationale for the court’s decision and is particularly instructive to the case at bar:

“The history of this litigation, extending over a period of 10 years, involving an accounting, two proceedings in the trial court wherein hearings were held before a Special Master, two appeals to this Court, the exhibits, disputes as to tariff rates, conferences between counsel and the Special Master, and finally compromise, clearly demonstrate the uncertainty involved, and point to the conclusion that the sums claimed to be due were uncertain.”

Id. at 301-302. See Norris v. Wynne, 247 Ala. 100, 22 So.2d 730 (1945). The present case does not fit the pattern established in the Alabama cases awarding prejudgment interest on unliquidated damages. Because of the parallels between Roe v. Baggett Trans. Co., supra, and the instant case, the district court’s decision allowing pre judgment interest to American must be reversed.

The district court’s decision is therefore affirmed in part and reversed in part, and vacated and remanded in part for proceedings not inconsistent with this opinion.

      . In addition to the appendix submitted by the parties, we have examined the transcript of testimony at the trial, the depositions available to the court, and the exhibits introduced there,

      . Belcher’s position also assumes that the court disregarded all other evidence including the computer printout and based its calculation solely on the total $80,000 claimed by American. Again this assumption attributes too much significance to the fact that the court’s final award of $58,300 is the total amount claimed minus the charge for the inventory.

      . In Andrews v. Frierson, 144 Ala. 470, 39 So. 512 (1905), the Alabama Supreme Court was faced with a situation similar to that involved in this appeal. The question was the value of services rendered by an auctioneer; the case had been referred to a register but his decision was modified by the trial court. The supreme court reversed and reinstated the register’s decision, using language particularly appropriate to the situation in the case at bar. The court stated:
      “We have carefully read and re-read all the legal evidence that was submitted to the register, and without going into further details of it, we think it hardly probable that any two minds would ever draw the same conclusion from it. As the result of our examination of the evidence we feel no full conviction that the register’s conclusion as to the value of the services is wrong. His conclusion is not unreasonable, . . . . ” Id. at 514.

      .This action should not alter counsel’s assertion on oral argument that this case brings to an end the extended proceedings associated with the controversy between the majority and minority interests of the Belcher Lumber Company.

      . See, e. g., Fuller v. Fair, 202 Ala. 430, 80 So. 814 (1919) ; Sharpe v. Barney, 114 Ala. 361, 21 So. 490 (1897) ; see generally Mobile & O. R. R. v. Williams, 121 So. 722 (1929).


author: WALLACE, Circuit Judge:

text:
    Troy William SANDERS and Johnny Ray Moore, Petitioners-Appellants, v. Walter E. CRAVEN, Respondent-Appellee.
    No. 72-1068.
    United States Court of Appeals, Ninth Circuit.
    Nov. 30, 1973.

      Thomas Shanle (argued), of Lucas, Wyckoff, Miller, Dunton & Comstock, Santa Cruz, Cal., for petitioners-appellants.
    James M. Lee, Deputy Atty. Gen. (argued), San Francisco, Cal., for respondent-appellee.
    Before BROWNING, WRIGHT and WALLACE, Circuit Judges.
   WALLACE, Circuit Judge:

State prisoner Sanders pleaded guilty to a charge of first degree robbery (Cal.Penal Code §§ 211, 211a) in a California superior court and was appropriately sentenced. Alleging an illegal search and seizure and the denial of effective counsel, he petitioned the United States District Court for a writ of ha-beas corpus. Sanders appeals from the denial of that petition. We reverse.

Sanders’ first contention claiming a Fourth Amendment violation was fore1 closed by the Supreme Court:

[A] guilty plea represents a break in the chain of events which haá preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMemn. [McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed. 2d 763 (1970)]

Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). See also Mann v. Smith, 488 F.2d 245 (9th Cir. 1973); Wallace v. Heinze, 351 F.2d 39 (9th Cir. 1965), cert. denied, 384 U.S. 954, 86 S.Ct. 1574, 16 L.Ed.2d 550 (1966).

Sanders argues this general rule should not apply to him because California allows appellate review of a Fourth Amendment claim despite a guilty plea. Cal.Penal Code § 1538.5 (m). We have held to the contrary. Mann v. Smith, supra. Therefore, by pleading guilty, Sanders precluded any collateral attack on the constitutionality of the search and seizure. Sanders may challenge only the voluntary and intelligent nature of the plea itself. This he has not done.

Sanders’ second claim is that he was denied effective counsel because his attorney failed to preserve properly his right to appeal. As this constitutional claim refers to a situation which occurred subsequent to the plea of guilty, it is not foreclosed by Tollett. The district court held that any such failure on the part of counsel was harmless because only the search and seizure issue was appealable and the search in question was constitutionally valid under the pr e-Chimel standard. This was error. The district judge may not circumvent the challenge of denial of effective counsel by, in effect, holding that any error would be harmless and, on that basis, fail to determine whether there has been an impermissible deprivation of Sixth Amendment rights.

In Gairson v. Cupp, 415 F.2d 352 (9th Cir. 1969), the trial counsel knew that his client was an indigent and wished to appeal and knew that he did not know of his possible rights to counsel as an indigent. He advised the client neither of his right to appeal in forma pauperis nor of the necessity to file a notice of appeal. We reversed the district court’s denial of a petition for habeas corpus, specifically stating that we do not look to the merits of the deprived appeal, but must make the determination on the basis of whether there has been a loss of a constitutional right. We stated:

In reaching this decision we do not pass upon the merits of appellant’s direct appeal. It is enough to support the relief requested on appellant’s ha-beas petition to decide that appellant had been deprived of his constitutionally secured right to counsel.

415 F.2d at 354. This is consistent with Rodriguez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969), in which the Court rejected our former practice of requh’ing a showing of some likelihood of success on appeal as a condition precedent to habeas corpus relief.

In the instant case, the district court bypassed the constitutional question and passed directly to the merits of Sanders’ search and seizure claim and, finding it unmeritorious, denied habeas corpus relief. We need not pass on the merits of the search and seizure question as it is not properly before us.

The only issue which confronts us concerns the alleged ineffective assistance of counsel and we believe that Sanders’ allegations adequately raised the question of a denial of effective assistance in preparing an appeal. Sanders had alleged that, following his sentencing, he asked his retained trial counsel if an appeal could be taken. The attorney responded that it probably could, but it would cost more than Sanders and his co-defendant could afford. He failed to advise Sanders of his possible right to appeal in forma pauperis or that a notice of appeal must be filed within 10 days.

The state contends that Sanders did not show that his counsel was aware of his desire to appeal, that his counsel knew of his indigence or that he in fact was ignorant of his in forma pauperis rights or the procedure to appeal. No doubt the better practice would have been for Sanders to have framed his allegation in more specific terms. Certainly the district court will be interested in evidence on these questions and may conclude, after hearing the evidence, that under the standards set by Gairson, Sanders has not been denied the effective assistance of counsel. See Cumpian v. Craven, 465 F.2d 381 (9th Cir. 1972). Nevertheless, we are persuaded that the showing was sufficient to raise a Sixth Amendment question.

This case must be reversed and remanded to consider the claim of denial of effective counsel. We do not pass on the merits of Sanders’ claim. It is for the district court to determine what the actual facts were and, in the first instance, to determine if there was a violation of constitutional rights. If the court concludes that there was a violation, then it should give the California courts the opportunity to allow the appeal and pass on the substance of the search and seizure claim which that state allows despite the guilty plea. Cal.Penal Code § 1538.5(m). The state court should also be allowed to pass on the alleged procedural defect under Cal. Penal Code § 1538.5 (m). See Gairson v. Cupp, 415 F.2d 352, 354 (9th Cir. 1969).

Reversed and remanded with instructions.


author: PER CURIAM:

text:
    UNITED STATES of America, Appellee, v. Francis Joseph KLEIN, Appellant.
    No. 404, Docket 73-1594.
    United States Court of Appeals, Second Circuit.’
    Argued Nov. 9, 1973.
    Decided Dec. 5, 1973.

      Richard J. Egger, Jr., New York City, for appellant.
    James E. Cullum, Asst. U. S. Atty. (James M. Sullivan, Jr., U. S. Atty., Northern District of New York, of counsel), for appellee.
    Before WATERMAN, FRIENDLY and TIMBERS, Circuit Judges.
   PER CURIAM:

In the morning of July 24, 1972, two men robbed a branch office of the Marine Midland Bank in Troy, N. Y., of approximately $33,000; one of them threatened bank employees with a gun. An indictment in the District Court for the Northern District of New York charged that the robbers were appellant Klein and one Peter John Galvin. The latter’s trial was severed and the jury found Klein guilty of bank robbery in violation of 18 U.S.C. § 2113(a) and of assaulting bank employees in violation of 18 U.S.C. § 2113(d).

An important part of the case against Klein, who was not directly identified by bank employees, was this: Two bank employees testified that at the time of the robbery they saw a green Ford, which one of them identified as being of late 1960’s vintage, parked in front of the bank. Later on the day of the robbery law enforcement officers discovered a mile from the bank a green 1969 or 1970 Ford containing a packet of $10 bills in a Federal Reserve wrapper and, in the trunk, brick and mortar fragments and a container of windshield washer solution. Mr. Robert Irish testified that Klein had performed masonry work for him shortly before the robbery, arriving at Irish’s home in a green Ford; that Irish had helped Klein unload bricks from the trunk; and that he had noticed a half-gallon jug of window-washer there. He also testified that on July 27 he had identified a green Ford shown to him by the FBI as the one Klein had driven. There was other evidence, including testimony by Klein himself, tending to show that Klein had been driving a green Ford in July or at least in late June; and the abandoned ear contained a blue plastic strip with the name of Klein’s landlord.

Klein contends that Irish’s identification should not have been admitted since there was no proof that the green Ford shown to him on July 27 was the one the law enforcement officers had found on July 24. Trial counsel made only a general objection to this testimony. A general objection, if overruled, cannot avail on appeal unless “on the face of the evidence, in its relation to the rest of the case, there appears no purpose whatever for which it could have been admissible. . . . ” (emphasis in original). 1 Wigmore, Evidence § 18 at 332-38 (3d ed. 1940) ; cf. McCormick, Evidence § 52 at 115-16 (Cleary ed. 1972); United States v. Indiviglio, 352 F.2d 276, 279 (2 Cir. 1965) (en banc), cert. denied, 383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663 (1966); Proposed Federal Rule of Evidence 103(a). Here the general objection gave the judge no inkling of what is now claimed to have been in the trial counsel’s mind. Indeed, three times previously during direct examination of Irish the defense had objected to what it considered leading questions, and the objection now pressed seemed more likely to be intended to extend that line of objections than to raise the new ground of irrelevancy. Had the ground of objection now asserted been timely disclosed, the Government could readily have supplied testimony to fill the void. Moreover, the presence of the brick and mortar fragments and the fluid both in the car found on July 24 and in that exhibited to Irish on July 27 afforded sufficient evidence of identity.

Appellant’s other point relates to the use of the grand jury testimony of his sister, Mrs. Virginia Clow. She testified at trial that FBI agents had visited her on July 24, had spoken of a bank robbery and had inquired about her brother’s whereabouts. She admitted that Klein came to her home that evening and that she had told him of a visit of FBI agents; but she professed inability to recall whether anything was said about a bank robbery, as distinguished from a proposed visit to a circus, because she had been drinking that day and night. Efforts to refresh Mrs. Clow’s recollection in this regard by exhibition to her of the transcript of her grand jury testimony proved a failure but elicited an admission that if something was in the transcript, she had said it. Over objection the prosecutor was then allowed to read the following to the jury:

“Q— And did you in fact ask your brother whether or not he had been involved in a particular bank robbery in Troy, New York on that date?

A— Yes.

Q— And did he offer you any response ?

A— He didn’t.

Q— He didn’t offer you any response ?

A— He didn’t answer me or I don’t remember if he did.”

In United States v. Borelli, 336 F.2d 376, 390-391 (2 Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965), we referred to a principle, long antedating and quite different from our basis of decision in United States v. De Sisto, 329 F.2d 929 (2 Cir.), cert. denied, 377 U.S. 979, 84 S.Ct. 1885, 12 L. Ed.2d 747 (1964), that when a witness “affirms the truth of a prior statement, the earlier statement is to be considered ‘not only as bearing on the credibility of the witness but as affirmative evidence’,” quoting from Stewart v. Baltimore & Ohio R.R., 137 F.2d 527, 529 (2 Cir. 1943), and citing cases from other circuits. If Mrs. Clow had said explicitly that her grand jury testimony was the truth, this principle would sustain the judge’s ruling. Since she had sworn to tell the grand jury the truth and in no way suggested at trial that she had disregarded that oath, her admission that the transcript correctly reflected what she had said is so close to the hypothetical that a distinction would be irrational.

On the other hand, if she were to be regarded as having disowned her grand jury testimony, De Sisto would support its admission. As pointed out in De Sisto, supra, 329 F.2d at 933, the historic ritual of instructing a jury that prior inconsistent testimony may be used for impeachment but only for that “seems peculiarly absurd when a witness who has given damaging testimony on his first appearance at a trial denies any relevant knowledge on his second”; and, as De Sisto also held, id. at 933-934, the same considerations govern grand jury testimony. It is immaterial whether the reason for the witness’ denial of knowledge on the second appearance is fear, as it apparently was in De Sisto, a desire to help the defense, as in United States v. Insana, 423 F.2d 1165, 1167, 1170 (2 Cir.), cert. denied, 400 U.S. 841, 91 S.Ct. 83, 27 L.Ed.2d 76 (1970), and perhaps here, or an honest lapse of memory in the interval.

We add that the grand jury testimony here at issue was almost inconsequential since by asking one question too many, the prosecutor had given Mrs. Clow the opportunity to suggest that Klein might have made some response about the bank robbery but that she had forgotten — a suggestion no less credible and no more damaging to the defendant than her testimony at trial that she could not recall whether the robbery had been discussed at all. Also the petit jury was made well aware that, due to her drinking problem, Mrs. Clow’s recollection of her conversation with Klein on the evening of July 24 may not have been very reliable. The case against Klein was so strong that it is impossible to believe that anything turned on the admission of Mrs. Clow’s equivocal testimony before the grand jury.

Affirmed.