author: AINSWORTH, Circuit Judge:

text:
    Robert L. HARDY et al., Plaintiffs-Appellants, v. J. C. GISSENDANER et al., Defendants-Appellees.
    No. 74-1695.
    United States Court of Appeals, Fifth Circuit.
    Feb. 27, 1975.

      Joseph J. Levin, Jr., Charles F. Abernathy, Morris S. Dees, Jr., Southern Poverty Law Center, Inc., Montgomery, Ala., for plaintiffs-appellants.
    J. Gorman Houston, Jr., Eufaula, Ala., for defendants-appellees.
    Before BELL, AINSWORTH and RO-NEY, Circuit Judges.
   AINSWORTH, Circuit Judge:

Plaintiffs-appellants represent four members of a class of homeowners residing in Eufaula, Alabama, who were allegedly victimized by a home improvements contractor, William Bell, who contracted with them in 1968 to make certain repairs and additions to their dwellings, in exchange for a promissory note secured by a mortgage on plaintiffs’ real property. Bell subsequently assigned the notes to defendant J. C. Gissendaner of the Gissendaner Mortgage Company. Prior to accepting assignment Gissendaner ascertained from plaintiffs that they had no complaints in regard to the work, and obtained from them information relative to the number of payments due, and the amounts and commencement date for payment.

The construction work was never actually completed and later showed hidden defects which became obvious to plaintiffs with use. Plaintiffs, after having attempted unsuccessfully to locate Bell to force him to fulfill his contract, ceased payments on their notes. They were then contacted by Gissendaner who, asserting his rights as holder in due course of the notes, threatened plaintiffs with foreclosure if further payments were not forthcoming and refused to complete the work, for which Bell had contracted. Approximately five years after having signed the notes, plaintiffs filed this civil rights action invoking the jurisdiction of the court under the Thirteenth and Fourteenth Amendments to the United States Constitution, pursuant to 42 U.S.C. § 1981 et seq., and 28 U.S.C. §§ 1331, 1332, 1343. They requested compensatory and punitive damages and a declaration invalidating Alabama’s holder-in-due-course law as unconstitutional and voiding the contracts and mortgages executed by plaintiffs.

The district court upheld the constitutionality of the Alabama holder-in-due-course law and denied the relief sought. We affirm.

The rights available to the holder in due course against the maker of the notes are provided by the terms of the Alabama statute. Code of Alabama, Title 7A, § 3 — 305. As the district court noted in its opinion, the rights of such a holder are enforced only after suit is filed and due notice is given to the maker. Thus, contrary to plaintiffs’ contentions, such rights do not deprive the maker of a hearing but contemplate invocation only after opportunity is offered the maker for a hearing, thus providing ample due process. Gissendaner’s status as a holder in due course was stipulated by plaintiffs who thus voluntarily relinquished any defenses against him.

Underlying plaintiffs’ claim, however, is the contention that the Alabama holder-in-due-course law deprives them of a meaningful hearing by divesting them of their right to interpose legitimate defenses and therefore is unconstitutional. We do not agree. Plaintiffs’ theory is based on the contention that the pertinent Alabama law prevents them from asserting the defenses of inferior and incomplete performance of consideration given for the underlying debt. They argue that because of the Alabama law they have been forced to pay and must continue to pay for services far less valuable than contracted for at the risk of losing their homes. Unfortunately, the whereabouts of the wrongdoer, against whom a proper action would lie, and against whom the defense of failure of consideration would be maintainable, are unknown. Plaintiffs, therefore, seek to assert this defense against one who, as a holder in due course, must be considered as an innocent purchaser of the notes, who acted .in good faith,- free from fraud, or suspicion of fraud of his trans-feror, and without knowledge of failure of consideration or any other element which would invalidate his status as holder in due course.

While due process requires that there be an opportunity to present every available defense, American Surety Co. v. Baldwin, 287 U.S. 156, 53 S.Ct. 98, 77 L.Ed. 231 (1932), the fact that plaintiffs are barred from interposing certain defenses against Gissendaner, does not amount to a denial of due process where, as here, they are not foreclosed from pursuing their claims for damages or any other relief to which they are entitled against the individual with whom they contracted. See Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972). Nothing in Alabama law prevents them from doing so. Any deprivation suffered by plaintiffs is the result of the dereliction of the person with whom they had the misfortune of dealing, not the inadequacy or the invalidity of the law.

There is nothing unique or particularly invidious about the holder-in-due-course law of Alabama. Section 3 — 305 of Title 7A of the Code of Alabama, which defines the rights of such a holder, finds its identical counterpart in statutory enactments of 46 other states The holder-in-due-course concept has long been recognized and used as a vehi-ele for promoting easy, fast, and inexpensive negotiability of commercial paper. Article 3 of the Uniform Commercial Code dealing with commercial paper and which outlines the rights of a holder in due course, identical to those of Alabama, “is a continuum of commercial concepts. It is a development that can be traced direct to the genius of Lord Holt and that of Lord Mansfield when they incorporated the Law Merchant into the common law.” Egon Guttman, Article 3 — Commercial Paper: An Updating of Well-Tried Concepts, 11 How. L.J., 49-70. If the law is in need of further change because of certain inequities suffered by consumers through credit transactions, it must be accomplished by the state legislature.

Appellants suggest for the first time on appeal that relief can be granted to them without the necessity of facially invalidating the holder-in-due-course law. Appellants, who are allegedly poorly educated blacks in a low-income bracket, urge us to hold the statute unconstitutional in its application to them and their class because of the absence of a knowing or intelligent waiver by them of certain defenses when signing the promissory notes. They cite as analogous to their contention the companion cases of Swarb v. Lennox, 405 U.S. 191, 92 S.Ct. 767, 31 L.Ed.2d 138 (1972) and D. H. Overmyer Co., Inc. of Ohio v. Frick Company, 405 U.S. 174, 92 S.Ct. 775, 31 L.Ed.2d 124 (1972). The Supreme Court in Swarb and Overmyer, respectively, upheld the constitutionality of Pennsylvania’s confession of judgment statute, and Ohio’s cognovit note system, both of which allow judgment against a debtor on default without prior notice and hearing. In Overmyer the Court held that because of the equal bargaining power of the debtor there was a voluntary, intelligent and knowing waiver of his rights to notice and hearing, but remarked, however, that its holding was “not controlling precedent for other facts of other cases. For example, where the contract is one of adhesion, where there is great disparity in bargaining power, and where the debtor receives nothing for the cognovit provision, other legal consequences may ensue.” Overmyer, 405 U.S. at 189, 92 S.Ct. at 783; Swarb, 405 U.S. at 201, 92 S.Ct. at 772, 773. We find no true analogy between the quoted language from Swarb and Overmyer and the instant case. Unlike the statutes considered in those cases, the Alabama law not only provides for a hearing against the person asserting his holder-in-due-course rights under the statute, but in no way precludes the debtor from seeking relief against the party with whom he contracted, thus affording ample protection to the debtor.

There has been no showing of interference by the State with appellants’ property rights which would constitute state action and justify a Fourteenth Amendment claim. Appellants contend that the enactment of the state statute coupled with the necessity of state judicial action for its enforcement amount to state action. They cite in support of their contention the case of Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), in which the Supreme Court held that enforcement by state courts of certain private agreements constituted state action. The important distinction between this case and Shelley, which concerned an attempt to apply restrictive property covenants against members of the Negro race, is the complete lack of discrimination in the Alabama holder-in-due-course law, applying as it does without distinction to race, creed, sex or financial status of the individual. In James v. Pinnix, 5 Cir., 1974, 495 F.2d 206, we upheld the constitutionality of a self-help automobile repossession statute which afforded no pre-sei-zure notice or hearing, concluding that the mere existence of a permissive state statute was insufficient to constitute state action. A fortiori, where notice and hearing is implicit in the statute, there is no proper basis for a Fourteenth Amendment claim.

Affirmed.

      . An employee of Gissendaner contacted plaintiff Robert Hardy by telephone and Hardy acknowledged the number and amount of payments, the due date of payments, and stated that the work was very satisfactory. The Hardy note and mortgage were in the amount of $5,519.64, which included seven years’ interest. Gissendaner himself spoke with plaintiff Joe Strong, who acknowledged that all work was completed and that he knew the number, amount and commencing date of payments. The Strong note and mortgage were in the amount of $3,402, which included seven years’ interest.

      . Code of Alabama, Title 7A, § 3-305 lists the rights of a holder in due course:
      To the extent that a holder is a holder in due course he takes the instrument free from
      (1) all claims to it on the part of any person; and
      (2) all defenses of any party to the instrument with whom the holder has not dealt except
      (a) infancy, to the extent that it is a defense to a simple contract; and
      (b) such other incapacity, or duress, or illegality of the transaction, as renders the obligation of the party a nullity; and
      (c) such misrepresentation as has induced the party to sign the instrument with neither knowledge nor reasonable opportunity to obtain knowledge of its character or its essential terms; and
      (d) discharge in insolvency proceedings; and
      (e) any other discharge of which the holder has notice when he takes the instrument.

      . Of the 49 states which have adopted the Uniform Commercial Code (all but the State of Louisiana), section 3-305 varies only in the States of Kansas and South Dakota. West, Uniform Laws Annotated, Uniform Commercial Code, Master Edition 2.

      . The Alabama Mini-Code, § 4, S. 122, Acts of Alabama (1971) now prohibits the seller from taking a negotiable instrument other than a check in a consumer credit sale.'''"””'"""31'**

      . Thus Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) and Snia-dach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), in which the Pennsylvania and Florida prejudgment re-plevin statutes were nullified for failure to provide for notice of hearing prior to property seizure, are inapplicable. Cf. also, Gonzalez v. County of Hidalgo, Texas, 5 Cir., 1973, 489 F.2d 1043.


source: Caselaw Access Project

author: STEPHENSON, Circuit Judge. PER CURIAM.

license: Public Domain

text:
    George J. L. WULFF, Jr., M.D. and Michael Freiman, M.D., Appellants, v. Thomas E. SINGLETON, Chief of Bureau of Medical Services, Division of Welfare, State Department of Public Health and Welfare, Appellee.
    No. 74-1484.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 13, 1974.
    Decided Dec. 31, 1974.
    On Behearing Jan. 9, 1975.
    Behearing Denied Jan. 9, 1974.

      Frank Susman, St. Louis, Mo., for appellants.
    Michael Boicourt, Asst. Atty. Gen., Jefferson City, Mo., for appellee.
    Before MATTHES, Senior Circuit Judge, and ROSS and STEPHENSON, Circuit Judges.
   STEPHENSON, Circuit Judge.

This appeal from the order of a statutory three-judge district court dismissing plaintiffs’ cause of action for lack of standing raises troublesome questions of jurisdiction and procedure as well as a question concerning state interference with the abortion decision. The three-judge court opinion is reported as Wulff v. State Board of Registration for Healing Arts, 380 F.Supp. 1137 (E.D.Mo. 1974). We reverse.

Appellants, Missouri licensed medical doctors, brought a three count complaint for declaratory and injunctive relief against the Missouri State Board of Registration for the Healing Arts and against Thomas E. Singleton in his capacity as Chief of the Bureau of Medical Services. The complaint challenged the constitutionality of state statutes regarding welfare benefits, claiming that the statutory wording

is vague and uncertain, deprives plaintiffs and their patients of the right to privacy, deprives plaintiffs of their right to practice medicine according to the highest standards of medical practice, deprives plaintiffs’ patients of the fundamental right of a woman to determine for herself whether to bear children, infringes upon plaintiffs’ right to render and their patients’ right to receive safe and adequate medical advice and treatment, deprives plaintiffs and their patients' of the equal protection of the law and due process of law, and constitutes state interference with the abortion decision, all of which is in violation of the United States Constitution.

380 F.Supp. 1137, 1139.

The three-judge court dismissed Count II of the complaint for lack of standing by the medical doctors to challenge the constitutionality of the statute. See Wulff, supra at 1144. Appeal was filed in this court.

1. APPELLATE JURISDICTION

The portal question we have goes to the propriety of an appeal to this court from an order entered by a district court of three judges.

That inquiry has been settled for us in the instant case by the United States Supreme Court’s recent decision in Gonzalez v. Automatic Employees Credit Union, 419 U.S. 90, 95 S.Ct. 289, 42 L.Ed.2d 249 (filed December 10, 1974).

In Gonzalez appellant took his appeal directly to the Supreme Court from a three-judge court order dismissing the complaint for lack of standing. The court observed that when the basis of decision by a three-judge court is lack of standing, the case is such that “a single judge could have declined to convene a three-judge court” or “the three-judge court could have dissolved itself, leaving final disposition of the complaint to a single judge.” Gonzalez, at 100, 95 S.Ct. at 295 (footnote omitted). The Court went on to say:

We hold, therefore, that when a three-judge court denies a plaintiff injunc-tive relief on grounds which, if sound, would have justified dissolution of the court as to that plaintiff, or a refusal to request the convention of a three-judge court ab initio, review of the denial is available only in the Court of Appeals.

419 U.S. 90, 101, 95 S.Ct. 289, 296. This court has jurisdiction in the instant case.

II. STANDING

The district court found that there was no logical nexus between the status of appellant-physicians and the claims they sought to have adjudicated. Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). We disagree.

This court made clear in Nyberg v. City of Virginia, 495 F.2d 1342 (1974), cert. denied, 419 U.S. 891, 95 S.Ct. 169, 42 L.Ed.2d 136:

We think that the Supreme Court in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973) has clearly paved the way for physicians to assert their constitutional rights to practice medicine, which now includes the right to advise and perform abortions. * *
Clearly the claims of medical doctors to “freely practice medicine according to the highest medical standards without arbitrary outside restraints” are inextricably bound up with the privacy rights of women who seek abortions. YWCA v. Kugler, 342 F.Supp. 1048, 1055 (D.N.J.1972). This is sufficient to present a justiciable controversy and confer standing on the physicians who bring this action. See Griswold v. Connecticut, 381 U.S. 479, 481, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Abele v. Markle, 452 F.2d 1121, 1125 (CA2 1971); stay granted, 409 U.S. 908, 93 S.Ct. 212, 34 L.Ed.2d 169 (1972), remanded for consideration in light of Roe and Doe, 410 U.S. 951, 93 S.Ct. 1417, 35 L.Ed.2d 683 (1973); Doe v. Turner, 361 F.Supp. 1288, 1289 (D.Iowa 1973) (3 judge court); Freeman & Bass, P. A. v. State of N. J. Com’n of Invest., 359 F.Supp. 1053, 1059 (D.N.J.1973); cf. O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). Furthermore, the practical effect of the stringent limitation on the use of hospital facilities for performing abortions is to arbitrarily bar the physicians from activities that directly affect their economic interests. Abele v. Markle, supra, 452 F.2d at 1125; see also, Data Processing Service v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968).

We reiterated the same thought more succinctly in Word v. Poelker, 495 F.2d 1349, 1350 (8th Cir. 1974), where we said:

It is now clear from the decisions in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973) that a sweeping regulation of the abortion decision and its implementation raises clear questions of constitutional dimension regarding a medical doctor’s right to practice. Doe v. Bolton, supra at 188, 93 S.Ct. 739; Roe v. Wade, supra at 165 of 410 U.S., 93 S.Ct. 705. * * *.

See Orr v. Koefoot, 377 F.Supp. 673, 678 (D.Neb.1974); Poe v. Menghini, 339 F.Supp. 986, 990 & note 8 (D.Kan.1972); Doe v. Scott, 321 F.Supp. 1385, 1387-1388 (N.D.Ill v. F.B.I., 507 F.2d 1281 (8th Cir., filed November 7, 1974).

The statute in question interferes with the doctor-patient relationship as it relates to the abortion decision. It injects unnecessarily restrictive rules upon a constitutionally protected decision of doctor and patient as surely as did the statutes in the above cited cases. The statute interferes with the appellants’ practice of medicine both professionally and monetarily.

We think that there is no question that (1) appellants allege that the challenged acts have caused them “injury in fact, economic or otherwise” and (2) “the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 152-153, 90 S.Ct. 827, 829-830, 25 L.Ed.2d 184 (1970). To hold otherwise in light of .the authority cited above would defy logic. These medical doctors have standing to pursue this action.

III. THIS COURT’S JURISDICTION TO REACH THE MERITS

We are urged by appellants to reach the merits of this case rather than remand to the three-judge court. This question is not without its difficulty. There is little direct authority for the propriety of our reaching the merits. Nevertheless, we are satisfied that under the circumstances of this case and in the interest of judicial economy and logic we should now address the merits of this controversy.

Of course, the three-judge court has not determined the merits. This court is not generally a court of original jurisdiction. Even so, there is authority for the proposition that when a case is properly before a Court of Appeals, the court has the power “to do what plainly ought to be done.” Mercury Motor Express, Inc. v. Brinke, 475 F.2d 1086, 1091 (5th Cir. 1973), citing 9 Moore’s Federal Practice § 110.25 [1] (2d ed. 1972).

In reaching the merits of a case which was before the court pursuant to an interlocutory appeal under 28 U.S.C. § 1292(b) this court said:

We adhere to the proposition that it would be improper to consider “grave constitutional questions” where there exists “reasonable likelihood” that further proceedings could help clarify the issues. Borden’s Farm Products Co. v. Baldwin, 293 U.S. 194, at 213, 55 S.Ct. 187, 79 L.Ed. 281. However, in the present proceeding no further pleadings or evidence is necessary for “refinement or clarification of the issues.” United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877; United States v. Fabro, Inc., M.D.Ga., 206 F.Supp. 523. And we should dispose of all controversies “as expeditiously as is consistent with proper judicial administration.” Turner v. City of Memphis, 369 U.S. 350, 82 S.Ct. 805, 7 L.Ed.2d 762.

Board of Managers of Ark. Tr. Sch. for Boys v. George, 377 F.2d 228, 231 (8th Cir. 1967). In addition, Mr. Justice Clark in writing for the Supreme Court has indicated that effective judicial administration requires disposal of the case on appeal rather than remanding, where the point to be decided is clear. Levin v. Mississippi River Fuel Corporation, 386 U.S. 162, 170, 87 S.Ct. 927, 932, 17 L.Ed.2d 834.

It might be argued that the above authority, though persuasive, should not apply in the instance of an appeal to the Court of Appeals from a statutory three-judge court.

The Supreme Court has made it clear that the three-judge court mandate must be construed quite narrowly. “Congress established the three-judge court apparatus for one reason: to save state and federal statutes from improvident doom, on constitutional grounds, at the hands of a single federal district judge.” Gonzalez, supra, 419 U.S. 97, 95 S.Ct. 294.

For this court to get to the heart of the matter and dispose of this ease on the merits will not conflict with the policy behind the statute. Indeed, we think this case is particularly proper for disposition in this court since “[w]hile § 2281 calls for three judges to enjoin a statute ‘upon the ground’ of its ‘unconstitutionality,’ we [the Supreme Court] have held that three judges are not in fact, necessary where the unconstitutionality of the statute is obvious and patent * * *.” Gonzalez, supra, at 97, 95 S.Ct. at 294, footnote 14, citing Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962).

The statute in question is obviously unconstitutional, and it is our view that the case might well have been decided by one federal judge. See generally Roe v. Norton, 380 F.Supp. 726, 728 (D.Conn.1974). Accordingly, we choose to make final determination of this case.

IV. MERITS

The statute before the court states: Benefit payments for medical assistance may be made on behalf of those eligible needy persons who are unable to provide for it in whole or in part, with any payments to be made on the basis of the reasonable cost of the care or reasonable charge for the services as defined and determined by the division of welfare unless otherwise hereinafter provided, for the following:
Family planning services are defined by federal rules and regulations provided, however, that such family planning services shall not include abortions unless such abortions are medically indicated.

As in Word v. Poelker, supra 495 F.2d 1349, 1350, the issue in this case concerns the facial constitutionality of the statute viewed against the glare of the Supreme Court’s decisions in Roe v. Wade; Doe v. Bolton, and the precedent which has developed as a result of those cases.

We find it unnecessary to review again Roe and Doe or what this court has said in applying those cases. Suffice it to say that the statute here provides medical payments if the pregnancy is carried to term or for therapeutic abortions but not if a nontherapeutic abortion is performed. This classification is a clear violation of the Equal Protection Clause of the Fourteenth Amendment.

There is ample case authority for the holding that a welfare payments statute which places special regulation on abortion but not upon other medical procedures cannot stand in light of the Supreme Court decisions. Doe v. Rose, 499 F.2d 1112 (10th Cir. 1974); Doe v. Westby, 383 F.Supp. 1143 (W.D.S.D., filed September 24, 1974); Roe v. Norton, 380 F.Supp. 726 (D.Conn.1974); Doe v. Wohlgemuth, 376 F.Supp. 173 (W.D.Pa.1974); Doe v. Rampton, 366 F.Supp. 189 (D.Utah 1973); Klein v. Nassau Co. Medical Center, 347 F.Supp. 496 (E.D.N.Y.1972); see also Doe v. Hale Hospital, 500 F.2d 144 (1st Cir. 1974).

The control meted out by this statute does not give proper consideration to the conflicting constitutional interests involved. Word, supra, 495 F.2d at 1351. It is further invalid since the welfare parent and her physician are discriminated against by reason of the patient’s poverty. Compare, e. g., Klein, supra.

We declare RSMo 208.152(12), V.A.M.S., to be unconstitutional on its face. Injunctive relief should be unnecessary. We assume that the state will abide by the ruling of this court and that medical assistance payments will be made on a nondisparate basis to those eligible needy persons who elect to carry their pregnancy to term or who receive therapeutic abortions and also to those who elect nontherapeutic abortions.

Reversed.

PER CURIAM.

Appellants seek clarification of our holding and further request that we award to appellants a reasonable attorney fee.

It was the Court’s intention and we now reiterate our holding that that portion of RSMo 208.152(12), V.A.M.S., which states “that such family planning services shall not include abortions unless such abortions are medically indicated” is unconstitutional.

The application for attorney fee is denied.

      . The appeal concerns only Count II of the complaint. Appellants do not challenge the district court’s ruling on Counts I and III.

      . 28 U.S.C. § 1253 provides:
      Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.


author: FEINBERG, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Russell DICKERSON, Defendant-Appellant.
    No. 348, Docket 74-1914.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 13, 1974.
    Decided Jan. 6, 1975.
    Phylis Skloot Bamberger, New York City (William J. Gallagher, The Legal Aid Society, Federal Defender Services Unit, New York City, on the brief), for defendant-appellant.

      Michael Q. Carey, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S. D. N. Y., John D. Gordan, III, Asst. U. S. Atty., on the brief), for appellee.
    Before FRIENDLY, FEINBERG and GURFEIN, Circuit Judges.
   FEINBERG, Circuit Judge:

Russell Dickerson appeals from a judgment of the United States District Court for the Southern District of New York, Charles L. Brieant, Jr., J., convicting him of assaulting a federal officer and sentencing him to two years in prison. Appellant claims that the jury was improperly allowed to find him guilty on a theory of vicarious liability and that the judge erred in giving the jury a modified Allen charge. Since we agree with the first contention, the judgment must be reversed.

I

The facts relevant to the issues on appeal, as the jury could have found them, are as follows: In July 1973, at a fruit store in Harlem, appellant approached undercover agent Frank Balasz and offered to sell him a “machine gun” for $500. The transaction soon began in the back seat of a nearby parked car when Balasz parted with $500 in cash. Balasz quickly discovered that the gun (actually an M-l carbine) did not work properly. Julius Sykes, an alleged confederate of appellant in the front seat of the car, took the gun from Balasz, saying he could fix it. Balasz first bargained to lower the price, then tried to reclaim the gun from Sykes. But Sykes pointed it at Balasz, who promptly left the car. He unsuccessfully tried to recover the money from appellant, who by this time had it outside the car. Balasz again attempted to wrestle the gun from Sykes. Appellant by then had obtained the car keys from another alleged confederate, Moses Young, and began to get into the driver’s seat. Balasz and appellant struggled over the driver’s door, and appellant struck Balasz on the shoulder. Then Young jumped on Balasz and a fight ensued. Balasz decided that he had gone through enough and, attempting to draw his gun, announced he was a police officer. The gun fell to the ground as the pummeling continued, and appellant and Young ran away. Shortly thereafter, appellant, Young and Sykes were all arrested and charged with assaulting a federal officer. 18 U.S.C. § HI.

At trial, the Government argued that appellant could be convicted of assaulting a federal officer on either of two theories. The first — on which there was a sharp issue of fact — was that appellant, both alone and in conjunction with Young, had punched or struck Agent Ba-lasz. The other was that even if appellant, as he contended, never hit the agent, the assault upon Balasz was committed in furtherance of an unlawful criminal venture to which appellant belonged. The judge submitted the case to the jury on both theories. The latter furnishes the basis for appellant’s principal contention on appeal.

II

Appellant argues, as indicated, that the jury was improperly allowed to find him guilty on a theory of vicarious liability. In considering this claim, it is well to remember some basic principles of criminal law. Ordinarily, a defendant cannot be convicted of a crime unless he personally participated in its commission. Such participation may take the limited form of “aiding and abetting,” see 18 U.S.C. § 2, but even then it must be proved that the defendant consciously assisted the commission of the specific crime in some active way. Nye & Nis-sen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 93 L.Ed. 919 (1949), citing United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938) (L. Hand, J.). This general philosophy of criminal liability is modified by the law of conspiracy, particularly the line of cases commencing with Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), upon which the Government principally relies here.

In Pinkerton, two brothers were charged with substantive violations of the Internal Revenue Code and with conspiring to violate the Code. The Court held that the substantive offenses were not merged into the conspiracy and that Walter and Daniel Pinkerton could each be punished for both the conspiracy and the substantive offense. Of more importance to this case, the Court also held that even though there was “no evidence to show that Daniel participated directly in the commission of” various substantive offenses, his conviction was proper because the jury must have found that he was a party “to an unlawful conspiracy and the substantive offenses were in fact committed in furtherance of it.”, 328 U.S. at 645, 66 S.Ct. at 1183.

In this case, Judge Brieant submitted to the jury a theory of vicarious liability based on conspiracy or joint venture. The judge told the jury in essence that it could convict appellant if it found that he was knowingly and wilfully part of “a joint criminal venture” and that the assault was committed in furtherance of its objective. The judge described the object of this possible “illicit criminal venture” as

larceny by trick, false pretense, false promise or other means in violation of

the laws of the State of New York, that is, that the defendant Dickerson, acting jointly or as partner with Moses Young and Julius Sykes, was engaged in a criminal venture. That is, that they intended, after taking the money of Balasz and Carroll for the sale of a gun and ammunition, to keep both the money and the gun. If this was their intention, that would be larceny and anybody who does such a thing knowingly and willfully would be engaged in a criminal venture.

Defense counsel objected to this charge, but the judge declined to modify it.

We believe that this charge improperly allowed the jury to find defendant guilty. We put to one side whether a Pinkerton charge is ever proper when— as in this case — no conspiracy is charged in the indictment or the joint venture submitted to the jury has no federal nexus. The fact is that Pinkerton does not justify affirming this conviction. Judge Brieant did not submit to the jury the issue whether there had been a conspiracy to assault a federal officer pursuant to which the assault occurred. Moreover, the Court indicated in Pinkerton that, in any event, a defendant could not be held vicariously liable for a crime that “was merely a part of the ramifications of the plan which could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement.” Id. at 648, 66 S.Ct. at 1184. The only alleged unlawful agreement submitted to the jury here was “larceny by trick, false pretense, false promise . .” We do not think that the assaultive use of force is “a necessary or natural consequence” of an agreement to commit such larceny, although it might be were the agreement one to commit robbery.

Nor was the charge justified by our decision in United States v. Alsondo, 486 F.2d 1339, 1346 (1973), on which the Government also relies. In that case, we reluctantly set aside convictions of three defendants for conspiring to assault a federal officer because, under the rule of this circuit, it was error not to charge the jury that defendants had to know that the persons they were conspiring to assault were federal officers. Originally, we also reversed the convictions of two defendants on substantive counts because the judge had given to the jury what we initially characterized as a Pinkerton charge. We reasoned that reversal was required because the conviction for conspiracy, which was the “predicate” of convictions on the substantive counts, could not stand. 486 F.2d at 1345. On rehearing, the Government pointed out that the judge’s charge had actually required that the jury find, in order to convict the defendants of conspiracy, that they had agreed to assault someone (who turned out to be a federal officer) or to obtain his money by force if fraud alone proved ineffective. On reconsideration, we agreed that the jury on these facts must have found either a conspiracy to assault the person who was attacked or a conspiracy to get money from him by fraud or force, if the latter became necessary. See 486 F.2d at 1347. Once again, however, we fail to see how this helps the Government. The charge of Judge Brieant in this case did not require the jury, in order to convict, to find an agreement to assault or to use force if trickery failed. The jury was told that it could find that the object of the joint venture was larceny, but force is not one of the elements of that crime. In contrast, the force used and the assault committed in Alsondo were specifically contemplated by the unlawful agreement to which the defendants were parties; i. e., defendants there “were part of a plot to commit the crime [of assault] that actually occurred.” Id.

The jury, therefore, may have convicted appellant on the erroneous belief that his agreement to participate in a larceny without violence was enough to make him criminally liable for the later assault. Under the circumstances, we have no choice but to reverse and remand for a new trial.

      . Balasz was a Special Agent of the Drug Enforcement Administration.

      . Sykes was charged in the same indictment as appellant, but he was admitted to a federal deferred prosecution narcotic addict program. If he completes this successfully, it is contemplated that the charges against him will be dismissed. Young was indicted separately and was acquitted in a jury trial held shortly after appellant’s trial.

      . That appellant did not know Balasz was a federal officer was, under our cases, irrelevant. United States v. Alsondo, 486 F.2d 1339, 1342 (2d Cir. 1973), cert. granted sub nom. United States v. Feola, 416 U.S. 935, 94 S.ct. 1932, 40 L.Ed.2d 285 (1974), and cases there cited.

      . Cf. Nye & Nissen v. United States, supra, 336 U.S. at 619-620, 69 S.Ct. 766. We certainly do not encourage use of a vicarious liability charge in either instance. We also do not. pass upon appellant’s contention that the charge in this case did not adequately define the elements of larceny, thereby denying appellant due process of law.

      . See, e. g., 2 R. Anderson, Wharton’s Criminal Law and Procedure §§ 507, 547, 559-60 (1957) ; Norris v. United States, 152 F.2d 808, 809 (5th Cir.), cert. denied, 328 U.S. 850, 66 S.Ct. 1118, 90 L.Ed. 1623 (1946); Mason v. Commonwealth, 200 Va. 253, 105 S.E.2d 149 (1958) ; Williams v. State, 124 Ohio St. 585, 180 N.E. 58 (1932).

      . See United States v. Crimmins, 123 F.2d 271 (2d Cir. 1941), and cases cited in Alsondo, supra, 486 F.2d at 1343. The Government successfully petitioned for certiorari on this question in Alsondo, 416 U.S. 935, 94 S.Ct. 1932, 40 L.Ed.2d 285 (1974), and the issue is now before the Supreme Court, sub nom. United States v. Feola, No. 73-1123, Argued Nov. 19, 1974, 43 U.S.L.W. 3305.

      . See authorities cited in note 5 supra.

      . On this disposition, it is unnecessary to consider appellant’s objection to the modified “Allen charge” used by the court on the third day of jury deliberation. It would be better, however, for a trial judge not to tell a jury that he is “sure” the defendant would “prefer” resolution “one way or the other.” We agree with appellant that most, if not all, defendants would rather have a hung jury than a guilty verdict.


author: PER CURIAM.

text:
    ORGILL BROTHERS & COMPANY, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 74-1676.
    United States Court of Appeals, Sixth Circuit.
    Jan. 23, 1975.

      Hubert A. McBride, Joseph B. Walker, William H. Thomas, Jr., Memphis, Tenn., for plaintiff-appellant.
    Thomas F. Turley, Jr., U. S. Atty., Memphis, Tenn., Scott P. Crampton, Asst. Atty. Gen., Ernest J. Brown, Richard Roberts, Gilbert Andrews, Ann Dur-ney, Tax Div., Dept, of Justice, Washington, D. C., for defendant-appellee.
    Before CELEBREZZE, and McCREE, Circuit Judges, and DeMASCIO , District Judge.

       The Honorable Robert E. DeMascio, United States District Judge for the Eastern District of Michigan, sitting by designation.

   PER CURIAM.

This is an appeal from an order granting a motion for summary judgment made by the United States in a suit brought by a corporate taxpayer for a refund of federal income taxes.

In 1964, appellant, a corporate taxpayer having several subsidiaries filed a consolidated income tax return with them in accordance with the provisions of section 1501 of the Internal Revenue Code of 1954, 26 U.S.C. § 1501. This section provides in relevant part:

An affiliated group of corporations shall, subject to the provisions of this chapter, have the privilege of making a consolidated return with respect to the income tax imposed by chapter 1 for the taxable year in lieu of separate returns. The making of a consolidated return shall be upon the condition that all corporations which at any time during the taxable year have been members of the affiliated group consent to all the consolidated return regulations prescribed under section 1502 prior to the last day prescribed by law for the filing of such return. The making of a consolidated return shall be considered as such consent.

Section 1502 of the Code, in turn, provides:

The Secretary or his delegate shall prescribe such regulations as he may deem necessary in order that the tax liability of any affiliated group of corporations making a consolidated return and of each corporation in the group, both during and after the period of affiliation, may be returned', determined, computed, assessed, collected, and adjusted, in such manner as clearly to reflect the income-tax liability and the various factors necessary for the determination of such liability, and in order to prevent avoidance of such tax liability.

One of the regulations issued under the authority of section 1502, Treas.Reg. 1.1502-UA(a), provides, inter alia, that a corporation which files a consolidated income tax return for any taxable year must continue to file consolidated returns for subsequent taxable years unless certain conditions, none of which are applicable here, are met.

ORGILL BROTHERS & COMPANY v. UNITED STATES Cite as 508 F.2d 1219 (1975)

Nevertheless, in 1965 the corporation and its subsidiaries filed separate income tax returns. Thereafter, the Commissioner recomputed the 1965 tax liability of the corporation and its subsidiaries on a consolidated basis and assessed a deficiency of approximately $10,000. The taxpayer paid the amount assessed and then brought a timely action for a refund.

The only basis for the suit and the only issue presented on appeal is the validity of Treas.Reg. 1.1502 — llA(a). Although section 1501 does not make a corporation’s election to file a consolidated income tax return in one taxable year binding in subsequent taxable years, neither does it prohibit this result. Section 1501, moreover, requires that the filing of a consolidated income tax return “shall be upon the condition that all corporations which at any time during the taxable year have been members of the affiliated group consent to all the consolidated return regulations prescribed under section 1502 .

Unquestionably a taxpayer who files a return in accordance with the provisions of section 1501 consents only, to valid regulations. Accordingly, we have examined carefully the consolidated tax provisions and their legislative history and conclude, as did the district court, which relied upon the decision of Regal v. Commissioner, 435 F.2d 922. (2d Cir. 1970) which in turn, adopted the careful opinion of Judge Raum of the Tax Court, 53 T.C. 261 (1969), that Treas.Reg. 1.1502 — llA(a) is a reasonable exercise of the discretion conferred upon the Secretary oí the Treasury by Congress when it enacted sections 1501 and 1502 of the Code.

Affirmed.

      . Treas.Reg. § 1.1502-11A provides:
      (a) Consolidated returns required for subsequent years. If a consolidated return is made under section 1502 for any taxable year, a consolidated return must be made for each subsequent taxable year during which the affiliated group remains in existence unless (1) a corporation (other than a corporation created or organized, directly or indirectly, by a member of the group) has become a member of the group during such subsequent taxable year, or (2) subsequent to the exercise of the election to make consolidated returns, subtitle A of the Code to the extent applicable to corporations, or the regulations under section 1502 which have been consented to, have been amended and any such amendment is of a character which makes substantially less advantageous to affiliated groups as a class the continued filing of consolidated returns, regardless of the effective date of such amendment, or (3) the Commissioner, prior to the time of making the return, upon application made by the common parent corporation and for good cause shown, grants permission to change. For the purpose of subparagraph (2) of this paragraph, the expiration of a provision shall be considered as an amendment to the Code made on the date of such expiration.
      (b) Effect of separate returns when Consolidated return is required. If the making of a consolidated return is required for any taxable year, the tax liability of the members of the affiliated group shall be computed in the same manner as if a consolidated return had been made, even though separate returns are made; amounts assessed upon the basis of separate returns shall be considered as having been assessed upon the basis of a consolidated return; and amounts paid up on the basis of separate returns shall be considered as having been paid by the common parent corporation. In such cases the making of separate returns shall not be considered as the making of a return for the purpose of computing any period of limitation or any deficiency. If a consolidated return for such taxable year is thereafter made, such return, shall, for the purpose of computing periods of limitation and any deficiency, be considered as the return for such year.
      (c) When affiliated group remains in existence. For the purpose of the regulations under section 1502, an affiliated group shall be considered as remaining in existence if the common parent corporation remains as a common parent and at least one subsidiary remains affiliated with it, whether or not such subsidiary was a member of the group at the time the group was formed and whether or not one or more corporations have become subsidiaries or have ceased to be subsidiaries at any time after the group was formed.
      (d) When affiliated group terminates. For the purpose of the regulations under section 1502, an affiliated group shall be considered as terminated if the common parent corporation ceases to be the common parent or if there is no subsidiary affiliated with it.
      Treas.Reg. § 1.1502-75 provides in relevant part:
      (2) Continued filing requirement. A group which filed (or was required to file) a consolidated return for the immediately preceding taxable year is required to file a consolidated return for the taxable year unless it has an election to discontinue filing consolidated returns under paragraph (c) of this section.
      ******
      (c) Election to discontinue filing consolidated returns — (1) Good cause — (i) In general. Notwithstanding that a consolidated return is required for a taxable year, the Commissioner, upon application by the common parent, may for good cause shown grant permission to a group to discontinue filing consolidated returns. Any such application shall be made to the Commissioner of Internal Revenue, Washington, D. C. 20224, and shall be made not later than the 90th day before the due date for the filing of the consolidated return (including extensions of time). In addition, if an amendment of the Code, or other law affecting the computation of tax liability, is enacted and the enactment is effective for a taxable year ending before or within 90 days after the date of enactment, then application for such a taxable year may be made not later than the 180th day after the date of enactment, and if the application is approved the permission to discontinue filing consolidated returns will apply to such taxable year notwithstanding that a consolidated return has already been filed for such year.


text:
    Gerald D. PETERSON, Appellant, v. UNITED STATES of America, Appellee.
    No. 74-1815.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 10, 1975.
    Decided Jan. 14, 1975.
    Gerald D. Peterson, pro se.
    Bert C. Hum, U. S. Atty., Frederick O. Griffin, Jr., and Anthony P. Nugent, Jr., Asst. U. S. Attys., Kansas City, Mo., filed brief for appellee.
    Before GIBSON, Chief Judge, and HEANEY and ROSS, Circuit Judges.
   PER CURIAM.

Gerald D. Peterson appeals the denial of his Motion to Disqualify the District Judge and the denial of his 28 U.S.C. § 2255 motion to vacate judgment and sentence by the District Court without an evidentiary hearing. This appeal is another in a series of applications for postconviction relief which have been decided adversely to appellant on the merits.

In this appeal Peterson complains about being questioned as to prior criminal convictions upon taking the stand in his own defense in a 1967 federal trial in which he readily admitted having three prior State of Missouri felony convictions. As to one of those convictions, which occurred in 1957, the Missouri Supreme Court has ordered that Peterson be allowed an out of time appeal because he was not represented by counsel on appeal. Now, Peterson argues that reference to that 1957 conviction for purposes of impeachment invalidated the federal conviction in 1967 which he is now seeking to vacate, although that pri- or state conviction is still on appeal pending submission to the Missouri Supreme Court.

Whatever action is finally taken on that state conviction should not at this date have any effect upon the conviction in the federal court. The 1957 state conviction was only referred to for impeachment purposes upon cross-examination of Peterson during his federal trial. That conviction was then and still is a valid outstanding conviction. And regardless of what happens in the future to that conviction, it would not appear to be an error of constitutional dimension to allude to that conviction upon cross-examination in 1967 when the conviction was still of record and unchallenged. It was not used to enhance punishment under an habitual criminal statute and was only referred to during trial in framing Peterson’s current record. Even if it later develops that the conviction is set aside, the error in referring to it would appear to be harmless under the circumstances with two other felony convictions outstanding. However, in any event, Peterson has no cause for complaint at this time. The Missouri Supreme Court has not yet passed on his appeal and the judgment of conviction of the state trial court remains outstanding. He had counsel upon the trial of the 1957 state conviction.

Peterson also complains that the District Judge failed to disqualify himself upon motion filed by Peterson, the basis being that the judge had imposed a lesser sentence upon a co-defendant, Derringer, and because the judge stated he would have imposed the same sentence upon Peterson regardless of the validity of any state conviction and regardless of the adverse matters contained in the presentence report. None of these factors alleged operates as a legal ground for disqualification of a district judge. The matter pertaining to the presentence report has previously been sustained in Peterson v. United States, 493 F.2d 478 (8th Cir. 1974), and the imposition of a more severe sentence upon Peterson than upon his co-defendánt was sustained in Peterson v. United States, 432 F.2d 545 (8th Cir. 1970). We feel the ends of justice would not be served by reaching the merits anew in this proceeding. Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963).

Affirmed.

      . Peterson v. Missouri, 355 F.Supp. 1371 (W.D.Mo.1973), aff’d, Nos. 73-1236, 73-1237, 73-1238 (8th Cir. September 14, 1973). See also Peterson v. United States, 493 F.2d 478 (8th Cir. 1974); Peterson v. United States, 467 F.2d 892 (8th Cir. 1972), cert. denied, 410 U.S. 933, 93 S.Ct. 1383, 35 L.Ed.2d 596 (1973).


author: PER CURIAM:

text:
    Jere BISHOP et al., Plaintiffs-Appellants, v. Kent R. STONEMAN, Commissioner of Corrections of the State of Vermont, and Julius V. Moeykens, Warden, Vermont State Prison, Defendants-Appellees.
    No. 137, Docket 74-1326.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 13, 1974.
    Decided Dec. 4, 1974.
    William M. Dorsch, Springfield, Vt. (Vermont Legal Aid, Inc., Springfield, Vt., on the brief), for plaintiffs-appellants.
    Alan W. Cook, Asst. Atty. Gen., Department of Corrections, Montpelier, Vt. (Charles A. Bristow, Asst. Atty. Gen., Dept, of Corrections, Montpelier, Vt., on the brief), for defendants-appellees.
    Before, FRIENDLY, FEINBERG and GURFEIN, Circuit Judges.
   PER CURIAM:

■ Plaintiffs, prisoners at the Vermont State Prison, brought a class action against the State Commissioner of Corrections and the Warden of the Prison charging that medical facilities and medical care at the prison are grossly inadequate to meet the continuing needs of the inmates and that the defendants are deliberately indifferent to requests for essential medical treatment. They allege that this constitutes cruel and unusual punishment denying the prisoners their constitutional rights under 42 U.S.C. § 1983. The plaintiffs do not seek individual damages for inadequate treatment in the past nor do they seek individual injunctive relief. They ask for an injunction ordering the defendants to provide adequate medical treatment to their class and to institute a program to improve medical facilities.

The District Court, Coffrin, J., granted defendants’ motion to dismiss under F.R.C.P. 12(b)(6), first testing each “typical incident” alleged “to determine whether, standing alone, it would support a claim under 42 U.S.C. § 1983 that the prisoner involved had been subjected to cruel and unusual punishment.” While recognizing that factual allegations indicating that the defendants are deliberately indifferent to plaintiffs’ requests for medical treatment are sufficient to support a Section 1983 claim, the court decided that it could not find from the specific incidents enumerated in the complaint that there has been a deliberate indifference to the prisoners’ medical needs. We disagree and remand for a trial on the merits.

Six “typical incidents” were alleged; (1) Plaintiff Bishop asked to see the prison’s only doctor, who apparently is there' only part-time, about a back problem; he waited six months before he was given an appointment; x-rays were taken but he was not told the results; he was given no treatment. (2) Plaintiff Kasper lost 30 lbs. in three weeks, during which time he sought unsuccessfully to see the doctor; when he saw the doctor, he was not given a physical examination, but was told to take vitamins; three weeks later his attorney requested that a blood test be given; the blood test indicated “massive liver damage” and eventually his condition was diagnosed as cirrhosis of the liver; he received no treatment. (3) Plaintiff Mayer waited ten days to see the doctor about an injured shoulder. (4) Plaintiff Blow waited one week to see the doctor about getting a new orthopedic shoe; he was given a new shoe that gave him considerable pain; he was not allowed to see the doctor about it, but eventually was x-rayed; no results were provided to him. (5) Plaintiff Gregory had a temperature and was vomiting blood, yet waited three days to see the doctor; eventually admitted to prison hospital, he was treated but saw the doctor infrequently. (6) Plaintiff Provost could not eat and was vomiting; he was treated by a dispensary attendant; after about a week, he saw the doctor who prescribed vitamins; five days later he started turning yellow and was quarantined; he stayed in the prison hospital for a few weeks, seeing the doctor twice; after release, he was given a special diet.

A seventh prisoner, DiLaura, sought to intervene, alleging that prison officials neglected to treat him when he had an attack of malaria, which he had' originally contracted in Vietnam. The supporting affidavit of his attorney, whose efforts eventually secured him medical care indicates that he did indeed have such an attack and that prison officials disbelieved him and would not have taken him seriously if his attorney had not interceded. The District Court denied his motion to intervene at the same time it dismissed the main action, but with leave to file a separate action on his own behalf.

Finally, plaintiffs presented to the court the affidavit of an eighth prisoner, Ellison, who had severe stomach pains and was denied access to a doctor. After a week, he was taken to a hospital, where he was operated on (just in time, according to the surgeon) for a gangrenous appendix. The District Court did not consider this affidavit, stating that it was not before the court on a motion to dismiss.

To secure a dismissal un$er 12 (b)(6), a defendant must show “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).

Taking the factual allegations as true, we think that they state a claim for relief under Section 1983. As Judge Coffrin recognized, deliberate indifference to the medical needs of a prisoner can amount to a Section 1983 violation. Martinez v. Mancusi, 443 F.2d 921 (2 Cir. 1970); Corby v. Conboy, 457 F.2d 251, 254 (2 Cir. 1972), and cf. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). A series of incidents closely related in time, within several months as these are, may disclose a pattern of conduct amounting to deliberate indifference to the medical needs of prisoners. We hold the cumu-lation of incidents alleged in the complaint entitled plaintiffs to a trial of the underlying allegation of deliberate indifference to their medical needs.

We venture no opinion on the validity of the allegations, of course, but if sufficient indifference on the part of the prison officials can be proved by the plaintiffs, or if it can be shown that the medical facilities were so wholly inadequate for the prison population’s needs that suffering would be inevitable, they can make out a case under Section 1983. Since only injunctive relief is asked, class action treatment may well be appropriate.

The order dismissing the complaint is reversed and the case is remanded to the district court for further proceedings not inconsistent with this opinion.

      . The suit was originally brought by six prisoners ; three have since been released and were held to have no standing to sue. The District Court nevertheless considered the allegations of all six in deciding the motion.


author: LIVELY, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James Edward DYE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Willard Eugene CUPP, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James Harold ERVIN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Gene GALYON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James Sanford BURNETTE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Glen Lester HUGHES, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Albert Truman COLLINS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Dale LAMBERT, Defendant-Appellant.
    Nos. 73-1876-73-1883.
    United States Court of Appeals, Sixth Circuit.
    Argued April 9, 1974.
    Decided Aug. 22, 1974.
    As Amended Sept. 12, 1974.
    Certiorari Denied March 17, 1975.
    See 95 S.Ct. 1395.

      John D. Lockridge, Warren R. Webster, B. Rex McGee (Court Appointed), Charles D. Susano, Jr. (Court Appointed), Roger E. Jenne, Cleveland, Tenn., for appellants; Philip P. Durand, Am-brose, Wilson, Lockridge & Grimm, Bernstein, Dougherty & Susano, Knoxville, Tenn. (of counsel, on briefs).
    Carl P. McDonald, Edward E. Wilson, Asst. U. S. Attys., for appellees; John L. Bowers, Jr., U. S. Atty., on brief.
    Before EDWARDS, CELEBREZZE and LIVELY, Circuit Judges.
   LIVELY, Circuit Judge.

On July 27, 1972 a trailer owned by Superior Trucking Services, Inc. was loaded with 1250 eases of Jack Daniels whiskey at a distillery in Lynchburg, Tennessee for delivery to a warehouse in North Carolina. When the driver who was dispatched to pick up the load of whiskey arrived at Lynchburg, the trailer was not there. The empty trailer was found in Monroe County, Tennessee on July 30. Meanwhile, at about 7:00 o’clock in the evening of July 29 two Knox County, Tennessee deputy sheriffs, acting on a tip, went to the area behind a building at 4666 Walker Boulevard in Knoxville and found a padlocked U-Haul truck parked near the rear of the building. Shortly thereafter the chief deputy sheriff of the County joined them and left the other two deputies in the area while he went for a search warrant. After the chief deputy returned, a door at the rear of the building at 4666 Walker Boulevard was forced open, and 100 cases of Jack Daniels whiskey were found in the building. The officers then arranged for a truck to be rented and when it was brought to the location, they loaded the whiskey from the building into the truck. This work was completed by about 4:00 a. m. on July 30 and at that time both the U-Haul truck which had remained unopened and the other rental truck which had been loaded with the whiskey from the building were taken to the county jail. The U-Haul truck was delivered to FBI agents unopened and unsearched.

The chief deputy sheriff testified that he had a report on the stolen whiskey before he went to the Walker Boulevard address but that the search warrant he obtained was for a stolen outboard motor and not the whiskey. He stated that he had no information on the U-Haul truck when he got the warrant for the outboard motor. The sheriff of Knox County also testified that he went to the rear of the Walker Boulevard address at about 11:30 p. m. on July 29 and that the other officers were inside the building where the whiskey was found. He notified the FBI to determine whether a federal offense had been committed since he had had no official reports of stolen whiskey at that time. After the FBI agents took possession of the U-Haul truck it was moved to a privately owned lot. On July 31 the FBI had a key made for the padlock on the rear of the truck. On August 2 a search warrant was obtained from a federal magistrate on the basis of a detailed affidavit. The truck was searched on August 3, and 416 cases of Jack Daniels whiskey were removed from it. This whiskey was identified as being part of the shipment which was stolen on July 27 or 28.

On November 14, 1972 a five-count indictment was returned naming 12 defendants. All of those indicted except the defendant James Edward Dye were charged in count one with a conspiracy to steal the whiskey. A total of 22 overt acts was listed with each of the eleven conspiracy defendants being involved in at least one such act. The second count charged the defendants James Sanford Burnette and James Harold Ervin with the act of stealing and carrying the whiskey away and aiding and abetting each other. In the third count, eight of the defendants were charged with possessing the whiskey with knowledge that it had been stolen. The defendants Collins, Frye and Hales, though charged in the conspiracy, were not included in the charges of counts two or three. The fourth and fifth counts named only the defendant James Edward Dye, who had not been named in any of the first three. In count four, Dye was charged with being an accessory after the fact and in count five, with misprision of felony. The charges against Dye referred to transactions between him and the defendant Steven Eugene McFee which occurred shortly after the theft of the whiskey.

Upon arraignment, all defendants except McFee pled not guilty. McFee pled guilty and gave testimony which implicated the other defendants. At the conclusion of a trial which lasted four days the jury rendered the following verdict:

Count 1: Cupp, Galyon, Lambert, Collins, Burnette, Hughes, Ervin and Hales — guilty; Frye and Lay— not guilty.
Count 2: Burnette and Ervin — guilty.
Count 3: Cupp, Galyon, Burnette, Hughes, Lambert and Ervin- — ■ guilty; Lay — not guilty.
Count 4: Dye — guilty.
Count 5: Dye — guilty.

All who were convicted except the defendant Hales have appealed.

At a pretrial hearing, the government stated that it would not rely on any whiskey taken from the premises on Walker Boulevard nor on the search of those premises. It was stipulated that the only whiskey that would be introduced in evidence would be a portion of that taken from the U-Haul truck by the FBI. It was also agreed that all objections by any defense counsel would be treated as made on behalf of all defendants. At the same time, motions for severance were overruled and a hearing was set on a motion to suppress evidence consisting of the whiskey taken from the U-Haul truck.

The suppression hearing was held on December 8, 1972 and at the conclusion thereof the court ruled that the defendant Frye (who was subsequently acquitted by the jury) was the only one who had standing to object to the search of the U-Haul truck and seizure' of the whiskey. Frye was a service station operator who testified that he had leased the truck on July 29 to a person who identified himself as Douglas White and that the truck had been returned to him the following week by the FBI together with a copy of a search warrant and inventory showing that 416 cases of whiskey were removed from the truck on August 3. Subsequently the court ruled that since Frye had leased the truck he was not a person aggrieved within the meaning of Rule 41(e), Fed.R.Crim.P., and that therefore none of the defendants had standing to suppress the evidence. The court went on to hold that even if the defendants did have standing, there was probable cause for issuance of the search warrant by the United States magistrate and that the FBI search of the U-Haul truck and seizure of the whiskey was not “tainted” by the previous activities of the state officers.

Sufficiency of the Evidence

In oral argument counsel for the government virtually conceded that there was insufficient evidence to sustain the conviction of defendant Burnette under Count 2. Our examination of the record confirms that the only evidence that Burnette engaged in the actual theft of the whiskey was contained in the confession of the defendant Ervin, and the jury was not permitted to hear those portions of the confession which incriminated other defendants. Upon remand, the charge against Burnette in Count 2 will be dismissed.

No attempt will be made to give a detailed statement of the evidence in this case. Although the other defendants claim that they were entitled to acquittal because of failure of the government to prove all elements of the offenses with which they were charged, the record does not support these claims. Following conviction, we view the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Luxen-berg, 374 F.2d 241, 248 (6th Cir. 1967). The prosecution sought to establish some elements of the offenses by circumstantial evidence. It is well settled in this jurisdiction that it is not necessary that circumstantial evidence remove every reasonable hypothesis except that of guilt. United States v. Scales, 464 F.2d 371 (6th Cir. 1972). With the exception noted as to Burnette, we find that the evidence introduced by the government, together with the reasonable inferences which may be drawn therefrom, was sufficient to support the verdict of the jury. Much of the argument on sufficiency of the evidence put forward by the defendants relates to credibility and weight, matters which are within the exclusive province of the jury. By pointing out contradictions in the evidence and arguing that the testimony of Mc-Fee should not be given great weight, the defendants merely emphasize the fact that the record does contain substantial evidence which supports the verdict.

Time Allotted for Closing Argument

All the defendants also complain that the court limited the time for the closing argument to one hour and forty minutes to the side, which was approximately ten minutes for each defendant. In conference with the attorneys, the court suggested that they apportion the time as they saw fit but told them that if they could not apportion it, the clerk would allow ten minutes to each attorney for the defense. As shown by the fact that seven of the defendants have filed a joint brief in this court, many of the issues in this case were common to several defendants. Thus it was not necessary for each attorney to argue every issue, and the court offered to permit them to divide the allotted time in any way they desired. This is a matter which is left to the discretion of the trial judge, and we find no abuse of discretion.

The Court’s Charge to the Jury

Two of the defendants allege error in the failure of the court to give alibi instructions. Burnette and Lambert introduced witnesses who testified as to their whereabouts during a portion of the time when the government witness McFee had testified they were involved in handling the stolen whiskey. The record does not indicate a formal request for an instruction covering these alibi defenses, and at the conclusion of the charge the court noted that it did not believe that “the alibi business applies. This was a conspiracy charge.” No objection was made to this ruling. The defendant in a criminal case is entitled to instructions on every theory which he puts forward and supports by evidence. Marson v. United States, 203 F.2d 904, 912 (6th Cir. 1953). Even assuming that the defendants properly brought the alibi theory to the attention of the court, an examination of the testimony of the alibi witnesses discloses that they did not account for the presence of either defendant at a place other than the scene of the activities related to the stolen whiskey in such a way as to preclude the possibility that the defendants were actually there at the times testified to by government witnesses. This is so because the so-called alibi witnesses failed to account for large segments of the critical period of time. We believe that the general charge to the jury adequately protected the rights of these defendants.

Use of Defendant Ervin’s Confession

The defendant James Harold Ervin gave a detailed statement to an FBI agent while he was being held in the Rome, Georgia jail on other charges. When the government sought to introduce the statement during trial of this case, there was an objection made out of the hearing of the jury which put in issue the voluntariness of the statement. The court then excused the jury and received the testimony of the FBI agent who had taken the statement from Ervin and Ervin’s testimony. Ervin claimed that he gave the statement under duress after the FBI agent had threatened to revoke the probation of Ervin’s wife unless he gave a statement about the stolen whiskey. The FBI agent categorically denied making such a threat and testified that he knew nothing about Ervin’s family circumstances at the time he took the statement. The court ruled that Er-vin’s statement was freely and voluntarily given and the FBI agent was permitted to testify concerning the statement. As instructed by the court, the witness did not mention the names of any persons other than Ervin in reciting the contents of the statement, but referred to “this man,” “another man” and similar designations with respect to other persons whose activities were recited in the statement.

The district court followed the procedure prescribed in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), by hearing the witnesses out of the presence of the jury and making his own determination that the statement of Ervin was voluntary. Furthermore, the court instructed the jury that it was not to consider the confession of Ervin unless it found that the statement was voluntarily given. Actually this instruction was unnecessary since the only objection to admission of the statement was made out of the hearing of the jury and no defendant made an effort to get before the jury any evidence which would put the voluntariness of the statement in issue. United States v. Goss, 484 F.2d 434 (6th Cir. 1973). Our examination of the entire record with respect to the statement of Ervin leads to an independent determination that it was given voluntarily. See Davis v. North Carolina, 384 U.S. 737, 741-742, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966).

Post-Trial Voir Dire of Jury

Shortly after the trial was concluded, the attorney who had represented the defendant Dye was contacted by one of the jurors who intimated that there has been some irregularity in the deliberations of the jury. It was arranged that the attorney would meet the juror at breakfast the next morning and that two other attorneys who had represented defendants in the case would accompany him. The attorney first contacted filed a statement with the court relating these facts and stating that in the conversation the next day the juror indicated that he had been induced to vote “guilty” with respect to two defendants that he thought were innocent in order to obtain the votes of other jurors to acquit the defendants Frye and Lay. The court called the juror and conducted a hearing in chambers in which the attorney first contacted by the juror, the -United States Attorney and the juror were present. The court excluded the other attorneys who had participated in the trial but furnished them with a transcript of the interrogation of the juror. It is now claimed that all of the defendants were entitled to conduct a post-trial voir dire of the entire jury. No such motion appears in the record. The district judge conducted' a limited voir dire of the juror who had contacted the attorney and determined that his revelations were not of sufficient gravity to impair the verdict of the jury or to justify further inquiry. Proper functioning of the jury system requires that jurors be free of post-trial inquisition and harassment. See Stein v. New York, 346 U.S. 156, 178, 73 S.Ct. 1077, 97 L.Ed. 1522 (1953). All of the jurors had stated in open court that the verdict in this case was their own verdict, and nothing contained in the affidavit of the attorneys or the limited inquiry of the one juror would have justified a voir dire of the entire jury.

Seizure and Search of the U-Haul Truck

When the state officers took possession of the U-Haul Truck and drove it to the police station, none of the defendants was present. The police had been in the area for nearly nine hours, and no one had appeared to claim the truck. Though the body of the truck was padlocked, the ignition key was in the cab which was unlocked. The close proximity of the truck to the warehouse, and its apparent abandonment were justification for removing the truck from the public alley at 4:00 a. m. Compare Cady v. Dombrowski, 413 U.S. 433, 442-443, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). So far as the record shows, none of the defendants except Frye ever claimed any connection with the truck. Without a showing of an interest in the property or the right to control it, they have no standing to suppress the evidence taken from the truck. United States v. Wells, 437 F.2d 1144 (6th Cir. 1971). The defendants cite Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968) for the proposition that one need not claim ownership of the property searched to establish standing. However, that decision did not eliminate the requirement that one at least have some possessory interest in the property searched in order to have standing. No such showing was made by any of the defendants.

The defendants indicted in count three contend that they have “automatic” standing to seek suppression of the whiskey taken from the U-Haul truck under the holding of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). In that case, the Supreme Court noted the dilemma of one accused of a crime in which mere possession is sufficient for conviction. The Court stated:

The possession on the basis of which petitioner is to be and was convicted suffices to give him standing under any fair and rational conception of the requirements of Rule 41(e). Id. at 264, 80 S.Ct. at 732.

The dilemma referred to in Jones of requiring one to admit possession, and thus incriminate himself, in order to establish standing, was removed by the holding in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). That case dealt with a non-possessory offense and the Court noted that even in this type case a defendant might be deterred from making a motion to suppress by the fact that his evidence in the suppression hearing would be prejudicial if introduced at his trial. The rule set forth in Simmons, is that—

[W]hen a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection. Id. at 394, 88 S.Ct. at 976.

In Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973), the Supreme Court did not reach the question of whether the Simmons rule makes the “automatic” standing doctrine of Jones unnecessary. That question is squarely before us here with respect to the convictions under count three of the indictment because possession is “an essential element of the offense . . . charged” in that count. Brown v. United States, supra at 228, 93 S.Ct. at 1568. In this case, the motion to suppress was made on behalf of all defendants. Yet only Frye testified at the suppression hearing and his statement showed that he surrendered possession of the truck under a leasing agreement which covered the period when the defendants were charged in count three with illegal possession of the whiskey. The third count of the indictment charges possession of stolen whiskey on or about July 28th. The U-Haul truck was first observed on July 29th, parked in an alley with keys in the ignition. It was not seized until July 30th, following surveillance, and was searched on August 3rd. Thus the defendants convicted under count three were not charged with possession at the time of the contested search and seizure. In Brown, the Supreme Court held:

In deciding this case, therefore, it is sufficient to hold that there is no standing to contest a search and seizure where, as here, the defendants: (a) were not on the premises at the time of the contested search and seizure; (b) alleged no proprietary or possessory interest in the premises; and (c) were not charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure. The vice of allowing the Government to allege possession as part of the crime charged, and yet deny that there was possession sufficient for standing purposes, is not present. The Government cannot be accused of taking “advantage of contradictory positions.” (citations omitted, emphasis added) 411 U.S. at 229, 93 S.Ct. at 1569.

There was no direct evidence that any of the defendants except Frye was ever in possession of the U-Haul truck or the whiskey it contained. There was evidence that the defendants were seen in possession of other Jack Daniels whiskey while unloading it from the hijacked tractor-trailer into the warehouse. The whiskey taken from the U-Haul truck was part of the same shipment. In the light of Simmons, we do not believe these defendants had automatic standing when they failed to establish some pos-sessory interest in the whiskey or the truck at a hearing where none of their testimony could be used in the subsequent trial. The defendants in this case have not established that they are the ones “against whom the search was directed” or that they had a right of privacy with respect to the U-Haul truck or its contents. See Jones v. United States, 362 U.S. at 261, 80 S.Ct. at 731. Thus we do not reach the issue of whether actions of the Knox County officers “tainted” the search which the FBI agents made pursuant to the warrant issued by a federal magistrate.

Use of Previous Statements of Witnesses

Several persons called as government witnesses made answers which apparently conflicted with statements they had previously given to FBI agents. The witnesses were then asked about the previous statements and the defendants objected on the ground that the prosecution could not cross-examine its own witnesses. The district attorney informed the court that the answers surprised him and he was permitted to proceed. It is not clear from the record whether portions of the statements were read to the witnesses or whether the questions were merely based on the statements. Nor does the record reveal that the prosecution knew in advance that the answers of the witnesses would be different from their narrative statements. Having claimed surprise, the prosecuting attorney could properly bring out the prior inconsistent statements of a witness. Necessary foundations as to time, place and circumstances of the previous statements were laid. Under these circumstances it was within the discretion of the trial court whether to permit cross-examination of the prosecution witnesses. Poliafico v. United States, 237 F.2d 97, 108-109 (6th Cir. 1956), cert. denied, 352 U.S. 1025, 77 S.Ct. 590, 1 L.Ed.2d 597 (1957).

The defendants Galyon and Cupp were implicated by the out-of-court statement of the witness Dalton and their counsel objected, and when overruled, requested an admonition that the statements could not be considered by the jury unless the FBI agents were produced for a formal confrontation. The court refused to give such an instruction at that time and indicated that it would be included in the charge at the conclusion of proof. The FBI agents who had taken the statements did testify later, but no one questioned them about the out-of-court statement of Dalton. Thus, the right of confrontation claimed by counsel was afforded, but the defendants chose not to pursue the matter.

The courts should be alert to prevent abuse of the prior inconsistent statement rule by the prosecution’s use of extra-judicial statements in the guise of impeaching witnesses, when the true purpose is to get before the jury substantive evidence which is not otherwise available. See United States v. Crowder, 346 F.2d 1 (6th Cir.), cert. denied, 382 U.S. 909, 86 S.Ct. 249, 15 L. Ed.2d 161 (1965). It is well settled in this jurisdiction that it is error not to give a requested instruction limiting consideration by the jury of an out-of-court statement to impeachment purposes. United States v. Barnes, 319 F.2d 290 (6th Cir. 1963). However, none of the defendants in this case requested an instruction so limiting the Dalton statement, but rather objected on other grounds. In this circuit, failure to give a limiting instruction with respect to the use of extra-judicial statements is plain error. Rule 52(b), Fed.R.Crim.P.; United States v. Lester, 491 F.2d 680 (6th Cir. 1974). However, we conclude in view of the other evidence of guilt of the defendants Galyon and Cupp, that the failure to give an instruction in this case was harmless beyond a reasonable doubt. See Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); Glinsey v. Parker, 491 F.2d 337 (6th Cir.) cert. denied, 417 U.S. 921, 94 S.Ct. 2630, 41 L.Ed.2d 227 (1974).

The Jencks Act Statements

Prior to trial the prosecution furnished to the defendants eleven statements which the witness McFee had made in connection with the case. After the trial was over the attorneys for the defendants realized that one of the FBI agents had testified on cross-examination that he had participated in securing 19 statements from this witness. A motion was made in the district court for a hearing to determine if the Jencks Act, 18 U.S.C. § 3500, had been complied with. The case was on appeal to this court when the motion was made, and the government moved for a remand to the district court for the purpose of holding a hearing to determine if the missing statements were covered by the Jencks Act and, if so, whether any prejudice resulted from failure to produce them. The matter was remanded to the district court where a hearing was held on May 25, 1973. The district judge held that the eight documents were “statements” within the Jencks Act, but that failure to produce them was not prejudicial.

The government argues that failure to produce the eight statements was an oversight and was clearly unintentional and that the eleven statements which were produced were used by the defense for a thorough and vigorous cross-examination of McFee. While admitting that all of the interviews with McFee are “statements” covered by the Jencks Act, the government would have us treat its failure to produce them as harmless error. The eight statements which were not produced would have provided little if any additional material for cross-examination by counsel for defendants. In one^ — a recording of a telephone conversation — there is an ambiguous reference to the fact that “Jim” was not worried because he had done nothing wrong. Each of the three defendants whose given name is James claims prejudice from the government’s failure to produce this transcript at the trial. We hold that the finding of the district court that there was no prejudice to the defendants as the result of the failure of the prosecution to produce the eight statements was not clearly erroneous. United States v. Chitwood, 457 F.2d 676, 678 (6th Cir.), cert. denied, 409 U.S. 858, 93 S.Ct. 141, 34 L.Ed.2d 103 (1972).

The Severance Issue

The defendants filed motions for severance, claiming that they were entitled to separate trials so that each could call as witnesses the other defendants who had made statements. This they could not do in the joint trial in which the persons giving the statements were co-defendants. The brief refers particularly to the statement of the defendant Ervin mentioned earlier in this opinion contending that the other defendants were denied their right of effective confrontation by being tried jointly with Ervin. As we have pointed out, the jury was not permitted to know the identify of anyone referred to in the Ervin statement. We believe that the trial court correctly ruled that the other defendants were not implicated by this statement and that the joint trial did not violate their constitutional right to confront witnesses against them. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

A motion under Rule 14, Fed.R.Crim. P., for relief from prejudicial joinder is directed to the sound discretion of the trial court and denial of severance is not grounds for reversal in the absence of an abuse of discretion. Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 99 L.Ed. 101 (1954); United States v. Vaughan, 422 F.2d 812 (6th Cir. 1970) ; United States v. Morgan, 394 F.2d 973 (6th Cir.), cert. denied, 393 U.S. 942, 89 S.Ct. 310, 21 L.Ed.2d 279 (1968). It was pointed out in United States v. Echeles, 352 F.2d 892 (7th Cir. 1965), that the general rule in conspiracy cases is that persons jointly indicted should be tried together and that this is particularly true where the offenses charged may be established against all of the defendants by the same evidence and which result from the same series of acts. The defendants other than Dye do not contend that joinder was improper under Rule 8, Fed.R.Crim.P., but only that it was prejudicial and that severance should have been ordered under Rule 14. The Court of Appeals for the Seventh Circuit considered such a claim in United States v. Rogers, 475 F.2d 821 (1973), where it stated at page 828:

Joinder being proper, this court will reverse the trial court only if abuse of discretion is shown. The trial court is to balance possible prejudice to the defendant from joinder with the public interest in efficient use of judicial time through joint trial of defendants and offenses which are connected. In a case of multiple defendants, as the instant one, the showing needed for severance appears to be stronger than in a case of a single defendant with multiple counts. See Wright and Miller, Federal Practice and Procedure § 223 (1969). (Citations omitted.)

We find no abuse of discretion in the denial of severance to the defendants named in the first three counts of the indictment.

The defendant Dye charges that Rule 8(b) of the Federal Rules of Criminal Procedure was violated by charging him in the same indictment with the other defendants. It is his position that he was not alleged to have participated in the same “act or transaction” or “in the same series of acts or transactions” constituting an offense or offenses as the other defendants named in the indictment. Dye was not charged with being a member of the conspiracy or committing any of the overt acts in furtherance of the conspiracy. . It was alleged that he was an accessory after the fact because of assistance he gave the defendant McFee in changing his appearance and that he was guilty of misprision of felony in concealing the hijacking of the whiskey and not reporting it to proper authorities. The most important evidence against him was the testimony of the co-defendant McFee, just as McFee’s testimony was basic to making out the case against all of the defendants. The fourth and fifth counts of the indictment refer specifically to McFee’s possession of the stolen whiskey which is the subject of the third count of the indictment. We believe that the joinder of defendants was proper in this case because the indictment charged them separately with participation in “the same series of acts or transactions constituting ... offenses.” Although Dye was named in only two counts, this is not a case such as United States v. Reynolds, 489 F.2d 4 (6th Cir. 1973), where the indictment alleged no connection between the acts of a defendant named in one count and those of a defendant named in another. The indictment charged in count three that McFee was guilty of knowingly possessing property which had been stolen from an interstate shipment and counts four and five charged that Dye’s illegal activities occurred at a time when he knew of McFee’s commission of the offense charged in count three. The joinder of Dye in counts four and five did not violate Rule 8(b), and we find no abuse of discretion in the trial court’s denial of severance.

• One other claim of error should be dealt with here since it concerns the indictment. Dye claims that counts four and five of the indictment are “duplicitous” because the proof necessary for conviction of the accessory charge and for misprision of felony is identical and the offenses are not distinct. The same evidence may result in conviction of more than one offense if each such offense requires proof of a fact which the others do not. United States v. Barnett, 418 F.2d 309 (6th Cir. 1969). This test is satisfied with respect to the separate charges of being an accessory after the fact and misprision of felony. United States v. Daddano, 432 F.2d 1119, 1129 (7th Cir. 1970), cert. denied, 402 U.S. 905, 91 S.Ct. 1366, 28 L.Ed.2d 645 (1971).

The judgment of the district iourt is affirmed except with respect to the convction of the defendant Burnette under Count 2 of the indictment. The conviction of Burnette under Count 2 is reversed and it is directed that this charge be dismissed.