author: WEBSTER, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Susanne M. HUTCHINSON, Appellant. UNITED STATES of America, Appellee, v. Gordon ENNIS, Appellant.
    Nos. 73-1159, 73-1179.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 12, 1973.
    Decided Dec. 5, 1973.
    Rehearing and Rehearing En Banc Denied Jan. 10, 1974.

      Jan Stuurmans, Minneapolis, Minn., for appellant Hutchinson.
    Alan K. Schwartz, Los Angeles, Cal., for appellant Ennis.
    Earl Gray, Asst. U. S. Atty., Minneapolis, Minn., for appellee.
    Before HEANEY, STEPHENSON and WEBSTER, Circuit Judges.
   WEBSTER, Circuit Judge.

In a joint trial in the United States District Court for the District of Minnesota, a jury found Susanne Hutchinson and Gordon Ennis guilty of certain narcotics offenses specified below. We affirm their convictions. Because they were not charged in identical counts and present independent assignments of error, their appeals — though consolidated— are considered separately.

I

Defendant, Susanne Hutchinson, was charged, jointly with her husband, Thomas Hutchinson, with knowingly and intentionally possessing, with the intent to distribute, approximately 11 ounces of cocaine in violation of 21 U.S.C. § 841(a)(1) and with conspiring to violate that statute. Defendant’s husband pleaded guilty to the possession charge and to three charges of distributing and dispensing cocaine, and the conspiracy charge against him was thereafter dismissed. Prior to trial, a motion to suppress evidence seized in a search of the Hutchinson residence conducted on April 7, 1972, was denied by the District Judge, Honorable Earl R. Larson. Upon trial to a jury Susanne Hutchinson was found guilty of possession, as charged, but was acquitted of the conspiracy count.

In this appeal she contends (A) that federal narcotics agents, in violation of her Fourth Amendment rights and of 18 U.S.C. § 3109 searched her residence and seized certain items later used as evidence at her trial; and (B) that the jury’s verdict was not supported by the evidence. We affirm her conviction for the reasons discussed below:

A. The Search and Seizure

Susanne Hutchinson raises in her appeal the question whether a government agent working in an undercover capacity is required to announce his identity and purpose under 18 U.S.C. § 3109 and under the Fourth Amendment when he is invited into a home for the purpose of purchasing illegal narcotics.

The record in this case reveals that Special Agent James D. McDowell, working in an undercover capacity for the Bureau of Narcotics and Dangerous Drugs, arranged with Thomas Hutchinson to purchase one-half pound of cocaine. He had previously negotiated several narcotics transactions with Hutchinson in the presence of his wife, Susanne. This transaction was to be completed on April 7, 1972 at the Hutchinson home. On that date, Agent McDowell obtained a search warrant for the Hutchinson residence and then went to that address to execute the warrant. The residence had both an outer screen door and an inner door. McDowell knocked on the screen door. Thomas Hutchinson opened the inner door and invited McDowell, still in his undercover disguise, inside. McDowell opened the screen door and entered. After being shown what he believed to be cocaine, McDowell excused himself to go to his car for money. He deliberately left the inner door partially open, but the outer screen door closed behind him as he left. McDowell opened the trunk of his ear (the signal to the other officers waiting nearby to aid in the execution of the warrant) and picked up the brief case containing the warrant. Accompanied by the other officers, McDowell returned to the residence, opened the screen door and walked in through the inner door which was still partially ajar. He did not knock, identify himself or the officers, or state their purpose before entering. Packages containing varying quantities of cocaine were seized as was other incriminating evidence, including a copy of a letter from Thomas Hutchinson to Gordon Ennis containing a request for four ounces of cocaine. . We are asked to determine whether the trial court erred in admitting evidence seized under such circumstances.

Appellant Hutchinson contends that because Agent McDowell was in the process of executing a warrant, § 3109 was applicable. Primary reliance is placed on Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968) and Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958), which together held that § 3109 requires an express prior announcement of authority and purpose even though the door through which the officers enter is unlocked or partially ajar. In reply, the government argues the broad proposition that any home loses all its constitutional protection and statutory protection conferred by § 3109 once it becomes the site of illegal transactions. While we reject that rule so broadly stated, it is well recognized that “[a] government agent, in the same manner as a private person, may accept an invitation to do business and' may enter upon the premises for the very purposes contemplated by the occupant.” Lewis v. United States, 385 U.S. 206, 211, 87 S.Ct. 424, 427, 17 L.Ed.2d 312 (1966). Thus, the controlling fact here is not that on other occasions the Hutchinson residence had been used as a site for illegal transactions, but rather that on the particular day of April 7, Agent McDowell had been invited into the Hutchinson residence for the purpose of purchasing cocaine. McDowell entered the home with the consent of all there present. That consent did not automatically terminate when he left briefly to get his brief case from his car. His return was expected by all present, and nothing occurred from which a withdrawal of the original consent may be implied. Once that consent is placed in its proper perspective, it becomes clear that § 3109 is simply not applicable here.

Nor does the contention that McDowell gained entry by ruse compel a different conclusion. As the First Circuit has recently stated when dealing with a factually similar situation:

The defendants do not allege, nor could they, that [Agent] Ross’s presence suddenly became unlawful or that their privacy suddenly was invaded solely because his role changed from undercover agent to arresting officer. To so hold, as was stated in Lewis v. United States, . . . 385 U.S. at 210, 87 S.Ct. at 427, . . . would ‘come near to a rule that the use of undercover agents in any manner is virtually unconstitutional per se.’ The lawful presence of a government agent precludes any argument that later entries violate the privacy of occupants. Since privacy is what § 3109 seeks to protect, the prior lawful entry and continued presence of Agent Ross vitiates any impropriety of subsequent entries. United States v. Bradley, 455 F.2d 1181, 1186 (1st Cir. 1972), aff’d on other grounds, 410 U.S. 605, 93 S.Ct. 1151, 35 L.Ed.2d 528 (1973).

While in United States v. Bradley one government agent remained in the dwelling during the entire time period in question, we find nothing in that case contrary to our holding that McDowell’s momentary absence from the Hutchinson residence did not abrogate the lawful character of his original entry. See United States v. Ryles, 451 F.2d 190 (3d Cir. 1971), cert. denied, 406 U.S. 926, 92 5. Ct. 1796, 32 L.Ed.2d 127 (1972). In Bradley the court expressly did not reach the “ruse” defense. 455 F.2d at 1186. As in Bradley, we need not here decide the implications of an entry by ruse, on which other circuits have reached varying conclusions, because the original entry of Agent McDowell was lawful and no independent deception was practiced in reentering after his brief absence. “[P]rivacy is what § 3109 seeks to protect” and under these facts the Hutehinsons’ privacy was not offended by the absence of § 3109 formalities.

B. Sufficiency of the Evidence

Appellant contends that the facts established at her trial do not constitute evidence sufficient to sustain her conviction for the offense of knowingly and intentionally possessing, with the intent to distribute, approximately 11 ounces of cocaine in violation of 21 U.S. C. § 841(a). We disagree. A violation of that statute requires both possession of the contraband and the intent to distribute it. Possession may be actual or constructive, and either sole or joint. United States v. Bridges, 419 F.2d 963 (8th Cir. 1969); Bass v. United States, 326 F.2d 884 (8th Cir.), cert. denied, 377 U. S. 905, 84 S.Ct. 1161, 12 L.Ed.2d 176 (1964); Mack v. United States, 326 F. 2d 481 (8th Cir.), cert. denied, 377 U.S. 947, 84 S.Ct. 1355, 12 L.Ed.2d 309 (1964); see also United States v. Dugan, 477 F.2d 140 (8th Cir. 1973). It is well settled that knowledge of the presence of the contraband plus control over it is sufficient evidence of possession. Bass v. United States, supra, 326 F.2d at 886.

Appellant occupied the residence with her husband, Thomas Hutchinson. The April 7th search revealed, in addition to the approximately 11 ounces of cocaine being negotiated for sale in appellant’s presence by Thomas Hutchinson to Agent McDowell, one baggie of cocaine in a living room desk and six baggies of cocaine in a bedroom dresser shared by appellant and her husband.

“Constructive possession” has been generally defined as knowingly having both the power and intention at a given time to exercise dominion or control over the property. Rodella v. United States, 286 F.2d 306, 311-312 (9th Cir. 1960), cert. denied, 365 U.S. 889, 81 S.Ct. 1042, 6 L.Ed.2d 199 (1961), cited in United States v. Dugan, supra, 477 F.2d at 141.

[C]ontrol over the apartment or automobile where the narcotic is found is strong evidence of control over the narcotic. It does not have to be exclusive control over the premises if there is other evidence to show control over the [drug].

Bass v. United States, supra, 326 F.2d at 887.

Constructive possession may be established by circumstantial evidence. Bass v. United States, supra, 326 F.2d at 888.

The record in this case discloses more than mere proximity of the appellant. Cf. McDonnell v. United States, 472 F.2d 1153, 1156 (8th Cir.), cert. denied, 412 U.S. 942, 93 S.Ct. 2785, 37 L.Ed.2d 402 (1973). With full knowledge of prior narcotic transactions between her husband, Thomas Hutchinson, and Agent McDowell, the appellant admitted McDowell to her home on March 20. There he discussed his wish to purchase half a pound of cocaine from “the Source”. When McDowell suggested that “the Source” bring the cocaine, since half a pound was “an awful lot of cocaine” to send through the mails, appellant told him that since the cocaine was sent to various addresses around the neighborhood there really was not that much danger involved. Appellant in words and conduct assumed more than a passive role. She allayed McDowell's professed fears and encouraged him to make a deal for the purchase of approximately one-half pound of cocaine in her residence. Not only was appellant in constructive possession of the cocaine, but she demonstrated her joint interest in the transaction and manifested her intent that the cocaine be distributed to McDowell. Moreover, the jury could well have found from such evidence that appellant by words and conduct aided and abetted her husband in a joint purpose to distribute the 11 ounces of cocaine admittedly in Thomas Hutchinson’s possession at the time of the search. See United States v. Atkins, 473 F.2d 308, 310 (8th Cir.), cert. denied, 412 U.S. 931, 93 S.Ct. 2751, 37 L.Ed.2d 160 (1973).

Taking these facts as we must, in the light most favorable to the verdict of the trier of fact, accepting as established all reasonable inferences that tend to support the fact trier’s decision, and resolving any evidentiary conflicts in favor of the fact finder’s verdict, we hold that the evidence was sufficient, if believed, to support a finding that appellant was in knowing possession of cocaine, a controlled substance, with intent to distribute it.

II

Gordon Ennis, a resident of San Francisco, was arrested upon his arrival at the Minneapolis airport on April 10, 1972, three days following the arrest of the Hutchinsons. Following an indictment and trial before a jury, Gordon Ennis was found guilty of conspiring, confederating, and agreeing together with other individuals to violate 21 U.S. C. § 841(a)(1), as separately prohibited by 21 U.S.C. § 846. He was found not guilty of two other offenses charged in the indictment.

Appellant Ennis challenges the sufficiency of the evidence, the consistency of the verdict and the April 7th search and seizure. He further contends that the trial court erred in denying his motion for severance and for a separate trial.

A. Sufficiency of the Evidence

Gordon Ennis contends that the evidence introduced at trial was insufficient to support his conviction for conspiring to distribute and dispense cocaine, and this contention forms the primary focus of his appeal. Although all of the evidence of his guilt was circumstantial, there was an adequate basis for the jury’s verdict when viewed in the light most favorable to the government.

The threshold question is whether or not the existence of the conspiracy was established. “The offense of conspiracy consists of an agreement between the conspirators to commit an offense, attended by an act of one or more of the conspirators to effect the object of the conspiracy.” United States v. Skillman, 442 F.2d 542, 547 (8th Cir.) cert. denied, 404 U.S. 833, 92 S.Ct. 82, 30 L.Ed.2d 63 (1971); United States v. Falcone, 311 U.S. 205, 210, 61 S.Ct. 204, 85 L.Ed. 128 (1940). The agreement, which need not be express or formal, may be established by circumstantial evidence. Koolish v. United States, 340 F.2d 513, 523-524 (8th Sir.), cert. denied, 381 U.S. 951, 85 S.Ct. 1805, 14 L. Ed.2d 724 (1965); Phelps v. United States, 160 F.2d 858, 867 (8th Cir. 1947), cert. denied, 334 U.S. 860; 68 S. Ct. 1525, 92 L.Ed. 1780 (1948). There was abundant evidence from which the jury could find that a conspiracy existed to obtain cocaine from a source in California and distribute it in Minnesota. The testimony of Thomas Hutchinson, a named co-conspirator, was alone sufficient, if believed, to establish the nature and existence of the conspiracy; and was further re-enforced by statements to Agent McDowell by both Hutchinson and his wife outlining the manner in which the drugs were to be obtained from California.

The more serious question is the sufficiency of the evidence of Ennis’ involvement as a member of the conspiracy. Once there is satisfactory proof that a conspiracy exists, a particular individual’s participation therein may be established by evidence that otherwise seems slight. Koolish v. United States, supra, 340 F.2d at 524; Phelps v. United States, supra, 160 F.2d at 867-868; Galatas v. United States, 80 F.2d 15, 24 (8th Cir. 1935), cert. denied, 297 U.S. 711, 56 S.Ct. 574, 80 L.Ed. 998 (1936) ; Fox v. United States, 381 F.2d 125, 129 (9th Cir. 1967). The evidence here is more than slight.

First, the search of the Hutchinson residence revealed a copy of a letter, dated March 7, from Thomas Hutchinson to Gordon Ennis wherein Hutchinson ordered four ounces of cocaine and invited Ennis to Minneapolis the week of April 8-15 to discuss “business transactions”. The search also uncovered a Kodak box containing approximately one-half pound of cocaine. The box was traced to a photographic store in San Francisco where Gordon Ennis did frequent business. Other items properly before the jury included Hutchinson’s address book, a money order receipt from Hutchinson’s bedroom naming Ennis as payee, and Hutchinson’s telephone records, all of which supported an inference of Gordon Ennis’ participation in the conspiracy.

In addition, the jury had before it the testimony of Agent McDowell, who stated that on several occasions Thomas Hutchinson referred to his source of cocaine as “Gordon”. While declarations of one conspirator in furtherance of the objects of the conspiracy “are admissible over the objection of an alleged co-conspirator, who was not present when they were made, only if there is proof aliunde that he is connected with the conspiracy,” the search of the Hutchinson residence produced ample evidence independent of these hearsay declarations.

Finally, on April 10, 1972, Gordon En-nis arrived in the Twin Cities having traveled by plane from San Francisco with his wife, another female and “the father”. Agent McDowell testified that Thomas Hutchinson had previously told him that his source, a member of the Foundation of Revelation, would be traveling to the Twin Cities by plane from California on April 8 in the company of Anita, another female and the father, and that the purpose of the trip concerned the father’s plan to show films and discuss the Foundation of Revelation. According to McDowell, Hutchinson remarked that his source might bring some cocaine with him on this trip to Minneapolis. No contraband, however, was found on Ennis.

Ennis offers an explanation consistent with innocence for each of such acts or statements. However, drawing conclusions from the evidence was the jury’s task, and we must accept all reasonable inferences that support the jury’s conclusion. United States v. Dugan, supra. Considered in the light most favorable to to the jury’s verdict, the evidence was sufficient to support a finding that Gordon Ennis became a participant in the conspiracy and himself acted in furtherance thereof as charged in the indictment.

B. Consistency of the Verdict

Because no other defendant was convicted as a co-conspirator, Gordon Ennis contends that his conviction must be set aside as inconsistent and contrary to law. His reasoning seems to be founded on the premise that a conspiracy requires the participation of at least two conspirators. Susanne Hutchinson and Onita Ennis were acquitted of the conspiracy count in the indictment, but Thomas Hutchinson, also charged as a co-conspirator, was not. Rather, the conspiracy charge against him was dismissed following his plea of guilty to, substantive narcotics offenses for which he was charged. Evidence of Thomas Hutchinson’s overt acts was admissible against Ennis.

C. Alleged Violations of Ennis’ Constitutional Rights

Ennis’ contention that the search and seizure at the Hutchinson residence on April 7 violated his constitutional rights is without merit. While we have already given full consideration to these issues, including the question of entry by ruse which appears to be Ennis’ primary concern, we note nonetheless that Ennis lacks standing to challenge the search and seizure in question. As the Supreme Court stated only last term,

[T]here is no standing to contest a search and seizure where 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.
Brown v. United States, 411 U.S. 223, 229, 93 S.Ct. 1565, 1569, 36 L.Ed.2d 208 (1973).

Here, Ennis was not in Minneapolis when the Hutchinson residence was searched, he asserted no proprietary or possessory interest in the Hutchinson dwelling, and the offense of conspiracy does not include as an essential element possession of the seized evidence.

D. The Trial Court’s Denials of Motions for Severance and Separate Trials

It is true, as Ennis states, that severance will be allowed upon a showing of real prejudice to an individual defendant. Williams v. United States, 416 F.2d 1064, 1069-1070 (8th Cir. 1969); Hayes v. United States, 329 F.2d 209 (8th Cir. 1964), cert. denied sub nom. Bennett v. United States, 377 U.S. 980, 84 S.Ct. 1883, 12 L.Ed.2d 748 (1964); United States v. Caci, 401 F.2d 664 (2d Cir. 1968), cert. denied, 394 U.S. 917, 89 S.Ct. 1180, 22 L.Ed.2d 450 (1969); United States v. Kahn, 381 F.2d 824 (7th Cir.), cert. denied, 389 U.S. 1015, 88 S.Ct. 591, 19 L.Ed.2d 661 (1967). But in the absence of such a showing, persons charged in a conspiracy should be tried together, especially where proof of the charges against the defendants is based upon the same evidence and the same acts. United States v. Kahn, supra; United States v. Lebron, 222 F.2d 531 (2d Cir.), cert. denied, 350 U.S. 876, 76 S.Ct. 121, 100 L.Ed. 774 (1955). Ennis has failed to demonstrate any prejudice or advance any other reason for digressing from the general rule.

Severance of offenses and defendants is in the sound discretion of the trial court. Rule 14, F.R.Cr.P. See United States v. Roell, 487 F.2d 395 at 402 (8th Cir. 1973). There was no showing of abuse of that discretion.

Affirmed.

      . The statute contains a separate conspiracy provision, 21 U.S.C. § 846. This was a seven count indictment. Only Counts VI and VII charged Susanne Hutchinson with criminal behavior; the other counts charged other individuals, i. e., Thomas Hutchinson, Gordon Ennis, and Onita Ennis.

      . 3829 Blaisdell Avenue South, Minneapolis, Minnesota.

      . “The officer may break open any outer or inner door or window of a house . . . to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of a warrant.”

      . These quantities are specified below in Part I, B.

      . The exact language in Lewis, unduly expanded by the government, was: “But when, as here, the home is converted into a com-mereial center to which outsiders are invited for purposes of transacting unlawful business, that business is entitled to no greater sanctity than if it were carried on in a store, a garage, a car, or on the street.” 385 U.S. at 211, 87 S.Ct. at 427.

      . United States v. Bradley, supra, 455 F.2d at 1186 n. 12.

      . Id. at 1186.

      . Nor did the result in Bradley depend upon the presence of “exigent circumstances”, which the court declined to consider in view of the agent’s prior lawful entry. Id. at 1186 n. 13.

      . Appellant was present again on April 7 when McDowell was admitted to the residence and shown a Kodak box containing the cocaine. Additional evidence of doubtful independent weight established that appellant lived off the fruits of the narcotic sales and that she protested McDowell’s seizure of $2,500 during the April 7th search of the residence. These additional facts standing alone would be insufficient evidence of guilt. A spouse, dependent upon her husband for support, has no known duty to abandon her residence or refuse his support because of his illegal conduct, and no inference of guilt should be permitted from such facts alone.

      . Intent to distribute may also be inferred from the large quantities of cocaine found in the Hutchinson residence. Such large quantities constitute evidence that the cocaine was not kept^)y the Hutchinsons merely for personal use. See United States v. Blake, 484 F.2d 50 (8th Cir. 1973) ; United States v. Wilkerson, 478 F.2d 813 (8th Cir. 1973) ; United States v. Echols, 477 F.2d 37 (8t.h Cir. 1973), cert. denied, 414 U.S. 825, 94 S. Ct. 128, 38 L.Ed.2d 58 (1973).
      In Echols, for example, this court found that the possession of 199.73 grams of cocaine constituted a sufficient basis for inferring the intent to distribute where there was no evidence that the appellant was an addict. Here, an even greater quantity was found in the Hutchinson residence; no evidence of addiction was introduced.

      . United States v. Dugan, supra, 477 F.2d at 142; United States v. Henson, 456 F.2d 1045 (8th Cir. 1972) ; Burke v. United States, 388 F.2d 286 (8th Cir. 1968).

      . Both Gordon and his wife, Onita Ennis, were tried jointly with Susanne Hutchinson, whose appeal is considered supra. In addition to the conspiracy charge, Gordon Ennis had been charged with knowingly and intentionally distributing and causing to be distributed approximately 51.27 grams of cocaine, in violation of 21 U.S.C. § 841 (a) (1), and with knowingly and intentionally using a communication facility, the mail, in committing, causing, and facilitating the distribution of cocaine (a felony under 21 U.S.C. § 841(a)(1)) in violation of 21 U.S.C. § 843. Onita Ennis, charged with the same crimes as her husband, was acquitted of all three.

      . Of course, the overt acts performed by Susanne Hutchinson and Onita Ennis, who were ultimately acquitted of conspiracy charges, can no longer be considered in proving the crime of conspiracy, for the rule is that at least one overt act must have been committed by one of the conspirators. Herman v. United States, 289 F.2d 362 (5th Cir.), cert. denied, 368 U.S. 897, 82 S.Ct. 174, 7 L.Ed.2d 93 (1961). In the instant case, however, there was evidence of overt acts committed by appellant Ennis himself and by Thomas Hutchinson, against whom the conspiracy charge was eventually dismissed upon his plea of guilty to four substantive counts.

      . In the letter, Hutchinson, after noting the “inevitability of business transactions” during the proposed visit, offered to split the transportation fares with Ennis.

      . When testifying at the trial, Thomas Hutchinson claimed that an individual named “Colorado” rather than Ennis was his source of cocaine. He explained that when McDowell, in his undercover disguise, offered him a* sum of money in return for the name of his source, “the thing that popped in my head was Gordon, because I knew Gordon was a priest and knew dope dealers. Colorado said he was from California. I drew a correlation between the two in hopes that I could secure the meeting between the two individuals.” Resolving this conflict in the evidence was a task for the jury; apparently, they chose not to believe Hutchinson’s explanation, and we do not re-evaluate that decision.

      . Glasser v. United States, 315 U.S. 60, 74, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942). As to whether Hutchinson’s identification of his source constituted a declaration made in furtherance of the objects of the conspiracy, see Salazar v. United States, 405 F.2d 74 (9th Cir. 1968), wherein the appellant challenged the admissibility of statements made by a co-conspirator to an undercover agent immediately prior to the agent’s receipt of some heroin from that co-conspirator. The appellant contended that the statements, which identified him as the source of the contraband, were merely narrative remarks and were not made “in furtherance of the conspiracy.” The court affirmed his conviction, holding that the statements related to and furthered the sale.

      . “The father” is the leader of the Foundation of Revelation, a religious group of which Ennis was the business manager.

      . Throughout the trial transcript, briefs, and other portions of the record, Ennis’ wife is referred to interchangeably as “Onita” and “Anita”. It is clear that there is no mistaken identity at issue here and that both names refer to a single individual.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    JACK’S FRUIT CO., Plaintiff-Appellant, v. GROWERS MARKETING SERVICE, INC., et al., etc., et al., Defendants-Appellees.
    No. 73-1400.
    United States Court of Appeals, Fifth Circuit.
    Dec. 10, 1973.
    Britt Whitaker, Tampa, Fla., for plaintiff-appellant.
    M. Craig Massey, Robert L. Trohn, Lakeland, Fla., for Growers Mktg.
    Robert A. Chastain, Gen. Counsel, Fla. Dept, of Agr. & Consumer Services, Leslie McLeod, Jr., Res. Counsel, Tallahassee, Fla., for other defendants-appellees.
    Before BELL, COLEMAN and RO-NEY, Circuit Judges.
   PER CURIAM:

Jack’s Fruit Co. appeals the dismissal of its suit seeking to bar the enforcement of a state money judgment against it in favor of Growers Marketing Service, Inc. alleged to be void for lack of jurisdiction and notice. The District Court dismissed the case on res judicata grounds.

Growers originally had received a damage award from the Florida Citrus Commission against Jack’s on a breach of contract complaint pursuant to F.S.A. § 601.66 (Supp.1973). Dissatisfied with the size of the recovery, Growers appealed the method of damage calculation to the Polk County Circuit Court. That court ruled that it lacked jurisdiction. On Growers’ petition for rehearing, the court stated that the petition would be treated as a motion to transfer the case to the appropriate state District Court of Appeal unless Growers otherwise requested.

Six months later, the case having been decided on the briefs filed in the Polk County Circuit Court, Jack’s received a decision of the District Court of Appeal of Florida, Second Division, reversing the Commissioner on the damage issue. Growers Marketing Service, Inc. v. Conner, 249 So.2d 486 (Fla.Dist.Ct.App. 1971). Jack’s petitioned for rehearing, arguing (1) that the District Court of Appeal lacked subject matter jurisdiction because the Polk County Circuit Court's ruling on Growers’ petition for rehearing was not an order which effected transfer of the case, and (2) that the District Court of Appeals’ decision did not comport with due process because Jack’s had not received adequate notice of the fact of transfer. Rehearing was denied.

Forsaking direct appeal, Jack’s made the same arguments to the Supreme Court of Florida in a petition for mandamus or prohibition to vacate and stay enforcement of the mandate of the District Court of Appeal. The Florida high court rejected those arguments. Jack’s Fruit Co. v. Growers Marketing Service, Inc., 261 So.2d 171 (Fla.1972). Jack’s then brought suit in federal court to bar enforcement of the state court judgment, once again arguing lack of jurisdiction and notice.

In civil litigation, except for habeas corpus proceedings, a federal district court has no jurisdiction to review final determinations of federal constitutional questions voluntarily submitted to and decided by state courts. Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S. Ct. 149, 68 L.Ed. 362 (1923); Carter v. Fort Worth, 456 F.2d 572 (5th Cir.), cert. denied, 409 U.S. 877, 93 S.Ct. 128, 34 L.Ed.2d 130 (1972); Paul v. Dade County, 419 F.2d 10 (5th Cir. 1969), cert. denied, 397 U.S. 1065, 90 S.Ct. 1504, 25 L.Ed.2d 686 (1970); Brown v. Chastain, 416 F.2d 1012 (5th Cir. 1969), cert. denied, 397 U.S. 951, 90 S.Ct. 976, 25 L.Ed.2d 134 (1970). This principle extends to alleged due process violations such as lack of notice. See American Surety Co. v. Baldwin, 287 U.S. 156, 53 S.Ct. 98, 77 L.Ed. 231 (1932). In that case the Supreme Court stated that the Surety Company, having challenged a state judgment against it in an independent state action that afforded the opportunity of raising the issue of lack of notice, could not base a federal court action to enjoin enforcement of the state court judgment on the same issue. Id. at 169. Similarly, the Supreme Court has held that the doctrine of res ju-dicata bars subsequent attack on a court’s subject matter jurisdiction, if the parties had full opportunity to raise that question in the prior proceedings. Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329 (1940).

In this case, Jack’s not only had, but actually availed itself of, the opportunity to litigate before the state courts the issues raised on this appeal. Therefore, as the federal district court determined, the doctrine of res judicata bars relitigation. To obtain a federal determination of its federal questions, Jack’s should have sought review of the state court action in the United States Supreme Court. See Atlantic Coast Line R.R. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 90 S.Ct. 1739, 26 L. Ed.2d 234 (1970); Rooker v. Fidelity Trust Co., supra.

Affirmed.


text:
    Clarence SIMPSON, Jr., #006232, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent-Appellee.
    No. 73-2555
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 27, 1973.

      Clarence Simpson, Jr., pro se.
    Barry Scott Richard, J. Robert Olian, Asst. Attys. Gen., Miami, Fla., Robert L. Shevin, Atty. Gen. of Fla., Tallahassee, Fla., for respondent-appellee.
    Before BELL, GODBOLD and GEE, Circuit Judges.

       Rule 18, 5 Cir.; See Isbell Enterr Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409.

   PER CURIAM:

Citing Fulford v. Smith, 432 F.2d 1225 (C.A.5, 1970), the District Court denied appellant’s petition for writ of habeas corpus from a state conviction on the ground that he was abusing the Great Writ by advancing in a series of petitions grounds previously presented or grounds that were available to him in his prior petitions. With deference to a District Court faced with a barrage of 15 to 20 claims and weary of appellant’s writ history (three previous federal habeas petitions, two prior appearances in this court, and a series of state court proceedings) we must conclude that we cannot affirm a plenary dismissal under Fulford. The “abuse of the Writ” doctrine is of rare and extraordinary application. It is possible that upon more specific consideration Fulford may be appropriately applied to many of the claims now made. But, on what little is before us — and it is very little — it appears likely that two claims now made and now alleged to have been exhausted in state courts were held in Simpson’s last preceding petition to have been not then exhausted. Fulford could not apply to bar a return to the federal court by one who has been remitted to the state courts to exhaust and reappears alleging that he has done just that. These two issues are alleged exclusion of Negroes from grand and petit juries and alleged excuse of jurors who did not believe in capital punishment. Denial of relief based on the latter issue can be affirmed, however, because Simpson did not receive the death penalty. See Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). Additionally, there is an allegation which, so far as we can determine, was not presented in previous federal habeas petitions and if so would hardly be within Fulford, that being the claim of petitioner that he has been denied parole because of the various attacks he has made on his conviction. We have held that a prisoner may not be penalized for availing himself of access to the courts. Hooks v. Kelley, 463 F.2d 1210 (C.A.5, 1972); Campbell v. Beto, 460 F.2d 765 (C.A.5, 1972); Grene v. Britton, 455 F.2d 473 (C.A.5, 1972); Andrade v. Hauck, 452 F.2d 1071 (C.A.5, 1971).

Affirmed as to the excuse of jurors issue. As to all other issues, Vacated and Remanded for further consideration.

      . See Simpson v. Wainwrigth, 439 F.2d 948 (CA5), cert. denied, 402 U.S. 1011, 91 S.Ct. 2199, 29 L.Ed.2d 434 (1971), directing an out-of-time appeal, and Simpson v. Wainwright, 468 F.2d 951 (CA5, 1972), affirming under Local Rule 21 a denial of the petition.


text:
    Maura HELLAND, Appellee, v. METROPOLITAN LIFE INSURANCE COMPANY, a foreign corporation, Appellant.
    No. 72-2998.
    United States Court of Appeals, Ninth Circuit.
    Nov. 23, 1973.
    J. Michael Crowe, Adam, Duque & Ha-zeltine, John H. Brinsley, Perry L. Hirsch, Los Angeles, Cal., for appellant.
    Richard A. Muench, Phillips & Naugh-ton, Michael J. Naughton, Tustin, Cal., for appellee.
    Before CHOY, WRIGHT, and SNEED, Circuit Judges.
   OPINION

PER CURIAM:

This is an appeal from an award of proceeds made under an optional group life insurance certificate made available to federal employees under the terms of a group life insurance policy issued to the United States Civil Service Commission by appellant Metropolitan.

In March, 1970, appellee’s husband, the decedent under the policy at issue, applied for optional group life insurance by properly completing and filing Standard Form 176 to show that he wanted both optional and regular insurance. Appel-lee was designated as beneficiary. At the time of making-his application, decedent was in the hospital and on sick leave. He remained in the hospital and on uninterrupted sick leave until his death in April, 1970. Throughout his sick leave, decedent remained in the employ of the federal civil service and continued to receive full pay. The amount of the optional insurance premium was withheld from his pay for this period. Thereafter, appellant Metropolitan tendered its check in the amount of the withheld optional insurance premium, but the tender was refused by the appel-lee.

The issue on this appeal is whether the requirement of Section 871.205(c), Title 5, Code of Federal Regulations, that an employee “actually enters on duty in a pay status” before the optional insurance elected by him can become effective means that an employee must be physically present on the job and performing his duties on or after April 1, 1970, in order to effectuate coverage. Since interpretation of this regulation involves a question of law, not fact, the clearly erroneous standard of review does not apply and we may reverse for mere error. ,

Because he was on sick leave, decedent was on pay status. But this does not mean that he was on duty. The words “actually enters on duty in a pay status” refer to two separate states of being: 1) on duty; and 2) in a pay status. We find support for our conclusion in the 1956 modification of life insurance regulations to require actual entrance on duty in addition to the previous requirement of service in a pay status as a condition precedent to acquiring regular life insurance coverage. 21 Fed.Reg. 8479 (Nov. 6, 1956). After the optional life insurance program was established in 1967, the Civil Service Commission issued optional life insurance regulations, including Section 871.205(c), Title 5, Code of Federal Regulations, requiring actual entrance on duty in a pay status. Since no physical examination is required, the purpose of requiring an employee to be actually on duty is presumably to insure a certain modicum of health on his part.

We therefore hold that under Section 871.205(c), Title 5, Code of Federal Regulations, an employee must be both (1) in a pay status and physically present on the job, and (2) performing his duties on or after April 1, 1970, in order to effectute coverage. See Boyer v. Travelers Insurance Co., 7 Cal.2d 615, 61 P.2d 925 (1936).

Reversed.

      . “An employee who lias declined the optional insurance may elect it by filing Standard Form 176, completed to show that he wants both optional and regular insurance, with his employing office during the period March 1, to March 31, 1970. The effective date of the optional insurance in such a case is the first day the employee actually enters on duty in a pay status on or after April 1, 1970.”

      . Prior to the 1956 amendment, Section 37.3 (e), Title 5, Code of Federal Regulations, provided:
      An employee appointed or transferred on or after the effective date provided for in paragraph (a) of this section shall be insured on his first day in a pay status unless on or before that date he files with his employing office a ‘Waiver of Life Insurance Coverage,’ or had previously filed such waiver which remains uncancelled.
      19 Federal Register 5465 (August 27, 1954).


author: LARAMORE, Senior Judge.

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. OKLA-INN, d/b/a Holiday Inn of Henryetta, Respondent, Retail Clerks Union, Local No. 73, Retail Clerks International Association, AFL-CIO, Intervenor.
    No. 72-1737.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted May 22, 1973.
    Decided Oct. 26, 1973.
    Rehearing Denied Jan. 23, 1974.

      Elliott Moore, Acting Asst. Gen. Counsel, Russell H. Gardner, William F. Wachter, Marjorie S. Godfreed, Peter G. Nash, John S. Irving, and Patrick Hardin, Washington, D. C., for petitioner.
    C. A. Kothe and Richard L. Barnes, Koths & Eagleton, Inc., Tulsa, Okl., for respondent.
    John M. Keefer, Jarboe & Keefer, Tulsa, Okl., for intervenor.
    Before SETH and DOYLE, Circuit Judges, and LARAMORE, Senior Judge.

       Senior Judge Don N. Laranaore of the United States Court of Claims is sitting by designation.

   LARAMORE, Senior Judge.

This case is before the court pursuant to section 10(e) of the National Labor Relations Act, 61 Stat. 136 (1947), 73 Stat. 519 (1959), 29 U.S.C. § 151 et seq., upon application of the National Labor Relations Board for enforcement of its order issued against Okla-Inn, d/b/a Holiday Inn of Henryetta (herein “the Company”) on July 26, 1972. The Company operates a transient motel and restaurant at Henryetta, Oklahoma under a franchise from Holiday Inns of America, Inc.

The Board found that the Company and Lindo Corporation constituted a single integrated enterprise for jurisdictional purposes and that their combined gross volume of business satisfied the Board’s discretionary jurisdictional standards. The Board further found that the Company violated section 8(a) (1) of the Act by coercively interrogating employees, soliciting them to withdraw from the Union, asking them to dissuade their fellow employees from supporting the Union, creating the impression of surveillance and threatening discharge, layoff, and business closure. Additionally, the Board found that the Company violated section 8(a)(3) and (1) of the Act by failing and refusing to reinstate the striking maids, by dis-criminatorily discharging five other employees and by changing the conditions of employment of DeLois Porter and discharging her because of her Union adherence. Finally, the Board found that the Company violated section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union and that a bargaining order was warranted.

The Board’s order directs the Company to cease and desist from the unfair labor practices found, and from in any other manner interfering with, restraining or coercing employees in the exercise of their section 7 rights. Affirmatively, the Board’s order requires the Company to offer all of the discriminatees, except for one striking maid who did not make an unconditional offer to return to work, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, to make them whole for any loss of earnings sustained by reason of the discrimination against them, to bargain with the Union upon request, and to post appropriate notices.

The threshold question presented by the Company in this case is whether the Board has jurisdiction over the respondent Company. The Board combined the operations of the Okla-Inn and the Lin-do Corporation, a Holiday Inn in Mc-Alester, Oklahoma, as constituting a “single integrated enterprise” which would permit the combining of their annual gross revenues for the purpose of meeting the Board’s jurisdictional test.

The short answer to this contention is that the limitation on the exercise of the Board’s jurisdiction is self-imposed, and it can exercise jurisdiction under the statute and related cases under any reasonable circumstances. 29 U.S.C.A., see § 160, Note 36; NLRB v. W. B. Jones Lumber Co., 245 F.2d 388 (9th Cir. 1957); NLRB v. Marinor Inns, Inc., 445 F.2d 538 (5th Cir. 1971); NLRB v. WGOK, Inc., 384 F.2d 500 (5th Cir. 1967).

The Board found that respondent Okla-Inn had violated section 8(a)(1) of the Act by coercively interrogating employees, soliciting their withdrawal from the Union, asking them to dissuade other employees from supporting the Union and threatening discharge, layoff, and closing of the motel. There is abundant substantial evidence in the record respecting theáe accusations to support the Board’s findings.

For example, a few days after the Union authorization petition was circulated, Innkeeper Braasch told kitchen employees Bobby Blair and Danny Brisson that he knew they had signed the petition and wished they would have their names removed. Braasch asked another kitchen worker, Tommy Bryan, whether the other “boys” had been giving him “any trouble about the Union” and asked a cook, Dorothy Bond, how she felt about the pickets, adding, “If I was you, I wouldn’t even be talking to them.”

In a similar vein, restaurant supervisor Louchery told waitress Juanita Green that she knew which employees had signed cards, and that if they wanted to keep their jobs they had better watch what they were doing. She also said she had been told that Green had signed a card. Additionally, Louchery requested another waitress, Cora Bryan, to help dissuade other employees from signing authorizations. She also asked whether Bryan had signed the petition and when Bryan said “no,” she stated that she knew Bryan had not signed the petition, but that she also knew Bryan had signed a card and that was “just as bad.” On September 8, housekeeper Bartholic told a hew maid, Myrtle Mouser, that she would be fired if she signed a Union card.

As we hold infra, the Company also discriminatorily discharged five card signers on September 12 and 14. In October, Braasch asked desk clerk DeLois Porter why she “was walking out there with her friends, the sorry sons of bitches” meaning the pickets, and said that they were wasting their time. In November, Braasch told Porter that the Inn would close “before the Union would come in.” In December, Louchery told Porter that the Union “just couldn’t get in” because if it did Braasch would lose his job. Porter said she didn’t think Braasch would lose his job and Louchery retorted that if Porter voted for the Union and the Company found out, Porter would lose her job. Later that month, Louchery’s husband asked waitress Janet Ashley whether she was going to vote for the Union and Louchery spoke up before Ashley could answer, saying, “you know she is not going to vote for the Union.” On another occasion, Louchery asked Ashley whether she would like to work the morning shift. She said that if Ashley did not vote for the Union, Cora Bryan would be fired and Ashley could have her shift. In January, Louchery told Ashley that if the Union came in, the Company “would go to short orders and close the buffet.” She also said that Cora Bryan, Esther Johnson and DeLois Porter would be fired if the Union lost the election identifying them as Union supporters.

Also in January, Louchery asked waitress Beverly Poulton whether she had decided which way she would vote and stated that the Company would find out if she voted for the Union, that they had “ways of finding out” and Poulton would lose her job. Louchery also called Poulton at her home on several occasions, engaging in substantially the same conversation. She also called Poul-ton when a Union representative was present at Poulton’s house and asked whether the Union man was there. Finally, a few days before the election, Louchery asked waitress Linda Whitlock how she was going to vote and warned that if Whitlock did vote Union, she would not have a job because the Company would have to recall the other girls who were laid off.

These facts amply support the Board’s findings of section 8(a) (1) violation and require no further discussion. NLRB v. Miller Trucking Service, Inc., 445 F.2d 927, 930-931 (10th Cir. 1971); NLRB v. Wylie Manufacturing Company, 417 F.2d 192, 194-195 (10th Cir. 1969), cert. denied, 397 U.S. 913, 90 S.Ct. 915, 25 L. Ed.2d 94; NLRB v. Hawthorne Aviation, 406 F.2d 428, 429 (10th Cir. 1969) ; Betts Baking Co., Inc. v. NLRB, 380 F. 2d 199, 201 (10th Cir. 1967); Hendrix Manufacturing Company, Inc. v. NLRB, 321 F.2d 100, 104 (5th Cir. 1963).

Next the Board found that the Company violated section 8(a)(3) and (1) of the Act by failing and refusing to reinstate the striking maids. The respondent claims that the maids quit because their supervisor was fired and relies on the cases of Dobbs Houses, Inc. v. NLRB, 325 F.2d 531 (5th Cir. 1963); American Art Clay Company v. NLRB, 328 F.2d 88 (7th Cir. 1964); and NLRB v. Coal Creek Coal Co., 204 F.2d 579 (10th Cir. 1953) for the principle that concerted activity over supervisory personnel per se is not protected by the National Labor Relations Act. The argument continues that the employees’ concerted activity is not protected by law, that there is not substantial evidence for the Board’s findings, and that the Board’s request for reinstatement of the strikers is wrong.

The issue as to whether the maids have a right to be reinstated, turns on whether the walkout was a protected activity. We hold the maids were engaged in legal and protected activities, a bona- fide protest over unfair work conditions, for their mutual aid and protection as guaranteed by section 7 of the Act, 29 U.S.C. § 157 (1970), as amended. Section 7 protects concerted activity by workers to alleviate oppressive working conditions, regardless of whether their activity is channeled through a union, through collective bargaining, or through some other means. United Packinghouse, Food and Allied Workers International Union, AFL-CIO v. NLRB, 135 U.S.App.D.C. 111, 416 F.2d 1126, cert. denied, Farmers’ Co-op Compress v. United Packinghouse etc., 396 U.S. 903, 90 S.Ct. 216, 24 L.Ed.2d 179 (1969). To be protected by section 157, the concerted activity of employees who stage a walkout must be directed toward a dispute concerning conditions of employment. Hagopian & Sons, Inc. v. NLRB, 395 F.2d 947 (6th Cir. 1968). Employees may seek to change any term or condition of their employment and they have an ultimate sanction in the use of a strike. First National Bank of Omaha v. NLRB, 413 F.2d 921 (8th Cir. 1969).

The standard on review is whether there is substantial evidence to support the Board’s findings. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); American Federation of Television & Radio Artists v. NLRB, 129 U.S.App.D.Q. 399, 395 F.2d 622 (1968); United Packinghouse, Food and Allied Workers International Union, supra. There is little difficulty finding that the Board had substantial evidence from which it could reasonably conclude that the maids were engaged in an activity protected by law and that they are entitled to relief under the National Labor Relations Act. The record clearly shows that the maids were subjected to unfair work requirements. Each time the minimum wage was increased, the hotel management increased the maids’ work requirements until the point was reached where the work level required could not be completed in a reasonable and conscientious manner. The maids complained about the situation. Innkeeper Braasch “suggested” the maids omit some of their usual work in order to finish their assignments on time. He also said he would deny such a statement if the maids told anyone about it. The maids were indignant about this cavalier attitude and wanted to immediately walk out in protest. However, they were placated by their supervisor, Eunice Burke, who reasoned they should make an effort to accomplish the job and then if dissatisfied they could always walk out. The maids tried and were diligently supported in their work efforts by Burke. Burke discussed the maids complaints with Braasch, who suggested that he and Burke visit another Inn to see how the work was accomplished there. Braasch never made the visit. The record does not say why. Burke finally went to inquire on her own initiative. Subsequently, Braasch fired Eunice Burke with a comment that the work was not getting done. The maids then walked off the job and set up a picket line.

On a number of occasions the Board has contended that concerted employee activity regarding supervisory personnel is a protected activity. NLRB v. Guernsey-Muskingum Electric Co-operative, Inc., 285 F.2d 8 (6th Cir. 1960); NLRB v. Phoenix Mutual Life Insurance Co., 7 Cir., 167 F.2d 983, 988, cert. denied, 335 U.S. 845, 69 S.Ct. 68, 93 L.Ed. 395 (1948). In furtherance of its contention in this case the Board’s petition cites the case of NLRB v. Plastilite Corporation, 375 F.2d 343 (8th Cir. 1967) for the principle that the employee’s identify with and recognized capability of a supervisor involved in a management dismissal has a direct impact on the employees own job interests and that they may, therefore, walk out in protest. The court did not actually hold that as a matter of right employees could walk out in protest over a supervisory discharge. The test is the underlying reasons for the walkout and whether they are reasonable relative to the circumstances involved. The supervisory protests in Muskingum and Phoenix did not involve walkouts, but centered on complaints and suggestions, respectively, regarding supervisors. This was held to be reasonable conduct under the circumstances that prevailed in those eases. The court cannot accept the argument in this ease that where a supervisory dispute results in a walkout, the activity is unreasonable, unprotected, and illegal per se.

It is clear from the facts and the sequence of events that the maids walked out primarily due to poor work conditions. The supervisory dismissal was merely the last straw in a brooding atmosphere created by unfairly increasing the workload to the point where assignments could not conscientiously be accomplished. The facts show that the maids contemplated a walkout in protest over work conditions long before their supervisor was dismissed. Where a supervisor’s dismissal initiates a walkout that is premised on underlying objectionable work conditions, it is a legal protected concerted activity under the Act.

The respondent then asks the court to accept the contention that the maids quit because one witness, a news reporter, testified that while interviewing the maids on the picket line one maid said they quit and no other picketer contradicted the statement. Taken independently, this is a persuasive bit of evidence. However, within the context of the entire record, and the history of abuses it enumerates, the impact of the reporter’s statement is negated.

The declarations and acts of the employees at the time of the walkout and not the reasons subsequently given should be considered. Dobbs Houses, Inc. v. NLRB, supra. We consider this to mean the words and acts immediately preceding and simultaneously accompanying the walkout, including the declarations made to the employer and the facts and circumstances that surrounded it. The record does not show that the maids unequivocally announced to the employer that they quit. It certainly does not disclose an intention or motivation to do so. The workers had an inextricable interest in their supervisor insofar as their work conditions were concerned. When she was separated from them they reasonably felt they had no other recourse but to walk off the job, as originally planned, in protest over the work conditions. The words spoken to the reporter were subsequent to the actual walkout. They were addressed by the employee who was “fired” to a third party. No other employee verbalized that her intention was to just plain quit, and the facts do not reveal such a clear-cut motivation. The declarations were not made immediately at the time of the walkout, and they were not made to the employer. To the contrary, it should suffice, in rejecting this argument to say that there is substantial evidence that the maids did not voluntarily quit their employment, but rather walked off their jobs for the purpose of presenting demands and grievances. Elam v. NLRB, 129 U. S.App.D.C. 388, 395 F.2d 611 (1968). It was, therefore, clearly within the Board’s authority to lightly weigh the reporter’s testimony. Credibility of witnesses and inferences to be drawn from the evidence are primarily for the determination of the National Labor Relations Board, and the power of review is more an assessment of the record rather than a new trial. NLRB v. St. Clair Lime Co., 315 F.2d 224 (10th Cir. 1963). The court will not substitute its judgment for that of the trial examiner, who heard the testimony and observed witnesses, or that of the National Labor Relations Board. National Labor Relations Act § 8(a)(1) and (3) as amended, 29 U.S.C. § 158(a)(1) and (3), NLRB v. Lively Service Co., 290 F.2d 205 (10th Cir. 1961).

Considering that the maids conduct was a protected concerted activity for their mutual benefit under section 7 of the Act, 29 U.S.C. § 157, and that they did not quit, they remain employees entitled to relief through reinstatement. Striking workers remain “employees” entitled to protection of the national labor laws. National Labor Relations Act, § 2(3), as amended, 29 U.S.C. § 152(3); NLRB v. Hartmann Luggage Co., 453 F.2d 178 (6th Cir. 1971). At this point the respondent prefaces the maids’ right to reinstatement on the nature of the offer made for it. Respondent contends that if the request for reinstatement is not clearly and absolutely unconditional the employer need not reply to it, let alone act upon it. The Company made no response to the reinstatement letter and the picketing continued at the motel for well over a year after the offer was made. At the time of the hearing, none of the maids had been reinstated although eight new maids were hired after the unconditional offer was made. In support of its contention, respondent cites H. & F. Binch Co. Plant of Native Laces and Textile Division of Indian Head, Inc. v. NLRB, 456 F.2d 357, 364 (2d Cir. 1972) with the analogy that the offer presented in this case was the same type of group offer and that everything the strikers did here was calculated to give the employer the impression that their demands were for simultaneous reinstatement of all. It is further contended that it should not be until the employees individually request reinstatement that the employer could know that they had abandoned the previously held position. We do not agree that this situation is similar to the one cited in Binch, supra. The maids did not march into the hotel en masse to resume their jobs, as the employees did in the Binch case, as if nothing had happened. Secondly, throughout the Binch case it is evident that the employer tried to conduct itself in a manner consistent with the law. In Binch, the company did try to accommodate the strikers. It actively approached a number of strikers on an individual basis to arrange for a return to work. Furthermore, the initial back-to-work message sent by the strikers to management was absolutely conditional on its face. The message in the present ease tends toward the other end of the spectrum. Here the only evidence of a conditional nature regarding the return to work arose shortly after the walkout began when Maylen met with Braasch to submit a list of demands. Subsequent testimony indicates each maid individually had a willingness to return to work provided that all of them decided it was the proper thing to do. It does not appear to be a willingness predicated on everyone getting her job back, but a willingness to return provided there was no breach of faith with the other members of the group. The employer has the burden of showing that the offer to return to work was not unconditional. H. & F. Binch Co. Plant v. NLRB, supra.

The respondent cites an impression that the offer was conditional on the return of all the employees. But nowhere is evidence cited to affirm or dispel this “impression.” It does not appear to have been beyond the employer’s means to have inquired into what “[w]e, the undersigned” meant or to have solicited the employees individually to discover th true meaning of the letter. Rather than make a reasonable effort to clarify the situation, the employer embarked on a course of unfair labor practices toward workers remaining on the job that perpetuated a long and painful labor dispute contrary to the Act’s intent. Based on the facts and circumstances, the employer has not borne the burden of proof to show that the offer was less than unconditional. To accept the employer’s contention in this case that the request for reinstatement was less than unconditional and that, therefore, the employer’s inaction was justified would do great damage to the intents and purposes of the Act.

It is the Board’s responsibility to strike a balance between the exigencies of business and the invasion of employee rights in the light of the Act and its policies. NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 33-34, 87 S.Ct. 1792, 18 L.Ed.2d 1027. See also, NLRB v. Erie Resistor Corp., 373 U.S. 221, 228-229, 235-236, 83 S.Ct. 1139, 1145, 1149, 10 L.Ed.2d 308 (1963); NLRB v. Hartmann Luggage Co., supra.

The court finds the Board’s decision for reinstatement is supported by both substantial evidence on the record taken as a whole and a strong body of precedent. NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381; NLRB v. Great Dane Trailers, Inc., supra; NLRB v. Fleetwood Trailer Co., Inc., 389 U.S. 375, 88 S.Ct. 543, 19 L.Ed.2d 614 (1967); Laidlaw Corporation v. NLRB, 414 F.2d 99 (7th Cir. 1969), certS. denied 397 U.S. 920, 90 S.Ct. 928, 25 L.Ed.2d 100 (1970).

The third violation found by the Board was that the Company violated section 8(a)(3) and (1) of the Act by discharging five employees because of their Union adherence.

The record respecting the above shows that the Company discharged five employees, all Union members, active in the Union to varying degrees, with the explanation that a general layoff was required due to a reduction in business. The employees were discharged in the middle of a pay period, approximately two weeks after the Union requested recognition. Prior to. this situation employees were not laid off because the high rate of employee turnover generally remedied the situation. Employees with less seniority were retained and subsequent to the layoff new employees were hired to do similar work. The Board found that all five of the discharged employees were Union supporters who performed their jobs with the requisite competency. No evidence was presented to show that they performed unsatisfactorily. The record is to the contrary, showing that several of the employees were complimented on occasion for their good performance. According to the record, none of the discharged employees were ever criticized, reprimanded or found legitimately deficient prior to their discharge. The cases respondent cites to support the claim that the Board did not have substantial evidence to negate the discharge either turned on whether the testifying employee had credibility (NLRB v. Texas Industries, Inc., 387 F.2d 426 (5th Cir. 1967), employee lacked credibility and abused work rules) or was an adequate .performer for the purpose employed (NLRB v. Ogle Protection Service, Inc., 375 F.2d 497, 506 (6th Cir. 1967), one employee appeared to consistently perform unsatisfactorily and the other repeatedly appeared at work with the odor of liquor on his breath). The credibility of the witnesses is generally a matter for the determination of the hearing examiner and the Board. Keener Rubber, Inc. v. NLRB, 326 F.2d 968 (6th Cir. 1964), cert. denied, 377 U.S. 934, 84 S. Ct. 1337, 12 L.Ed.2d 297.

The record also shows that these discharged employees signed a Union petition, they signed a Union card, they all attended meetings (some very actively) they all voted for the Union and they all had their ballots challenged. Several of the discharged employees were under the immediate control of Ruth Louchery whose activity, the record shows, was blatantly directed toward discouraging Union sentiment in ways contrary to the confines of the Act.

One employee, Dorothy Bond, was questioned by her supervisor and warned of reprisal if she associated with the strikers. Her supervisor inferred, when she was laid off, that it was the direct result of Union activity. Another employee, Myrtle Mouser, was threatened by her immediate supervisor that if she signed a Union card she would be fired. The Board inferred, based on the record taken as a whole, the layoffs were retaliation for Union endorsement and, therefore, in violation of section 8(a)(3) and (1) of the National Labor Relations Act, as amended, supra.

Respondent claims the Board has not met its burden of proof in making this finding because the Board's inferences of discriminatory motivation were based on circumstantial evidence that did not specifically state whether the employees’ activities were protected, whether the employer had knowledge of these activities, and that the activities were the primary reason for the employee discharge.

The General Counsel has the duty to establish by acceptable substantial evidence on the whole record, that the discharge came from the forbidden motives of interference in employee statutory rights. NLRB v. McGahey, 233 F.2d 406 (5th Cir. 1956). The employees’ activities directed toward achieving equitable work loads and Union representation were clearly protected under section 8(a)(3) and (1) of the Act. The “substantial evidence” necessary to support findings of the National Labor Rleations Board constitutes evidence furnishing a substantial basis in fact from which the fact in issue can reasonably be inferred. Dubin-Haskell Lining Corp. v. NLRB, 375 F.2d 568, 573 (4th Cir. 1967). The law requires evidence that extends beyond mere suspicion, that amounts to more than a mere scintilla. Dubin-Haskell Lining Corp. v. NLRB, supra. However, it is not, as respondent contends, always necessary for the Board to explicitly show beyond a reasonable doubt that the employer had absolute knowledge and was completely aware of the discharged employees close connection to the Union. In this case the record taken as a whole reasonably permits the Board’s fair inference of discriminatory motivation. Universal Camera Corp. v. NLRB, supra. Where there is substantial evidence, direct or circumstantial, to indicate that an employee was discharged for Union activities, a very definite burden is imposed on the employer to prove existence of a reason, not within the Act’s provisions, sufficient to warrant the discharge. NLRB v. Entwistle Manufacturing Co., 120 F.2d 532 (4th Cir. 1941). There is not an iota of evidence in the record to show that the discharged employees were ever inadequate in their service to the Okla-Inn. There is substantial evidence in the record from which it can be reasonably concluded that the Company’s primary motivation in unlawfully discharging the employees was to affect membership in the activities on behalf of the Union. NLRB v. Ogle Protection Service, Inc., supra.

These specific uncontroverted management activities, coupled with numerous other incidents taken from the record as a whole, demonstrate substantial evidence to support the Board’s findings. The scope of the court’s review in unfair labor practice cases is limited to determining if the record contains substantial evidence to support the Board’s findings. We find that it does. National Labor Relations Act, § 10(e), as amended, 29 U.S.C. § 160(e); NLRB v. Ogle Protection Service, Inc., supra; Universal Camera Corporation v. NLRB, supra.

The next violation found by the Board was that the Company violated section 8(a)(3) and (1) of the Act by changing the conditions of employment of DeLois Porter and by discharging her because of her Union adherence.

We find the record supports this finding. In determining whether an employee’s working conditions have been changed or his employment terminated for discriminatory reasons, it is necessary to assess “the degree of significance to be given to the employer’s explanation” and to infer from all the available evidence whether the stated explanation is the real reason or merely a pretext to mask anti-union motivation. NLRB v. Automotive Controls Corporation, 406 F.2d 221, 226 (10th Cir. 1969); American Sanitary Products Co. v. NLRB, 382 F.2d 53-56 (10th Cir. 1967); Betts Baking Co., Inc. v. NLRB, 380 F. 2d 199, 204 (10th Cir. 1967).

It is well settled that where the facts are open to conflicting inferences the Board’s choice may not be set aside “even though the court would justifiably have made a different choice had the matter been before it de novo.” NLRB v. Automotive Controls Corporation, supra, 406 F.2d at 226; see also, Universal Camera Corporation v. NLRB, supra; NLRB v. St. Clair Lime Co., supra.

In the instant case, there is ample evidence to support the Board’s finding that the Company changed Porter’s shift so that she would have to work regularly from 3-11 p. m. and on Sundays, assigned her burdensome filing work and restricted her normal activities, because of her avowed Union adherence, and that it then discharged her when she refused to quit. Porter’s Union activities attracted both the attention and antipathy of the Company. Porter signed a Union authorization petition on August 18, attended several Union meetings and informed Innkeeper Braasch in each instance that she had done so. On October 16, Braasch asked Porter why she was walking out there with the picketing maids, whom Braasch described as “sorry sons of bitches” and in November he told her that “the Inn would close before the Union would come in.” In December, Supervisor Louchery warned Porter that she would lose her job if she voted for the Union and the Company found out about it. In January, Louch-ery flatly stated to employee Ashley that if the Union lost the election, Porter would be discharged.

Within a week after the election, the Company began carrying out its previously articulated determination to rid itself of Porter. On February 16, Braasch advised Porter that she would no longer work rotating shifts but would be required to regularly work from 3-11 p. m., including Sundays. On February 18, he added filing work to Porter’s duties, stating, "I’ll make you wish you had quit.” On March 1, he placed Porter on strict probation and forbade her to talk to other employees or leave her desk for anything. The following day he told Porter that she could go to the bathroom once during her shift. He then proceeded to lay the groundwork for Porter’s discharge by placing in her personnel file an unsupported statement that Porter told numerous employees, “cooks, waitresses and the cashier” that he was intoxicated the previous Saturday night. Porter then underwent treatment for acute anxiety and on March 12 obtained a two-month leave of absence from the Company. On April 22, when Porter showed Braasch her doctor’s written release to resume work, Braasch said “OK,” adding that he would be in touch with her in a couple of days. On April 27, however, the Company’s attorney informed Porter by letter that because of unidentified “circumstances of your own making” she would not be permitted to return. On these facts, the Board properly found that the Company changed Porter’s working conditions and then discharged her because of her Union advocacy, in violation of section 8(a) (3) and (1) of the Act. NLRB v. Champa Linen Service, 437 F.2d 1259 (10th Cir. 1971); Santangelo & Co. v. NLRB, 364 F.2d 979, 981 (10th Cir. 1966); NLRB v. Lowell Sun Publishing Co., 320 F.2d 835, 840 (1st Cir. 1963).

Finally, the Board found that the Company violated section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union and that a bargaining order was warranted. The threats of dismissal, reprisal, business shut-down, the offer of reward to an employee of a certain position if the Union did not get in, the discharge of five Union adherents, the intimidation and discharge of DeLois Porter, the persistent interrogation of employees, the evidence of active and persistent surveillance and the Union’s evidence of thin majority support put this case squarely into the first category of cases cited in Gissel that warrant a bargaining order. NLRB v. Gissel Packing Co., Inc., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). The Company was clearly in violation of section 8(a)(5) and (1) of the Act, 29 U.S.C. § 158(a)(5), as amended.

We quote the narrower rule of the Fourth Circuit used by the Supreme Court in Gissel, supra, to approve a bargaining order in even less extraordinary cases marked by less persuasive practices which also have the tendency to undermine majority strength and impede the election process.

* * * the Fourth Circuit nevertheless left open the possibility of imposing a bargaining order, without need of inquiry into majority status on the basis of cards or otherwise in. “exceptional” cases marked by “outrageous” and “pervasive” unfair labor practices. Such an order would be an appropriate remedy for those practices, the court noted, if they are of “such a nature that their coercive effects cannot be eliminated by the application of traditional remedies, with the result that a fair and reliable election cannot be held.” [Gissel, supra; NLRB v. S. S. Ligan Packing Co., 386 F.2d 562, 570 (4th Cir. 1967); see also, NLRB v. Heck’s Inc., 398 F.2d 337, 338 (4th Cir. 1968).]

It should be noted that in the present case a bare majority status existed, 26 of 48 employees possessed Union authorization cards, and therefore the bargaining order would also be justified under the second category of Gissel, supra, 395 U.S. at 614, 89 S.Ct. 1940:

* * * the Board’s use of the bargaining order in less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes. The Board’s authority to issue such an order on a lesser showing of employer misconduct is appropriate, we should reemphasize, where there is also a showing that at one point the Union had a majority; in such a case, of course, effectuating ascertainable employee free choice becomes as important a goal as deterring employer misbehavior. In fashioning a remedy in the exercise of its discretion, then, the Board can properly take into consideration the extensiveness of an employer’s unfair practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future. If the Board finds that the possibility of erasing the effects of past practices and of insuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, than such an order should issue. [Emphasis added]. [See also, NLRB v. Scoler’s Inc., 466 F.2d 1289, 1293 (2d Cir. 1972).]

The Board’s application for enforcement of its order is granted. A judgment shall be entered accordingly.

      . The opinion does appear to give credence to the idea, but the court did not explicitly state such. Furthermore, it appears that all the findings in Plastilite were based on far more substantial unfair labor practices to which the supervisory dismissal merely had a casual link; it was the trigger,

      . On September 3, the Union sent a letter to Braasch, signed by all but one of the maids, stating as follows:
      “We, the undersigned, hereby request that we be reinstated to our former positions with Holiday Inn of Henryetta. This is an unconditional offer to return to work. Please advise representatives of the Retail Clerks Union, Local No. 73, Tulsa, Oklahoma, of your position in this matter.”

      . In the B. & F. Binch case, supra at 360, the offer read:
      “This is to advise you that all the employees now on strike offer to return to work immediately provided you agree to take everyone back without discrimination. All employees are willing to return provided you are willing to agree not to discriminate against any workers including the Raschel workers for the protest walkout concerning the change in working hours and your failure to discuss same.’1


text:
    Gertrude ARMSTEAD, Plaintiff-Appellant, v. Jose ESCOBEDO et al., Defendants-Appellees.
    No. 73-3150
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 14, 1974.
    Douglas R. Larson, Dallas, Tex., for plaintiff-appellant.
    T. Alex Eastus, Asst. City Atty., Thomas B. Thorpe, N. Alex Biekley, Joseph G. Werner, Dallas, Tex., for defendants-appellees.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Appellant brought this federal civil rights action pursuant to 42 U.S.C.A. §§ 1983 and 1988 and, asserting pendent jurisdiction, a claim for false arrest and imprisonment based on Texas law against Jose Escobedo, a bus driver for the Dallas Transit Authority (a government unit), the City of Dallas, Frank Dyson, the Chief of Police of Dallas, and R. F. Stoneeipher and M. E. Jones, two Dallas police officers. After a trial without a jury the District Court found that none of the defendants were liable. Appellant appeals only from the denial of relief against bus driver Escobedo, based on Texas law as no distinctive contentions are asserted under § 1983. We affirm.

On May 2, 1971, Escobedo had a dispute with a female passenger over the payment of the fare. Upon exiting the bus, the passenger apparently threatened Escobedo with a knife, threw a brick through the bus window, and fled. One week later Escobedo picked up appellant at approximately the same time and the same stop where he had picked up the passenger who had assaulted him the week before. Convinced that appellant was the same person, Escobedo questioned her concerning the incident. He then called his dispatcher and reported that the woman who had assaulted him and broken the window was on the bus.

Within two blocks after appellant had boarded the bus, Escobedo flagged down two police officers and told them that he was certain that appellant had previously thrown a brick through his bus window and had threatened him with a knife. Appellant was arrested as she attempted to exit the bus.

Appellant and the only other passenger on the bus testified that prior to the arrival of the police, appellant had tried to get off of the bus but Escobedo would not allow her to. Appellant also testified that Escobedo displayed a gun when she tried to exit the bus. Escobedo denied both of these contentions. Appellant was indicted for unlawful, willful and malicious injury to private property of value in excess of $50.00, but the indictment was dismissed after appellant passed a lie detector examination.

Under the law of Texas, “False imprisonment is, in general, the direct restraint by one person of the physical liberty of another, without adequate legal justification.” Browning v. Pay-Less Self Service Shoes, Inc., Tex.Civ. App., 1963, 373 S.W.2d 71, 74.

The District Court found as a fact that “Escobedo did not physically or verbally attempt to detain or threaten [appellant] until the arrival of the police.” This finding, based as it must be, on the resolution of the conflict between the testimony of Escobedo and the testimony of appellant and the other passenger is not clearly erroneous and proves fatal to Appellant’s basic claim that Escobedo falsely imprisoned her.

Although the state dismissed the case apparently for misidentification, the driver’s good faith mistaken identification does not cast him in personal liability where the Court impliedly found that it was solely the police officers who decided to make the arrest.

Under Texas law a private citizen does not incur liability simply because he mistakenly informs the police that the suspect has committed a crime whenever the suspect is not thereafter successfully prosecuted. Meyer v. Monnig Dry Goods Co., Tex.Civ.App., 1916, 189 S.W. 80; Schnaufer v. Price, Tex. Civ.App., 1939, 124 S.W.2d 940; Hamilton v. California Company, Tex.Civ. App., 1937, 103 S.W.2d 200. Rather, the citizen must actually direct the police to make the arrest. See J. C. Penney Company v. Reynolds, Tex.Civ.App., 1959, 329 S.W.2d 104; Joske v. Irvine, Tex., 1898, 44 S.W. 1059. Since the record does not compel a finding that Escobedo directed the police to arrest appellant, the trial Judge’s implied finding to the contrary has sufficient support.

Affirmed.

      . See Whirl v. Kern, 5 Cir., 1969, 407 F.2d 781, cert. denied, 396 U.S. 901, 90 S.Ct. 210, 24 L.Ed.2d 177 (pendent jurisdiction properly exercised over a § 1983 and Texas false imprisonment claim arising out of the same occurrence) .

      . No contention is made that the dismissal of the criminal prosecution, on the motion of the state and in which Escobedo had no part, gave rise to a claim for malicious prosecution or abuse of process.

      . Escobedo, Appellant, the other passenger and both police officers all testified that Es-cobedo informed the police officers that appellant was the woman who broke the window and three of the witnesses, including appellant, testified that appellant informed the police that appellant was the woman who had threatened Escobedo with a knife. There was no testimony that Escobedo directed or even asked the police to arrest appellant and both Escobedo and one of the police officers testified that Escobedo left the matter of whether to arrest up to the discretion of the police.


text:
    In re LETTERS OF REQUEST TO EXAMINE WITNESSES FROM the COURT OF QUEEN’S BENCH FOR MANITOBA, CANADA, (two cases). MANITOBA COMMISSION OF INQUIRY, Applicant-Appellee, v. James L. ZEIGLER, Witness-Appellee. MANITOBA COMMISSION OF INQUIRY, Applicant-Appellee, v. James L. ZEIGLER, Witness-Appellant.
    Nos. 73-1978, 73-2210.
    United States Court of Appeals, Ninth Circuit.
    Nov. 21, 1973.
    Robert J. Gelhaus, and Stuart R. Pol-iak (argued), of Howard, Prim, Rice, Nemerovski, Canady & Poliak, James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for applicant-appellant.
    Edwin E. Huddleson, Jr., Jerald L. Wilkerson (argued), of Cooley, God-ward, Castro, Huddleson & Tatum, San Francisco, Cal., for witness-appellee.
    Before TUTTLE, MERRILL and BROWNING, Circuit Judges.

       Honorable Elbert Parr Tuttle, Senior United States Circuit Judge of the Fifth Circuit, sitting by designation.

   OPINION

PER CURIAM:

Pursuant to a Letter of Request from the Chief Justice of the Court of Queen’s Bench for Manitoba, Canada, the District Court for the Northern District of California entered an order appointing commissioners to take testimony respecting the Pas Forestry and Industrial Complex, a multi-million dollar project in Manitoba. The Letter of Request established that those whose appointment was sought were a duly constituted Commission of Inquiry under the authority of the Manitoba Evidence Act.

Pursuant to the order of the District Court, the commissioners so appointed caused a subpoena to be served upon James L. Zeigler of Tiburón, California, who then moved the court below to vacate its earlier order appointing the commissioners and to quash the subpoena issued by them.

Following hearing the court granted Zeigler’s motion by order entered May 23, 1973, and this appeal was taken. The order of the District Court is published at 59 F.R.D. 625 (N.D.Cal.1973).

The issue dealt with is whether 28 U. S.C. §. 1782, pursuant to which the District Court’s original order was entered, empowers federal district courts to compel testimony on behalf of a Canadian Commission of Inquiry. Section 1782 reads as follows:

“Assistance to foreign and international tribunals and to litigants before such tribunals.
(a) The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing produced, before a person appointed by the court * * .”

The question is whether a Canadian Commission of Inquiry is a foreign tribunal within the meaning of the Act. The District Court ruled that it was not. It stated:

“After a full consideration of the arguments raised by counsel in their briefs and at the hearing on this matter, it is the Court’s judgment that § 1782 was not intended to and does not authorize the United States courts to compel testimony on behalf of foreign governmental bodies whose purpose is to conduct investigations unrelated to judicial or quasi-judicial controversies.”

For the reasons set forth by the court in its order, supra, we agree.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. George Herman ROGERS, Defendant-Appellant.
    No. 73-3094.
    United States Court of Appeals, Fifth Circuit.
    Jan. 14, 1974.

      Ralph W. Parnell, Jr., Shreveport, La. (Court-appointed), for defendant-appellant.
    Donald E. Walter, U. S. Atty., L. Edwin Greer, Asst. U. S. Atty., Shreveport, La., for plaintiff-appellee.
    Before BROWN, Chief Judge, and GODBOLD and SIMPSON, Circuit Judges.
   PER CURIAM:

Appellant was convicted on each of five counts of an indictment under 18 U.S.C.A. § 871(a) for knowingly and wilfully making verbal threats “to take the life of or inflict bodily harm upon the President of the United States.” He was sentenced to five years imprisonment (the maximum sentence available) on count one with parole eligibility to be determined by the Parole Board pursuant to § 4208(a)(2) and to five years imprisonment on each of the other four counts to run concurrently but with sentence suspended on these four counts during good behavior with a five year supervised probation period to commence after the expiration of the confinement sentence. We affirm.

On March 24, 1972, at about the time of President Nixon’s trip to China, appellant, with a long history of chronic alcoholism, entered a Holiday Inn restaurant in Shreveport, Louisiana at 6 a. m. and made statements which were regarded as a threat on the life and limb of the President. The local police were summoned and appellant was taken briefly into custody at which time he made further threatening statements. The local police turned appellant over to the local Veterans Administration hospital although it is unclear whether the hospital was ever aware of the fact. Not until seven days later was appellant arrested on a federal warrant.

Appellant challenges the sufficiency of the evidence as well as the propriety of the legal standard applied by the trial court. On the evidence presented, the jury could properly conclude that on each count appellant’s conduct satisfied both essential elements of the offense — (1) a true threat, (2) knowingly and intelligently made.

The District Court’s instructions on the law are literally in accord with the precedents of the majority of Circuits which have construed the statute. See, e. g., Roy v. United States, 9 Cir., 1969, 416 F.2d 874. And in approving them we reject appellant’s importunities that we adopt the holding of United States v. Patillo, 4 Cir. (en banc), 1971, 438 F.2d 13, affirming 431 F.2d 293 to the effect that “where * * * a true threat against the person of the President is uttered without communication to the President intended, the threat can form a basis for conviction under the terms of Section 871(a) only if made with the present intention to do injury to the President.” (Emphasis added). We decline to do so and instead follow the great majority of the Circuits which have held that it is not necessary to prove an intention to carry out the threat under § 871(a). See Watts v. United States, 1968, 131 U.S.App.D.C. 125, 402 F.2d 676, reversed on other grounds, 1969, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664.

Since Watts, the Second, Sixth, Ninth and Tenth Circuits have emphasized that an intention to carry out the threat is not required under the statute. United States v. Compton, 2 Cir., 1970, 428 F.2d 18, cert. denied, 401 U.S. 1014, 91 S.Ct. 1259, 28 L.Ed.2d 551; United States v. Lincoln, 6 Cir., 1972, 462. F.2d 1368, cert. denied, 409 U.S. 952, 93 S.Ct. 298, 34 L.Ed.2d 224; Roy v. United States, 9 Cir., 1969, 416 F.2d 874; United States v. Hart, 10 Cir., 1972, 457 F.2d 1087, cert. denied, 409 U.S. 861, 93 S.Ct. 150, 34 L.Ed.2d 108.

Of course under F.R.Crim.P. Rule 35, appellant may, within 120 days of the issuance of our mandate, seek a reduction of the stringent sentences imposed in the District Court.

Affirmed.

      . Appellant was required to join and actively participate in Alcoholics Anonymous as a condition of probation.

      . The District Court instructed the jury that “a true threat, as required by the statute, is a serious threat and not words uttered as a mere political argument, idle talk or jest. The full context in which the words were spoken should be considered.”

      . The Court further instructed the jury “A threat is knowingly made if the maker of it comprehends the meaning of the words uttered by him, and a threat is wilfully made if in addition to comprehending his words, the maker voluntarily and intelligently utters the words as a declaration of an apparent determination to carry out the threat.
      Before you convict defendant under this statute you must be convinced beyond a reasonable doubt that the defendant intentionally made a statement, either written or oral, in a context and under such circumstances that a reasonable person would foresee that the statement would be interpreted by persons hearing or reading it as a serious expression of an intention to inflict bodily harm upon or to take the life of the President of the United States, and you must be further convinced beyond a reasonable doubt that the statement was not the result of mistake, duress or coercion. However, the statute does not require proof that the defendant actually intended to carry out the threat to kill or harm the President.”


author: GOLDBERG, Circuit Judge:

text:
    Jerome REAGOR, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 72-3452.
    United States Court of Appeals, Fifth Circuit.
    July 6, 1973.
    Edward Mallett, Houston, Tex., (court appointed) for petitioner-appellant.
    William S. Sessions, U. S. Atty., San Antonio, Tex., Ralph E. Harris, Ronald F. Ederer, Asst. U. S. Attys., El Paso, Tex., for respondent-appellee.
    Before GOLDBERG, CLARK and RO-NEY, Circuit Judges.
   GOLDBERG, Circuit Judge:

Petitioner, Jerome Reagor, was convicted on three counts, including one conspiracy count, of receiving and importing heroin in violation of 21 U.S.C. § 174. On direct appeal only the legality of an incriminating search was raised, and the conviction was affirmed. United States v. Reagor, 5 Cir. 1971, 441 F.2d 252.

In June of 1972, Reagor filed in the trial court a pro se motion to vacate sentence under 28 U.S.C. § 2255 alleging that the prosecution suppressed evidence favorable to his defense. In particular, the petitioner alleged that the United States Attorney failed to inform the court that a co-conspirator, Maruffo, who testified against Reagor at trial, committed perjury by falsely testifying that he had received no promises from the United States Attorney in return for his testimony. The district court refused to grant petitioner a factual hearing on his motion which was summarily denied as follows:

“Came on to be considered the Petition filed herein by Petitioner JEROME REAGOR, and the Court having examined same finds that all matters therein have been considered by this court and the Appellate Court and are without merit and that said Petition presents nothing that this court can or should grant relief on and same is therefore DENIED.”

It is from this summary denial that petitioner appeals.

The thrust of Reagor’s petition is that under the 1972 Supreme Court decision in Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104, he would be entitled to a new trial if, in fact, the co-conspirator turned government witness did not accurately apprise the jury that the prosecution had made promises to him in return for his testimony. In Giglio, the Court granted relief upon finding first, that a co-conspirator had, in fact, testified, falsely in denying any prosecutorial suggestion of leniency, and second, that the false testimony given by the co-conspirator was material.

From the face of Reagor’s petition there is a strong suggestion that Maruf-fo testified after receiving promises of leniency, although the allegations are in no way conclusive, and we explicitly decline to pass on the ultimate factual merits of the petition. It is also clear that Maruffo’s testimony, although not the only evidence, was highly instrumental in the conviction. Without Maruf-fo’s testimony, the government’s case would have been based entirely on a thin web of inconclusive circumstantial evidence and the fact that heroin was found concealed in the car in which the defendants were apprehended. All of the other defendants denied any connection with the heroin and Maruifo’s testimony was the only directly incriminating evidence in this regard. A serious challenge to Maruffo’s credibility, such as that he had an ulterior motive for testifying, would have a “reasonable likelihood” of “affecting the judgment of the jury.” See note 2, supra.

While it is true that Maruffo was questioned at trial and denied that any promises had been made, the record indicates that the trial court continually restricted the petitioner’s cross-examination of Maruffo as to this issue, and that defendant was never given an adequate opportunity at trial to develop the factual basis for the claim sub judice. Furthermore, it was only after trial that Reagor was able to ascertain the full extent of the benevolence that had been accorded Maruffo at sentencing, and it is clear that Maruffo was rewarded for his testimonial assistance. In short, petitioner has at least raised a colorable, non-frivolous factual question as to whether Maruffo told the truth when he denied that promises were made for his testimony and if Reagor can meet the rather heavy burden of proving his ultimate factual assertions at a hearing, he would, under Giglio, be entitled to relief.

Contested fact issues in § 2255 cases must be decided on the basis of evidentiary hearings and it was error for the district court to deny petitioner’s motion without a hearing. Montgomery v. United States, 5 Cir. 1972, 469 F.2d 148; Brown v. United States, 5 Cir. 1972, 462 F.2d 681. The order of the district court denying § 2255 relief is therefore vacated and the cause is remanded for the district court to hold an evidentiary hearing on petitioner’s claim.

Vacated and remanded.

      . Petitioner has been ably represented on this appeal by appointed counsel.

      . Quoting Napue v. Illinois, 1959, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217, the Court in Giglio stated the materiality test as follows:
      “A new trial is required if ‘the false testimony could ... in any reasonable likelihood have affected the judgment of the jury.’ ” 405 U.S. at 154, 92 S.Ct. at 766.

      . There are unrefuted allegations in the petition that Maruffo was taken from the jail to the courthouse twice the day before trial to meet with the prosecutors. There was evidence from one of the co-defendants that Maruffo told him of a deal. The primary charges against Maruffo were dropped by the prosecution and he ultimately pled guilty to and was convicted of possession only. Maruffo had a prior narcotics record and it is clear that he was subject to a considerably higher sentence. The fact that the prosecutor had no legal obligation to charge Maruffo at all, see United States v. Cox, 5 Cir. 1965, 342 F.2d 167, is irrelevant as to the question of whether promises were made to Maruffo. The rather substantial charging down is at least evidentiary of the alleged promise.

      . The facts of the apprehension are set out fully in the Court’s opinion on the direct appeal, 441 F.2d 252.

      . The fact that Maruffo was rewarded for his testimony does not establish the fact of a promise and as stated previously, it is only inconclusively evidentiary of the ultimate as' sertion.

      . Reagor’s petition is not barred because of the failure to raise this question on direct appeal since (1) many of the relevant factual matters were unknown to petitioner at the time of trial and could not have been known, and (2) the decision in Giglio was not rendered until after the direct appeal was disposed of.