author: WISDOM, Circuit Judge:

text:
    In the Matter of Sam James Recile, Bankrupt. Sam James RECILE, Bankrupt, Appellant, v. Albert J. WARD, Jr., Trustee for Southern Land Title Corporation, etc., et al., Appellees.
    No. 73-1648.
    United States Court of Appeals, Fifth Circuit.
    June 24, 1974.

      James J. Morrison, James J. Morrison, Jr., New Orleans, La., for appellant.
    John Pat Little, Charles Schwartz, Jr., New Orleans, La., for Albert Ward, Trustee, So. Land, Plaza Tower &. Co-Trustee G. Brian Corp.

      Edward M. Heller, New Orleans, La., for Dorothy R. Cowen, Trustee for Recile.
    Gerald J. Gallinghouse, U. S. Atty., New Orleans, La., for U.S.A.
    Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.
   WISDOM, Circuit Judge:

Sam Recile, the bankrupt-appellant, appeals from an order of the referee dated November 3, 1971, and from an order of the district court denying a petition to review that order. The referee’s order denied Recile’s motion that his discharge in bankruptcy be issued nunc pro tunc effective April 22, 1969, and extended the time for filing objections to Recile’s discharge until November 30, 1971. We affirm the referee and the district court.

I.

Recile was adjudicated a bankrupt by order of the district court, entered January 12, 1968. The first meeting of creditors was held April 15, 1968. Acting under the statutory provision then in effect, 11 U.S.C. § 32(b) (1970), the court fixed October 21, 1968, as the last day for filing objections to the bankrupt’s discharge. On October 21, again acting under 11 U.S.C. § 32(b) (1970), the referee extended the deadline date for filing objections to April 21, 1969. No objections were filed to Recile’s discharge by his trustee, his creditors, or by any other interested party by April 21. No request was made before April 21 for a further extension of the deadline, and no order extending the deadline further was ever entered. Nevertheless, for reasons not apparent from the record, no order was ever entered granting Recile’s discharge.

The matter apparently lay dormant in that posture for over two years; the bankrupt did nothing to secure his discharge, and the creditors did nothing to obtain a formal extension of time. Activities did not begin anew in the case until June 15, 1971, when a report by the firm of Laport, Girot, Sehrt & Roney, certified public accountants, was completed. The report presented the results of an examination undertaken in conjunction with Chapter X reorganization proceedings concerning several corporations controlled by Recile, including the Southern Land Title Corporation and its subsidiaries, G. Brian Corporation, and Plaza Towers, Inc. The reorganization proceedings were then pending before the same district judge who was hearing this, individual bankruptcy proceeding. The report allegedly revealed that Recile owed over three million dollars to the corporations, which he had never previously listed among his creditors in the schedules submitted in the individual bankruptcy proceeding.

This report was delivered to Albert J. Ward, the trustee for the Recile corporations and the appellee here, August 3, 1971. Before that, on July 26, Recile had filed a formal motion before the referee requesting that his discharge be issued him under 11 U.S.C. § 32(b). On August 2, the referee responded to Recile’s motion by issuing an order and notice to all creditors fixing a hearing on the motion for a discharge September 1, 1971, and requiring all parties wishing to oppose the motion to show cause then why the bankrupt should not be discharged. On August 25, 1971, Recile moved to dismiss, recall, and suppress the show cause order, on the grounds that the Bankruptcy Act and the then effective General Orders of the Supreme Court in Bankruptcy did not contemplate such a procedure but rather made the issuance of discharge a matter of course when the deadline for filing objections passed. On the same day, the appellee, Ward, filed objections to Recile’s discharge on behalf of the three corporations for which he was trustee. Two other creditors, the National American Bank of New Orleans, and the Bankers Union Life Insurance Co., also filed objections on the same day.

The refereee denied Recile’s motion to dismiss, suppress, and recall, and proceeded with the hearing on Recile’s motion for discharge September 1. The sole witness called at that hearing was the Honorable Edmund E. Talbot, the referee who had heard the ease in April 1969. Judge Talbot was an experienced and highly respected referee for the District Court for the Eastern District of Louisiana. After 36 years of service as referee, he retired on July 1, 1969. On direct examination, Recile’s counsel sought to elicit testimony from Judge Talbot to establish that the failure to enter Recile’s discharge in April 1969 had been the product of mere clerical error. Over the objection of the creditors’ counsel, Judge Talbot gave this description of the process by which discharges were ordinarily issued:

Well, ordinarily in a bankruptcy the last two orders issued in a bankruptcy estate are the order of discharge and the order closing out the case. A discharge volume, a book, is kept by the clerk's office. All discharges as of a certain date, say within a month, are listed which are to arise — are listed in that book and if the cases are closed out, then the clerk fills in these discharges and sometimes presents fifty or sixty of them for my signature.
If there a continuation or if there’s an objection or in the old days if the costs weren’t paid a notation was made against that name and number and it was excluded from the list of discharges which I was to sign.

Judge Talbot further testified that “in the normal course of events” the Recile discharge would have been presented to him “at some reasonably subsequent time” to April 22, 1969. He testified that the additional time would be needed because “[i]t would take the clerical help some time to get down all the cases, draw the discharges, and check .the records to be sure that I was entitled to sign them”. Judge Talbot implied that no such record search had ever been made in Recile’s ease.

Judge Talbot’s testimony was more significant for what it did not establish than for what it did. In particular, his testimony made it clear that in April 1969 he had not decided the Recile case. He did not testify he had taken all steps necessary to find Recile entitled to a discharge. Thus he did not say or imply that the failure to grant the discharge was entirely the result of clerical error only. Rather he testified that it was his assumption that the matter was continuing at the time the record deadline for filing objections passed. We have already noted from his testimony that a check of the records had to have been made before the discharge would have been presented to him for his signature, and that apparently no such check was ever made in Recile’s case. Beyond and more important than that, Judge Talbot testified:

Q. Was there any extra work or burdens in your office on your staff incident to your imminent retirement at that time ?
A. I think it was rather obvious that there was. Everyone in this courtroom nearly was presenting petition for fees, petitions to cancel liens, I was serving as master in many Chapter X matters incident to the Recile bankruptcies and I think up until the last day I was having hearings, signing orders, fixing fees, and I frankly wasn’t aware of the status of. Recile’s discharge under any circumstances. I — as a matter of fact, I was so sure that it had been continued and would be definitely heard in the future that I asked someone long after I retired.— I've asked several people that are familiar with this case

On cross examination by the creditors’ counsel, Judge Talbot testified that he “just would have assumed this thing not being fully administered, that somebody would have come in and asked for an extension”, and that he “thought perhaps that was the reason why this one case was left out of the discharge — off the discharge list on April 21st”. Noting that characterizing the case as “very unusual and complex” would be “putting it mildly”, Judge Talbot said that “a host of people connected with this case was under the impression that an order of extension had been granted”.

Counsel for the creditors sought to determine whether there might have been an extension granted but not recorded because of clerical error. Judge Talbot admitted that he had occasionally granted extensions orally of otherwise informally, but said it was “entirely specula- ; tive” whether he had done so in this case.

The referee announced his findings of fact, conclusions of law, and orders in an opinion issued November 3, 1971. The referee denied Reeile’s motion for discharge, and his motion to recall, dismiss, and suppress the show cause order, and extended the date for filing objections until November 30. The referee found that Recile’s discharge date had never been formally continued after April 21, 1969, that the bankrupt had never been granted his discharge, that the court had never been made aware of the grounds for opposing his discharge until August 25, 1971, and that the court had never considered the question of the bankrupt’s discharge. The referee held as matters of law that the court had discretionary authority to extend the deadline for filing objections either before or after the time originally fixed had expired; that no formal order was necessary to extend the time for filing oppositions; that a discharge is pending before the court until it is granted; that the granting of a discharge is a judicial function; that the parties opposing Recile’s discharge had not been guilty of laches, and that a discharge should not be granted until the Court had considered the question of the bankrupt’s right to a discharge. The district court denied Recile’s petition for review of this order March 15,1968.

On appeal, Recile’s principal arguments are that the referee erred in denying him entry of judgment issuing his discharge nunc pro tunc, and erred in holding himself empowered to grant an extension of the time for filing objections after the time originally set had elapsed. He also raises several other, lesser contentions. We take up the two major contentions first.

II.

We hold that Recile was not entitled to entry of a judgment granting his discharge nunc pro tunc. Recile’s assertion rests on the principle that such entry is appropriate where judgment “though formally pronounced, ha[s] from accident or from negligence of the clerks never been put on record”. Freeman on Judgments § 122 (5th ed. 1925); see, e. g., United States v. Chicago & A. R.Co., 7 Cir. 1918, 162 C.C.A. 273, 250 F. 101. But it is also the rule that

. the entire purpose of entering judgments and decrees as of some prior date is to supply matters of evidence, and not to supply or modify matters of fact. The failure of a court to act, or its incorrect action, can never authorize a nunc pro tunc entry. If a court does not render judgment, or renders one which is imperfect or improper, it has no power to remedy any of these errors or omissions by treating them as clerical misprisions.

Freeman on Judgments § 131; see Gray v. Brignardello, 68 U.S. (1 Wall.) 627, 17 L.Ed. 693. And the burden is on the party seeking nunc pro tunc entry where no judgment has been recorded to prove that the failure to record is the result wholly of clerical misprision, rather than of the failure of the court to act.

Recile failed to carry this burden. On the basis of Judge Talbot’s testimony, as well as of the entire record, we hold that the referee’s finding of fact that the court had never considered the question of Recile’s right to a discharge was not clearly erroneous. That finding was tantamount to a finding that the failure to enter judgment in April 1969 was the result of the court’s failure to act, and not of clerical error.

The question whether the trial judge was empowered to grant a further extension of time for filing objections is one separate from the question whether entry of judgment nunc pro tunc was appropriate, but it is one that also must be decided unfavorably to Recile. Bankruptcy Rule 404(e) provides that “[t]he court may for cause, on its own initiative or on application of any party in interest, extend the time for filing a complaint objecting to discharge”. This provision is to be liberally construed:

Because of the importance which should be attached to encouraging interested parties to oppose a discharge where there [are] reasonable grounds to suspect that an objection exists, this discretionary power to extend the time for objections should be liberally construed.

1A Collier on Bankruptcy f[ 14.06 (14th ed. 1974).

Ample case law support the proposition that the provision conferring the referees’ discretion to extend the time for filing extensions must be broadly read. In In re Massa, 2 Cir. 1943, 133 F.2d 191, the bankrupt attacked the referee’s judgment refusing a discharge, arguing that the objections forming the basis of the refusal were filed out of time. The objections had been filed out of time, but the referee had allowed them to be filed and had proceeded to hold hearings on them. The Court of Appeals for the Second Circuit held that the referee’s holding of the hearings and his acceptance of the objections were evidence that he had extended the time for filing the objections. In Rameson Brothers v. Goggin, 9 Cir. 1957, 241 F.2d 271, the Ninth Circuit held that technical errors in the papers granting an extension did not bar filing objections, because the referee could permit late filing of the papers, even without a formal extension. In In re Wiedemeyer, E.D. N.Y.1940, 32 F.Supp. 809, the court held that where the illness of the creditor’s clerk had prevented the timely filing of an objection, but the discharge had not yet been granted, the referee could allow the papers to be filed out of time. See also In re Legon, S.D.N.Y.1949, 85 F.Supp. 946 (referee has discretion to extend time without filing a formal order granting an extension).

In accordance with the principle that the power to extend the time for filing objections should be liberally construed, we hold that the referee was correct in his conclusion of law No. 1, that the Court has discretionary authority to extend the discharge date either before or after the expiration of the deadline originally set.

Finally, there remains the question whether this power was properly exercised in this case. Concededly, that question is closer in this case than it was in any of the cases we cited above. In those cases, the objections were filed shortly after the expiration of the deadline, usually within a few days. In this case, two and one-half years elapsed between the passing of the deadline and the filing of the objections. In those cases, where no formal order extending the deadline had been entered, there at least were always clear indications that the referees had reached an explicit decision that the time should be extended;' for example, in Massa the referee held hearings and in Rameson Brothers the referee had entered papers intended to grant an extension. In this case there was scant evidence that the referee had explicitly decided to extend the time; the referee, although he testified that he had had a vague understanding that the case had been continued, also testified that to have concluded there had been an unrecorded order extending the time was entirely “speculative”.

Nevertheless, we conclude that the referee did not abuse his discretion in allowing the trustee of the corporations controlled by the bankrupt to file their objections after 2% years. There was substantial evidence that the failure to grant an extension was the result of mere oversight or misunderstanding, on the part of either the referee or the parties. This was a complex case, as this Court well knows from related cases, and it is easy to understand Judge Talbot’s assuming that the discharge date had been continued somehow, or upon someone’s request. The bankrupt’s failure, over two and one-half years, to come forward to request his discharge, until after evidence creating grounds for objections had been uncovered, reinforces the impression that there was a general understanding that Recile had not been discharged, that he had never become entitled to be discharged, and that the case was an open and continuing one. In these circumstances, the referee had reason to grant even the admittedly very late extension of time for filing objections.

III.

Recile’s remaining contentions are founded upon a misapprehension concerning what rules of procedure govern this case. Rule 6(b)(2) of the Federal Rules of Civil Procedure permits district courts to allow any acts required by those Rules to be done within a specified time to be performed out of time upon a showing of “excusable neglect” on the part of the party required to perform the act. Recile argues that the referee had no power to extend the time for objections without a showing of “excusable neglect” of the kind this Rule contemplates. He also spends considerable effort arguing that the evidence did not support a finding of excusable neglect, or freedom from laches, and in arguing that certain items of evidence relevant to the issue were not properly introduced as evidence and made matters of record. All these contentions are without merit, of course, since bankruptcy proceedings are not governed by the Federal Rules of Civil Procedure, and Rule 6(b)(2) is therefore irrelevant. See F.R.Civ.P. 1, 81(a)(1), 28 U.S.C. Section 14 of the Bankruptcy Act, 28 U. S.C. § 32 (1970), the procedural rule in effect at the time of the referee’s decision, and Rule 404 of the Bankruptcy Rules, the provision now in effect, do not make the granting of extensions out of time dependent upon a showing of “excusable neglect”.

Rule 6(b)(2) and the question of excusable neglect aside, however, Recile suggests that an extension in this case still would not be proper unless the creditors were not guilty of laches, and that evidence did not support the referee’s ruling, included in the opinion as a conclusion of law, that the objecting creditors were not guilty of laches. We question the validity of the suggestion that laches on the part of the potential objecting creditors would as a matter of law defeat the power of the referee to extend the period for filing of objections after the date originally set had passed. We need not decide the merits of that suggestion, however, since we find that the record as a whole amply supports the referee’s judgment that the creditors were not guilty of laches.

Affirmed.

      . Section 14(b) of the Bankruptcy Act, 11 U.S.C. § 32(b) (1970), provided:
      (b) (1) The court shall make an order fixing a time for the filing of objections to the bankrupt’s discharge and a time for the filing of applications pursuant to section 35(c) (2) of this title to determine the dischargeability of debts, which, time or times shall be not less than thirty days nor more than ninety days after the first date set for the first meeting of creditors. Notice of such order shall be given 'to all parties in interest as provided in section 94(b) of this title. The Court may, upon its own motion or, for cause shown,- upon motion of any party in interest, extend the time or times for filing such objections or applications.
      (2) Upon the expiration of the time fixed in the order for filing objections by the court, the court shall discharge the bankrupt if no objection has been filed and if the filing fees required to be paid by this title have been paid in full
      . . . .j.

      This provision has been superseded by provisions of Rule 404 of the new Rules of Bankruptcy Procedure. Section 14(b) was. effective at the time of and governed the proceedings below, and supplied the procedural rules applied by the referee. The new Rule, however, governs our decision here, since by order of the Supreme Court, the new rules govern proceedings which were pending at the time of the adoption of the rules, except where their application would be infeasible or would work injustice.
      Applying the new rule rather than the old does not affect the outcome of this case, since the provisions of the two are substantially identical in all respects material to this case. Rule 404 provides in relevant part:
      (a) Time for Filing Complaint Objecting to Discharge. The court shall make an order fixing a time for the filing of a complaint objecting to the bankrupt’s discharge under § 14c of the Act. The time shall be not less than 30 days nor more than 90 days after the first date set for the first meeting of creditors.
      (c) Extension of Time. The court may for cause, on its own initiative or on application of any party in interest, extend the time for filing a comidaint objecting to discharge.
      (d) Grant of Discharge. On expiration of the time fixed for filing a complaint objecting to discharge, the court shall forthwith grant the discharge unless (1) a complaint objecting to the discharge has been filed, (2) the bankrupt has filed a waiver under Rule 405, (3) it appears that the bankrupt has failed to attend and submit himself to examination at the first meeting of creditors or at any meeting specially called for his examination, or (4) the prescribed filing fees have not been paid in full.

      . National American and Bankers Union subsequently withdrew their claims against Recile. Accordingly, they have no interest in this appeal, and have not participated in it.

      . These considerations underlay the referee’s conclusion of law to the effect that the granting of a discharge is a judicial function and his further conclusion that the court should not grant a discharge until it has considered the merits of a bankrupt’s claim that he has a right to a discharge,


source: Caselaw Access Project

author: THORNBERRY, Circuit Judge:

license: Public Domain

text:
    Bennie G. THOMPSON, Plaintiff, Evelyn Thomas et al., etc., Plaintiffs-Appellants, v. MADISON COUNTY BOARD OF EDUCATION et al., etc., Defendants-Appellees.
    No. 73-3509
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 20, 1974.

      Frank R. Parker, Lawyers’ Committee for Civil Rights Under Law, Isaiah Madison, James M. Abram, Jackson, Miss., for plaintiffs-appellants.
    G. Milton Case, R. L. Goza, Canton, Miss., for defendants-appellees.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, 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.

   THORNBERRY, Circuit Judge:

This is the second appeal for Sutton and Thomas from adverse determinations by the district court. Believing that their teaching contracts were not renewed in violation of the principles we enunciated in Singleton v. Jackson Municipal Separate School District, 5th Cir. 1970, 419 F.2d 1211, cert. denied, 396 U.S. 1032, 90 S.Ct. 612, 24 L.Ed.2d 530, they sought injunctive relief, back pay, attorney’s fees, and reimbursement for other expenses. In the first hearing, the district court found that the refusal of the Madison County Board of Education to rehire the two teachers was based on “just and proper cause.” We reversed because we were unable

to determine whether the Madison County School District is still in the process of implementing the desegregation orders of this Court or whether desegregation has already been completely achieved.

5th Cir. 1973, 476 F.2d at 678. We had before us no record on which to predicate a decision concerning the applicability of Singleton, because the district court had refused to grant the plaintiffs a full evidentiary hearing, choosing instead. to rely on a school board hearing which undeniably did not and could not face up to the Singleton issue. On remand, the district court conducted the required hearing and found that Singleton was inapplicable and thus that the Board was entitled to refuse to rehire the teachers without regard to the requirements of that decision; that both teachers were refused rehiring for “just and proper cause” based on their classroom performances; that in the absence of tenure, the Board of Education could not rehire the teachers because they had not been recommended for re-employment by the Superintendent as state law required; and that even if the plaintiffs had been successful, they would not have been entitled to an award for attorneys’ fees. Again, we reverse and remand, this time with directions to grant the relief requested in part and to consider further the request for back pay and certain other expenses.

The Applicability of Singleton

This Court’s en banc decision in Singleton prescribed detailed procedures for the effectuation of staff reductions resulting from the judicially-ordered desegregation of formerly dual public educational systems. Singleton v. Jackson Municipal Separate School District, supra, 419 F.2d at 1218.

If there is to be a reduction in the number of principals, teachers, teacher-aides, or other professional staff employed by the school district which will result in a dismissal or demotion of any such staff members, the staff member to be dismissed or demoted must be selected on the basis of objective and reasonable non-discriminatory standards from among all the staff of the school district. In addition if there is any such dismissal or demotion, no staff vacancy may be filled through recruitment of a person of a race, color, or national origin different from that of the individual dismissed or demoted, until each displaced staff member who is qualified has an opportunity to fill the vacancy and has failed to accept an offer to do so.
Prior to such a reduction, the school board will develop or require the development of nonracial objective criteria to be used in selecting the staff member who is to be dismissed or demoted. These criteria shall be available for public inspection and shall be retained by the school district. The school district also shall record and preserve the evaluation of staff members under the criteria. Such evaluation shall be made available upon request to the dismissed or demoted employee.
“Demotion” as used above includes any reassignment (1) under which the staff member receives less pay or has less responsibility than under the assignment he held previously, (2) which requires a lesser degree of skill than did the assignment he held previously, or (3) under which the staff member is asked to teach a subject or grade other than one for which he is certified or for which he has had substantial experience within a reasonably current period. In general and depending upon the subject matter involved, five years is such a reasonable period.

419 F.2d at 1218. It is undisputed that the Board has not even attempted to adopt Singleton procedures, and the district court so found. But the district court concluded that

When these two black teachers were not rehired, this school board was not in default, or delinquent in any respect in compliance with any plan for desegregation recommended by HEW pursuant to order of the United States Court of Appeals for this Circuit. It is an irrefragable fact that these two teachers involved in this suit were not displaced pursuant to or by virtue of any implementation of the Singleton order . . . The Singleton order and such criteria therein as to not rehiring teachers simply has no application to the facts and circumstances in this case, and the propriety vel non of the failure of this school board to rehire these two teachers must be viewed and considered and decided solely from conventional aspects of annual employment .
The Madison County School System was desegregated and converted into a unitary school system as described and defined by the Supreme Court of the United States. These two black teachers were not displaced and were not rehired as a result of the implementation of Singleton . . ., but were properly not rehired for just and proper cause outside the sweep of Singleton criteria .

The court found that the “Madison County School System was converted to a unitary school system as defined by the [Supreme] Court on the 31st day of December 1969.” This is the date which we set for the introduction of the desegregation plan. United States v. Hinds County School Board, 5th Cir. 1969, 423 F.2d 1264, cert. denied, 1970, 396 U.S. 1032, 90 S.Ct. 612, 24 L.Ed.2d 531.

The evidence overwhelmingly indicates that the school system was not integrated December 31, 1969, was not integrated at the time of the refusal to rehire the plaintiffs in March, 1970, and indeed may not have been integrated at the time of the last hearing. Pursuant to a prior order of this Court, the school district has filed status reports which show the following:

1969-70 school year (as of April 15, 1970)
I (a) The number of students enrolled In the District by race Is:
White: 922
Black: 3448
(b) The number of students enrolled In each school of the District by race is:
School White Black
Velma Jackson 0 1,107
Luther Bransom 0 476
Madison-Rldgeland 268 235
Rosa Scott 32 703
Ridgeland Elementary 295 37
East Flora 0 740
Flora 327 150
II (a) The number of full time teachers In the District by race Is:
White: 69
Black: 162
(b) The number of full time teachers in each school of the District by race is:
School White Black
Velma Jackson 6 50
Luther Bransom 0 24
Madison-Rldgeland 24 5
Rosa Scott 6 40
Ridgeland Elementary 12 0
East Flora 0 37
Flora 21 6
1970-71 school year (as of March 15, 1971)
I (a) The number of students enrolled In the District by race Is:
White: 762
Black: 3522
(b) The number of students enrolled In each school of the District by race is:
School White Black
Velma Jackson 0 1,124
Luther Branson 1 445
Madison-Rldgeland 328 214
Rose Scott 0 660
Ridgeland Elementary 311 104
East Flora 0 835
Flora 122 140
II (a) The number of full time teachers In the District by race is:
White: 59
Black: 155
(b) The number of full time teachers in each school of the District by race is:
School White Black
Velma Jackson 4 48
Luther Branson 1 24
Madison-Rldgeland 23V2 4V2
Rosa Scott 3 35
Ridgeland Elementary 15 IV2
East Flora 1 39
Flora llVa 3
1971-72 School year (as of December 1, 1971)
I (a) The number of students enrolled In the District by race is:
White: 722
Black: 3,400
(b) The number of students enrolled In each school of the District by race is:
School White Black
Velma Jackson 0 1,087
Luther Branson 3 434
East Flora 0 812
Flora 82 122
Madison-Rldgeland 168 290
Ridgeland . 191 245
Rosa Scott 278 410
Business & Commerce 21 194
II (a) The number of full time teachers In the District by race is:
White: 38
Black: 157
(b) The number of full time teachers in each school of the District by race is:
School White Black
Ridgeland 7 11
Madison-Ridgeland 8 14
Rosa Scott 8 20
Flora 3 6
East Flora 4 35
Luther Branson 1 21
Velma Jackson 4 45
Business & Commerce 3 5
1971-72 School Year (as of April 15, 1972)
I (a) The number of students enrolled in the District by race is:
White: 769
Black: 3,318
(b) The number of students enrolled in each school of the District by race Is:
School White Black
Velma Jackson 0 1,028
Luther Branson 4 457
East Flora 0 826
Flora 122 92
Madison-Rldgeland 155 275
Ridgeland 172 235
Rosa Scott 316 405
Business & Commerce 27 196
II (a) The number of full time teachers In the District by race is:
White: 44
Black: 144
(b) The number of full time teachers in each school of the District by race is:
School White Black
Rosa Scott 9.1 20
Ridgeland 7.5 11
Flora 4.4 6.4
Madison-Ridgeland 10 10
Luther Branson 3 17.6
East Flora 5 31.6
Velma Jackson 2 42.4
Business & Commerce 3 5

Thus, in March 1970, when the Board determined not to rehire the plaintiffs, three of the seven schools in the system were still completely -black. A year later, the school system was more, not less, segregated, since three schools were completely black and a fourth school had only one white and 455 blacks. At the time of the refusal to rehire, three of the schools were completely segregated with respect to teachers. Only the most minimal improvement was registered the following year, and even then none of the schools had achieved the faculty desegregation required earlier by this court’s order.

It is equally clear that there was a reduction in the teaching force in the relevant time period. The teaching force in the 1969-70 school year numbered 231 (69 white, 162 black). In the 1970-71 school year, the number had declined to 214 (59 white, 155 black). The number of white students and the total number of students in the system also declined over the year.

We are unable to comprehend the suggestion in the district court’s opinion and now urged upon this court by the Board that the school system became a unitary system the moment our decree was to become effective, December 31, 1969. If the journey from Brown to Swann and beyond has taught us anything, it is that integration does not occur merely when and because we say it should. The journey has been necessary because we have been concerned with conduct and action, not words. See Sparks v. Griffin, 5th Cir. 1972, 460 F.2d 433. We have only recently reiterated that Singleton is rendered inapplicable only when “full compliance with the desegregation directives of this Court” is achieved. McLaurin v. Columbia Municipal Separate School District, 5th Cir. 1973, 478 F.2d 348, 352. As we said earlier, we remanded originally because we did not' have record evidence on the question of “whether the Madison County School District is still in the process of implementing the desegregation orders of this Court or whether desegregation has already been completely achieved.” Thompson v. Madison County Board of Education, supra, 476 F.2d at 678. We certainly did not need to remand the ease if all that remained to be determined was the date on which the schools began to desegregate.

The district court concluded that while some of the schools might not appear to be integrated, nevertheless in fact they were, at least insofar as the teachers were concerned:

Desegregation to any degree of mathematical exactitude as to the student phase of this Singleton order in some schools may be autistic in character, but completed and accomplished as to the faculty aspect or stage of this order .

To be sure, we recognize that “the existence of some small number of one-race, or virtually one-race, schools within a district is not in and of itself the mark of a system that still practices segregation by law.” Swann v. Charlotte-Mecklenburg Board of Education, 1971, 402 U.S. 1, 91 S.Ct. 1267, 1281, 28 L.Ed.2d 554, “What is or is not a segregated school will necessarily depend on the facts of each particular case.” Keyes v. School District No. 1, Denver, Colo., 1973, 413 U.S. 189, 93 S.Ct. 2686, 2691, 37 L.Ed.2d 548.

[B]ut in a system with a history of segregation the need for remedial, criteria of sufficient specificity to assure a school authority’s compliance with its constitutional duty warrants a presumption against schools that are substantially disproportionate in their racial composition . . . The court should scrutinize such schools, and the burden upon the school authorities will be to satisfy the court that their racial composition is not the result of present or past discriminatory action on their part.

Swann v. Charlotte-Mecklenburg Board of Education,, supra, 91 S.Ct. at 1281. The facts of this case indicate to us that the district court clearly erred in concluding that the school system had fully desegregated in either faculty or students at the time of the refusal to rehire the plaintiffs. We think it particularly significant that the all-black schools contained 3,064 of the 3,522 black students in the district, or roughly 87% of all black students. Furthermore, this court entered orders subsequent to the December 31, 1969, order in a continuing attempt to achieve maximum integration. While those orders may have been complied with, nevertheless when these teachers were refused rehiring, desegregation of the schools in both faculty and students was still in the process of implementation.

The district court, also found, and the school board has forcefully contended, that the refusals to rehire were not actually caused by the court-ordered desegregation. In its brief, the school board reasons as follows:

. In implementing desegregation in the Madison County School District, there were no dismissals or reduction in the number of teachers.
-» X- X- X- * *
In the case at bar, the plaintiffs were not re-employed for the ensuing school year for specific reasons which occurred after desegregation and which were in no way related to reduction of the number of teachers

First, we have already concluded that the desegregation had not been completed at the time plaintiffs were refused rehiring. Secondly, as we said in McLaurin v. Columbia Municipal Separate School District, supra, “we are not at all persuaded that each plaintiff was denied employment for the 1970-1971 academic year for valid, objective, nonracial reasons.” Both plaintiffs had numerous years of teaching experience, and neither the district court nor the defendants concluded that the plamtiffs were not objectively qualified for re-employment. They were refused rehiring only two months after the desegregation order became operative. "It is difficult to believe that the District’s level of tolerance of the plaintiffs’ alleged deficiencies in the performance of their duties was coincidentally reached and exceeded during the period meaningful desegregation was being achieved.” McLaurin v. Columbia Municipal Separate School District, supra. We reject the school board’s argument and the district court’s suggestion that plaintiffs’ loss of their teaching positions was not a result of the Board’s actions in implementing the court-ordered desegregation. Once it has been demonstrated that a reduction in faculty has occurred before full compliance with the desegregation direction of this court has been achieved,Singleton is applicable.

Dismissals for Cause

Having concluded that the school board’s refusals to rehire the plaintiffs had virtually nothing to do with court-ordered desegregation and that the required unitary school system had become a reality December 31, 1969, before the refusals to rehire, the district court found that the teachers had been refused rehiring for “just and proper cause outside the sweep of Singleton criteria.” Since the district court’s premises were faulty, its conclusion missed the mark. Singleton was applicable. The required desegregation had not become a reality at the time plaintiffs’ contracts were not renewed. There was a reduction in faculty between the two school years involved. Thus, what we said in the first appeal of this case is dispositive here:

[Ajssuming that Singleton does apply, the district court’s conclusion that there was “just cause” for Sutton and Thomas not being rehired appears to be erroneously based on a subjective comparison of the plaintiffs’ proficiency in the classroom with the performance of other teachers in the school district. We recognize that under certain circumstances, Singleton notwithstanding, discharges on the basis of “just cause” may be warranted without reference to the school board’s pre-established objective and reasonable standards. However, “just cause” in a Singleton situation does not refer to a teacher’s lack of professional credentials, his poor performance in the classroom, his failure to abide by school regulations, his lack of cooperation, or other similar explanations. These types of reasons for discharge fall directly within the scope of Singleton, and accordingly such discharges must be justified on the basis of objective and reasonable standards for dismissal previously set by the school board. If this kind of a discharge can be justified in terms of the established objective standards, it is not for “just cause”; it is simply a discharge in compliance with Singleton criteria. “Just cause” in a Singleton situation means types of conduct that are repulsive to the minimum standards of decency — such as honesty and integrity — required by virtually all employers of their employees, and especially required of public servants such as school teachers. No pre-established objective criteria are necessary to justify the discharge of a teacher whose conduct does not measure up to these minimum standards of behavior.

Thompson v. Madison County Board of Education, supra, 476 F.2d at 678-679. It is undisputed that the plaintiffs’ conduct never reached so low as to fall within the range of behavior set out in Thompson justifying a refusal to rehire without regard to objective standards, The unavoidable conclusion is that the plaintiffs were improperly refused rehiring and are entitled to reinstatement,

Back Pay Awards

Because we have decided that the plaintiffs were improperly denied re-employment by the Madison County School Board for the 1970-71 school year, we must now inquire into their eligibility for awards of back pay. At the time of their discharge, Sutton was making $5,600 per year and Thomas was making $5,200 per year. Both plaintiffs sought and secured interim employment. Sutton has evidently been employed at a teaching job in Michigan which pays more than twice the salary he was paid by the Madison County School Board.

While this case was pending on appeal, the Supreme Court decided the case of Edelman v. Jordan, 1974, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662. The Court there held that under the eleventh amendment, the judicial power of the federal courts did not extend to a suit which sought to recover certain statutory monetary benefits which had been wrongfully withheld by the state of Illinois, and therefore reversed a portion of a Court of Appeals decision affirming a district court’s order that retroactive benefits be paid by the Illinois state officials. The parties to this suit have not had an opportunity to brief or argue the question of Edelman’s applicability to the back pay issue. Consequently, we remand the case to the district court for findings and conclusions on this issue. We express no opinion as to whether the Madison County Board of Education is entitled to invoke the eleventh amendment, see Moor v. County of Alameda, 1973, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596; Edelman v. Jordan, supra, 94 S.Ct. at 1358, n. 12; or whether, if it is determined that the Madison County Board of Education is a state defendant for purposes of the eleventh amendment, an award of back pay would conflict with the Edelman holding.

Plaintiffs’ Entitlement to Attorneys’ Fees

The district court denied the plaintiffs’ an award for attorney’s fees with the following explanation:

No proof was adduced as to attorney’s fees, but the Court knows judicially from other like cases here that original counsel and present counsel are employed by a subsidized agency from which they received regular salaries. Their employers are not lawyers and are not authorized, or qualified to contract for or receive legal fees, and no assignments were shown the Court. The record does not show that the plaintiffs incurred any obligation for legal fees which they are legally bound to pay; and any allowance therefor will be denied.

Recently, we have explicitly held that these are wholly impermissible reasons for denying an award of attorney’s fees or expenses. Fairley v. Patterson, 5th Cir. 1974, 493 F.2d 598. “This Court has indicated on several occasions that allowable fees and expenses may not be reduced because appellants’ attorney was employed or funded by a civil rights organization and/or tax exempt foundation or because the attorney does not exact a fee.” Fairley v. Patterson, supra. And we have on numerous occasions either awarded attorney’s fees or approved such an award by the district court where public interest litigation was involved. See Fairley v. Patterson, supra, and cases cited therein.

Appellants argue that § 718 of the Emergency School Aid Act of 1972, 20 U.S.C. § 1617 (Supp.1973), mandates an award of attorney’s fees in this case. Under that statute, upon “the entry of a final order,” and upon “a finding that the proceedings were necessary to bring about compliance,” plaintiffs are entitled to an award for attorney’s fees “unless special circumstances render such an award unjust.” Henry v. Clarksdale Municipal Separate School District, 5th Cir. 1973, 480 F.2d 583; Northcross v. Memphis Board of Education, 1973, 412 U.S. 427, 93 S.Ct. 2201, 37 L.Ed.2d 48; Newman v. Piggie Park Enterprises, Inc., 1968, 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263.

In Johnson v. Combs, 5th Cir. 1972, 471 F.2d 84, 86-87, we held that the statute is not to be applied retroactively “to the expenses incurred during the years of litigation prior to its enactment.” The Supreme Court on May 15, 1974, expressly rejected this holding by concluding that the statute is applicable to litigation predating, but pending on appeal on, the effective date of the statute unless the award would cause “manifest injustice.” Bradley v. School Board of City of Richmond, 1974,-U.S.-, 94 S.Ct. 2006, 40 L.Ed.2d 476. Since the school board has failed to cite any special circumstances, and since it is undisputed that these proceedings were necessary to bring about compliance with the law, the district court, upon the entry of a final order in this case, is directed to grant appellants’ request for reasonable attorney's fees for services rendered from the first district court hearing through this appeal. Johnson v. Georgia Highway Express, Inc., 5th Cir. 1974, 488 F.2d 714.

Conclusion

In many ways, this case is quite similar to McLaurin v. Columbia Municipal Separate School District, supra, 478 F.2d 348. The Columbia School District was a codefendant, along with the Madison County Board of Education, in the protracted Hinds County School Board litigation, which ended when we directed the defendant school districts to operate unitary educational systems no later than December 31, 1969. United States v. Hinds County School Board, supra, 423 F.2d 1264; Alexander v. Holmes County Board of Education, 1969, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19. In McLaurin, we discovered that the required desegregation “was not effectuated until the start of the 1970-1971 school year.” 478 F.2d at 350. When several black teachers were notified in March 1970 that their contracts would not be renewed, they brought suit seeking the same relief which the plaintiffs have sought here. We reversed the district court’s holding that Singleton was inapplicable when we discovered (1) that full compliance with the desegregation directives of this Court had not been achieved until the start of the 1970-1971 school year, and (2) that there had been in fact a reduction in the number of teaching personnel between the 1969-1970 school year and the 1970-1971 school year. Since the school district had not adopted objective, nonracial Singleton criteria, and since the teachers had not been discharged for the kind of conduct set out in Thompson v. Madison County Board of Education, supra, we held that the teachers were denied equal protection of the law under the fourteenth amendment and thus entitled to relief. The school board has not attempted to distinguish McLaurin here. That case furnishes ample precedent for our disposition.

Reversed and remanded with directions.

      . Only black teachers were refused rebiring. The decrease in white teachers is attributable to teacher resignations.

      . As a part of the reinstatement remedy, Sutton has also requested that he be reimbursed for his moving expenses in relocating in Michigan and the expense of returning to Mississippi should he accept reinstatement. Armstead v. Starkville Municipal Separate School District, N.D.Miss.1971, 325 F.Supp. 560, 571, aff’d in relevant part, rev’d in part, 5th Cir. 1972, 461 F.2d 276. Edelman’s applicability to this element of requested relief should also be explored on remand.

      . The statute provides:
      Upon the entry of a final order by a court of the United States against a local educational agency, a State (or any agency thereof), or the United States (or any agency thereof), for failure to comply with any provision of this chapter or for discrimination on the basis of race, color, or national origin in violation of Title VI of the Civil Rights Act of 964, or the fourteenth amendment to the Constitution of the United States as they pertain to elementary and secondary education, the court, in its discretion, upon a finding that the proceedings were necessary to bring about compliance, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.

      . Accordingly, we need not consider appellants’ alternative contention that attorney’s fees should be awarded under the “private attorney general theory,” Fairley v. Patterson, supra, or under the theory that the school board has acted in an “unreasonable and obdurately obstinate” manner, Henry v. Clarksdale Municipal Separate School District, supra.

      . Some confusion over the factual setting in McLaurin led this court to order that the case be reheard en banc. Briefs and oral argument on rehearing led the en banc court to conclude that the case was not enbancworthy. Consequently, the en banc court was dissolved, and the panel opinion stands as the opinion of the court. See McLaurin v. Columbia Municipal Separate School District, 5th Cir. 1973, 486 F.2d 1049, dissolving the en banc court.


author: GEWIN, Circuit Judge: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Weldon Mack GEARIN, Defendant-Appellant.
    No. 74-1377
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 24, 1974.
    Rehearing Denied Aug. 28, 1974.

      Walter W. Furlong, Atlanta, Ga. (Court appointed), Thomas A. Travis, Jr., Atlanta, Ga., for defendant-appellant.
    John W. Stokes, U. S. Atty., Gale McKenzie, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

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

   GEWIN, Circuit Judge:

I

On November 6, 1973, a three-count indictment was returned charging appellant Weldon Mack Gearin in count one with the possession of stolen mail matter, a United States Treasury check, knowing the same to be stolen, in violation of 18 U.S.C. § 1708 (1970) and in count three with aiding and abetting Billy Shelton Kittrell in uttering the stolen check in violation of 18 U.S.C. § 495 (1970). Delphia Lee Trover, appellant’s common-law wife, in addition to being named in count one, was charged in count two with falsely forging the name of the payee on the stolen cheek. Kittrell was named in counts one and three along with appellant. The appellant entered pleas of guilty to counts one and three and was sentenced to two years imprisonment on each count, the sentences to run concurrently. Thereafter he filed a motion to withdraw his guilty plea which was denied. He appeals from the order of denial. We affirm.

On November 9, 1973, Gearin, Trover and Kittrell appeared before the district court for arraignment. All three defendants asserted that they wished to waive their right to assistance of appointed counsel. Appellant stated that he understood that he was entitled to appointed counsel but did not wish counsel.

Government counsel then reviewed the three-count indictment with each defendant. Both Trover and Kittrell affirmed that they understood the charges and readily admitted their individual guilt. Government counsel then addressed appellant Gearin stating:

All right, Mr. Gearin, you’re charged —I’ve already read to you the charges in Count 1 with possession of stolen mail matter, knowing it to be stolen; and in'Count 3. with helping Mr. Kittrell get the check cashed over the forged signature?
MR. GEARIN: That’s right.
MISS MCKENZIE: [government
counsel] All right. And you previously received a copy of the indictment, is that correct?
MR. GEARIN: Yes, maam.
MISS MCKENZIE: And you wish to waive the presence of counsel and plead guilty to Counts 1 and 3, is that correct ?
MR. GEARIN: Yes, maam.
MISS MCKENZIE: Would you please sign this plea form — before that, I forgot to advise you that the maximum penalty for a plea of guilty to Counts 1 and 3 could be up to three thousand dollars fine and fifteen years in the penitentiary, or both.
MR. GEARIN: Yes, maam.
MISS MCKENZIE: Do you understand that?
MR. GEARIN: Yes, maam.
MISS MCKENZIE: All right. Would you please sign this paper with your name—

Appellant executed the plea form which admitted his guilt and specifically waived the right to the assistance of counsel.

Following the colloquy between government counsel and appellant, the district judge questioned both appellant and Kittrell since they were charged under the same counts.

THE COURT: All right, gentlemen, let me as[k] you a few questions. Now, you’re sure you don’t want a lawyer ?
MR. GEARIN: No, your honor.
MR. KITTRELL: No. sir.
THE COURT: Do both of you, or each of you understand that if I accept these pleas of guilty, you don’t get a trial?
MR. GEARIN: Yes, sir.
MR. KITTRELL: Yes, sir.
THE COURT: You waive your constitutional rights, the presumption of innocence, the right to confront witnesses against you, and all that’s left to do is for me to sentence you? [sic] Do you understand that?
MR. GEARIN: Yes sir, Your Honor. I do.
MR. KITTRELL: Yes, sir.

Repeating government counsel’s earlier warning the court informed appellant of the maximum sentence that he could receive under both counts.

The district court then inquired of appellant whether he was guilty of the charges and appellant replied that he was. In response to court questioning concerning count one of the indictment, appellant admitted that he had the stolen U. S. Treasury cheek under his control and in his possession.

THE COURT: Did you have it [the check] in your possession ?
MR. GEARIN: Yes, sir; I did.
THE COURT: Did you know it was stolen ?
MR. GEARIN: Yes, sir; I knew it was stolen.
* X- X- X- * *
THE COURT: And did you cash or attempt to cash this check, knowing it to be stolen?
MR. GEARIN: I didn’t cash the
check, Judge, Your Honor. Mr. Kittrell here, I went with him to get the check cashed.
THE COURT: Well, you were sort of helping him, were you ?
MR. GEARIN: Yes, sir; I was.
THE COURT: Were you going to split the money?
MR. GEARIN: That was the way it was supposed to have been; but I didn’t—
THE COURT: The fact it didn’t succeed doesn’t make any difference.
x- x- X- X X- X-
THE COURT: Do you enter these pleas freely and voluntarily, without anybody threatening you or promising you anything to get you to do such?
MR. KITTRELL: Yes, sir.
MR. GEARIN: Yes, sir.

Accordingly, the district court accepted the tendered guilty pleas.

As indicated earlier, on December 14, 1973, the district court sentenced appellant to two years on each of the two counts, the sentences to run concurrently. No fine was imposed. On January 2, 1974, appellant filed a motion to withdraw his prior guilty plea and by affidavit in support of his motion asserted that he did not know that the U. S. Treasury check had been stolen at the time he possessed it or when it had been presented for cashing. On the same day, the district court denied appellant’s motion to withdraw his plea. Before sentence was imposed the district judge inquired of appellant whether he had received a copy of his prior record and whether the record was correct. He replied in the affirmative. The record indicates that appellant has been arrested on numerous occasions and been convicted on at least six different occasions. Former convictions related to forgery, theft and burglary. The appellant was not a stranger to criminal court proceedings.

II

On this appeal, appellant asserts that his guilty plea was not intelligently made and the proceedings below did not comply with Rule 11 of the Federal Rules of Criminal Procedure. First, appellant contends that the district court did not elicit a complete factual predicate on which to base appellant’s guilty pleas as required by Rule 11. Second, appellant asserts that the district court did not determine whether appellant actually knew that the check was stolen at the time he possessed it or cashed it. Finally, he argues that the court did not advise him completely of all the Constitutional rights which he would relinquish as a result of his tendered plea. Finding no merit in any of appellant’s contentions, we affirm the order of the district court denying appellant the right to withdraw his guilty plea.

Ill

Rule 11 of the Federal Rules of Criminal Procedure provides:

A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. If a defendant refuses to plead or if the court refus-_ es to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.

Thus, under Rule 11, before a guilty plea may be accepted the court must determine (1) whether the plea is made voluntarily; (2) whether the defendant makes his plea with an understanding of the nature of the charge; and (3) whether the defendant understands the consequences which may result from his plea. Additionally, the court may not enter a judgment resulting from a guilty plea without first independently satisfying itself that “there is a factual basis for the plea.” See Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). In short, Rule 11 seeks to assure that the defendant enters a voluntary guilty plea with an understanding of the potential consequences of the plea and that the district judge makes certain that there is a basis in fact for the plea. See McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969).

The district court ascertained the voluntariness of appellant’s admission of guilt and adequately developed a factual basis for his guilty plea. Warren v. United States, 488 F.2d 862 (5th Cir. 1974). The court’s inquiry was “factually precise enough and sufficiently specific to develop that [appellant’s] conduct on the occasions involved was within the ambit of that defined as criminal.” Jimenez v. United States, 487 F.2d 212, 213 (5th Cir. 1974).

Appellant’s belated claim that he did not know that the U. S. Treasury check was stolen at the time he possessed it or when it was cashed is plainly refuted by the facts elicited at the arraignment proceeding. Government counsel informed appellant that he was charged in count one with possession of stolen matter, knowing it to be stolen. Further, the district judge asked appellant if he knew that the check was stolen at the time he possessed it and appellant responded in the affirmative.

The record demonstrates that appellant was positively informed that a key element of the offenses charged in the indictment required contemporaneous knowledge of the stolen character of the check. Mrs. Trover, during questioning by the court, stated that she did not know the check was stolen when she signed it. The court immediately stated that it could not accept her guilty plea since knowledge was an essential element of the offense charged against her. Appellant was present when this discussion occurred. Considering this discussion and the specific questions addressed to the appellant, we find his contentions to be without merit.

Finally, appellant contends that the district court did not advise him of all his constitutional rights. Appellant asseverates that the district court did not warn him that his plea of guilty waived his privilege against compulsory self-incrimination. He relies on our decision in United States v. Escandar, 465 F.2d 438 (1972), where the court stated that:

A guilty plea constitutes a waiver of at least three fundamentally important Constitutional rights — (i) the privilege against self-incrimination, (ii) the right to a full-dress trial (with a jury if Defendant so chooses) and (iii) the right to confront accusers. Constitutional rights can be waived but the accused must have actual knowledge of their existence, full understanding of their meaning and clear comprehension of the consequence of their waiver. [465 F.2d at 441]
* -X- * * -X- -X-
Therefore, before a plea of guilty can be accepted, the Trial Judge must personally address the Defendant, question him explicitly, explain the Constitutional rights involved and satisfy himself that the accused has “a full understanding of what his plea of guilty connotes and of its consequences.” (citation omitted) [Id.]

Thus appellant asserts that his plea is infirm since he was not informed of all of his constitutional rights. See Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

Our reading of the proceedings below leads us to conclude that appellant was informed of the vital constitutional rights which he would relinquish as a result of his guilty plea. The district court informed appellant that his guilty plea would result in appellant losing the right to (a) a trial; (b) the presumption of innocence; and, (c) the right to confront witnesses. We think that the presumption of innocence which appellant was warned would be vitiated by his plea is equivalent in nature to the privilege against compulsory self-incrimination. The Supreme Court has stated:

That a guilty plea is a grave and solemn act to be accepted only with care and discernment has long been recognized. Central to the plea and the foundation for entering judgment against the defendant is the defendant’s admission in open court that he committed the acts charged in the indictment. He thus stands as a witness against himself and he is shielded by the Fifth Amendment from being compelled to do so — hence the minimum requirement that his plea be the voluntary expression of his own choice. But the plea is more than an admission of past conduct; it is the defendant’s consent that judgment of conviction may be entered without a trial — a waiver of his right to trial before a jury or a judge. Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences, (footnotes omitted)

Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970). Under the Brady decision, a court should look to the totality of the circumstances evidenced by the record to determine whether a plea was voluntarily and intelligently made. Specific judicial incantations of constitutional rights is not the litmus test under Rule 11 or the Constitution. See McChesney v. Henderson, 482 F.2d 1101 (5th Cir. 1973).

The supposition on which appellant bases his argument has been laid to rest by this court. In United States v. Frontero, 452 F.2d 406, 415 (5th Cir. 1971), Judge Wisdom stated that:

This Court is, however, aware of no precedent, from the Supreme Court or elsewhere, for the proposition that due process requires that a defendant be informed of each and every right which is waived by a guilty plea or that the waiver of these rights is a “consequence”, within the meaning of Rule 11, of which a defendant must be personally informed before a guilty plea may be accepted.

We think that the record in the instant case demonstrates that appellant was placed on notice of his fundamental rights and accordingly he intelligently and voluntarily tendered his plea. See Lockett v. Henderson, 484 F.2d 62 (5th Cir. 1973).

Of course, this opinion in no way reduces the solemn responsibility of the district court in determining whether the plea is actually voluntary and intelligently made. It is far better to develop a full record and specifically warn a defendant of his fundamental constitutional rights in precise terms than to leave the problem to a Court of Appeals which will be faced with combing the record to determine the character of the defendant’s plea. A district court should approach the plea process under the assumption that the defendant is ignorant of all his constitutional rights. Complete discussion should ensue in order to make sure that an intelligent plea may be made.

In this case, these minimum discussions occurred. The far better practice would be a more complete elucidation of the defendant’s understanding of his plea. Careful and cautious procedure would tend to substantially reduce collateral attacks following sentencing and would expedite summary disposition of the claims of those prisoners who cry “wolf” in the hope of receiving a second chance to plead.

Judgment affirmed.

ON PETITION FOR REHEARING

PER CURIAM:

The appellant continues to insist that the record fails to reveal that he knew the check involved in this ease was stolen “at the time the crime was committed.” As we read the statements made by the appellant in the circumstances disclosed by the record and quotations in our opinion, we are convinced that he acknowledged to the court that he knew the check was stolen when he possessed it and also when he accompanied Kittrell in an effort to cash it. Indeed he asserted that he was assisting Kittrell and that they were “going to split the money.”

It is ordered that the petition for rehearing filed in the above entitled and numbered cause be and the same is hereby denied.


author: BY THE COURT:

text:
    Joyce Marie MOORE et al., Plaintiffs-Appellants, v. TANGIPAHOA PARISH SCHOOL BOARD et al., Defendants-Appellees, Joseph Durham et al., Intervenors-Appellees.
    No. 30781.
    United States Court of Appeals, Fifth Circuit.
    June 14, 1974.

      Jack Greenberg, Norman J. Chachkin, Margrett Ford, New York City, A. P. Tureaud, New Orleans, La., for plaintiff s-appellants.
    John D. Kopfler, Hammond, La., Joseph H. Simpson, Schilling & Simpson, Amite, La., for defendants-appellees.
    Before BROWN, Chief Judge, and MORGAN and CLARK, Circuit Judges.
   BY THE COURT:

Due to delays which have occurred in this Court, the trial court record in this case is now four years old. The parties have filed supplemental briefs at our direction, which both assert that for all practical purposes the factual situation remains unchanged. This does not remain true for the development of the law. In light of the intervening decisions of this Court which have interpreted the central authority here involved, Singleton v. Jackson Municipal Separate School District, 5 Cir., 1969, 419 F.2d 1211 (en banc) (Singleton III), we deem the interests of justice to require that the District Court’s decision be vacated and the cause remanded for a current determination of the issues concerning demotion of administrative personnel and the dismissal of faculty members and band directors as well as the claims of error in ordering the segregation of some students by sex.

The District Judge after appropriate hearings to supplement the record as needed should make new findings of fact to determine whether the demotions and dismissals were in violation of the principles expounded by this Court. The Judge should redetermine whether the standards enunciated in Singleton III and our subsequent decisions have been complied with and he shall as usual enter appropriate findings of fact and conclusions of law. To the extent that he may find that the school board actions did not meet the Singleton III standards, he shall grant such relief as is appropriate. Similarly the Court shall make new findings upon the school board’s practice of segregation by sex.

Vacated and remanded.

      . E. g., McLaurin v. Columbia Municipal Separate School District, 5 Cir., 1973, 478 F.2d 348 (en banc Court dissolved), 486 F.2d 1049; Adams v. Rankin County Board of Education, 5 Cir., 1973, 485 F.2d 324; Miller v. Board of Education of Gadsden, Alabama, 5 Cir., 1973, 482 F.2d 1234; Lee v. Macon County Board of Education (Colbert County School System), 5 Cir., 1973, 483 F.2d 242; Lee v. Macon County Board of Education (Muscle Shoals School System), 5 Cir., 1971, 453 F.2d 1104; Sparks v. Griffin, 5 Cir., 1972, 460 F.2d 433.

      . On rehearing the District Court should also fully utilize its own standards in calling for the school board to produce this evidence. Judge Rubin’s order of September 2, 1970 included the following instructions to the school board:
      “5. The School Board shall establish formal rules of procedure for handling the discharge and demotion of teachers and supervisory personnel, to protect their constitutional rights in employment and to provide them with the due process necessary to insure that other rights are not violated when employment is withdrawn. These rules shall apply both to those with tenure and those without tenure but who have an expectancy of continued employment, and shall include provision for fair notice of the charges and witnesses against the teacher and the opportunity for a hearing, as outlined by the Fifth Circuit United States Court of Appeals in Ferguson v. Thomas, 5 Cir. 1970, 430 F.2d 852 [Docket No. 28227, June 23, 1970] and Lucas v. Chapman, 5 Cir. 1970, 430 F.2d 945 [Docket No. 27687, August 6, 1970].”
      Since the District Court’s order, the Supreme Court has spoken to the meaning of . “expectancy of reemployment” in this context. See Board of Regents of State Colleges v. Roth, 1972, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548; Perry v. Sindermann, 1972, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570.

      . Our action does not necessarily forecast a full blown trial. For example, we have been informed that following our remand in Adams v. Rankin County Board of Education, supra, through cooperation between all counsel and the District Judge 20 of the 42 faculty and staff member claims have been resolved by stipulation which when implemented will resolve all issues concerning the extent of relief to be afforded these individuals.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Terry HUDSON, aka Terry, Defendant-Appellant.
    No. 73-3730.
    United States Court of Appeals, Fifth Circuit.
    July 1, 1974.
    Max B. Kogen, Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Harold F. Keefe, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before MOORE , AINSWORTH and RONEY, Circuit Judges.

       Leonard P. Moore, Senior Circuit Judge of the Second Circuit, sitting by designation.

   PER CURIAM:

Terry Hudson seeks reversal of his conviction for conspiring to import marijuana into the United States in violation of 21 U.S.C.A. § 176a alleging that: (1) the District Court abused its discretion in not granting him a continuance when information he requested in a bill of particulars had not been received prior to trial, and (2) the District Court committed plain error in not instructing the jury to cautiously weigh the testimony of his accomplices. After reviewing the record, we find there was no prejudice in proceeding to trial and that the jury instructions, read as a whole, present no plain error. We affirm.

Hudson was indicted with twelve other defendants for conspiring to unlawfully import marijuana into the United States. Six days prior to trial, the United States Magistrate granted Hudson’s motion for a bill of particulars ordering the Government to produce, among other things, the names and addresses of all co-conspirators and the approximate dates, times, and places of the overt acts alleged in the indictment which pertained to Hudson. When the information had not been received by the day of trial, Hudson moved for a continuance. The District Court denied that motion on the ground that the Magistrate should not have granted the motion for a bill of particulars and the defendant should proceed to trial without the Government’s producing the required information.

Hudson alleges that the failure to receive the requested information from the Government caught him “completely off guard” and left him .“completely unprepared to try this case.” We agree that the untimeliness of the District Court’s action causes considerable concern and improperly tends to undercut the appropriate reliance that counsel should be able to place on a Magistrate’s orders until overruled by the district judge.

We find, however, that in this case there was no reversible prejudice to Hudson by the denial of the motion for continuance. Assuming the correctness of the District Court’s overruling of the order for a bill of particulars, which action is not challenged on this appeal, the only prejudice that could result from the denial of a continuance would be the lack of available time to obtain from other sources information required of the Government under the Magistrate’s order. Our review of the record reveals that the co-conspirators’ names were evident on the face of the indictment. Their addresses were readily available through the court files. The dates and places of the overt acts were generally averred in the indictment with sufficient specificity to inform Hudson of the charge against him. Under these circumstances, the defendant could show no substantial prejudice in being required to go to trial.

Hudson further alleges that it was error for the District Court not to instruct the jury that accomplice “testimony is always to be received with caution and weighed with great care.” United States v. Reid, 437 F.2d 94 (9th Cir. 1971). Six of the nine Government witnesses testifying at Hudson’s trial were either accomplices or co-conspirators in his criminal activity. Since no instruction was requested and no objection was made to the instructions given, we are not concerned with whether such an instruction would be appropriate, or required if requested, but whether the failure to give the instruction requires reversal as plain error.

Hudson relies on Tillery v. United States, 411 F.2d 644 (5th Cir. 1969), in which the failure to warn the jury concerning accomplice testimony resulted in a new trial. Tillery, however, is distinguishable from the case at bar on two grounds: (1) the accomplice’s testimony was not corroborated in Tillery as it was in the case sub judice; and (2) Tillery was a close evidentiary case where the failure to give the warning may have “turned the scale.” We do not believe the evidentiary questions in this case were so close as to require the cautionary instruction under the plain error standard of review. See United States v. Clark, 480 F.2d 1249 (5th Cir. 1973). Considering all the evidence submitted, the fact that the accomplices’ testimony was amply corroborated, and that competent counsel did not tender an instruction nor object to the instructions as given at the time of trial, we hold that the jury was not misled by the Court’s failure to instruct concerning accomplice testimony and that there was no plain error. United States v. Roger, 465 F.2d 996 (5th Cir.), cert. denied, 409 U.S. 1047, 93 S.Ct. 517, 34 L.Ed.2d 498 (1972); DeWitt v. United States, 383 F.2d 542 (5th Cir. 1967); Dunn v. United States, 318 F.2d 89 (5th Cir. 1963); Joseph v. United States, 286 F.2d 468 (5th Cir. 1960), cert. denied, 372 U.S. 979, 83 S.Ct. 1114, 10 L.Ed.2d 144 (1963); Phelps v. United States, 252 F.2d 49 (5th Cir. 1958).

Affirmed.


text:
    Katherine M. TOUPS, Plaintiff-Appellant, v. Warren L. AUTHEMENT et al., Defendants-Appellees.
    No. 74-1527.
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 28, 1974.
    Rehearing and Rehearing En Banc Denied Oct. 7, 1974.
    Lynne Rothschild Stern, New Orleans, La., for plaintiff-appellant.
    Francis Dugas, Dist. Atty., Thibodaux, La., for defendants-appellees.
    Before COLEMAN, DYER and RONEY, Circuit Judges.

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

   PER CURIAM:

Toups, a tenured teacher, was dismissed from her teaching position in the Lafourche Parish school system. She charges that the hearing did not conform to the requirements of due process and that her dismissal was arbitrary and unreasonable. She seeks injunctive and declaratory relief and damages for violation of her rights secured by 42 U. S.C.A. § 1983. The district court dismissed the action finding that Toups “was not dismissed because of her race, color or sex; rather, substantive deficiencies in her teaching ability and attitude during her employ was the cause of her dismissal.” We affirm.

It is undisputed that Toups was furnished a copy of the charges well in advance of the public hearing granted by the school board, at which she appeared represented by counsel. Subsequently she was officially notified of her dismissal by the Board. The court below carefully considered the record of the hearing before the Board, as we have. We agree that there was substantial evidence to support the school board’s action ; that it acted impartially and fairly. That ends the matter. “The findings and decision of academic bodies are to be upheld by the courts when reached by correct procedures and supported by substantial evidence.” Thompson v. Madison County Board of Education, 5 Cir. 1973, 476 F.2d 676; Green v. Board of Regents of Texas Tech University, 5 Cir. 1973, 474 F.2d 594.

Affirmed.


text:
    William L. CALLEY, Jr., Petitioner-Appellee, v. Howard H. CALLAWAY, Secretary of the Army, et al., Respondents-Appellants.
    No. 74-2285.
    United States Court of Appeals, Fifth Circuit.
    June 13, 1974.
    Rehearing En Banc Denied July 19, 1974
    See 497 F.2d 1384
    William Schloth, U. S. Atty., Charles T. Erion, Asst. U. S. Atty., Macon, Ga., Capt. Arnold Anderson Vickery, Dept, of the Army, Capt. David P. Schulingkamp, Washington, D. C., for respondents-appellants.
    Kenneth M. Henson, Columbus, Ga., J. Houston Gordon, Covington, Tenn., G. W. Latimer, Salt Lake City, Utah, for petitioner-appellee.
    Before BROWN, Chief Judge, and RIVES and WISDOM, Circuit Judges.
   PER CURIAM:

Appellants-Respondents contest District Court orders restraining any change in petitioner-appellee Calley’s place or conditions of confinement, and granting bail to petitioner-appellee Calley pending a final determination on the merits of his petition for writ of habeas corpus. We reverse.

On March 29, 1971, Calley was found guilty by a military jury of premeditated murder of not fewer than twenty-two Vietnamese civilians and of assault with intent to murder one Vietnamese civilian. He was sentenced to confinement at hard labor for life, dismissal from the service, and forfeiture of all pay and allowances. The convening authority approved the finding of guilty and the sentence, except that he reduced the confinement portion of the sentence to twenty years.

On February 16, 1973, the Court of Military Review affirmed Calley’s conviction in a seventy-page opinion and denied his petition for a new trial. United States v. Calley, 46 CMR 1131 (ACMR 1973). The Court of Military Appeals affirmed on December 21, 1973, United States v. Calley, 22 USCMA 534, 48 CMR 19 (1973), and denied a petition for reconsideration on February 4, 1974. The Secretary of the Army approved the findings and sentence of the court-martial on April 15, 1974. In a separate action, the Secretary commuted the confinement portion of the sentence to ten years. The President of the United States notified the Secretary of the Army on May 3, 1974, that he had reviewed the case and had determined that no further action would be taken.

At some time in early 1974, Calley learned that the Department of the Army would move him on February 12 from Fort Benning, Georgia, where he was under house arrest, to the disciplinary barracks at Fort Leavenworth, Kansas. On February 11 Calley instituted an action for a writ of habeas corpus in the United States District Court for the Middle District of Georgia. Calley also filed a separate request for a temporary restraining order to prevent his removal from the jurisdiction and an application for bail pending the final determination of his petition for writ of habeas corpus. The District Court issued an ex parte order on February 11 restraining the respondents from changing the place of custody of the petitioner or the conditions of his confinement. On February 27, after the submission of briefs, evidence and oral argument, the District Court released Calley upon one thousand dollars bond pending determination of his petition for the writ. On March 8, 1974, the appellants-respondents filed a motion to revoke bail or alternatively to stay the Court’s order of February 27. Following a hearing, the District Court denied the appellants-respondents’ motion on May 10, 1974. This appeal followed.

Bail should be granted to a military prisoner pending postconviction habeas corpus review only when the petitioner has raised substantial constitutional claims upon which he has a high probability of success, and also when extraordinary or exceptional circumstances exist which make the grant of bail necessary to make the habeas remedy effective. See Aronson v. May, 1964, 85 S.Ct. 3, 13 L.Ed.2d 6 (Douglas, J. on application for bail); Glynn v. Donnelly, 1 Cir., 1972, 470 F.2d 95; Woodcock v. Donnelly, 1 Cir., 1972, 470 F.2d 93; Benson v. California, 9 Cir., 1964, 328 F.2d 159, cert. denied, 380 U.S. 951, 85 S.Ct. 1086, 13 L.Ed.2d 970; Boyer v. City of Orlando, 5 Cir., 1968, 402 F.2d 966, 968; Baker v. Sard, 1969, 137 U.S.App.D.C. 139, 420 F.2d 1342.

In the present case, our examination convinces us that the District Court did not really apply the above-described twofold standard in determining whether to grant bail to Calley. Applying the proper standard to the facts of this case, we conclude that the allegations made by Calley, and the circumstances revealed by the record, do not justify a grant of bail pending determination of the merits of the petition.

We therefore reverse the order granting bail, and return Calley to military custody pending determination by the District Court of the merits of Calley’s petition for habeas corpus relief. In returning Calley to military custody, we return him to full military custody, including the prescription of the place of his custody and the conditions of his custody, Article 58, 10 U.S.C. § 858 (1970). At oral argument, the Government pledged that Calley will be brought before the District Court if and when that Court deems it necessary or appropriate for Calley to be present to advise with counsel or to participate in the proceedings before the District Court.

Reversed and remanded. Mandate to issue forthwith.

      . In Aronson Mr. Justice Douglas opined as follows:
      “Second: Tliis applicant is incarcerated because be lias been ■ tried, convicted, and sentenced by a court of law. He now attacks his conviction in a collateral proceeding. It is obvious that a greater showing of special reasons for admission to bail pending review should be required in this kind of case than would be required in a case where applicant had sought to attack by writ of habeas corpus an incarceration not resulting from a judicial determination of guilt. Cf. Yanish v. Barber, 73 S.Ct. 1105, 97 L.Ed. 1637 (1953). In this kind of case it is therefore necessary to inquire whether, in addition to there being substantial questions presented by the appeal, there is some circumstance making this application exceptional and deserving of special treatment in the interests of justice. See Benson v. California, 328 F.2d 159 (CA 9th Cir. 1964). The papers before me on this application indicate the existence of no such circumstance.”
      Some examples of extraordinary circumstances are serious deterioration of the petitioner’s health while incarcerated, United States ex rel. Ackerman v. Pennsylvania, W.D.Pa.1955, 133 F.Supp. 627, writ of mandamus denied; Johnston v. Marsh, 3 Cir., 1955, 227 F.2d 528; Woodcock v. Donnelly, 1 Cir., 1972, 470 F.2d 93; short sentences for relatively minor crimes so near completion that extraordinary action is essential to make collateral review truly effective. Noyd v. Bond, 1965, 395 U.S. 683, 689, 89 S.Ct. 1876, 23 L.Ed.2d 631 (all but two days of one-year sentence served) ; Levy v. Parker, 1969, 396 U.S. 1204, 90 S.Ct. 1, 24 L. Ed.2d 25, affirmed by full Court, 1969, 396 U.S. 804, 90 S.Ct. 47, 24 L.Ed.2d 60 (all but twelve days of three-year sentence served); Boyer v. City of Orlando, supra (one hundred twenty-day sentence) ; or possibly extraordinary delay in processing a habeas corpus petition, Glynn v. Donnelly, supra.


author: MOORE, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Alfred BRAWER et al., Defendants-Appellants.
    Cal. Nos. 612-614, Dockets 72-2199, 72-2201 and 72-2215.
    United States Court of Appeals, Second Circuit.
    Decided Post-Remand May 3, 1974.
    Alfred I. Rosner, New York City, for defendants-appellants Alfred Brawer and Ralph Ignomirello.
    Paul, Weiss, Rifkind, Wharton & Garrison, New York City and Kenneth C. Bass, III, Reston, Va., of counsel, for defendant-appellant Wassil Kreshik.
    Paul J. Curran, U. S. Atty. S. D. N. Y., New York City, Elliot G. Sagor and John D. Gordan, III, Asst. U. S. Attys., of counsel, for appellee.
    Before MOORE, HAYS and FEINBERG, Circuit Judges.
   MOORE, Circuit Judge:

Upon the appeal in this case, 482 F.2d 117 (2d Cir. 1973), both in brief and on argument, appellants Alfred Brawer, Ralph Ignomirello and Wassil Kreshik claimed for the first time that the Government had improperly suppressed exculpatory evidence which could have been used to impeach the key government witness, Maucelli. In response the government conceded that a post-trial examination of its files revealed that in April 1969 certain statements had been taken from three Canadians, Welsch, Bubic and Riel, allegedly involved in the attempt to sell the Treasury Bills, the subject of the prosecution, which statements had not been made available to the appellants. Accordingly, to make certain that non-disclosure of the April 1969 statements, admittedly in the government’s possession, was neither a violation of appellants’ rights, nor a violation of the prosecutor’s obligations, under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), we remanded the case to the District Court to determine “after reading and considering such material as the government may have had in its files” “whether the government improperly denied appellants access to the material,” or otherwise stated whether the material was of such an exculpatory nature that it “in any reasonable likelihood [would] have affected the judgment of the jury.” Napue v. Illinois, 360 U.S. 264, 271, 79 S. Ct. 1173, 1178, 3 L.Ed.2d 1217 (1959). Therefore, since “absent a finding of improper suppression of material evidence” we believed that the evidence justified affirmance of the convictions, we remanded to “await both a ruling by the district court on the Brady issue and the expanded record before making final disposition of this appeal.”

Judge Pollack has now submitted his findings and opinion after a most thorough hearing at which the parties submitted not only documentary proofs — in particular the April 1969 statements— but also certain grand jury minutes and handwritten notes of Assistant United States Attorneys. In addition, he heard the testimony of appellant Kreshik.

Parenthetically, it may be said of Kreshik that this Court had originally written that “The record tends to support Kreshik’s contention [namely, that he had no knowledge of, or involvement in, the events subsequent to his delivery of the Bills to Brawer] * * * ” and that as to guilty knowledge it was “a close question as regards Kreshik.” These views are substantially modified by Judge Pollack’s findings, after hearing Kreshik’s testimony in the post-trial hearing, that his testimony as to knowledge (or, better, lack thereof) of the Canadians and his connection with the stolen Bills was “plainly incredible.” Kreshik did not testify at the trial. His post-trial hearing testimony evoked the following comments from Judge Pollack:

The demeanor evidence and the reasonable inferences to be drawn from his assertions and denials, in the light of all the facts and circumstances disclosed by the trial and hearing records, render his testimony wholly unworthy of belief on his oft repeated assertion in this Court and in the Court of Appeals that he lacked guilty knowledge of who was involved, what was going on and what he was doing to facilitate the criminal venture.
In addition to taking the evidence adduced at the hearings, the Court has read and considered such material as was contained in the government files, as well as certain other documents, to be discussed at length below, which purport to bear in some way upon the characterization and relevance vel non thereof.
Based on the foregoing, and for the reasons indicated hereafter, the Court finds and reports that the 1969 statements and data referred to by the Court of Appeals in no wise fit the description of “exculpatory evidence” as defined in Brady and its progeny.

Little useful purpose would be served in restating Judge Pollack’s exhaustive (69 pages) findings and his well-grounded conclusions except as they relate to the April 1969 statements (the purpose of the remand). 367 F.Supp. 156 (S.D. N.Y.1973).

On the trial, defendants Brawer and Ignomirello knew of the three Canadians and their participation in the attempted sale. Full opportunity to obtain their testimony, if it would have been beneficial, was available. Furthermore, Kreshik’s guilt was not dependent upon the Canadians’ testimony. “The Canadians would not have aided Kreshik because, as everyone agrees, Kreshik did not deal directly with them.” 367 F.Supp. at 166.

As to the 1969 statements themselves, since appellants’ claim of inconsistency centers around the discount and rate thereof (65%-90%) at which the stolen Bills were allegedly offered, Judge Pollack found that:

The 1969 statements of the Canadians were not in fact exculpatory.
In further elaboration, he said:
In none of Riel’s four “statements” does he specifically state the price which Maucelli asked for the Bills nor does he contradict Maucelli’s trial testimony that the original price asked was 85% or 90% of face value, less Riel’s own commission, and that the final price was 65% of face value. Bubic mentioned a 90% discount as to

which Judge Pollack said:

This recitation of an opening gambit of 90%, with further negotiations to follow, is consistent with Maueelli’s trial testimony. Bubic’s statement does not advert to and consequently does not specifically deny the 65% figure authorized by Brawer. Furthermore, insofar as the nonincriminatory facts of his dealings with Maucelli are concerned, e. g., the dates of Maucelli’s travel, Bubic’s statement is consistent with Maucelli’s trial testimony.
Concerning Welsch, the Judge' said: In neither of the two “statements” of Joseph Welsch, exhibits 5A, 5B, 5C, and 6 herein, does he refer to the price which Maucelli asked for the Bills. Furthermore, the transactional facts which Welsch does recount are consistent with Maucelli’s trial testimony with only one insignificant exception, viz., Welsch’s claim that Maucelli was interested in investing in the Canadian firm, and was not interested in selling the Bills.

Judge Pollack summarized the effect of non-disclosure as follows:

Placed in perspective, the brouhaha created over the non-disclosure of the 1969 statements appears to be a contrived issue wholly lacking in merit. It was created on appeal out of a tissue of confusion and legerdemain on someone’s part.

As to any bad faith on the part of the prosecutor, Judge Pollack held:

The prosecutor did not know of the. existence of contradictory evidence which would cast doubt on the validity of Maueelli’s discount evidence which was presented at trial. No contradictory evidence in fact appears in any of the 1969 statements.

Armed with Judge Pollack’s findings and opinion, we are satisfied that there has been no violation of the principles of Brady, swpra, and affirm all convictions.