text:
    UNITED STATES of America, Plaintiff-Appellee, v. Frank Victor SCARAMUZZO, aka Frank Moore, Defendant-Appellant.
    No. 74-2164.
    United States Court of Appeals, Ninth Circuit.
    Oct. 18, 1974.

      Stephen Stein (argued), Goodman, Snyder & Gang, Las Vegas, Nev., for defendant-appellant.
    Stuart W. Rudnick, Special Atty. (appeared), Organized Crime and Racketeering Section, U. S. Dept, of Justice, Los Angeles, Cal., for plaintiff-appellee.
   OPINION

Before BROWNING, DUNIWAY, and INGRAHAM, Circuit Judges.

PER CURIAM:

Appellant was convicted of devising a scheme to defraud the Central Telephone Company in Las Vegas, Nevada, in violation of 18 U.S.C. § 1343. The evidence established that appellant avoided toll charges for at least one long distance call from Las Vegas to" Los Angeles by first placing a toll-free call to an area code 800 number subscribed to by the American Express Company in Phoenix, Arizona, and then diverting that call to the Los Angeles number by use of an electronic device called a “blue box.”

There is no merit in appellant’s contention that 18 U.S.C. § 1343 does not apply to frauds involving telephone communications. This court has twice affirmed convictions under 18 U.S.C. § 1343 in which interstate telephone calls played an integral role in the scheme to defraud, Battaglia v. United States, 349 F.2d 556 (9th Cir. 1965); Spindler v. United States, 336 F.2d 678 (9th Cir. 1964), and the legislative history of the 1956 amendment to the statute demonstrates that Congress intended to reach frauds perpetrated by telephone. H.R. Rep. No. 2385, 84th Cong., 2d Sess. (1956), 1956 U.S.Code Cong. & Admin. News, p. 3091.

Alternatively, appellant argues that the statute must be read to apply only to frauds committed on the recipient of the message, not the transmitter. We agree with the conclusion of the Courts of Appeals for the Fifth and Tenth Circuits that this contention is without merit. See Scott v. United States, 448 F.2d 581, 583 n.5 (5th Cir. 1971); Brandon v. United States, 382 F.2d 607, 611 (10th Cir. 1967).

We are not impressed with appellant’s suggestion at oral argument that the scheme to defraud may have been completed before any interstate transmission of sounds or signals occurred, but, in any event, this contention was not properly raised in the district court.

Affirmed.

       Honorable Joe McDonald Ingraliam, Senior Judge, United States Court of Appeals for the Fifth Circuit, sitting by designation.


source: Caselaw Access Project

author: PER CURIAM: ■

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Sidney EFRONSON and Omar Pinto, Defendants-Appellants.
    No. 74-1449.
    United States Court of Appeals, Fifth Circuit.
    Dec. 13, 1974.
    Rehearing Denied Jan. 13, 1975.
    Neal R. Sonnett, Miami, Fla., for Ef-ronson & Pinto.
    Robert W. Rust, U. S. Atty., Stuart Markus, Lawrance B. Craig, Asst. U. S. Attys., Miami, Fla., for plaintiff-appel-lee.
    Before BROWN, Chief Judge, and BELL and MORGAN, Circuit Judges.
   PER CURIAM: ■

Appellants Efronson and Pinto were convicted on a charge of conspiracy to violate the statutes proscribing counterfeit United States obligations, 18 U.S.C. A. §§ 371, 472 and 473. The conspiracy included six additional defendants but the trial involved only Efronson and Pinto. The evidence placed Pinto in the early stages of the conspiracy — assisting in the making of the plates. Efronson, according to the evidence, had a part in the arrangements to distribute the counterfeit money.

The evidence was sufficient to make out one conspiracy rather than, as claimed, two. Both Efronson and Pinto were connected to the one conspiracy and the evidence was sufficient to sustain the convictions. It follows that it was not error to deny the motions for severance which were based on the contention that there were two conspiracies. There was no fatal variance between the allegations of the indictment and the proof submitted. We also find no merit in the claim that the government’s attempt to prove a conspiracy not alleged in the indictment resulted in prejudicial joinder of the defendants.

Affirmed.

      . A good portion of the basis for Efronson’s appeal rests on a statement by the district court in denying his motion for new trial that tlie court considered the prime witness against Efronson to be a pathological liar and that the court, if a juror, would have found Efronson not guilty. The court was careful to point out that the credibility in question was for the jury, and that the evidence was sufficient to warrant Efronson’s conviction.


author: JOHN W. PECK, Circuit Judge.

text:
    Brenda K. MONROE et al., Plaintiff-Appellant, v. BOARD OF COMMISSIONERS OF the CITY OF JACKSON, TENNESSEE, and the Jackson Housing Authority, et al., Defendants-Appellees. Brenda K. MONROE et al., Plaintiff-Cross-Appellees, v. BOARD OF COMMISSIONERS OF the CITY OF JACKSON, TENNESSEE, et al., Defendants-Cross-Appellants. Brenda K. MONROE et al., Plaintiffs-Cross-Appellees, v. JACKSON HOUSING AUTHORITY, Defendant-Cross-Appellant.
    Nos. 73-2249 to 73-2251.
    United States Court of Appeals, Sixth Circuit.
    Oct. 22, 1974.

      Avon N. Williams, Jr., Nashville, Tenn., J. Emmett Ballard, Jackson, Tenn., Norman J. Chachkin, Jack Green-berg, James M. Nabrit, III, R. Sylvia Drew, Kenneth J. Dious, New York City, for Brenda K. Monroe, and other's.
    Robert J. Holt, Jr., Franklin Murchison, Jackson, Tenn., for Board of Commissioners of City of Jackson, Jackson Housing Authority, and others.
    Before PHILLIPS, Chief Judge, and EDWARDS and PECK, Circuit Judges.
   JOHN W. PECK, Circuit Judge.

This desegregation suit, originally commenced in 1963, appears before this court for the fourth time. A detailed history of prior proceedings is set out in our latest decision, Monroe v. Board of Commissioners of the City of Jackson, Tennessee, 453 F.2d 259 (6th Cir. 1972), wherein we remanded the cause to the district court for reconsideration of the elementary school assignment plan in light of Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 695 (1971); Davis v. Board of School Commissioners, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1971); and Robinson v. Shelby County Board of Education, 442 F.2d 255 (6th Cir. 1971).

On remand, the district court held evi-dentiary hearings in which plaintiffs, the defendant Board of Commissioners (hereinafter “the Board”), and the United States, as amicus curiae, participated. Throughout the hearings the Board took the position that it was operating the school system in conformity with constitutional requirements. Following the hearings, the district court permitted the parties and the amicus curiae to submit proposed findings of fact and conclusions of law. The United States filed a memorandum recommending, inter alia, that the district court require further desegregation of the elementary schools. In response thereto, the Board presented a plan for further desegregation of the elementary schools, and in addition proposed the closing of the formerly all-black South Jackson Elementary School for the following school year with reassignment of its remaining students in a manner which would further desegregation. Plaintiffs objected to the Board’s plan as insufficient and to the proposal to close the South Jackson facility, and submitted an alternative desegregation plan developed by their expert witness, Dr. Michael Stolee.

In a memorandum opinion issued July 17, 1973, and an implementing order entered nunc pro tunc on August 28, 1973, the district court allowed the South Jackson closing, rejected the submissions of both the Board and the plaintiffs, and directed certain modifications of the Board’s plan for the 1973-1974 school year. The court also awarded plaintiffs an attorney’s fee of $1,500, but made the award without holding a hearing or otherwise affording plaintiffs an opportunity to tender evidence. This appeal by plaintiffs (No. 73-2249) and cross-appeals by the Board (No. 73-2250) and the Jackson Housing Authority (No. 73-2251) followed.

The Jackson system’s student population is approximately 50% black. The actual attendance figures for the 1973-1974 school year showed that one of the eight elementary units was 98% black and that two were less than 30% black. This plan required the busing of some 200 students from the former South Jackson facility to the Andrew Jackson and Highland Park Schools, a distance of up to 5.9 miles.

Plaintiffs complain that the Board failed to carry its burden of showing that the decision to close South Jackson Elementary School was based upon objective, non-racial factors, and that the district court erred in approving the closing. The record does not support this contention.

Based upon adequate evidence before it, the district court found as follows:

“South Jackson is old, costly to maintain, and the continuing urban renewal work indicates fewer and fewer students within a ‘neighborhood’ proximity to the school. To maintain a minimal necessary staff, cafeteria, and other facilities for as few as 200 to 225 students in the Jackson system is administratively unsound and not feasible. The closing is part of a long range plan to eliminate this oldest operating school which is not directly related to racial motivation but rather the intent, largely unfulfilled, to upgrade slum housing occupied for the most part by blacks. It is not desirable from an educational viewpoint, nor from any other demonstrated to the Court, to assign large numbers of black or white students from newer and better physical structures to this school. The school is geographically located so as to make it not feasible to move other students into this nearby 40 year old facility by any changing of attendance boundary lines; this could only be accomplished by the expensive process of bussing or transporting white students from considerable distances into environment largely devoid of homes or residences —an area in transition into commercial type development.”

The district court listed what it considered the four pivotal factors in its decision to allow the closing as follows:

“(1) [I]t is a comparatively inferior facility due to its age and state of repair, (2) it is located in the midst of a designated and rapidly changing urban renewal commercial area with little nearby present residential potential, (3) the steady decline in attendance of elementary school children there makes it impractical and unduly burdensome for its continued operation, and (4) there is no prospect of racial mixture in the school through changes in neighborhood residential patterns . . .

On the basis of the foregoing factors, the court specifically found “the closing not to be associated with unconstitutional racial overtones.” (Citations omitted.)

As the district court noted, proposals to close black schools which coincide with implementation of constitutionally required desegregation place the burden on school authorities to demonstrate that racial considerations did.not result in the decision to cease operation of these facilities. Robinson v. Shelby County Board of Education, 467 F.2d 1187, 1200 (6th Cir. 1972) (McCree, J., concurring in part and dissenting in part); Haney v. Sevier County Board of Education, 429 F.2d 364 (8th Cir. 1970). We are satisfied that that burden has been met in this case and that the district court properly so ruled.

Plaintiffs urge that the closing of South Jackson will visit a disproportionate share of the inconveniences of desegregation on black students Responsive to this legitimate concern, we direct that the district court take such steps as may be necessary to ensure that the transition is made with minimal inconvenience to South Jackson’s former students. In this connection, we stress that the transportation provided the children formerly attending South Jackson must be equal to the transportation provided other students transported within this school system.

Plaintiffs assert that even if the South Jackson closing is approved, the case must be returned to the district court to complete the process of desegregating the elementary schools. We agree. It is remarkable that the best efforts of the parties have not been sufficient to eliminate all-black schools from this small district. The plan approved by the district court leaves the Lincoln Elementary School 98% black, and clearly this plan does not “achieve the greatest possible degree of actual desegregation . . .” mandated by the Supreme Court. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 26, 91 S.Ct. 1267, 1281 (1971). As the Swann Court stated, “No per se rule can adequately embrace all the difficulties of reconciling the competing interests involved; but in a system with a history of segregation [such as in the instant case] 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.” Id. We are confident that the district court, with the aid of the parties, can eliminate this final aspect of segregation from the Jackson schools.

Lastly, plaintiffs complain that the $1,500 attorney’s fee awarded them bears no relation either to the time and effort of counsel or to any other relevant considerations which ought to govern a district court’s exercise of discretion in setting the amount of the award. Plaintiffs also point out that the district court failed to articulate the basis for its award or to permit the parties to introduce evidence on this matter. The latter fact makes it impossible for this court to determine the propriety of the award as such.

There is a strong policy in favor of awards of attorneys’ fees in school desegregation cases, and plaintiffs “ ‘should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.’ ” Northcross v. Memphis Board of Education, 412 U.S. 427, 428, 93 S.Ct. 2201, 2202, 37 L.Ed.2d 48 (1972), quoting Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968). Although it is within the district court’s discretion to determine whether or not to award attorneys’ fees, this court may review the reasonableness of any award made. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). Because our review is dependent upon some sort of record of the basis for the decision below, we vacate the judgment insofar as it relates to the attorney’s fee and remand the cause to the district court for findings of fact and conclusions of law as to the amount of any attorney’s fee awarded under the standards of Bradley v. School Board of City of Richmond, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974).

The judgment of the district court is affirmed in part and reversed in part and the cause is remanded for further proceedings consistent with this opinion.

      . This case, consisting of three separately numbered appeals, was heard with Monroe v. County Board of Education of Madison County, 505 F.2d 109, 6 Cir., filed of even date herewith, but both cases were separately briefed.

      . The .Jackson Housing Authority was made a defendant below following its acquisition of the South Jackson Elementary School property from the City of Jackson on March 30, 1973. The contract of sale contained provisions that the defendant school authorities would have the right to retain possession and use the property until the district court acted upon the application to close the school and for reconveyance to the City should the court refuse the application.

      . Supra, note 2.

      . The following chart contains relevant statistical data concerning the eight elementary schools.
      % Black, % Black,
      School Actual Actual 1972-73 1973-74
      Alexander 36% 45%
      Andrew Jackson 5% 28%
      Highland Park 3% 24%
      Lincoln 99% 98%
      Parkview 46% 60%
      South Jackson 98% -
      Washington-Douglass 98% 75%
      West Jackson 42% 43%
      Whitehall 58% 56%

      . Enrollment at South Jackson declined from 508 in 1907-68 to 243 during the third month of the 1972-73 school year, and projected attendance for 1973-74 was less still.

      . Kelley v. Metropolitan County Board of Education of Nashville, Tennessee, 463 P.2d 732 (6th Cir. 1972).


text:
    Brenda K. MONROE et al., Plaintiffs-Appellants, v. COUNTY BOARD OF EDUCATION OF MADISON COUNTY, TENNESSEE, et al., Defendants-Appellees.
    No. 73-2252.
    United States Court of Appeals, Sixth Circuit.
    Oct. 22, 1974.

      Avon N. Williams, Jr., Nashville, Tenn., J. Emmett Ballard, Jackson, Tenn., Jack Greenberg, James M. Na-brit, III, R. Sylvia Drew, Norman J. Chachkin, New York City, for plaintiffs-appellants.
    Hewitt Tomlin, Jr., Jackson, Tenn., for defendants-appellees.
    Before PHILLIPS, Chief Judge, and EDWARDS and PECK, Circuit Judges.
   JOHN W. PECK, Circuit Judge.

Plaintiffs in this school desegregation action perfected this appeal from three unreported orders of the United States District Court for the Western District of Tennessee, Eastern Division, entered on August 10, 1973 and September 14, 1973. Said orders approved amendments to a geographic zone desegregation plan for the Madison County School System. The defendant school board did not appeal from the rulings of the district court. Plaintiffs assert (1) that the district court erred in approving a geographic zone plan for the system which leaves three formerly all-black schools 85%, 88% and 93% black, and (2) that the court erred in awarding an inadequate attorney’s fee to them without a hearing, opportunity for submission of evidence, or specific findings, indicating the method of computation.

The Madison County Board of Education operated totally separate schools for black and white students at the time of Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). Plaintiffs, black pupils and their parents in the Madison County School System, commenced this suit in 1963 seeking to eliminate the racially segregated school system still in operation at that time. It should be noted that this case, dealing solely with the Madison County schools, was a “siamese twin” of Monroe v. Board of Commissioners of the City of Jackson, which has also appeared in this court a number of times.

In May 1964 the district court approved a plan submitted by the defendant Board of Education calling for gradual desegregation over a period of two years with a provision for freedom of transfer between schools. 229 F.Supp. 580 (W.D.Tenn.1964). Plaintiffs filed a motion for further relief in Septembex 1964 seeking, inter alia, faculty desegregation and desegregation of extra-cur-x'icular activities. 269 F.Supp. 758 (W. D.Tenn.1965). The district court denied relief with regard to integration of administrative and supportive personnel and integration of in-service training programs.' 269 F.Supp. at 759. On appeal to this court, the lower court’s opinion was affii’med except with respect to its refusal to order faculty desegregation. 380 F.2d 955 (6th Cir. 1967).

In August 1968 plaintiffs filed a motion for further relief following the Supi'eme Court’s decision in Monroe v. Board of Commissioners of the City of Jackson, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968), which held that the free transfer provisions of the prior coui't appi'oved desegregation plan were constitutionally impermissible. The district coui't ordered the defendants to submit a new desegregation plan for the 1970-1971 school year based on the assignment of students by unitary geographic zones. Said order was amended in light of the Supreme Court’s decisions in Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969), and Carter v. West Feliciana Parish School Board, 396 U.S. 290, 90 S.Ct. 608, 24 L.Ed.2d 477 (1969), to require implementation of the geographic zone assignments by February 1, 1970, and the court further ordered the defendants to seek the assistance of the United States Department of Health, Education and Welfare in drawing up its revised plan.

A hearing was held on the plans submitted by the Board and H.E.W. and the district court approved the Board’s plan as slightly modified by the H.E.W. plan. As so modified, the zoning plan was put in effect after affirmance on appeal, 439 F.2d 804 (6th Cir. 1971).

In May 1972 the plaintiffs filed a motion for further relief charging that the desegregation plan then in operation failed to effectively desegregate the Madison County School System. In response to said motion, the district court held an evidentiary hearing, but reserved ruling on plaintiffs’ motion. Defendants filed a motion to amend the previously approved plan of desegregation by closing two of the ten elementary schools in the system and reopening another and plaintiffs filed a plan drawn by Dr. Michael Stolee to further desegregate the school system. A hearing was held on defendants’ motion to amend and on plaintiffs’ proposed plan.

The district court, by memorandum opinion and orders of July 20, 1973, August 10, 1973, and September 14, 1973, approved defendants’ plan as modified and awarded a limited attorney’s fee to plaintiffs. Notices of appeal from the August 10 and September 14 orders were timely filed by plaintiffs.

There are 15 schools in the subject school system, 9 elementary and 7 secondary level. The student population is approximately 7,000 of which 32% are black and 68% are white. Nearly 90% of all students are bussed to school. Prior to 1970, Denmark Elementary, West Junior High and West Senior High were black schools. The plan approved by the district court, based upon projected attendance figures for the 1970-1971 school year, was to have resulted in black enrollments at the above units of 81.7%, 74.6% and 68% respectively. For various reasons the actual percentages for 1970-1971 were 95.6%, 89.8% and 97%. Following evidentiary hearings in August 1972 and July 1973 the district court ordered minor alterations in the plan. The plan as altered brought the following racial composition for the 1973-1974 school year: Denmark 85% black; West Junior 88% black; West Senior 93% black.

Plaintiffs assert that the amended plan of desegregation approved by the district court does not convert the Madison County School System from a dual to a unitary system as required by law. It is their position that any desegregation plan adopted in this case must be measured not by its promise, but by its results. Defendants counter that their duty is satisfied by the use of “neutral” geographic zones, and they are not responsible for the continuing variance between projected and actual attendance figures at the three schools.

As hereinabove pointed out, this school system has a history of segregation. There is, therefore, a presumption against schools that are substantially disproportionate in their racial composition, and the defendants have the burden of showing that such racial composition is not the result of present or past discrimination on their part. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 695 (1971). The question that must be asked is whether defendants have “[made] every effort to achieve the greatest possible degree of actual desegregation . . .,” Swann, supra, 402 U.S. at 26, 91 S.Ct. at 1281, and “[t]he measure of any desegregation plan is its effectiveness.” Davis v. School Commissioners of Mobile County, 402 U.S. 33, 37, 91 S.Ct. 1289, 1292, 28 L.Ed.2d 577 (1971). It is clear that in light of the above standards a fully unitary system has not been achieved in Madison County to date.

The geographic zone plan now in operation is, as defendants assert, racially neutral. The mere fact that the present plan is neutral, however, does not indicate that it is constitutionally adequate. Davis, supra, 402 U.S. at 37, 91 S.Ct. 1289. In 1969 the district court found that “Negro and white elementary schools have been historically located near . . . Negro and white residential concentrations. Similarly, Negro High Schools have been established . . . near the center of substantial Negro residential concentrations while White High Schools have been established . . . near the center of white residential concentrations.” Defendants now attempt to deny responsibility for the fact that geographic zones do not adequately desegregate the school system in spite of the fact that in large part the inadequacy is caused by the Board’s historic placing of schools in such a way as to maximize segregation. Under the circumstances, unified geographic zoning is insufficient to eradicate the residual aspects of a dual sys-tern, and the district court “should consider the use of all available techniques including restructuring of attendance zones and both contiguous and noncon-tiguous attendance zones.” Davis, supra, 402 U.S. at 37, 91 S.Ct. at 1291.

Plaintiffs also complain that the district court awarded them an inadequate attorney’s fee without a hearing, opportunity for submission of evidence, or specific findings of fact. As we stated in our opinion in Monroe v. Board of Commissioners of the City of Jackson, of even date herewith, “[0]ur review [of the propriety of an award of attorneys’ fees] is dependent upon some sort of record of the basis for the decision below . . .,” and there is no record in this case. As in the City of Jackson case, the appropriate remedy is a remand for findings of fact and conclusions of law as to any attorney’s fee awarded under the .standards of Bradley v. School Board of City of Richmond, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974).

The judgment of the district court is affirmed in part and reversed in part and the cause is remanded for further proceedings consistent with this opinion.

      . See Monroe v. Board of Commissioners of the City of Jackson, 505 F.2d 105 (6th Cir., filed of even date herewith).

      . Beech Bluff School enrolls grades 1-12 but is referred to as “one” school.

      . The Superintendent of the Madison County School System testified that there were, in his opinion, four factors responsible for the disparity between projected and actual attendance figures for Denmark Elementary, AVest Junior High and AATest Senior High: (1) the changing of residence of people residing in the school zones; (2) availability of private schools in the area; (3) the transferring of students from the Madison County schools to other school systems; and (4) the long history of substantial black population in the area which is served by the three schools in question.

      . Plaintiffs presented a desegregation plan drawn by Dr. Stolee. Although the “Stolee” plan appears to accomplish the desired result of desegregating Madison County schools, the record is insufficient for us to determine whether it is the best or only plan available.


author: COLEMAN, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James E. KNIGHT, Defendant-Appellant.
    No. 74-1781.
    United States Court of Appeals, Fifth Circuit.
    Dec. 16, 1974.

      George D. McCrary, III, Warner Hodges, Memphis, Tenn., for defendant-appellant.
    H. M. Ray, U. S. Atty., Alfred E. Morton, III, Asst. U. S. Atty., Oxford, Miss., for plaintiff-appellee.
    Before COLEMAN, CLARK and RO-NEY, Circuit Judges.
   COLEMAN, Circuit Judge.

A grand jury for the Northern District of Mississippi indicted the appellant, James E. Knight, in one count, as follows:

“That on or about December 30, 1972, in DeSoto County, Mississippi, James E. Knight received and concealed a stolen 1973 Lincoln Continental Mark IV, automobile moving in interstate commerce from in or near Chicago, Illinois, to DeSoto County in the Northern District of Mississippi, knowing the said motor vehicle to have been stolen; in violation of Section 2313, Title 18, United States Code.”

After a two day trial and considerable manifestation of doubt on the part of the jury as evidenced by two requests for additional instructions from the Court, Knight was convicted. After a comprehensive sentence hearing, the District Court, indicating considerable sympathy for the defendant as to the predicament in which he found himself, but nevertheless believing that the law required it, sentenced Mr. Knight to imprisonment for two years, suspended 18 months of the sentence, required that he serve six months in a jail-type or treatment institution, and placed him on supervised probation for three years. He was allowed to stand aside for 30 days under the existing bond in order to make necessary arrangements for the beginning of his sentence.

By retained counsel, Mr. Knight has appealed. He has had the benefit of extensive and thoroughly prepared briefs in his behalf, as well as oral argument.

Both issues, knowing receipt and knowing concealment of the stolen Lincoln, were thoroughly explored. We have read, in full, the evidentiary appendix and we are convinced that, in the resolution of credibility issues and the application of reasonable inferences, there was ample evidence to support a conviction on both features of the charge.

At the close of the government's proof, defendant’s motion for a directed verdict was properly denied because at that point there was enough evidence to make a prima facie case of unlawfully and knowingly receiving a stolen vehicle moving in interstate commerce.

The defendant then put on his proof, which, no doubt unexpectedly, uncovered an intensive, far flung web of concealment, woven by the defendant. Much of this came from the relentless cross examination of the defendant himself, who made the mistake of taking the witness stand and forthwith was forced to disgorge immensely damaging testimony which the government had not been able to develop by its own proof.

Turning to other issues raised by diligent counsel, who are to be congratulated for a fine effort to salvage a difficult case, we find no reversible error in the comprehensive charge originally given by the Court nor in the supplemental charges, particularly since there was no objection to the second supplemental which might more nearly be open to a fatal construction, Rule 30, Fed.R.Crim. P.

Neither do we find any merit in the argument concerning improper venue, since there was no objection at the trial, 28 U.S.C. § 1406(b), Yeloushan v. United States, 5 Cir., 1964, 339 F.2d 533.

We cannot sustain the argument that there was error in the following instruction :

“Possession of property recently stolen, if not satisfactorily explained, is a circumstance from which the jury may reasonably draw the inference and find that the person in possession knew the property had been stolen.”

The giving of this instruction in proper cases has been repeatedly upheld in this Circuit. See, e. g., Overton v. United States, 5 Cir., 1968, 405 F.2d 168.

The final assignment of error raises the following issue:

“Should the judgment be allowed to stand in view of the fact that the defendant took the stand under the influence of alcohol arising from his affliction with the disease of alcoholism?”

The problem with this assignment is that it was in no manner raised at trial. So far as the record before us shows, Mr. Knight took the witness stand voluntarily. Nothing was said by anybody about intoxication or the appearance of it. We, therefore, cannot consider it. If there is anything to this point, legally or factually, it will have to be explored by methods other than a direct appeal.

The jury could have found the appellant “not guilty” and it would appear from the record that it may have come very near doing so. The determinative fact is, however, that it found him guilty, there was evidence enough to support the verdict, and there was no prejudicial error in the conduct of the trial.

That being so, we must, and do,

Affirm.


author: PER CURIAM:

text:
    Domingo ROSAS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 74-2986
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 16, 1974.
    Rehearing and Rehearing En Banc Denied March 14, 1975.
    See 509 F.2d 805.
    Jeffrey R. Parsons, Houston (Court-appointed), for petitioner-appellant.
    Anthony J. P. Farris, U. S. Atty., James P. Gough, Asst. U. S. Atty., Houston, Tex., for respondent-appellee.
    Before COLEMAN, DYER and RO-NEY, 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:

Rosas bi'ought this action pursuant to 28 U.S.C.A. § 2255 to vacate judgment and sentence of his conviction for smuggling and transporting and concealing marijuana in violation of 21 U.S.C.A. § 176a. He claims that in accepting his guilty plea the trial court did not follow the procedure mandated by Rule 11 of the Federal Rules of Criminal Procedure by failing (1) to establish a factual basis for the plea; (2) to determine that the plea was made with an understanding of its consequences; and (3) to determine that the plea was made voluntarily. The district court denied the motion to vacate and, after reviewing the transcript of the arraignment, we affirm.

To support his claim that the trial court failed to establish a factual basis for his plea, Rosas relies heavily on Reed v. United States, 471 F.2d 721 (5th Cir. 1973) and Gilbert v. United States, 466 F.2d 533 (5th Cir. 1972). Those cases stand for the proposition that a guilty plea cannot be accepted unless the court has made a determination with record evidence independent of the allegations contained in the indictment, that a factual basis exists for the defendant’s acknowledgment of his guilt. In this case the court specifically inquired into the factual basis for Rosas’ plea:

THE COURT: All right. I want to be sure you understand what it is that these charges entail. Count 2, the smuggling charge, charges that about the 1st of August of this year and here in the jurisdiction of this Court, you either personally smuggled this quantity of marijuana into the United States or that you encouraged and induced and commanded someone else to do it. By smuggling into the United States, means that it was brought into the country illegally and without it being declared to the Customs officials.
As to the third count of the indictment, the other charge, it is alleged with respect to the same nine pounds of marijuana that after it was smuggled into the United States and with knowledge on your part that it was smuggled marijuana, you thereafter transported it and concealed it. Did you do these things ?
THE DEFENDANT: Yes, those two, yes.

The factual basis for the plea sufficiently appears from this and other statements of the defendant in response to the questioning of the court.

Rosas’ second point is that the trial court erred in failing to inform him that he would be ineligible for parole if sentenced for the offenses charged in the counts to which he pled guilty. In this Circuit Trujillo v. United States, 377 F.2d 266 (5th Cir. 1967), is controlling authority to the contrary.

Finally, it is contended that the court erred in failing to inquire as to the voluntariness of the guilty plea. We find no error in the district court’s determination that Rosas understood what he was doing and entered his plea voluntarily.

Affirmed.


text:
    Lloyd F. MAYS, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.
    No. 74-2349
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 13, 1974.

      Lloyd F. Mays, pro se.
    John L. Hill, Atty. Gen., Austin, Tex., W. Barton Boling, Asst. Atty. Gen., El Paso, Tex., for respondent-appellee.
    Before COLEMAN, DYER and RO-NEY, Circuit Judges.

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

   PER CURIAM:

The basis of Lloyd F. Mays’ petition for a writ of habeas corpus is that his Texas trial court erroneously permitted the introduction of a 1960 felony conviction during the penalty stage of his 1971 bifurcated trial for the felony offense of burglary. As a result of the 1960 conviction, Mays had been placed on probation. Under Texas law, a probated sentence is not a final judgment or conviction that can be used under the Texas enhancement statute. Davis v. Estelle, 502 F.2d 523 (5th Cir. 1974); White v. Texas, 171 Tex.Cr.R. 683, 353 S.W.2d 229 (1961). See Article 62, Vernon’s Ann. Texas Penal Code (repealed 1974). See also Texas Penal Code § 12.42(c) (1974), V.T.C.A.

Mays’ probation was revoked on the basis of a DWI conviction some seven months after his 1960 trial. Mays contends that he was not represented by counsel either at the probation revocation hearing or at the DWI trial. These facts might raise an interesting question as to whether the 1960 conviction could have been used under the Texas enhancement statute. Compare Davis v. Estelle, supra, with Gutierrez v. Estelle, 474 F.2d 899 (5th Cir. 1973). Here, however, Mays was not sentenced under the enhancement statute.

The Texas enhancement statute requires that the maximum sentence be given to a second offender. In order to invoke the enhancement provisions of the Texas Penal Code, the State must allege the prior conviction in the indictment for enhancement purposes. Rounsavall v. State, 480 S.W.2d 696 (Tex.Cr. App.1972). In the case at bar, however, the State did not allege Mays’ 1960 conviction in the 1971 indictment against him for burglary. The nine year sentence which the jury assessed against Mays in 1971 was well within the maximum 12 year penalty for a first offender for the crime of burglary, and not the mandatory maximum. Article 1397, Texas Penal Code (repealed 1974). Thus, the prior conviction was not used for “enhancement” at the 1971 trial, but to determine the appropriate sentence to be given within the maximum penalty allowance for a single offense.

Under Article 37.07(3) (a), Vernon’s Ann. Texas Code of Criminal Procedure (1967), a prior conviction may be introduced at the punishment stage of a bifurcated trial to show the defendant’s criminal record. Article 37.-07(3)(a) provides:

Sec. 3. Evidence of prior criminal record in all criminal cases after a finding of guilty, (a) Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to the prior criminal record of the defendant, his general reputation and his character. The term prior criminal record means a final conviction in a court of record, or a probated or suspended sentence that has occurred prior to trial, or any final conviction material to the offense charged.

The Texas courts have interpreted this statute to mean that “ . . . any probated or suspended sentence which has occurred prior to trial and whether successfully completed or not may be known to the judge or the jury assessing punishment.” Glenn v. Texas, 442 S.W.2d 360, 362 (Tex.Cr.App.1969). Accord McLerran v. Texas, 466 S.W.2d 287 (Tex.Cr.App.1971). Under such an interpretation of Article 37.07(3) (a), it is clear that Mays’ 1960 conviction was admissible at the sentencing stage of his 1971 trial for burglary, even though he had received a probated sentence and regardless of whether or not his probation had been revoked. A constitutional deficiency as to the prior parole revocation could not affect the admissibility of the 1960 conviction to establish Mays’ criminal record at a sentencing of this kind.

Affirmed.


text:
    Vicente RUIZ-SALAZAR and Juanita Al-manza De Ruiz, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
    No. 74-1489.
    United States Court of Appeals, Fifth Circuit.
    Dec. 13, 1974.

      Joseph J. Rey, Jr., El Paso, Tex., for petitioners.
    William B. Saxbe, Atty. Gen., U. S. Dept, of Justice, Washington, D. C., Frank D. McCown, U. S. Atty., Fort Worth, Tex., Rex Young, Atty., John L. Murphy, Gov. Regulations Sec. Crim. Div., Washington, D. C., District Director, U. S. Dept, of Justice, Immig. & Naturalization, Dallas, Tex., Troy A. Adams, Jr., Dist. Dir., Immig. & Nat., New Orleans, La., for respondent.
    Before BROWN, Chief Judge, and AINSWORTH and DYER, Circuit Judges.
   PER CURIAM:

On the authority of Gonzalez de Moreno v. United States Immigration and Naturalization Service, 5 Cir., 1974, 492 F.2d 532, Section 241(f) of the Immigration and Nationality Act, 8 U.S.C. § 1251(f) is applicable to aliens who fraudulently or through misrepresentation obtain visas, documentation, or entry into the United States. Consequently, this ease is controlled by Gonzalez, supra, and its progeny. Cortez-Flores v. Immigration and Naturalization Service, 5 Cir., 1974, 500 F.2d 178; Castro-Guerrero v. Immigration and Naturalization Service, 5 Cir., 1974, 503 F.2d 964 [1974],

Reversed.

      . Citing the Supreme Court case of Immigration and Naturalization Service v. Errico, 1966, 385 U.S. 214, 217, 87 S.Ct. 473, 476, 17 L.Ed.2d 318.


text:
    Carmen HERNANDEZ et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 74-2699
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 13, 1974.
    Rehearing and Rehearing En Banc Denied Feb. 13, 1975.

      Terrence W. McDonald, San Antonio, Tex., for petitioners.
    Elliott Moore, Deputy Associate Gen. Counsel, Abigail Cooley, Asst. Gen. Counsel, N.L.R.B., Washington, D. C., Louis V. Baldovin, Jr., Director, Region 23, Houston, Tex., Peter Nash, Gen. Counsel, N.L.R.B., Washington, D. C., for respondent.
    Before BELL, SIMPSON and MORGAN, Circuit Judges.

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

   PER CURIAM:

Petitioners seek to appeal from the refusal of the General Counsel of the NLRB to issue a complaint on charges filed by petitioners. There had theretofore been an appeal to the General Counsel from the refusal of the Regional Director to issue a complaint on the charges. The Board has moved to dismiss for lack of jurisdiction.

We find no basis for departing from the teaching of the Supreme Court that “ . . . the Board’s General Counsel has unreviewable discretion to refuse to institute an unfair labor practice complaint.” Vaca v. Sipes, 1967, 386 U.S. 171, at 182, 87 S.Ct. 903, at 913, 17 L.Ed.2d 842: See also Shell Chemical Company v. NLRB, 5 Cir., 1974, 495 F.2d 1116, 1119-1121; NLRB v. Bar-Brook Mfg. Co., 5 Cir., 1955, 220 F.2d 832, 834; Laundry Workers v. NLRB, 5 Cir., 1952, 197 F.2d 701, 703.

Dismissed.


text:
    In the Matter of Rufus Lester LEGGETT, Jr., Bankrupt. COMMERCIAL CREDIT CORPORATION, Appellant, v. Rodney BERNARD, Jr., Trustee, Appellee.
    No. 74-1072.
    United States Court of Appeals, Fifth Circuit.
    Dec. 13, 1974.

      Warren A. Perrin, Lafayette, La., for appellant.
    Rodney Bernard, Jr., Lafayette, La., for Trustee.
    Before TUTTLE, RONEY and GEE, Circuit Judges.
   PER CURIAM:

Rufus Lester Leggett, Jr. purchased a mobile home on credit in Georgia. Commercial Credit Corporation, assignee of the purchase money note and security agreement, perfected a security interest on that collateral under Georgia law. Leggett moved from Georgia to Louisiana, taking his mobile home with him. Commercial Credit, although aware of the relocation of the collateral, did not register its lien or otherwise perfect its security interest in the State of Louisiana. When Leggett went bankrupt, Commercial Credit filed a proof of secured claim in the bankruptcy proceeding. The.trustee objected to the secured nature of the claim. The referee in bankruptcy, affirmed by the district court, relegated the claim to unsecured status. The issue on this appeal is whether, under Louisiana law, Commercial Credit lost its secured interest in the property by failing to perfect a lien in Louisiana within a reasonable time after it knew of the relocation.

Section 70(c) of the Bankruptcy Act, commonly referred to as the strong-arm clause, provides a bankruptcy trustee with the rights and powers of a hypothetical creditor seizing property under an ordinary judgment. 11 U.S.C. A. § 110(c). Under the law of Louisiana, a seizing judgment creditor obtains a “privilege” on the property seized which entitles him to a preference over ordinary or general creditors, LSA-C.C. P. art. 2292, and over a creditor holding an imperfect security device. In re Pine Grove Canning Co., 226 F.Supp. 872, 878 (W.D.La.1964), aff’d, 362 F.2d 605 (5th Cir. 1966); General Motors Acceptance Corp. v. Stoma, 241 So.2d 816 (La.App. 1970). Commercial Credit’s failure to take the steps necessary to perfect its foreign security interest in Louisiana for some sixteen months after it unquestionably knew of the presence of the collateral in Louisiana makes unavailing the protection that Louisiana courts may extend to a foreign creditor whose collateral has been moved into that state without his knowledge or acquiescence. See, e. g., Universal C.I.T. Corp. v. Hu-lett, 151 So.2d 705, 707-708 (La.App. 1963). The bankruptcy court correctly held the claimant’s security interest in the mobile home invalid against the bankruptcy trustee.

Commercial Credit argues that even if the written security instrument is insufficient, it should have a secured position under the Louisiana Vendor’s Lien Law, which provides in part:

He who has sold to another any movable property, which is not paid for, has a preference on the price of his property, over the other creditors of the purchaser, whether the sale was made on a credit or without, if the property still remains in the possession of the purchaser.
So that although the vendor may have taken a note, bond or other acknowledgment from the buyer, he still enjoys the privilege.

Louisiana Civil Code, Article 3227.

The argument fails because Louisiana courts have long held that the privilege granted by Article 3227 does not extend to vendors on sales made outside the State of Louisiana. In re Hoover, 447 F.2d 195, 197 (5th Cir. 1971); George D. Witt Shoe Co. v. J. A. Seegars & Co., 122 La. 145, 47 So. 444 (1908). There is no question here but that the entire transaction took place in Georgia. The sales agreement retained only a security interest in the collateral, and not title, as in the case of a conditional sales contract. Commercial Credit points out that the referee relied on In re Wallace Lincoln-Mercury, Inc., 326 F.Supp. 1243 (W.D.La.1971), which was reversed by this Court at 469 F.2d 396 (5th Cir. 1972). This avails nothing to appellant, however, because we merely held the transaction there had sufficient LouisL ana contacts to qualify as a Louisiana purchase. Absent any Louisiana contacts at the time title passed to the purchaser, the Louisiana vendor’s privilege is not available to Commercial Credit.

Affirmed.


text:
    Bernie BIERMAN, Plaintiff-Appellant, v. TAMPA ELECTRIC COMPANY, Defendant-Appellee.
    No. 74-1365.
    United States Court of Appeals, Fifth Circuit.
    Dec. 13, 1974.
    Rehearing Denied Jan. 15, 1975.
    James M. Colomb, Jr., Roy F. Guste, J. Harrison Henderson, III, New Orleans, La., for plaintiff-appellant.
    Robert B. Acomb, Jr., John J. Brod-ers, New Orleans, La., for defendant-ap-pellee.
    Before GEWIN, AINSWORTH and GEE, Circuit Judges.
   PER CURIAM:

The appellant Bierman, a resident of Arkansas, filed suit in the United States District Court for the Eastern District of Louisiana against Tampa Electric Company (Tampa), a corporation domiciled in Florida, alleging a breach of contract and violations of federal antitrust statutes. Bierman contends that the district court in Louisiana had jurisdiction of the case because Electro-Coal Transfer Corporation, a Louisiana corporation and a wholly owned subsidiary of Tampa, is the alter ego of its parent corporation. After a sufficient development of the pertinent facts, the district court dismissed the complaint for lack of in personam jurisdiction.

We have given careful consideration to the briefs, the contentions of the parties at oral argument and the record, and are firmly convinced that the order of dismissal was correct and should be affirmed. See Cannon Mfg. Co. v. Cuda-hy Packing Co., 267 U.S. 333, 45 S.Ct. 250, 69 L.Ed. 634 (1925); Markow v. Alcock, 356 F.2d 194 (5th Cir. 1966); McLean v. Goodyear Tire & Rubber Co., 85 F.2d 150 (5th Cir. 1936); Fawcett v. Missouri Pacific Railroad Co., 242 F.Supp. 675 (W.D.La.), aff’d, 347 F.2d 233 (1965); J. Moore, Federal Practice ¶ 4.25 [6], at 1174 (2d ed. 1974).

Judgment affirmed.


author: J. JOSEPH SMITH, Circuit Judge:

text:
    Elena CLASS et al., Plaintiffs-Appellees, v. Nicholas NORTON et al., Defendants-Appellants.
    No. 138, Docket 74-1702.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 9, 1974.
    Decided Oct. 10, 1974.

      Edmund C. Walsh, Asst. Atty. Gen. (Robert K. Killian, Atty. Gen., State of Conn., Hartford, Conn.), for defendants-appellants.
    James C. Sturdevant, Tolland-Wind-ham Legal Assistance, Inc., Rockville, Conn., Marilyn Katz, Fairfield County Legal Services, Inc., Bridgeport, Conn., for plaintiffs-appellees.
    Armand Derfner, Charleston, S. C. (Epstein & McClain, Charleston, S. C.), J. Harold Flannery, Lawyers’ Committee for Civil Rights Under Law, Washington, D. C., and Martha G. Bannerman, New York City, on the brief for Lawyers’ Committee for Civil Rights Under Law, as amicus curiae.
    Before SMITH, TIMBERS and GURFEIN Circuit Judges.

       At the time of oral argument, Judge Gur-fein was a United States District Judge for the Southern District of New York, sitting by designation.

   J. JOSEPH SMITH, Circuit Judge:

Nicholas Norton, Commissioner of Welfare for Connecticut, appeals from the ruling on a motion for contempt rendered by then Chief Judge M. Joseph Blumenfeld of the District of Connecticut on March 22, 1974. 376 F.Supp. 496. The court declined to hold appellant in contempt for his alleged failure to comply with orders entered in 1972 calling for timely processing of applications for welfare assistance under the state program of Aid to Families with Dependent Children (AFDC). 42 U.S.C. § 601 et seq.; 45 C.F.R. § 206.10. The court did find significant non-compliance with its prior orders, however, and accordingly: reaffirmed its earlier relief; required that the appellant undertake specified additional measures to ensure compliance with the orders in the future; and assessed a liability of $1,000 against the appellant, in both his individual and official capacities, to cover the appellees’ attorneys’ fees and costs in bringing the contempt charges. With the exception of the assessment of individual liability, we affirm.

In December, 1971, the appellees, AFDC applicants and recipients, brought a class action against the Connecticut State Welfare Commissioner to compel compliance with federal AFDC regulations requiring a determination of applicant eligibility for assistance within 30 days of making application. Judge Blumenfeld’s two orders granting the plaintiffs relief basically required: processing of applications within the 30-day limit; providing assistance to all applicants whose eligibility is not determined within this period; making retroactive payments to eligible persons dating from the date of their application; and issuing bimonthly reports on the number of applications not timely processed. The defendant Commissioner did not appeal from this order.

In January, 1974, the appellees initiated the contempt proceeding presently under review, alleging that the appellant had failed to comply satisfactorily with the terms of the orders. Finding “substantial and widespread” non-compliance, 376 F.Supp. at 498, the court eschewed the requested contempt sanctions in favor of a detailed implementation plan designed to eliminate possible sources of continued non-compliance, id. at 501-502. The court accompanied these prophylactic directives, moreover, with a reiteration of its earlier orders. Finally, commending appellees’ counsel for their persistence “in the face of unjustified non-compliance with this Court’s prior orders,” id. at 502, Judge Blumenfeld awarded $1,000 for counsels’ fees and costs to the movants; liability for this amount was found against the Commissioner in his official and individual capacities.

The appellant does not take issue with the prospective relief granted by the court. He does question the validity of the $1,000 award against him as well as the court’s reaffirmation of its 1972 order to pay retroactive benefits (to date of application) to applicants determined eligible for assistance between the dates of plaintiffs’ filing the initial claim and the court’s rendering judgment on it.

I. RETROACTIVE PAYMENTS

The appellant seizes upon the recently decided case of Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), as a basis for overturning Judge Blumenfeld’s ruling with regard to retroactive payments. In Edelman, the Supreme Court held that a federal court order requiring state officials to pay retroactive benefits ran afoul of the Eleventh Amendment. Although Edelman does figure prominently in the resolution of this appeal, see II infra, we need not consider its force in the context of the retroactive payment order: the validity of the order is settled by the appellant’s failure to make a timely appeal of this order when rendered in June, 1972. The doctrine of res judicata, therefore, bars the appellant from securing review of the payment order in this appeal from a proceeding collateral to that one determinative of the merits of the order.

In Federal Trade Commission v. Minneapolis-Honeywell Co., 344 U.S. 206, 211-212, 73 S.Ct. 245, 248, 97 L.Ed. 245 (1952), the Supreme Court elaborated on this principle of finality:

Thus, the mere fact that a judgment previously entered has been reentered or revised in an immaterial way does not toll the time within which review must be sought. Only when the lower court changes matters of substance, or resolves a genuine ambiguity, in a judgment previously rendered should the period within which an appeal must be taken or a petition for certio-rari filed begin to run anew. The test is a practical one. The question is whether the lower court, in its second order, has disturbed or revised legal rights and obligations which, by its prior judgment, had been plainly and properly settled with finality, [footnotes omitted]

Having allowed the time for a direct appeal of the 1972 order to expire, the Commissioner may not relitigate the substance of that order merely because the court, in its 1974 ruling, saw fit to reiterate that prior order. The 1974 ruling in no sense altered the earlier payment order. See also Oriel v. Russell, 278 U.S. 358, 363, 49 S.Ct. 173, 73 L.Ed. 419 (1929); National Labor Relations Board v. Local 282, International Brotherhood of Teamsters, 428 F.2d 994, 999 (2d Cir. 1970).

We do not comment on the merits of the appellant’s contention were it now properly before this court. See, United States v. Secor, 476 F.2d 766, 770 (2d Cir. 1973). The efficient and fair administration of justice requires that litigation of an issue at some point come to an end. And for the appellant, who has had one opportunity already to contest the payment order, the time to relitigate that issue has necessarily run.

II. THE AWARD OF COSTS AND ATTORNEYS’ FEES

The Eleventh Amendment to the Constitution, “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State,” relates only to the appellant’s liability in his official capacity as an agent of the State of Connecticut. See, Scheuer v. Rhodes, 416 U.S. 232, 237, 94 S.Ct. 1683, 1687, 40 L.Ed.2d 90 (1974); Moor v. County of Alameda, 411 U.S. 693, 700, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). Considerations peculiar to official liability raised by the Eleventh Amendment, therefore — or, more particularly by the Eleventh Amendment as recently construed in Edelman v. Jordan, supra — indicate the appropriateness of analyzing separately the official and personal liabilities imposed by the court on the Commissioner. The two forms of liability must also be distinguished in terms of the degree of recalcitrance warranting their imposition.

A. Liability of Appellant in his Official Capacity

The appellant contends that Edelman’s proscription against federal courts ordering state officials to pay retroactive benefits immunizes him from liability to the appellees as an agent of the state. He seeks to characterize the $1,000 assessed against him for attorneys’ fees and costs as an award akin to retroactive benefits — a drain on the state treasury to compensate for alleged official improprieties in the past.

The district court made this award incident to granting prospective relief: a multiple injunctive order to issue certain regulations, withdraw specified departmental directives, and make designated reports. Of critical importance, then, is the discussion in Edelman, supra, 415 U.S. 651 at 667-668, 94 S.Ct. 1347, at 1357-1358, of “ancillary effects” on the state treasury deriving from compliance with prospective orders of a federal court:

But the fiscal consequences to state treasuries in these cases [Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970)] were the necessary result of compliance with decrees which by their terms were prospective in nature. State officials, in order to shape their official conduct to the mandate of the Court’s decrees, would more likely have to spend money from the state treasury than if they had been left free to pursue their previous course of conduct. Such an ancillary effect on the state treasury is a permissible and often an inevitable consequence of the principle announced in Ex parte Young, supra.

We have recently commented on the applicability of this “ancillary effect” exception to an award of attorneys’ fees:

Moreover, it appears to us that the allowance [of attorneys’ fees] awarded here, as part of an order granting in-junctive relief, has at most the “ancillary effect on the state treasury,” which Edelman v. Jordan, supra, 415 U.S. 651 at 668, 94 S.Ct. 1347 at 1358, 39 L.Ed.2d 662 characterizes as a “permissible and often inevitable consequence of the principle announced in Ex parte Young, . . . ”

Jordan v. Fusari, 496 F.2d 646, 651 (2d Cir. 1974). Admittedly, that statement was not necessary to our holding in Jordan v. Fusari, because we had already held Edelman inapplicable by reason of the state’s Eleventh Amendment waiver in making a settlement for retroactive unemployment benefits. Nonetheless, we are no less persuaded of this position when squarely presented with the issue today. We reaffirm our statement in Jordan v. Fusari, supra, and extend its application to include an award of costs, which in this context is analytically indistinguishable from one of attorneys’ fees.

In finding that the Eleventh Amendment does not immunize the Commissioner from liability in his official capacity, we underline the forward-looking, deterrent nature of this award. Indeed, even without regard to the “ancillary effect” exception of Edelman, we would have no difficulty reconciling the award with the retrospective thrust of Edelman as a “necessary result of attempts to gain compliance with a decree which by its terms was prospective in nature.” Rodriguez v. Swank, 496 F.2d 1110, 1113 (7th Cir. 1974) (affirming a lower court order that the state pay $100 to any AFDC applicant whose application is not timely processed in the future.)

Once the state immunity issue is resolved against the appellant, the step to affirming his official liability follows easily. For although the award of costs and attorneys’ fees against a defendant may be an extraordinary measure, it is warranted where “ ‘bringing of the action should have been unnecessary and was compelled by ; unreasonable, obdurate obstinacy.’ ” Stolberg v. Members of the Board of Trustees for the State Colleges of the State of Connecticut, 474 F.2d 485, 490 (2d Cir. 1973), quoting Bradley v. School Board of City of Richmond, 345 F.2d 310, 321 (4th Cir.), vacated on other grounds, 382 U.S. 103, 86 S.Ct. 224, 15 L.Ed.2d 187 (1965). Moreover, insofar as this standard for awarding costs and attorneys’ fees has been assimilated to bad faith, Hall v. Cole, 412 U.S. 1, 5, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973); Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 n. 4, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968) (per curiam), the evidence marshaled by the court sufficiently supports such a finding.

The award of costs and attorneys’ fees against the Commissioner in his official capacity was thus an act neither in conflict with the Eleventh Amendment nor outside the court’s sound discretion as a court of equity.

B. Liability of Appellant in his Individual Capacity

Although possible Eleventh Amendment immunity does not bear on the appellant’s individual liability for attorneys’ fees and costs, he does enjoy the qualified immunity traditionally accorded executive officers. See, Scheuer v. Rhodes, supra, 416 U.S. at 246-249, 94 S.Ct. at 1692-1693; Barr v. Matteo, 360 U.S. 564, 569-574, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959) (plurality opinion of Harlan, J.); Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949). Since this immunity varies in breadth with the “scope of discretion and responsibilities of the office,” Scheuer v. Rhodes, supra, 416 U.S. at 247, 94 S.Ct. at 1692, the appellant-Commissioner, one vested with considerable policy-making powers, is cloaked in his individual capacity with a broad immunity for honest mistake.

Proof of bad faith ordinarily suffices to justify an assessment of attorneys’ fees and costs against a defendant. See, A, supra. Where the defendant is insulated from liability by a qualified executive immunity of the scope witnessed here, however, “bad faith” alone in the sense used here as illuminated by the facts found would not appear to be enough. In the absence of malice or a clear abuse of discretion, this punitive award does not lie against the Commissioner. Cf. Jordan v. Weaver, 472 F.2d 985, 999 (7th Cir. 1973), rev'd on other grounds, sub nom. Edel-man v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).

In the light of the court’s findings, this award against the appellant personally must be reversed. The court specifically declined to infer “willful disobedience” of its prior order, 376 F.Supp. at 498, or any “deliberate design” to nullify that order, id. at 500. In addition, “much of the failure of compliance” could be attributed to insufficient clarification of department policies, id. at 501 — a lamentable state of affairs to be sure, but hardly the stuff of which a case for malice or abuse of discretion may be made. Thus, without in any way condoning the appellant’s conduct in failing properly to implement the court’s order, we find ourselves unable to agree with the court below that his conduct was sufficiently reprehensible to warrant assessing $1,000 against him individually. On this issue alone, we reverse.

Reversed as to award against the Commissioner individually. Otherwise affirmed.

      . An award on this basis essentially rests on a jmnitive rationale. Similar awards have been justified as shifting the costs of litigation from a plaintiff benefiting the members of the body which he is suing as an entity. See, e. g., Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973); Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970). Alternatively a private attorney general theory for making such an award has received ápprobation where the litigant “(1) furthers the interests of a significant class of persons by (2) effectuating a strong congressional policy.” Brandenburger v. Thompson, 494 F.2d 885, 888 (9th Cir. 1974). See also, Sims v. Amos, 340 F.Supp. 691 (M.D.Ala.) (three-judge court), aff’d mem. 409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 215 (1972).