author: HASTINGS, Senior Circuit Judge.

text:
    REGENCY ELECTRONICS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 72-2001.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 21, 1973.
    Decided Dec. 3, 1973.
    On Rehearing March 14, 1974.
    James K. Sommer, Indianapolis, Ind., for petitioner.
    Peter G. Nash, Gen. Counsel, William L. Corbett, Atty., National Labor Relations Board, Washington, D. C., for respondent.
    Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and CHRISTENSEN, Senior District Judge.

       Senior United States District Judge A. Sherman Christensen is sitting by designation.

   HASTINGS, Senior Circuit Judge.

We have for consideration the petition of Regency Electronics,' Inc. (the Company), to review and set aside an order of the National Labor Relations Board (the Board) issued against it on November 30, 1972, pursuant to § 10(c) of the National Labor Relations Act, as amended, Title 29 U.S.C. § 151 et seq. (the Act). This order is reported at 200 NLRB No. 88. The Board has cross-petitioned for enforcement of its order. We have jurisdiction since the underlying unfair labor practice is alleged to have occurred at the Company’s plant in Indianapolis, Indiana. The Company is engaged in the manufacture, sale and distribution of electronic equipment and related products.

The Board found that the Company had violated §§ 8(a)(5) and (1) of the Act by refusing to bargain with the International Union of Electrical, Radio and Machine Workers, AFL-CIO (the Union), which had been certified by the Board as the exclusive bargaining representative of the employees of the Company in the representation proceedings hereinafter set out.

On October 20, 1971, the Union filed a petition for a representation election, together with a stipulation for certification upon consent election executed by the Union and the Company. Pursuant to the stipulation, the election was held on December 17, 1971, in a unit of certain employees of the Company. A total of 221 valid votes were counted. The Company received a majority, 117 to 104. In addition, there were 12 challenged votes cast which were not counted. Since the challenged ballots were insufficient in number to affect the outcome of the election, the challenges were not resolved.

On December 22, 1971, the Union filed timely objections to the election alleging in substance that on December 16, 1971, the day prior to the election, the Company had (1) coerced and intimidated an employee; and (2) distributed to all employees an exact duplicate of the Board’s sample ballot, and marked an “X” and a red heart in the “NO” square, thereby giving the impression that the Board was endorsing the Company’s position. The Regional Director of the Board timely and properly investigated the Union’s two objections and on January 28, 1972, issued his report and recommendations to the Board. He found the allegation that the Company had coerced and intimidated an employee to be without merit. However, he found merit in the Union’s objections to the Company’s distribution of the marked sample ballot and recommended that the Board direct a new election.

Overruling timely filed objections by the Company to the Regional Director’s report on objections, on February 25, 1972, the Board issued a decision adopting the Regional Director’s findings and recommendations, setting aside the results of the election and ordering a second election. As a part of this order the Board established a new voter eligibility list including unit employees “employed during the payroll period immediately preceding the date of issuance of the Notice of Second Election.” Accordingly, employees hired subsequent to the eligibility date of the first election were to be permitted to vote in the second election.

Subsequently, the second election was held March 24, 1972, which resulted in 245 valid ballots being cast. The Union received a majority, 133 to 112, with no challenged ballots. On March 31, 1972, the Company filed timely objections to the results of the second election alleging, inter alia, that the first election was improperly set aside and, further, that the Board improperly selected a new eligibility date for the second election. Following proper administrative procedures, on August 1, 1972, the Board issued a supplemental decision and certification of representation finding no merit in the Company’s objections and certifying the Union as the exclusive bargaining representative of the Company’s employees in the bargaining unit found appropriate.

In order to seek judicial review, the Company refused to comply with the Union’s request to bargain. An unfair labor practice complaint was subsequently filed. The matter was finally transferred to the Board itself for consideration of a show cause order on the General Counsel’s motion for summary judgment and the Company’s response thereto.

These proceedings culminated on November 30, 1972, in the Board’s ordering the Company to cease and desist from refusing to bargain with the Union. It is this order which is the final order under present consideration by our court.

I.

The core of the first issue is whether the Board was warranted in setting aside the first election on the sole ground that the Company, on the day before the first election, distributed to all employees an exact duplicate of the Board’s sample ballot altered in such a manner as to tend to mislead the employees to believe that it implied an endorsement of the Company by the Board. In short, the use of this type of information under the surrounding circumstances might have had an undesirable impact on the employees’ freedom of choice.

The facts are not in dispute. There was the usual propaganda by both parties preceding the first election on December 17, 1971. The Union distributed leaflets referring to “Love Letters” from the Company as an attempt to “Brain-Wash” the employees to vote against the Union. The Company responded in a light vein with a leaflet entitled “The Regency Love Story,” using thereon a number of red hearts. The Union reacted with further reference to the “Love Letters.” There is no complaint by either party that this preliminary propaganda skirmishing was improper.

However, on the day before the election, the Company distributed to all employees another campaign propaganda leaflet which it refers to on brief as the “Second Heart Leaflet.” This was printed on one page of smooth white paper with the Company’s name and symbol at the top, followed by company printed propaganda matter and an exact duplicate Board official sample ballot with an “X” marked in the “NO” box over which box was superimposed a red heart. We have attached a copy of this leaflet as an appendix to this opinion, except that here the color of the red heart is not evident.

In considering the Union’s objection to the Company’s use of the Board’s sample ballot in the first election, the Regional Director stated:

“* * * * The ballot set forth on Exhibit A is identical in size and content with the official election ballot. The rule set forth in Allied Electric Products, Inc., 109 NLRB 1270 is therefore applicable and Exhibit A is objectionable. Contrary to the Employer the criterion is not whether the entire document is an official agency document, or contains other propaganda which clearly marks it as the product of a party, but whether the reproduced ballot itself is distinguishable from the agency’s official ballots in size or content. Hughes Tool Co., 119 NLRB 739 and cases cited.
“The ballot used in the instant ease clearly is not. Similarly, contrary to the Employer, the Board has not modified the Allied Electric rule. * * * [Cases cited] holding marked ballots unobjectionable all dealt with ballots clearly distinguishable in size or content from the Board’s sample or official ballot. As above noted the ballot produced by the Employer is indistinguishable from the official sample ballot produced on the official election notice.”

Accordingly, the Regional Director recommended that this single objection be sustained.

It is beyond dispute that the duplicated ballot is identical in size and content with the Board’s sample official ballot. It follows that here we are concerned with the Company’s use of an official Board document in its flyer or leaflet. We do not have the use of a simulated or sketchy ballot or obvious propaganda statements in isolation from the official Board document.

As earlier indicated and shown in the so-called Second Heart Leaflet, the copy of the official sample ballot has an “X” marked in the “NO” box over which is superimposed a red heart. At the top of the leaflet appears the symbol and name of the Company and below that appears a statement of obvious propaganda. The Company urges that this is merely a legitimate response to Union propaganda, particularly with respect to repeated Union reference to the Company’s “Love Letters” and the use of red hearts on Union leaflets. We agree with the Company that we can view this Second Heart Leaflet and construe it for ourselves and evaluate its import. .

The Company argues strenuously that the Board erred in setting aside the first election because the Board’s action “was based on a mechanical application of a rule against the use of marked ballots” which the Board “purported to judicially promulgate * * * for future application as a per se rule in Allied Electric Products, Inc., 109 N.L.R.B. 1270 (1954).”

Allied Electric Products has been the subject of much judicial comment and Board treatment over the years. Our recent decision in NLRB v. John S. Barnes Corporation, 7 Cir., 478 F.2d 1105 (1973), as well as the subsequent decision in NLRB v. Clarytona Manor, Inc., 7 Cir., 479 F.2d 976 (1973) shed dispositive light on this contention.

In Barnes, supra, we recognized the rule in Allied Electric Products but preferred the Board’s subsequent rule in Rebmar, Inc., 173 NLRB 1434 (1968), where the Board set aside an election when the Board’s election notice (a Board official document) had been reprinted and altered. We quote from Barnes the preferred rule which reads:

‘Our concern is not with the substance of the material added to the Board’s official notice of election, but with the possible impact such a partisan message added to an official Board document, or copy thereof, might have on the freedom of choice of the voter. We are of the opinion that the Board has a responsibility to inform employees fully of their rights and privileges under the Act, and to conduct elections in an atmosphere conducive to a determination of the uninhibited preference of employees. To that end the Board’s notice of election contains information the Board believes should be made available to employees to improve their capability of casting a vote that fully reflects this freedom of choice. To this end the Board also publishes a leaflet including the same type of information, and it is available to anyone who desires to use it. The Board also has a responsibility to protect its processes against abuse or undesirable use. To duplicate a part of the Board’s official notice and then to add to it a personal partisan message that may be interpreted by the employee as an endorsement by the Board of one of the parties to the election, and thus have an impact on the employees’ freedom of choice is, we think, an undesirable use of Board documents designed for another purpose. That the Union’s message in this case may be arguably innocuous and that there may have been at most a narrow or technical violation of the Allied Electric Products, 109 NLRB 1270, rule, is clearly irrelevant. Whether deliberate or unintentional, such action has a tendency to mislead, and we are of the opinion that the Board should guard against having its prestige put to such possible abuse.’ [Rebmar] at 1434 & 5 (Emphasis added.)” Barnes, supra, 478 F.2d at 1107-1108.

We recognized in Clarytona Manor, Inc., supra, 479 F.2d at 981, that “the significant factor in determining whether there is a tendency to mislead * * * is the utilization of official Board documents in connection with a partisan communication, even though that message may on the whole be innocuous.” The court then referred to our holding in Barnes, 478 F.2d at 1107, that to say the message there involved “ ‘could in no manner be interpreted by the employees as an endorsement by the Board of the Union’ flies in the face of reason and experience.” In Barnes, we applied the Rebmar rule and set aside an election which was favorable to a union. Consistency requires us to apply the same standards here adversely to the Company. The court in Clarytona found the Allied rule inapplicable under the facts of that case, since no official Board document had been used.

In light of these holdings we are bound to conclude that the use of this type of information under the surrounding circumstances might have had an undesirable impact on the employees’ freedom of choice.

We have considered the several other contentions urged by the Company and find them unpersuasive. We hold that the Board did not err in setting aside the first election.

II.

The second and subsidiary issue is whether the Board properly established a new voter eligibility list to include unit employees “employed during the payroll period immediately preceding the date of issuance of the notice of Second Election.” The effect of the changed eligibility date was to include newly hired employees who were unable to vote in the first election.

The Company points out that after the first election it hired 48 new employees prior to the second election. Fifteen of these were required as a result of expansion in the production unit and 33 were the result of normal turnover of employees. The Company complains that this is contrary to the Board’s policy in runoff elections, where there are more than two parties and no party receives a majority. It argues that the use of a new eligibility list gives the Union an unfair advantage in opening up the opportunity for manipulation of such newly hired employees. It also urges that the new employees could not know the reason why the first election was set aside. We find these arguments unpersuasive.

It is well settled that “Congress has entrusted the Board with a wide degree of discretion in establishing the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees.” NLRB v. A. J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 328, 91 L.Ed. 322 (1946); NLRB v. Wyman-Gordon Co., 394 U.S. 759, 767, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969); NLRB v. Clarytona Manor, Inc., 479 F.2d 976, 979 (1973).

We have considered the arguments of prejudice advanced by the Company. However, on balance, we conclude that the determination of the new eligibility date and the enfranchisement of the new employees come within the wide discretion given the Board. We find no adequate showing of abuse of discretion. We conclude that the new eligibility date best effectuates the policy of the Board to provide all affected employees a freedom of choice.

We hold that the Board properly established a new voter eligibility list for the second election.

Accordingly, the petition of the Company for review will be denied and the cross-petition of the Board for enforcement will be granted.

Review denied. Enforcement granted.

APPENDIX

EXHIBIT A ELECTRONICS, INC.

THIS IS ONLY A SAMPLE BALLOT PREPARED BY THE COMPANY. WHEN YOU VOTE THE OFFICIAL BALLOT WILL BE HANDED TO YOU BY THE N. L. R. B. REPRESENTATIVE AT THE ELECTION ON FRIDAY, DECEMBER 17, 1971.

Vota NO and pay NO dues

Vota NO and have NO Strikes

Vota NO and wollt NO picket lines

Vota_NO_and have NO hate campaigns

Vote NO and have NO fighting

Vote NO and have NO troubled times

WE HOPE YOU WILL GIVE US YOUR VOTE OF CONFIDENCE SO THAT WE CAN CONTINUE TO PULL TOGETHER....NOT APART.

' DO NOT SIGN THIS BALLOT. Fold and drop in ballot box.

If you spoil this ballot return it to the 8oard Agent for a new one.

ORDER

This matter is now pending before the court upon petitioner’s supplement to its petition for rehearing in banc, respondent’s answer thereto, and petitioner’s reply. As to petitioner’s suggestion for a rehearing in banc, it now appears that no active member of this court has requested that a vote be taken thereon.

However, in light of the decision of the Supreme Court of the United States in National Labor Relations Board v. Savair Manufacturing Co., 414 U.S. 270, 94 S.Ct. 495, 38 L.Ed.2d 495 (1973), subsequent to our decision in the instant case (Dec. 3, 1973), it is now ordered that further proceedings herein be stayed until the further order of this court pursuant to the following remand:

This ease is now remanded to the respondent, National Labor Relations Board, for the purpose of conducting a hearing on petitioner’s Objection 4 to the results of the second election held March 24, 1972, as alternatively requested by the Labor Board in its above mentioned answer; and thereafter the Labor Board shall certify to this court its findings and conclusions as determined therein.

      . Out of a total of twelve objections filed, the Company requests review of only these two objections.

      . Footnotes omitted, except that in note 4 the Regional Director states: “The Employer’s claim that the red heart superimposed on the X in the no box of the ballot distinguishes it from the official ballot is without merit ^ since in all the circumstances the heart like the X itself constitutes a marking of the ballot and does not constitute what otherwise is clearly an official ballot an employer ballot.”

      . Such was the situation in NLRB v. Clarytona Manor, Inc., 7 Cir., 479 F.2d 976, 981 (1973).


source: Caselaw Access Project

author: LEVIN H. CAMPBELL, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Vincent PRINCIPE, Sr., Defendant, Appellant.
    No. 74-1043.
    United States Court of Appeals, First Circuit.
    Argued March 7, 1974.
    Decided June 13, 1974.

      Anthony E. Grilli, Providence, R. I., by appointment of the Court, with whom Paul J. DiMaio, Providence, R. I., was on brief, for appellant.
    Lincoln C. Almond, U. S. Atty., with whom Constance L. Messore, Asst. U. S. Atty., Providence, R. I., was on brief, for appellee.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   LEVIN H. CAMPBELL, Circuit Judge.

Vincent Principe, Sr., appeals from conviction for possessing, concealing and knowingly transferring counterfeit notes. 18 U.S.C. §§ 472, 473.

Principe contends, first, that the court erred in admitting as evidence counterfeit money seized during an apartment search. He says that the affidavit for the search warrant was insufficient, and that materials were seized at a location not specified in the warrant.

The affidavit was that of a special agent of the United States Secret Service. Principe complains that it did not support a conclusion that the agent’s informant was reliable or his information credible. Principe points to cases such as Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), which deal with bare conclusional statements based upon tips from unnamed informants who may have spoken without personal knowledge. The instant case is different. The informant was both named and was revealed as a participant in the crime. The informant’s knowledge was obtained from recent personal observation. That Little was making a declaration against interest lends it further credence. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed. 723 (1971). That the affidavit omitted details which would have strengthened it (such as that affiant had independently determined that the notes admitted to be counterfeit were in fact counterfeit) is not fatal. A search warrant is to be “tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation.” United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965). The affidavit adequately supported a finding of probable cause. See United States v. Long, 449 F.2d 288 (8th Cir. 1971), cert. denied, 405 U.S. 974, 92 S.Ct. 1191, 31 L.Ed.2d 247 (1972); United States ex rel. DiRienzo v. Yeager, 443 F.2d 228 (3d Cir. 1971).

Principe argues that the warrant could not, in any event, support the seizure of evidence from a cabinet outside of the apartment.- The warrant authorized search of the premises “known as a three-story, woodframe building, at 63 Princeton Avenue, Providence, Rhode Island, the second-floor apartment, in the southwest corner of said building”. The cabinet was in the southwest corner of the building, three to six feet away from the entrance to the apartment, in a small hallway directly opposite the door that led into the apartment. The owner of the building testified that the cabinet went with the apartment, that the tenant had been told he could use it and had been provided with a key. We agree with Principe that authority to search is .limited to places described in the warrant and not additional or different places. Keiningham v. United States, 109 U.S.App.D.C. 272, 287 F.2d 126 (1960); cf. United States v. Micheli, 487 F.2d 429, 432 (1st Cir. 1973). However, the,officers could reasonably suppose, given the second floor layout and its proximity to the apartment, that the cabinet was appurtenant to the apartment, as in fact it was. See United States v. Lumia, 36 F.Supp. 552 (W.D.N.Y.1941); cf. United States v. Long, supra; Fine v. United States, 207 F.2d 324 (6th Cir. 1953), cert. denied, 346 U.S. 923, 74 S.Ct. 310, 98 L.Ed. 417 (1954).

Principe next contends that the court erred in denying a motion for mistrial after the government witness, Little, had made prejudicial hearsay statements before the jury. Counsel had earlier attacked Little’s credibility by proving that prior to trial he had given statements to the defense denying having implicated Principe. Gn redirect, Little testified that these statements were made because he had been afraid. When the prosecutor asked why, Little responded:

“Of what he might have done to me if I didn’t go with him. From what I had heard he was supposed to be some big guy from the hill or something like that so I was afraid.”

Principe then moved for a mistrial. The court denied the motion and instead instructed the jury:

“It may stand, not for the truth of the matter contained in that statement, ladies and gentlemen of the jury, you don't accept it as such. There is nothing to indicate it’s true but it’s admissible .for the purpose of showing a state of mind. A person’s state of mind sometimes can be generated by information he received which may be entirely false and entirely wrong but it’s a question of his state of mind and it’s only for that purpose that you are to consider that statement.”

The court’s analysis and instruction were correct. See United States v. Sharpe, 452 F.2d 1117, 1120 (1st Cir. 1971). Little's credibility being a cardinal issue, his explanation of why he said what he did was relevant. Had the “guy from the hill” reference been caught in time, it could have been excluded in the court’s discretion — not because it was hearsay but because the court might have thought its prejudicial effect to overshadow its probative value. Cf. Proposed Federal Rules of Evidence 403. But there was no objection to the question, the answer came without forewarning, and we find no abuse of discretion in the court’s handling of the incident.

Reversible error is also claimed because of the government’s tardiness in furnishing Jencks Act materials. Before the trial, Little had implicated Principe in a written statement; appellant does not contend that it was not timely produced. Little also, however, had made four other statements. Two reflected conversations with Principe’s attorney: in these Little denied having implicated Principe. Two others, made after the interviews with Principe’s attorney, reported to a government agent what Little had just told the attorney. At the end of Little’s direct testimony defense counsel said, “If statements have been used I request at this time that defense be allowed to examine the statement that Mr. Little had given.” The government furnished Little’s principal statement but did not disclose the two in which Little had reported back to the agent his conversations with Principe’s counsel. On cross-examination the defense brought out what Little had told Principe’s counsel. On redirect the government sought to introduce the withheld statements. Principe immediately protested. At the ensuing bench conference, the prosecutor said that she had not understood the defense to have requested all materials to which it might be entitled under the Jencks Act and doubted whether the two statements would have had to be produced after the direct examination of Little. The court charitably termed this narrow reading “purist” and ordered the prosecutor to give the statements to the defense forthwith, which she did. The court also offered defense counsel the option of resuming his cross-examination. Defense counsel stated: “Your Honor, I have no objection to [the prosecutor’s] using either one of them.” When the government offered the statements as full exhibits defense counsel stated: “I have no objection”. No motion to strike Little’s subsequent testimony was made, and the defense cross-examined the witness a second time. At the close of the government’s case, Principe moved for mistrial on the ground that exculpatory evidence had been suppressed. The court denied the motion, stating correctly that Little’s statements could not be characterized as exculpatory.

We disagree with the government’s niggardly reading of the Jencks Act. The Act is to “further the fair and just administration of criminal justice.” Campbell v. United States, 365 U.S. 85, 92, 81 S.Ct. 421, 425, 5 L.Ed.2d 428 (1961). It. is not to be parsed like a tax statute; and the United States Attorney, whose responsibilities are not simply adversarial, has a duty to make frank and full disclosure or in doubtful situations to acquaint the court with the dilemma. Principe is wrong, however, insofar as he insists that under 18 U.S. C. § 3500(d) any failure to disclose, no matter how harmless or innocent, requires striking the witness’ testimony or a mistrial. See, e. g., United States v. Perry, 153 U.S.App.D.C. 89, 471 F.2d 1057, 1062-1068 (1972); Erwing v. United States, 394 F.2d 829 (9th Cir. 1968); United States v. White, 344 F.2d 92 (4th Cir. 1965). A weighing of considerations is needed to determine the appropriate course. Cf. United States v. Bigos, 459 F.2d 639, 642 (1st Cir.), cert. denied, 409 U.S. 847, 93 S.Ct. 53, 34 L.Ed.2d 88 (1972). Here the prosecutor represented, with some plausibility, that she had misunderstood the statutory requirement and the scope of the request. The district court was entitled to conclude that the government’s conduct fell short of being so flagrant as to warrant a mistrial regardless of prejudice, and, further, that Principe was not materially prejudiced by the belated disclosure. See United States v. Sharpe, supra at 1119-1120. Principe knew of Little’s true posture since Little had testified for the government at a pretrial suppression hearing. At cross-examination Little described making the disputed statements to the agent without eliciting any defense request for their production. After disclosure the court acted promptly to deny to the government any tactical advantage from withholding, and to permit full recross-examination. Cf. United States v. Calabrese, 421 F.2d 108 (6th Cir.), cert. denied, 397 U.S. 1021, 90 S.Ct. 1259, 25 L.Ed.2d 530 (1970).

Principe’s final point is that the court committed plain error when, in response to a question from the jury, it advised that money found on a man arrested along with Little contained no fingerprints. The fingerprint expert had testified that there were prints that did not match Principe or Little. The inaccuracy of the court’s answer seems minor and harmless. The jury was not told that Principe’s prints were on the notes. Principe contends that had the court given the proper answer the jury could have concluded that “if Mr. Little and the appellant had in fact handled those notes their fingerprints would have been on them.” The identical conclusion could as well be drawn from the court’s version.

Affirmed.

      . The affidavit states: “On March 6, 1973, Jeffrey W. I. Little was arrested in Providence, Rhode Island, by the Providence Police. On the morning of March 7, 1973, he was interviewed by the affiant and Jeffrey W. I. Little admitted the possession of counterfeit $5.00 Federal Reserve Notes. In a statement he informed me that he was approached on March 2, 1973, by Vincent Principe, Sr., of Providence, R. I., who requested his assistance in distributing counterfeit Federal Reserve Notes. As a result of this meeting, Jeffrey W. I. Little informed me that he accompanied Vincent Principe, Sr., on March 6, 1973, to the above-described apartment at 63 Princeton Avenue, Providence, R. I., where he observed the said Principe remove from a cardboard carton a plaid hangup bag containing a brown suitcase. Jeffrey W. I. Little then observed Vincent Principe, Sr., open the said suitcase which contained a large number of counterfeit $5.00, $10.00 and $20.00 Federal Reserve Notes.”

      . 18 U.S.C. § 3500(b) provides, in part:
      “After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement - . . . of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified.”

      . Apparently the government felt that because Principe’s direct examination did not focus on his conversations with the defense, the statements were not relevant “to the subject matter as to which the witness has testified”. Whenever the government is in doubt whether statements are required to be produced, it should deliver them to the judge for his inspection, 18 U.S.C. § 3500(c), rather than risk censure, a mistrial, or later reversal by withholding. United States v. Pacelli, 491 F.2d 1108, 1118 (2d Cir. 1974).

      . At oral argument Principe maintained that the plain error rule should not be applied because two of his three counsel were at lunch when the court responded to the jury, and the third lawyer was not a member of the federal bar and too inexperienced to object. The argument fails to explain why experienced counsel, having returned only a few minutes after the jury had been instructed, failed to object or to request that the jury be recalled and given a different answer.


text:
    UNITED STATES of America, Appellee, v. William F. McGOVERN, Defendant, Appellant. UNITED STATES of America, Appellee, v. Frank M. WOODS, Jr., Defendant, Appellant. UNITED STATES of America, Appellee, v. Louis J. DiPIETRO, Defendant, Appellant. UNITED STATES of America, Appellee, v. Alfred J. GOULETTE, Defendant, Appellant.
    Nos. 72-1356 to 72-1359.
    United States Court of Appeals, First Circuit.
    Argued Jan. 7, 1974.
    Decided June 25, 1974.

      Joseph C. Delcore, Everett, Mass., with whom Alfred Paul Farese, Everett, Mass., was on brief, for appellants.
    Henry H. Hammond, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty. of Boston, Mass., was on brief, for appellee.
    Before COFFIN, Chief Judge, ALD-RICH and CAMPBELL, Circuit Judges.
   LEVIN H. CAMPBELL, Circuit Judge.

After a jury trial lasting 18 days William F. McGovern, Alfred J. Goulette, Frank M. Woods, Jr., and Louis J. DiPietro were found guilty of fraudulently making counterfeit Federal Reserve notes, in violation of 18 U.S.C. § 471. We discuss in turn appellants’ contentions, none of which we find to warrant reversal.

Appellants complain that the government put leading questions to its principal witness, Raymond Scarino, the printer of the bills. Indicted with appellants, Scarino pleaded guilty before trial. His testimony was rambling, unresponsive and on occasion inconsistent, and the Assistant United States Attorney sometimes resorted to leading questions to which counsel for appellants strenuously objected. The court sustained many of the objections, admonished the prosecutor, and instructed and cautioned the jury. Cross examination of Scarino, much of it focussing on his vagaries and his relationship to the government, filled over 800 pages of transcript.

The evil of leading a friendly witness is that the information conveyed in the questions may supply a “false memory”. United States v. Durham, 319 F.2d 590, 592 (4th Cir. 1963). 3 J. Wigmore, Evidence § 769 et seq. (Chadbourne rev. 1970). In spite of this danger, however, leading questions sometimes must be tolerated if what the witness knows is ever to become available : the witness’ memory may be temporarily exhausted; the witness may be disoriented or incapable of concentration; the witness may misunderstand what the questioner wants to know. On those and other occasions some degree of leading, skirting the fine line between stimulating an accurate memory and implanting a false one, may be allowed; because the circumstances vary from case to case, and because the trial judge is best situated to strike a practical and fair balance, he has extensive discretion over the phrasing of questions. 3 J. Wigmore, supra at § 770.

But appellants contend that the questioning was here so grossly suggestive as to be beyond the pale. Cf. Nurnberger v. United States, 156 F. 721, 731-735 (8th Cir. 1907). We do not agree. The district court was assiduous and in large part successful in keeping examination within bounds. It is true that even if the answer is excluded, a question may already have done its harm by telegraphing information. But improper questions, singly or cumulatively, were neither so suggestive nor so numerous as to seem capable of restructuring Scarino’s memory. Moreover, given Scarino’s unusual disorientation the government was entitled to some leeway in trying to focus his attention on relevant matters. Viewing his entire testimony, we think the jury, having been cautioned repeatedly against the dangers of leading and having the benefit of exhaustive cross examination, remained able to weigh his testimony and credibility.

Next, appellants complain of the government’s failure to amend its bill of particulars before trial so as to show that Scarino had been guided to Wellington Circle not by DiPietro, as represented in the four-page bill filed six months before the trial, but by one Elaine Spina. Scarino had changed his story after the bill was filed, but the prosecutor neglected to furnish the defense with this information. The correct information came out, however, in the government’s opening statement and also, on the second day of trial, in Scarino’s testimony. Nearly a week later the defense sought a mistrial, saying it might have investigated Spina had it known of her claimed involvement. In denying the motion for mistrial, the district court emphasized that it did not condone the government’s oversight but found the failure to correct the driver’s name earlier of insufficient magnitude for a mistrial. The defense never sought to call Elaine Spina nor did it represent that it could not find her. The government, indeed, offered to assist in locating her; and according to Scarino she was a friend of McGovern’s. We find no abuse of discretion. From the government’s apologetic explanation, the court could believe that the prosecutor had not designedly withheld the information. And as the correct version was disclosed at the very outset of a trial which was to continue for three weeks, the defense had time to check into Spina’s possible value as a witness. As we said in United States v. DeLeo, 422 F.2d 487, 499 (1st Cir.), cert. denied, 397 U.S. 1037, 90 S.Ct. 1355, 25 L.Ed.2d 648 (1970):

“Keeping in mind that the prosecutor’s duty of disclosure is imposed to insure fairness to the accused rather than to punish the prosecutor or the public, Brady v. Maryland, supra, 373 U.S. [83] at 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 ... we believe the absence of conceivable prejudice to the accused completely disposes of his objection.”

For the same reason we find no merit in appellants’ complaint that the government improperly delayed releasing information about rewards promised to Mary Dunkman in return for her testimony. During redirect examination the Assistant United States Attorney, as he was duty bound, see Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), made it known that Dunkman had been promised a favorable letter to state authorities. Appellants say that disclosure came too late, especially in view of their pretrial request for disclosure of rewards and inducements. But the witness was still on the stand, and the court allowed the defense further cross examination. See United States v. Harris, 498 F.2d 1164 (3d Cir. 1974). There was no prejudice, and there were circumstances from which the court could have believed that the government’s delay until the eleventh hour was not calculated. Cf. United States v. Gerard, 491 F.2d 1300 (9th Cir. 1974) (Aldrich, J.).

Appellants’ next contention concerns the introduction into evidence of sheets of ten dollar bills. Because Scarino mistakenly testified on recross examination that these were stored in a cellar box and turned over to federal agents, appellants assert the government used “false testimony.” Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). But when the exhibit was offered the prosecutor had told the court and opposing counsel that an agent had purchased the sheets from men named Magro and Moran. Other evidence- contrary to Scarino’s testimony was introduced by the government. Napue forbids knowing reliance upon false evidence, including false evidence bearing upon credibility. But the government is not forbidden to call witnesses whose reliability in one or many particulars is imperfect or even suspect. Its obligations are to make a clean breast of any evidence it has which may contradict such witnesses or undermine their credibility, and not to rest its case upon testimony which it believes to be incorrect. The government hére presented what, insofar as we know, was the correct version. It never offered Scarino’s version as part of its case in chief. The government was not responsible for Scarino’s lapses on cross examination nor for the defense’s use or non-use of the correct information earlier disclosed.

It is further contended that the government was slow in delivering certain Jencks Act materials, thus hampering cross examination. Suffice to say that the record reveals material compliance with the Jencks Act with the possible exception of several occasions when a small amount of material was revealed after the commencement of cross examination but before its close. These incidents, which were resolved without apparent prejudice to the defense and were not of such magnitude as to suggest bad faith on the government’s part, are not grounds for reversal. United States v. Principe, 499 F.2d 1135 at 1139 (1st Cir. 1974). Cf. Comment, Brady v. Maryland and the Prosecutor’s Duty to Disclose, 40 U.Chi.L.Rev. 112, 117-20 (1972).

Appellants suggest that even if none of the points so far mentioned amount to reversible error, they cumulatively raise “a very serious question . as to whether the defendants could possibly have had a fair trial”. But the cumulative strength of the points so far raised seems to us no greater than the sum of the parts. The trial was conducted with elaborate patience by the judge who, confronted with vigorous activity on the part of the defense as well as a number of difficulties not the least of which was Searino’s inarticulateness, went to great lengths to be fair to the four defendants.

Nonetheless, citing cases of improper judicial intrusion, see, e. g., United States v. Grunberger, 431 F.2d 1062 (2d Cir. 1970), appellants claim reversible error because the court asked Secret Service Agent Gerald Bechtele what he meant when he said he had “faith” in Searino. The inquiry followed questioning by all three defense counsel on the same subject, which had been raised by one of them. The court said that Bechtele’s prior assertion of faith was a “rather vague statement” and asked him to tell the jury “to what extent you did and to what extent, if any you did not and what you meant .” The court asked for nothing not already put in issue by the defense, its own questions were impartially framed, and the answers verged on the trivial. Cf. Quercia v. United States, 289 U.S. 466, 470, 53 S.Ct. 698, 77 L.Ed. 1321 (1932). A federal judge has “the right, and often the obligation, to interrupt the presentations of counsel in order to clarify misunderstandings or otherwise insure that the trial proceeds efficiently and fairly.” United States v. Cole, 491 F.2d 1276, 1278 (4th Cir. 1974). We find no abuse of discretion, and certainly no prejudice.

Over defense objection, the government presented testimony that about a month after delivery DiPietro sold some of the same bills Searino had printed for McGovern. DiPietro now contends that this evidence should have been excluded because he was being charged with participation in the making, not selling. The later crime, however, was germane to the one charged. Sale a short time later of the same bills which Searino claimed he had delivered to McGovern in DiPietro’s presence was strongly corroborative of Scarino’s testimony. It also was evidence that DiPietro’s presence, otherwise shown, during certain phases of the making activities was not innocent; it could be inferred that he was actively associated with McGovern in a common scheme to make and later sell the counterfeit notes. See United States v. Hopkinson, 492 F.2d 1041, 1043 (1st Cir. 1974). Evidence “otherwise relevant is not rendered inadmissible merely because its tendency is to prove the commission of some other crime.” Green v. United States, 176 F.2d 541, 543 (1st Cir. 1949).

Appellants’ final point is that the evidence of guilt was insufficient to go to the jury, and that the court should have entered a judgment of acquittal for all four defendants. Alleged deficiencies in the evidence against DiPietro and Wood are especially cited. But viewed in its aspect most favorable to the government, the evidence was adequate to support the jury’s verdicts in each instance. While Scarino’s testimony was inconsistent in some of its details, its cumulative effect was not unconvincing, and it was supported at key points by other evidence.

Affirmed.

      . There were four counts in the indictment, each relating to a separate “batch” of $20 or $10 notes. The illegal activity in Count I was allegedly in or about July, 1970; that in Counts II and III was “subsequently in 1970”; and that in Count IV was in or about November, 1970. While McGovern and Goulette figured in each count, Woods appeared only in the first two, and DiPietro only in the last two and in the first.


author: DUNIWAY, Circuit Judge:

text:
    Stephen Z. MEYERS et al., Plaintiffs-Appellants, v. BEVERLY HILLS FEDERAL SAVINGS & LOAN ASS’N. et al., Defendants-Appellees.
    No. 72-2178.
    United States Court of Appeals, Ninth Circuit.
    July 1, 1974.
    Stephen Z. Meyers (argued) of Meyers & Jacoby, Los Angeles, Cal., for plaintiffs-appellants.
    William F. McKenna (argued) of McKenna & Fitting, Los Angeles, Cal., William W. Berryhill, Glendale, Cal., Harold W. Davidson of Davidson Baker, & Davidson, Alhambra, Cal., Joel H. Jubelier of Hill, Farrer & Burrill, Dennis E. Golob of Greenberg, Bernhard, Weiss, & Karma, Inc., Los Angeles, Cal., for defendants-appellees.
    Before DUNIWAY and TRASK, Circuit Judges, and SHARP, District Judge.

       The Honorable Morrell E. Sharp, United States District Judge for the Western District of Washington, sitting by designation.

   OPINION

DUNIWAY, Circuit Judge:

This is an appeal from the district court’s judgment dismissing appellants’ action for failure to state a claim upon which relief can be granted. We affirm.

Appellants, purporting to sue on behalf of themselves and a class of persons similarly situated, filed this action in 1971 in California Superior Court, Los Angeles County, against 26 named defendants, 18 of which were alleged to be state chartered savings and loan associations and 8 of which — the present appellees — are federally chartered savings and loan associations. The complaint challenged the validity of certain prepayment penalty provisions in the loan agreements customarily entered into by appellees with borrowers in connection with real estate loans. These provisions fix the amount of money to be paid by the borrower in the event that the loan is paid off before its normal maturity date. Appellants alleged that these provisions were void under California Civil Code § 1670 and were not valid liquidated damage provisions under California Civil Code § 1671. They sought both a declaration that the prepayment penalty provisions violate § 1670 and damages.

The action was removed to federal district court upon petition by the original defendants, pursuant to 28 U.S.C. § 1441(b), on the ground that appellants’ action raised questions involving the interpretation of federal statutes. Appellants moved to remand. The district court severed appellants’ claims against the state chartered savings and loan associations and corporations from the claims against appellees, and remanded the former to the Los Angeles County Superior Court for further proceedings; the claims against the federally chartered appellees were retained.

Appellees then moved, pursuant to F. R.C.P. 12(b)(6), to dismiss the amended complaint for failure to state a claim. The district court granted the motion and ultimately dismissed the action on the ground that federal law has preempted the area of prepayments of real estate loans to federally chartered savings and loan associations. Appellants appeal from this judgment. We agree with the reasoning of the district court and affirm.

The doctrine of federal preemption stems from the supremacy clause of the Constitution: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . shall be the supreme Law of the Land. . . .” U.S.Const, art. VI, el. 2. Under that clause, “[occupation of a legislative ‘field’ by Congress in the exercise of a granted power is a familiar example of its constitutional power to suspend state laws.” Parker v. Brown, 1942, 317 U.S. 341, 350, 63 S.Ct. 307, 313, 87 L.Ed. 315. When such preemption occurs, any state law is inapplicable to an issue which arises in that “field.” Moreover, “[i]t has long been the rule that exclusion of state action may be implied from the nature of the [Congressional] legislation and the subject matter although express declaration of such result is wanting.” Bethlehem Steel Co. v. New York State Labor Relations Board, 1947, 330 U.S. 767, 772, 67 S.Ct. 1026, 1029, 91 L.Ed. 1234.

With this background, we turn to the question whether the area of prepayments of real estaté loans to federally chartered savings and loan associations is preempted by federal law. All of the appellee federal savings and loan associations operate and are organized and chartered under the Home Owner’s Loan Act of 1933, 12 U.S.C. § 1461 et seq. This Act established the Federal Home Loan Bank Board, which “is authorized, under such rules and regulations as it may prescribe, to provide for the organization, incorporation, examination, operation, and regulation of associations to be known as ‘Federal Savings and Loan Associations’, and to issue charters therefor. ...” 12 U.S.C. § 1464(a). Congress’ power to legislate in this broad area is manifest, and the constitutionality of the Act is beyond question. See, e. g., United States v. Kay, 2 Cir., 1937, 89 F.2d 19, 21-22.

Pursuant to its valid statutory authority, the Federal Home Loan Bank Board has promulgated comprehensive regulations covering all aspects of every federal savings and loan association “from its cradle to its corporate grave.” People of State of California v. Coast Federal Savings & Loan Ass’n, S.D.Cal., 1951, 98 F.Supp. 311, 316. Somewhere between the cradle and the grave is 12 C.F.R. § 545.6-12(b), which specifically covers the area of prepayment penalties:

Loan payments and prepayments.
. Each borrower from Federal associations on a loan secured by a home or combination of home and business property shall have the right to prepay the loan without penalty unless the loan contract makes express provision for á prepayment penalty. The prepayment penalty for a loan secured by a home which is occupied or to be occupied in whole or in part by a borrower shall not be more than 6 •months’ advance interest on that part of the aggregate amount of all prepayments made on such loan in any 12-month period which exceeds 20 percent of the original principal amount of the loan.

Section 545.6-12(b) represents a valid exercise of the Federal Home Loan Bank Board’s delegated power, and we therefore hold that federal law preempts the field of prepayments of real estate loans to federally chartered savings and loan associations, so that any California law in the area is inapplicable to federal savings and loan associations operating within California. U.S.Const, art. VI, cl. 2. Our holding is consistent with those of other courts which have considered preemption problems involving other parts of the Home Owners’ Loan Act of 1933. See, e. g., First Federal Savings & Loan Ass’n of Wisconsin v. Loomis, 7 Cir., 1938, 97 F.2d 831; People of State of California v. Coast Federal Savings & Loan Ass’n, supra. Appellants’ amended complaint therefore fails to state a claim upon which relief can be granted. F.R.C.P. 12(b) (6).

Affirmed.

      . Cal.Civil Code § 1670 provides, in pertinent part, that “[e]very contract by which the amount of damages to be paid . . . for a breach of an obligation, is determined in anticipation thereof, is to that extent void, except as expressly provided in the next section.”

      . Cal.Civil Code § 1671 provides, “The parties to a contract may agree therein upon an amount which shall be presumed to be the amount of damage sustained by a breach thereof, when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damages.”

      . McCulloch v. Maryland, 1819, 17 U.S. (4 Wheat.) 316, 4 L.Ed. 579. “Banking is one of the longest regulated and most closely supervised of public callings.” Fahey v. Mallonee, 1947, 332 U.S. 245, 250, 67 S.Ct. 1552, 91 L.Ed. 2030.

      . Cf. United States v. Southwestern Cable Co., 1968, 392 U.S. 157, 178, 88 S.Ct. 1994, 20 L.Ed.2d 1001.

      . “Delegation by Congress has long been recognized as necessary in order that the exertion of legislative power does not become a futility.” Sunshine Anthracite Coal Co. v. Adkins, 1940, 310 U.S. 381, 398, 60 S.Ct. 907, 915, 84 L.Ed. 1263.

      . To the extent that First Federal Savings & Loan Ass’n of Atlanta v. Norwood Realty Co., 212 Ga. 524, 93 S.E.2d 763 (1956) is apposite to the case at bar, it supports our holding. The Georgia Supreme Court there held that Georgia’s usury laws applied to loans made by federal savings and loan associations in that state. The reasoning of the court is significant: “[A]s to the loans which a federal savings and loan association may make in this State, there is no federal statute which exempts them from the operation of our usury laws and the penalty imposed for taking or charging usury.” 93 S.E.2d at 768. Since there was no federal statute or regulation dealing with the subject of usury, there was no conflict between state and federal law. There is a conflict here, however; because the Federal Home Loan Bank Board has promulgated a resolution concerning prepayment penalties, the state law must yield to the federal. The doctrinal underpinnings of Norwood Realty Go. are therefore consistent with our decision.


author: HILL, Circuit Judge.

text:
    Judy SERNA, a minor Through her parent and general guardian, Romana Serna, et al., Plaintiffs-Appellees, v. PORTALES MUNICIPAL SCHOOLS et al., Defendants-Appellants.
    No. 73-1737.
    United States Court of Appeals, Tenth Circuit.
    Argued March 20, 1974.
    Decided July 17, 1974.

      Charles A. Pharris, Albuquerque, N. M. , for defendants-appellants.
    Vilma S. Martinez, San Francisco, Cal. (Sanford Jay Rosen, Alan B. Exelrod, and Michael A. Mendelson, San Francisco, Cal., David W. Bonem, Clovis, N. M., Dan Sosa, Jr., Las Cruces, N. M., on the brief), for plaintiffs-appellees.
    C. Emery Cuddy, Jr., Santa Fe, N. M., for amicus curiae State Bd. of Ed.
    Before HILL and McWILLIAMS, Circuit Judges, and DURFEE, Judge.

       Honorable James R. Durfee, United States Court of Claims, sitting by designation.

   HILL, Circuit Judge.

Appellees in this class action are Spanish surnamed Americans seeking declaratory and injunctive relief against Portales Municipal School District for alleged constitutional and statutory violations committed under color of state law. In particular, appellees contend that appellant-school district has deprived them of their right to equal protection of the laws as guaranteed by the Fourteenth Amendment to the United States Constitution and of their statutory rights under Title VI of the 1964 Civil Rights Act, specifically § 601, 42 U.S.C. § 2000d. Jurisdiction is invoked under 28 U.S.C. § 1343.

Pertinent facts include the following. The City of Portales, New Mexico, has a substantial number of Spanish surnamed residents. Accordingly, a sizable minority of students attending the Portales schools are Spanish surnamed. Evidence indicates that many of these students know very little English when they enter the school system. They speak Spanish at home and grow up in a Spanish culture totally alien to the environment thrust upon them in the Portales school system. The result is a lower achievement level than their Anglo-American counterparts, and a higher percentage of school dropouts.

For the 1971-72 school year approximately 34 percent of the children attending Portales’ four elementary schools, Lindsey, James, Steiner and Brown, were Spanish surnamed. The junior high school and senior high school enrollments of Spanish surnamed students were 29 percent and 17 percent, respectively. Unquestionably as Spanish surnamed children advanced to the higher grades a disproportionate number of them quit school.

Appellees in their complaint charge appellant with discriminating against Spanish surnamed students in numerous respects. Allegedly there is discrimination in appellants’ failure to provide bilingual instruction which takes into account the special educational needs of the Mexican-American student; failure to hire any teachers of Mexican-American descent; failure to structure a curriculum that takes into account the particular education needs of Mexican-American children; failure to structure a curriculum that reflects the historical contributions of people of Mexican and Spanish descent to the State of New Mexico and the United States; and failure to hire and employ any administrators including superintendents, assistant superintendents, principals, vice-principals, and truant officers of Mexican-American descent. This failure to provide equal educational opportunities allegedly deprived appellees and all other similarly situated of their right to equal protection of the laws under the Fourteenth Amendment.

At trial appellees presented the following evidence to support their allegations. Until 1970 none of the teachers in the Portales schools was Spanish surnamed, including those teaching the Spanish language in junior and senior high school; there had never been a Spanish surnamed principal or vice-principal and there were no secretaries who spoke Spanish in the elementary grades.

Evidence was offered showing that in 1969 the report by Portales Municipal Schools to United States Commission on Civil Rights indicated that at Lindsey, the 86 percent Spanish surnamed school, only four students with Spanish surnames in the first grade spoke English as well as the average Anglo first grader. During an evaluation of the Portales Municipal Schools by the New Mexico Department of Education in 1969, the evaluation team concluded that the language arts program at Lindsey School “was below average and not meeting the needs of those children.” Notwithstanding this knowledge of the plight of Spanish surnamed students in Portales, appellants neither applied for funds under the federal Bilingual Education Act, 20 U.S.C. § 880b, nor accepted funds for a similar purpose when they were offered by the State of New Mexico.

Undisputed evidence shows that Spanish surnamed students do not reach the achievement levels attained by their Anglo counterparts. For example, achievement tests, which are given totally in the English language, disclose that students at Lindsey are almost a full grade behind children attending other schools in reading, language mechanics and language expression. Intelligence quotient tests show that Lindsey students fall further behind as they move from the first to the fifth grade. As the disparity in achievement levels increases between Spanish surnamed and Anglo students, so does the disparity in attendance and school dropout rates.

Expert witnesses explained what effect the Portales school system had on Spanish surnamed students. Dr. Zintz testified that when Spanish surnamed children come to school and find that their language and culture are totally rejected and that only English is acceptable, feelings of inadequacy and lowered self esteem develop. Henry Pascual, Director of the Communicative Arts Division of the New Mexico Department of Education, stated that a child who goes to a school where he finds no evidence of his language and culture and ethnic group represented becomes withdrawn and nonparticipating. The child often lacks a positive mental attitude. • Maria Gutierrez Spencer, a longtime teacher in New Mexico, testified that until a child developed a good self image not even teaching English as a second language would be successful. If a child can be made to feel worthwhile in school then he will learn even with a poor English program. Dr. Estevan Moreno, a psychologist, further elaborated on the psychological effects of thrusting Spanish surnamed students into an alien school environment. Dr. Moreno explained that children who are not achieving often demonstrate both academic and emotional disorders. They are frustrated and they express their frustration in lack of attendance, lack of school involvement and lack of community involvement. Their frustrations are reflected in hostile behavior', discipline problems and eventually dropping out of school.

Appellants’ case centered around the testimony of L. C. Cozzens, Portales’ superintendent of schools. Cozzens testified that for the 1971-72 school year out of approximately 80 applications for elementary school teaching positions only one application was from a Spanish surnamed person. Nevertheless, through aggressive recruiting Portales hired six Spanish surnamed teachers. At Lindsey a program was established to teach first graders English as a second language; and with the aid of federal funds a program was also established to serve the needs of pre-school Spanish surnamed children. At the high school level an ethnic studies program was initiated which would be directed primarily at the minority groups and their problems.

The faculty was encouraged to attend workshops on cultural awareness. Altogether over a third of the entire faculty attended one or more of these workshops.

After hearing all evidence, the trial court found that in the Portales schools Spanish surnamed children do not have equal educational opportunity and thus a violation of their constitutional right to equal protection exists. The Portales School District was ordered to:

reassess and enlarge its program directed to the specialized needs of its Spanish surnamed students at Lindsey and also to establish and operate in adequate manner programs at the other elementary schools where no bilingual-bicultural program now exists.
Defendant school district is directed to investigate and utilize whenever possible the sources of available funds to provide equality of educational opportunity for its Spanish-surnamed students.
It is incumbent upon the school district to increase its recruiting efforts and, if those recruiting efforts are unsuccessful, to obtain sufficient certification of Spanish-speaking teach- • ers to allow them to teach in the district.

Appellants, in compliance with the court’s order to submit a plan for remedial action within 90 days, thereafter filed a proposed plan. In essence the plan provided bilingual education for approximately 150 Lindsey students in grades one through four. Each group would be given instruction in Spanish for approximately 30 minutes daily. A Title VII bilingual program would be instituted for approximately 40 pre-school children. Practically all personnel employed for this program would be Spanish surnamed. At the junior high one Spanish surnamed teacher aide would be employed to help Spanish surnamed children experiencing difficulty in the language arts. At the high school a course in ethnic studies would be offered emphasizing minority cultures and their contribution to society. In connection with this program appellants applied to the State Department of Education for state bilingual funds. These funds would provide one bilingual-bicultural instructor for the school district’s other three elementary schools, and one bilingual-bicultural teacher or teacher aide at the junior high school. Seeking other sources of funding was also promised as long as the control and supervision of the programs remained with the local board of education.

Although complying with most of the court’s order, appellants noted that because enrollment is declining in the Portales schools there would be fewer teachers employed next year. Thus, very likely there would not be any positions to be filled. If a position becomes vacant, however, the school district promised to make every reasonable effort to secure a qualified teacher with a Spanish surname.

Appellees thereafter filed a Motion for Hearing to hear appellees’ objections to appellants’ program. The motion was granted and at the hearing, after stating their objections to appellants’ proposed plan, appellees introduced their own proposed bilingual-bicultural program. After reviewing both parties’ programs, the trial court entered final judgment, adopting and adding the following to its prior memorandum opinion:

I. Curriculum

A. Lindsey Elementary
All students in grades 1-3 shall receive 60 minutes per day bilingual instruction. All students in grades 4-6 shall receive 45 minutes per day bilingual instruction. These times are to be considered a minimum and should not be construed to limit additional bilingual training (i. e. the Title III self contained classroom for first graders with special English language problems).
A testing system shall be devised for determining the adequacy of the above established time periods with ensuing adjustments (either an increase or decrease in bilingual instruction) as needed.
B. James, Steiner and Brown Elementary
All Spanish-speaking students in grades 1-6 shall receive 30 minutes per day of bilingual instruction. This program should be made available to interested non-Spanish speaking students as funding and personnel become available to expand the bilingual instruction.
A bicultural outlook should be incorporated in as many subject areas as practicable.
Testing procedures shall be established to test the results of the bilingual instruction and adjustments made accordingly.
C. Junior High
Students should be tested for English language proficiency and, if necessary, further bilingual instruction should be available for those students who display a language barrier deficiency.
D. High School
An ethnic studies course will be offered in the 1973-74 school year as an elective. This course should be continued and others added in succeeding years.
The minimum curriculum schedule set forth in A through D above is not intended to limit other bilingual programs or course offerings currently available in the Portales school system or which will become available in the future.

II. Recruiting and Hiring.

A special effort should be made to fill vacancies with qualified bilingual teachers. Recruiting should be pursued to achieve this objective.

III. Funding

Defendants appear to have complied with the court’s directive to investigate and utilize sources of available funding. Efforts should continue in seeking funding for present as well as future programs which will help achieve equality of educational opportunities for Spanish-surnamed students.

Appellants promptly appealed, positing two grounds for reversal. First, appellants suggest that appellees neither have standing nor are suitable parties under Rule 23 to maintain this suit as a class action; second, that failure to afford a program of bilingual instruction to meet appellees’ needs does not deny them equal protection of the law when such needs are not the result of discriminatory actions.

Appellants’ first argument is that appellees are not suitable parties under Rule 23 to maintain this suit as a class action. In particular, appellants argue that appellees have failed to show that there are questions of law or fact common to the alleged class and that the claims of the representative parties are typical of the claims or defenses of that class. We disagree. National origin discrimination in equal educational opportunities is the alleged basis for this lawsuit. As the complaint and supporting evidence point out, 26 percent of the Portales school population are Spanish surnamed. Nevertheless, prior to the lawsuit there were no Spanish surnamed board of education members, teachers, counselors, or administrators. Nor was any attempt made by Portales school personnel to provide for the educational needs of Spanish surnamed children. These allegations clearly raise questions common to the class which appellees represent and are typical of the claims of that class. We therefore are convinced that appellees fully meet the rigid requirements of Rule 23 and thus properly filed this suit as a class action. Bossier Parish School Bd. v. Lemon, 370 F.2d 847 (5th Cir. 1967), cert. den’d, 388 U.S. 911, 87 S.Ct. 2116, 18 L.Ed.2d 1350.

Appellants also challenge appellees’ standing to bring this suit because appellees have failed to show a personal stake in the outcome of this action. We cannot agree; the complaint was filed by parents of school age children and the Chicano -Youth Association. Each minor child is allegedly a student in the Portales schools or was excluded therefrom. The complaint alleges that those and all Spanish surnamed school children have been subject to discrimination by the school district. We believe appellees have satisfactorily alleged that appellants’ discriminatory actions caused them injury in fact and hence they have standing to sue. Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968); Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Bossier Parish School Bd., supra.

Appellants next challenge the district court’s holding that the Portales municipal schools denied appellees equal protection of the law by not offering a program of bilingual education which met their special educational needs. In light of the recent Supreme Court decision in Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974), however, we need not decide the equal protection issue. Lau is a case which appellants admit is almost identical to the present one. In Lau non-English speaking Chinese students filed a class suit against the San Francisco Unified School District. The facts showed that only about half of the 3,457 Chinese students needing special English instruction were receiving it. The Chinese students sought relief against these unequal educational opportunities which they alleged violated the Fourteenth Amendment. The district court denied relief, and the Court of Appeals affirmed, holding that there was no violation of the equal protection clause of the Fourteenth Amendment nor of § 601 of the Civil Rights Act of 1964. The Supreme Court, without reaching the equal protection clause argument but relying solely on § 601 of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, reversed the Court of Appeals.

The Supreme Court notes that the State of California requires English to be the basic language of instruction in public schools. Before a pupil can receive a high school diploma of graduation he must meet the standards of proficiency in English. A student who does not understand the English language and is not provided with bilingual instruction is therefore effectively precluded from any meaningful education. The Court concludes that such a state imposed policy, which makes no allowance for the needs of Chinese-speaking students, is prohibited by § 601. The reason for this is that § 601 bans discrimination based “on the ground of race, color, or national origin” in “any program or activity receiving Federal financial assistance.” In reaching its conclusion the Court relies heavily upon HEW regulations that require school systems to assure that students of a particular national origin are not denied the opportunity to obtain the education generally obtained by other students in the system. In particular the Court noted that HEW has ordered school systems to take remedial steps to rectify language deficiency problems.

Where inability to speak and understand the English language excludes national origin-minority group children from effective participation in the educational program offered by a school district, the district must take affirmative steps to rectify the language deficiency in order to open its instructional program to these students. 35 Fed.Reg. 11595 (1970).

Finally, the Court reasons that because the San Francisco school district contractually agreed to comply with Title VI of the 1964 Civil Rights Act and all HEW regulations, the federal government can fix the terms on which its money allotments to that district will be disbursed. The case was accordingly remanded to the Court of Appeals for the fashioning of appropriate relief.

As noted above, the factual situation in the instant case is strikingly similar to that found in Lau. Appelle.es are Spanish surnamed students who prior to this lawsuit were placed in totally English speaking schools. There is substantial evidence that most of these Spanish surnamed students are deficient in the English language; nevertheless no affirmative steps were taken by the Portales school district to rectify these language deficiencies.

The trial court noted in its memorandum opinion that appellees claimed deprivation of equal protection guaranteed by the Fourteenth Amendment and of their statutory rights under Title VI of the 1964 Civil Rights Act, specifically § 601. While the trial court reached the correct result on equal protection grounds, we choose to follow the approach adopted by the Supreme Court in Lau\ that is, appellees were deprived of their statutory rights under Title VI of the 1964 Civil Rights Act. As in Lau, all able children of school age are required to attend school. N.M.Const. Art. XII, § 5. All public schools must be conducted in English. N.M.Const. Art. XXI, § 4. While Spanish surnamed children are required to attend school, and if they attend public schools the courses must be taught in English, Portales school district has failed to institute a program which will rectify language deficiencies so that these children will receive a meaningful education. The Portales school curriculum, which has the effect of discrimination even though probably no purposeful design is present, therefore violates the requisites of Title VI and the requirement imposed by or pursuant to HEW regulations. Lau, supra.

Appellants argue that even if the school district were unintentionally discriminating against Spanish surnamed students prior to institution of this lawsuit, the program they presented to the trial court in compliance with the court’s memorandum opinion sufficiently meets the needs of appellees. The New Mexico State Board of Education (SBE), in its Amicus Curiae brief, agrees with appellants’ position and argues that the trial court’s decision and the relief granted constitute unwarranted and improper judicial interference in the internal affairs of the Portales school district. After reviewing the entire record we are in agreement with the trial court’s decision. The record reflects a long standing educational policy by the Portales schools that failed to take into consideration the specific needs of Spanish surnamed children. After appellants submitted a proposed bilingual-bicultural program to the trial court a hearing was held on the adequacies of this plan. At this hearing expert witnesses pointed out the fallacies of appellants’ plan and in turn offered a more expansive bilingual-bicultural plan. The trial court thereafter fashioned a program which it felt would meet the needs of Spanish surnamed students in the Portales school system. We do not believe that under the unique circumstances of this case the trial court’s plan is unwarranted. The evidence shows unequivocally that appellants had failed to provide appellees with a meaningful education. There was adequate evidence that appellants’ proposed program was only a token plan that would not benefit appellees. Under these circumstances the trial court had a duty to fashion a program which would provide adequate relief for Spanish surnamed children. As the Court noted in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971), “[o]nce a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.” Under Title VI of the Civil Rights Act of 1964 appellees have a right to bilingual education. And in following the spirit of Swann, supra, we believe the trial court, under its inherent equitable power, can properly fashion a bilingual-bicultural program which will assure that Spanish surnamed children receive a meaningful education. See also Green v. School Bd., 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); Brown v. Bd. of Education (II), 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955). We believe the trial court has formulated a just, equitable and feasible plan; accordingly we will not alter it on appeal.

The New Mexico State Board of Education stresses the effect the decision will have on the structure of public education in New Mexico. It is suggested that bilingual programs will now be necessitated throughout the state wherever a student is found who does not have adequate facility in the English language. We do not share SBE’s fears. As Mr. Justice Blackmun pointed out in his concurring opinion in Lau, numbers are at the heart of this case and only when a substantial group is being deprived of a meaningful education will a Title VI violation exist.

      . Lindsey school’s enrollment consisted of nearly 86 percent Spanish surnamed children while the ethnic composition of students at the other three elementary schools was 78 to 88 percent Anglo.