author: IRVING R. KAUFMAN, Chief Judge: ROBERT P. ANDERSON, Circuit Judge

text:
    UNITED STATES of America ex rel. Julio Juventino LUJAN, on the petition of Frank A. Lopez, Petitioner-Appellant, v. Warden Louis GENGLER, Superintendent, Federal Detention Headquarters, New York City, and Hon. David G. Trager, United States Attorney for the Eastern District of New York, and any other person having custody and control of the relator, Respondents-Appellees.
    No. 449, Docket 74-2084.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 6, 1974.
    Decided Jan. 8, 1975.
    Certiorari Denied June 2, 1975.
    See 95 S.Ct. 2400.
    Frank A. Lopez, Brooklyn, N.Y., for petitioner-appellant.
    Edward R. Korman, Chief Asst. U. S. Atty., E.D.N.Y., for respondents-appellees.

      Before KAUFMAN, Chief Judge, and ANDERSON and OAKES, Circuit Judges.
   IRVING R. KAUFMAN, Chief Judge:

The facts of this case present elements one might expect to encounter in a grade-B film scenario — an organized underworld conspiracy to import massive quantities of heroin into the United States, and American agents kidnapping the leading perpetrators from South America to bring them to trial. Our role in this drama is to determine whether our recent decision in United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974), petition for rehearing en banc denied, 504 F.2d 1380 (1974) (Mulligan and Timbers, JJ., noting their dissent from the denial of the petition for en banc consideration), precludes the court below from asserting jurisdiction over the protagonist, Julio Juventino Lujan, an Argentine citizen. We conclude that Toscanino does not extend to Lujan’s case, and affirm the judgment of the district court.

I.

A grand jury empanelled in the Eastern District of New York indicted Lujan and eight others on July 19, 1973, charging them with conspiracy to import and distribute a large quantity of heroin. The conspiracy described was wide-ranging, involving overt acts in France, Brazil, Uruguay, Peru, Mexico, and Queens, New York, and the quantities of heroin involved were enormous. Arrest warrants were issued for all defendants with the exception of Francisco Toscanino, the subject of our earlier decision, who had been convicted two weeks earlier on another conspiracy to import I8V2 kilograms of heroin. The warrant for Lujan’s arrest commanded any special agent of the Drug Enforcement Administration, United States Marshal or Deputy Marshal to bring him before the District Court for the Eastern District of New York.

Accepting, as we must for purposes of this appeal, that Lujan’s allegations are true, the arrest warrant was enforced in an unconventional manner. Lujan, a licensed pilot, was hired in Argentina by one Duran to fly him to Bolivia. Although Duran represented that he had business to transact there with American interests in Bolivian mines, he in fact had been hired by American agents to lure Lujan to Bolivia. When Lujan landed in Bolivia on October 26, 1973, he was promptly taken into custody by Bolivian police who were not acting at the direction of their own superiors or government, but as paid agents of the United States. Lujan was not permitted to communicate with the Argentine embassy, an attorney, or any member of his family.

On the following day the Bolivian police, commanded by Police Major Guido Lopez, took Lujan from Santa Cruz to La Paz, where he was held until November 1, 1973. On that date a Lieutenant Terrazas and other Bolivian police, acting together with American agents, brought Lujan to the airport and placed him on a plane bohnd for New York. Upon his arrival at Kennedy Airport Lujan was formally arrested by federal agents. At no time had he been formally charged by the Bolivian police, nor had a request for extradition been made by the United States.

Lujan was arraigned on the day of his arrival, and pleaded not guilty. After this court’s decision in Toscanino, Lujan took steps to challenge the manner in which he was brought to the United States. A series of procedural moves ensued, but the posture of the case before us is relatively straightforward. Judge Mishler dismissed without a hearing Lujan’s petition for a writ of habeas corpus on June 21, 1974, and Lujan appeals.

II.

Since Lujan’s allegations are to be measured against Toscanino, the facts of that case must be presented in some detail. Toscanino, an Italian citizen, alleged that he had been kidnapped from his home in Montevideo, Uruguay, brought to Brazil, and taken from that country to stand trial in the United States, all at the illegal instigation of the United States government. The particular circumstances of the abduction, if Toscanino’s claims are true, represent government conduct appropriately condemned as most inhuman.

Toscanino charged and was prepared to establish that on January 6, 1973, he and his seven-month pregnant wife had been lured to a deserted area in Montevideo by seven Uruguayan policemen, acting as paid agents of the United States government. Toscanino was knocked unconscious with a gun in full view of his wife, bound and blindfolded, and thrown into the rear seat of a car. During a long and circuitous trip to the Brazilian border his abductors dodged the Uruguayan authorities, and at one point, a gun was placed to Toscanino’s head to compel him to lie quietly while a Uruguayan military convoy passed.

Toscanino was eventually brought to Brasilia, where over a period of seventeen days -he — \yas incessantly subjected to brutal tqrture and interrogation by Brazilians acting as agents of the United States government. His captors, he claimed, denied him sleep and all forms of nourishment for days at a time. He was fed only intravenously in amounts barely sufficient to keep him alive. He was compelled to walk up and down a hallway for seven or eight hours at a time, and when he fell, was kicked and beaten. To induce him to respond to the interrogation, his fingers were pinched with metal pliers, alcohol was flushed into his eyes and nose, and other fluids were forced in his anal passage. Electrodes were attached to his earlobes, toes, and genitals, and electricity was shot throughout his body, leaving him unconscious for periods of time.

Throughout this period, Toscanino asserted, the United States government and the United States Attorney for the Eastern District of New York were aware of the interrogation and received reports of its progress. Moreover, a member of the Bureau of Narcotics and Dangerous Drugs of the Department of Justice was present at times, and actually participated in some of the interrogation.

Eventually, Toscanino claimed, he was drugged and flown to New York. He awakened when the aircraft reached the United States. Upon landing and while still aboard he was arrested. The district court never held a hearing with respect to Toscanino’s allegations.

On the appeal from his conviction, we held that Toscanino had alleged a violation of due process which, if proved, would require the district court to divest itself of jurisdiction over him. Our opinion recognized the traditional rule, set forth in a line of cases from Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886) to Frisbie v. Collins, 342.U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952), declaring that the manner in which a defendant was brought into the United States did not affect the court’s power to proceed. The Ker-Frisbie doctrine was rooted in the perception that

due process of law is satisfied when one present in court is convicted of crime after being fairly apprised of the charges against him and after a fair trial in accordance with constitutional procedural safeguards.

Frisbie, 342 U.S. at 522, 72 S.Ct. at 512. Its effect was to render “police brutality and lawlessness,” Toscanino, 500 F.2d at 272, involved in obtaining jurisdiction over the defendant almost wholly immune from judicial scrutiny.

Toscanino viewed the Ker-Frisbie doctrine, however, as not preventing judicial scrutiny of conduct of the most outrageous and reprehensible kind by United States government agents, because of recent pronouncements by the Supreme Court in the area. Id. at 272-275. Any other approach, Toscanino declared, would be inconsistent with cases refusing to permit the government to benefit from illegal police conduct in obtaining evidence, id. at 272, citing Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), extracting confessions, id., citing Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1961), and inducing criminal conduct by the defendant, id., citing United States v. Russell, 411 U.S. 423, 430-431, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973).

Yet in recognizing that Ker and Frisbie no longer provided a carte blanche to government agents bringing defendants from abroad to the United States by the use of torture, brutality and similar outrageous conduct, we did not intend to suggest that any irregularity in the circumstances of a defendant’s arrival in the jurisdiction would vitiate the proceedings of the criminal court. In holding that Ker and Frisbie must yield to the extent they were inconsistent with the Supreme Court’s more recent pronouncements we scarcely could have meant to eviscerate the Ker-Frisbie rule, which the Supreme Court has never felt impelled to disavov(. Although we cited other cases m Toscanino as evidence of the partial erosion of Ker and Frisbie, the twin pillars of our holding were Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952) and dictum in United States v. Russell, 411 U.S. at 431-132, 93 S.Ct. 1637, both of which dealt with government conduct of a most shocking and outrageous character. For example, in Rochin, which Toscanino described as an illustration of when the Frisbie rule would yield, an emetic solution was' forced through a tube into a defendant’s stomach to recover two morphine capsules which he had swallowed; the capsules were later introduced at his trial. We quoted at length from Justice Frankfurter’s opinion reversing the conviction because the government conduct had been found to “offend those canons of decency and fairness which express the notions of justice of English-speaking peoples,” to “shock the conscience," and to “offend a ‘sense of justice.’ ” 342 U.S. at 172 — 173, 72 S.Ct. at 209—210. Similarly, we cited Russell for the proposition that “The force of Rochin continues to be recognized,” 500 F.2d at 274, and noted the Court’s warning that

we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction . . .. 411 U.S. at 431-432 93 S.Ct. at 1643.

The cruel, inhuman and outrageous treatment allegedly suffered by Toseanino brought his case within the Rochin principie and demanded that we provide him a remedy. Since there was no “fruit” of the abduction which could be suppressed other than the conviction which ensued, we concluded that the sole effective remedy was to order Toscanino’s release if he proved his allegations. 500 F.2d at 275.

But the same cannot be said of Lujan. It requires little argument to show that the government conduct of which he complains pales by comparison with that alleged by Toscanino. Lacking from Lujan’s petition is any allegation of that complex of shocking governmental conduct sufficient to convert an abduction which is simply illegal into one which sinks to a violation of due process. Unlike Toscanino, Lujan does not allege that a gun blow knocked him unconscious when he was first taken into captivity, nor does he claim that drugs were administered to subdue him for the flight to the United States. Neither is there any assertion that the United States Attorney was aware of his abduction, or of any interrogation. Indeed, Lujan disclaims any acts of torture, terror, or custodial interrogation of any kind.

In sum, but for the charge that the law was violated during the process of transporting him to the United States, Lujan charges no deprivation greater than that which he would have endured through lawful extradition. We scarcely intend to convey approval of illegal government conduct. But we are forced to recognize that, absent a set of incidents like that in Toscanino, not every violation by prosecution or police is so egregious that Rochin and its progeny requires nullification of the indictment.

III.

Nor do we believe that Lujan’s allegation that his abduction violated the charters of the United Nations and the Organization of American States makes Toscanino applicable to his case. In Toscanino we first emphasized that Ker and Frisbie had been undermined by recent due process precedents, and in addition had involved criminal prosecutions by state courts, thus barring the invocation of the federal judicial supervisory power. We further distinguished those cases, however, by noting that neither involved a violation of an international agreement to which the United States was a party. On this ground, too, we distinguished United States v. Sobell, 244 F.2d 520 (2d Cir.), cert. denied, 355 U.S. 873, 78 S.Ct. 120, 121, 2 L.Ed.2d 77 (1957). Sobell, Toscanino pointed out, based his claim solely on the extradition treaty with Mexico, and it was well-established that such treaties were not violated by the illegal abduction of a particular defendant.

We observed, however, that Toscanino’s abduction violated the United Nations Charter, art. 2, para. 4, and the charter of the Organization of American States, art. 17, both of which proscribed use of force by one state against the territory of another. As evidence that abductions would contravene those provisions, Toscanino relied principally on the Eichmann incident, in which the U.N. Security Council, in response to a formal complaint filed by the United Nations representative from Argentina, found that Argentinian sovereignty was violated when Israeli and other “volunteers” kidnapped the mass murderer from Argentina in order to bring him to justice. And, we suggested, a defendant might be able to interpose the violation of those charters as a defense to a criminal prosecution.

But unlike Toscanino, Lujan fails to allege that either Argentina or Bolivia in any way protested or even objected to his abduction. This omission is fatal to his reliance upon the charters. The provisions in question are designed to protect the sovereignty of states, and it is plainly the offended states which must in the first instance determine whether a violation of sovereignty occurred, or requires redress. H. Kelsen, Principles of International Law 234 (Tucker ed. 1966); ALI, Restatement (Second) of the Foreign Relations Law of the United States § 1, comment f; § 163, comment d (1965). Indeed, even where a treaty provides certain benefits for nationals of a particular state — -such as fishing rights— it is traditionally held that

any rights arising out of such provisions are, under international law, those of the states and . . . individual rights are only derivative through the states.

Id. § 115, comment e.

Thus, the failure of Bolivia or Argentina to object to Lujan’s abduction would seem to preclude any violation of international law which might otherwise have occurred. As the comment to Article 16 of the Harvard Research in International Law Draft Extradition Treaty noted:

It only remains to be emphasized that by no means every irregularity in the recovery of a fugitive from criminal justice is a “recourse to measures in violation of international law or international convention.” If the State in which the fugitive is found acquiesces or agrees, through its officers or agents, to - a surrender accomplished even in the most informal and expeditious way, there is no element of illegality.

29 Am.J.Int’l Law Supp. 631 (1935). The Rule is no more than a particular application of the general principle that consent or acquiescence by the offended state waives any right it possessed, and heals any violation of international law. 1 G. Schwarzenberger, Manual of International Law 162 (4th ed. 1960).

This rule has been expressed in numerous cases. For example, in the Eichmann trial, to which we referred in Toscanino, the Supreme Court of Israel permitted the execution to proceed because Argentina, in a joint communique with Israel, had waived its objections and thereby cured any violation of international law. 6 M. Whiteman, Digest of International Law 1110 (1968). Similarly, the Permanent Court of Arbitration at the Hague declined to order the return to France of Savarkar, an Indian prisoner who had escaped to France from a British ship only to be turned over to British authorities by a member of the French gendarmerie. The Court of Arbitration held that the French official’s act had vitiated any violation of French sovereignty which might otherwise have occurred. 2 G. Hackworth, Digest of International Law 319 (1941), citing 1 Scott, The Hague Court Reports 275 (1916). And in our recent decision in Fiocconi v. Attorney General of the United States, 462 F.2d 475 (2d Cir.), cert. denied, 409 U.S. 1059, 93 S.Ct. 552, 34 L.Ed.2d 511 (1972), we held that Italy’s surrender of Fiocconi as a matter of “comity” to permit him to stand trial in the District of Massachusetts did not prevent the United States from also trying him for an unrelated but similar offense in the Southern District of New York, since it was unlikely that Italy would regard the additional trial as a breach of the terms of the surrender. See also United States ex rel. Donnelly v. Mulligan, 76 F.2d 511 (2d Cir. 1935); Case of Wilson and McElvery, 4 J. Moore, Digest of International Law 329 (1906).

Indeed, we recognized in Toscanino that abduction from another country violates international law only when the offended state objects to the conduct. There, we distinguished United States v. Cotten, 471 F.2d 744 (9th Cir. 1973) as a case in which a forcible abduction violated no international law since the defendants had been voluntarily turned over to United States representatives by the Vietnamese authorities.

We do not have to decide here whether, in the absence of a claim of torture or of similar reprehensible conduct, the violation of international law alone would require dismissal of an indictment. We hold only that given Lujan’s failure to allege that Argentina or Bolivia protested his abduction or that the abduction involved abuse of the type we condemned in Toscanino, there is no justification for ordering the district court to divest itself of jurisdiction over him.

Affirmed.

ROBERT P. ANDERSON, Circuit Judge

(concurring)!

As Judge Kaufman has noted at the beginning of his opinion, the disposition of this case turns upon an interpretation of the holding of a panel of this court in United States v. Toscanino, 500 F.2d 267 (2 Cir. 1974). As a member of that panel I concurred in the result only, because I was of the opinion that the case could be disposed of on due process grounds alone, and I still adhere to that view. In the present case there is no claim of cruel, brutal and inhumane treatment of Lujan by agents of the United States in foreign countries as there was in Toscanino. Lujan was a citizen and resident of Argentina, that is to say, a foreign national who was not a fugitive from the United States. He was lured from Argentina to Bolivia, and was there abducted, forcibly put on a plane and brought to the United States where he was arrested and prosecuted in the United States District Court for the Eastern District of New York. The question is whether, solely in the light of due process considerations, the district court had jurisdiction over Lujan. The discussion in the majority opinion in Toscanino of the due process issue, as well as the mention of this court’s supervisory power over the administration of criminal justice in this Circuit read, in my opinion, as if the kidnapping from his own country and the forcible delivery into the United States of a non-fugitive foreign national, standing alone, would be sufficient to deprive the district court of jurisdiction, Toscanino, 500 F.2d at pp. 274-276.

After Toscanino was decided, however, a motion was made for a hearing in banc. A majority of the active members of the court voted to deny the petition for a hearing in banc, three judges dissenting. In so doing the majority obvinnsly interpreted the decision in Toscanin o as resting solely and exclusively upon the use of torture and other cruel and inhumane treatment of Toscanino in effecting his kidnapping and it rejected the proposition that a kidnapping of~ a foreign national from ins own or another nation and his forcible delivery into the United States against his will, but without torture, would itself violate.......due process. This interpretation of ToscaniñoTías become the law of this Circuit. It has been similarly construed by another Circuit, United States v. Herrera, 504 F.2d 859 (5 Cir. 1974).

.1, therefore, concur in the opinion in the present case. Judge Kaufman has correctly, it seems to me, noted and applied the thrust of the action of the majority of this court in denying an in banc hearing in Toscanino, to the effect that whenever a foreign national is abducted or kidnapped from outside of the United States and is forcibly brought into this Country by United States agents by means of torture, brutality or similar physical abuse the federal court acquires no jurisdiction over him because of a violation of due process. Otherwise the holdings of the Supreme Court in Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886), and Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952), govern.

      . Two members of this panel also participated in Toscanino. Judge Oakes concurred in Judge Mansfield’s majority opinion in that case, and Judge Anderson in a separate opinion concurred in the result.

      . At the request of the government, which sought to have the parameters of Toscanino clarified, Judge Mishler first granted Lujan’s motion to dismiss. The government filed notice of appeal on June 7, 1974. Subsequently, it withdrew its appeal and moved for reinstatement of the indictment. Judge Mishler then vacated his prior order dismissing the indictment, and on the same day dismissed Lujan’s petition for habeas corpus.

      . There were limited exceptions to the Ker-Frisbie rule. If the defendant was brought into the United States under an extradition treaty, the “principle of specialty” decreed that he could be tried only‘for the crime for which he was extradited. United States v. Rauscher, 119 U.S. 407, 7 S.Ct. 234, 30 L.Ed. 425 (1886) (decided on the same day as Ker). A similar result occurred when the United States had signed a treaty which imposed a territorial limitation on its own authority. Cook v. United States, 288 U.S. 102, 53 S.Ct. 305, 77 L.Ed. 641 (1933). In addition, those responsible for the abduction might under some circumstances be extradited for kidnapping, see, e.g., Villareal v. Hammond, 74 F.2d 503 (5th Cir. 1934); Collier v. Vaccaro, 51 F.2d 17 (4th Cir. 1931), and might be liable in a foreign court for civil damages as well.

      . Indeed, the courts of other circuits have continued to adhere to the Ker-Frisbie rule. See, e. g., United States v. Herrera, 504 F.2d 859, (5th Cir. 1974); United States v. Vicars, 467 F.2d 452 (5th Cir. 1972), cert. denied, 410 U.S. 967, 93 S.Ct. 1451, 35 L.Ed.2d 702 (1973); United States ex rel. Calhoun v. Twomey, 454 F.2d 326 (7th Cir. 1971); United States v. Sherwood, 435 F.2d 867 (10th Cir. 1970), cert. denied, 402 U.S. 909, 91 S.Ct. 1381, 28 L.Ed.2d 649 (1971); Sewell v. United States, 406 F.2d 1289, 1292-1293 & n.2 (8th Cir. 1969); Brown v. Fogel, 387 F.2d 692, 696 n.7 (4th Cir. 1967); Tynan v. Eyman, 371 F.2d 764 (9th Cir. 1970), cert denied, 393 U.S. 954, 89 S.Ct. 383, 21 L.Ed.2d 366 (1968).

      . As the passage from Russell cited in the text indicates, the relevance of the Rochin principle is not that it provides a test which may easily be applied, see Irvine v. California, 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561 (1954), but that it embodies a perception which remains viable — a court which would ordinarily stay its hand will intervene when government conduct becomes so outrageous that conscience and justice demand a remedy.

      . Article 2 paragraph 4 of the United Nations Charter provides:
      All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the Purposes of the United Nations. 59 Stat. 1035.

      . Article 17 of the charter of the Organization of American States provides:
      The territory of a State is inviolable; it may not be the object, even temporarily, of military occupation or of other measures of force taken by another State, directly or indirectly, on any grounds whatever. No territorial acquisitions or special advantages obtained either by force or by other means of coercion shall be recognized.

      . Toscanino, by contrast, alleged the following:
      In fact, the Uruguayan government claims that it had no prior knowledge of the kidnapping nor did it consent thereto and had indeed condemned this kind of apprehension as alien to its laws. 500 F.2d at 270. We believe that to support this claim, Toscanino would have to prove that the Uruguayan government registered an official protest with the United States Department of State.

      . We note that Lujan was taken into custody only after an arrest warrant was issued. Since, therefore, there was probable cause for Lujan’s arrest, and since the failure of Argentina or Bolivia to object suggests that they would have been receptive to Lujan’s extradition, we decline to adopt in this case the extreme remedy of requiring dismissal of the indictment. For unlike the exclusionary rule which prohibits use of illegally obtained evidence or confessions, adoption of an exclusionary rule here would confer a total immunity to criminal prosecution. Moreover, the controls which otherwise exist to prevent illegal abductions — the financial cost of the operation, the possibility of alienating other nations, and the risk that the kidnappers would be prosecuted in a foreign territory for their offense — suggest that the likelihood of numerous violations is not real. If this assumption should, in the future, prove to be ill-founded, our conclusion can be reconsidered. See Mapp v. Ohio, 367 U.S. 643, 650-653, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) overruling Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949).

      . Because we held for other reasons that it does not control this case, we find it unnecessary to decide whether Toscanino should be given retroactive effect. The issues are, of course, interrelated, for whether a decision is retroactive depends in part on its rationale, the extent to which it overturned prior law, and the breadth of its effect. See Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Accordingly, we were first required to consider the scope of the holding in Toscanino, and our views on that point, standing alone, require affirmance.


source: Caselaw Access Project

author: NEWMAN, District Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Salvatore CIRAMI and James Cirami, Appellants.
    No. 1179, Docket 74-1492.
    United States Court of Appeals, Second Circuit.
    Argued July 16, 1974.
    Decided Jan. 24, 1975.
    Certiorari Denied May 12, 1975.
    See 95 S.Ct. 1952.

      Robert E. Scher, New York City (Raphael, Searles, Vischi, Scher, Glover & D’Elia, New York City, on the brief), for appellants.
    Richard B. Buhrman, Atty., Tax Div., U. S. Dept, of Justice, Washington, D. C. (Scott P. Crampton, Asst. Atty. Gen., Ernest J. Brown, Crombie J. D. Garrett, Attys., Tax Div., U. S. Dept, of Justice, Washington, D. C., and Edward J. Boyd, U. S. Atty. for the Eastern District of New York, on the brief), for appellee.
    Before MULLIGAN and WINTER, Circuit Judges, and NEWMAN, District Judge.

       Of the United States Court of Appeals, Fourth Circuit, sitting by designation.

       Of the United States District Court, District of Connecticut, sitting by designation.

   NEWMAN, District Judge:

Salvatore and James Cirami appeal from multi-count convictions for revenue law violations. The appellants are principal officers of Air Package Distribution Service Ltd. (hereinafter “the corporation”), a trucking company that provides pickup and delivery service to airlines. The corporation sought to classify its truck drivers as independent contractors, rather than employees, thereby attempting to evade its obligation for paying taxes imposed by the Federal Insurance Contributions Act (social security) and the Federal Unemployment Tax Act.

A nineteen-count indictment charged the Ciramis with three sets of violations. Counts 1 through 14 alleged that they attempted to evade social security taxes due for fourteen calendar quarters in 1967 through 1970 by filing false and fraudulent employer’s quarterly tax returns understating the amount of taxable wages paid, in violation of 26 U.S.C. § 7201 and 18 U.S.C. § 2. Counts 15 through 17 alleged similar violations with respect to attempted evasion of federal employment taxes for the years 1967, 1968, and 1969. Counts 18 and 19 alleged that the appellants, in violation of 26 U.S.C. § 7206(2), aided and assisted in the preparation of false United States Information Returns (form 1099) for the years 1968 and 1969, which stated that the recipients of payments from the corporation were independent contractors rather than employees. After a trial before Judge Mark A. Costantino and a jury, appellants were convicted on eighteen of the nineteen counts, Count 16 having been dismissed. Appellants were sentenced to pay fines on each of the eighteen counts resulting in conviction, and were also placed on probation.

Appellants’ attack upon the sufficiency of the evidence is without merit, and no useful purpose would be served by detailing the circumstances from which the jury was abundantly justified in concluding, under unchallenged and proper instructions, that the truck drivers were regular employees of the corporation and that both appellants wilfully participated in the attempt to evade corporate taxes by filing false returns that concealed the employee status of the drivers.

The principal issue on appeal arises because of a mistake made by the Government in drafting for the Grand Jury’s consideration the first seventeen counts of the indictment. Count 1, set out in full in the margin, was drafted in an effort to follow the standard form for alleging attempted evasion of corporate taxes by responsible corporate officials. The manner of attempted evasion was alleged to be the filing by the appellants of false employer’s quarterly returns. The falsity was alleged by comparing the wages reported to have been paid some employees and the taxes due thereon with the higher amount of wages actually paid to all employees and the corresponding higher amount of taxes due thereon. The mistake occurred when it was alleged that the higher amount of taxes was owed by the appellants, rather than by the corporation. After alleging the correct amount of wages to be $39,-401.82, Count 1 continued: “upon which wages the defendants owed to the United States of America federal income taxes withheld from wages and Federal Insurance Contributions Act taxes due in the total amount of $3,467.36.” . The deletion of the quoted words, and of corresponding language from Counts 2 through 17, upon motion by the Government after it had rested, is challenged by appellants as a denial of their Fifth Amendment right to trial upon an indictment of a grand jury.

Ever since the Supreme Court announced in Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887), that an indictment cannot be amended except by resubmission to a grand jury, the law has been in a “confused state,” United States v, Edwards, 465 F.2d 943, 950 (9th Cir. 1972), as to whether any alteration is permissible and if so, how any appropriate changes may properly be made. While a “no amendment” rule has been stated, e. g., Dodge v. United States, 258 F. 300 (2d Cir.), cert. denied, 250 U.S. 660, 40 S.Ct. 10, 63 L.Ed. 1194 (1919), changes of various sorts have in fact been approved, e. g., United States v. Colasurdo, 453 F.2d 585 (2d Cir. 1971), cert. denied, 406 U.S. 917, 92 S.Ct. 1766, 32 L.Ed.2d 116 (1972). See cases collected in Heisler v. United States, 394 F.2d 692, 695—696, nn. 2-6 (9th Cir.), cert. denied, 393 U.S. 986, 89 S.Ct. 463, 21 L.Ed.2d 448 (1968). The Supreme Court has stated that a “useless averment” of an indictment may be ignored, Ford v. United States, 273 U.S. 593, 602, 47 S.Ct. 531, 71 L.Ed. 793 (1927), and courts have regularly permitted juries to disregard as surplusage language in an indictment not essential to the allegations of the offense charged. See, e. g., United States v. Archer, 455 F.2d 193 (10th Cir.), cert. denied, 409 U.S. 856, 93 S.Ct. 135, 34 L.Ed.2d 100 (1972); United States v. Colasurdo, supra.

Despite this modern line of cases, uncertainty has persisted as to the propriety of withdrawing indictment language from a trial jury’s consideration because Bain, which “has never been disapproved,” Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), itself involved the withdrawal from the jury’s consideration of language not essential to the offense charged. Bain, an officer of a banking association, was charged with making a. false report with intent to deceive the Comptroller of the Currency and the agent appointed to examine the affairs of the association. The trial court eliminated the reference to the Comptroller of the Currency. The Supreme Court reversed even though the balance of the indictment adequately stated an offense. The Court was concerned that the grand jury might have indicted only because the Comptroller of the Currency had been deceived. 121 U.S. at 10, 7 S.Ct. 781, 30 L.Ed. 849. Implicit in this holding is the view that the Fifth Amendment protects a defendant from being tried on minimally sufficient allegations of an offense unless a grand jury has made the prior determination that it considers those allegations sufficient to warrant the exercise of its prosecuting discretion. See Gaither v. United States, 134 U.S.App.D.C. 154, 413 F.2d 1061 (1969).

This Court has viewed Bain as holding that some deletions of unnecessary language may work an impermissible “fundamental change” in the charge set forth in an indictment, even though a legally sufficient allegation remains. See United States v. Colasurdo, supra, 453 F.2d at 590. That type of change, involving the disregard of 'language that might well have had a significant bearing on the grand jury’s decision to indict, may still violate the Bain rule. Even this interpretation of Bain may have been eroded by the Supreme Court’s opinion in Stirone v. United States, supra, which interpreted Bain as standing for “the rule that a court cannot permit a defendant to be tried on charges that are not made in the indictment against him.” 361 U.S. at 217, 80 S.Ct. at 273. This view appears to express concern only with the addition of charging language, rather than its deletion.

The disregarded portions of the indictment in this case were plainly surplusage. The manner of an attempted evasion of income taxes has been deemed not essential to a valid indictment. Hayes v. United States, 407 F.2d 189 (5th Cir.), cert. dismissed, 395 U.S. 972, 89 S.Ct. 2133, 23 L.Ed.2d 777 (1969); Heasley v. United States, 218 F.2d 86 (8th Cir.), cert. denied, 350 U.S. 882, 76 S.Ct. 134, 100 L.Ed. 778 (1955). Here, the manner of attempted evasion — filing false returns — was adequately stated even after the deletion, the omitted words concerning only the correct amount of taxes due. Nor do we think there is any substantial likelihood that the grand jury would have failed to indict the appellants for their actions in wilfully filing false returns even if the grand jurors had understood that the taxes were due from the corporation and not from the appellants.

Appellants further contend that the deletions that occurred here caused them prejudice because of the manner in which they chose to defend. At trial the 1. R.S. special agent acknowledged, on cross-examination, that no notice had been given the corporation of its obligation to pay social security taxes for its employees, nor had any assessment been made of taxes due. Of course, no notice or assessment was necessary prior to a prosecution for attempted evasion. Ford v. United States, 233 F.2d 56 (5th Cir.), cert. denied, 352 U.S. 833, 77 S.Ct. 49, 1 L.Ed.2d 53 (1956). In any event neither the cross-examination of the special agent, nor any other evidence developed at the trial, sought to place the obligation to pay taxes upon the appellants or to shift it to the corporation, where it belonged. The jury’s attention was simply never directed to the question of who was liable for payment of taxes, an issue of no relevance in this attempted evasion case. This case is thus totally unlike United States v. Wolfson, 437 F.2d 862 (2d Cir. 1970), where substantial evidence was submitted to the jury in support of allegations subsequently withdrawn from the jury’s consideration. The deletion here caused no prejudice.

One further aspect of the alteration of the indictment warrants additional comment, the manner of accomplishing the deletion. The Ninth Circuit has pointed out the anomaly of permitting trial judges to instruct juries to disregard certain portions of an indictment, yet prohibiting a physical correction of the indictment papers to reflect the deletion. Heisler v. United States, supra. Yet convictions have been overturned where language, conceded to be surplusage, had been crossed out on the face of the indictment. See, e. g., Stewart v. United States, 12 F.2d 524 (9th Cir. 1926).

In United States v. Wolfson, supra, this Court considered deletion of indictment language accomplished by covering the words to be omitted with opaque paper on which was written, “This portion of indictment stricken as a matter of law; it is not to be considered by the jury.” 437 F.2d at 868. The decision did not question this physical alteration of the indictment, though convictions were reversed because of the prejudicial effect of the evidence admitted in support of the deleted allegations.

In the instant case, we are neither asked to decide, nor do we express, any view as to whether the jury is to inspect an indictment in any or all criminal prosecutions. But, if a jury is permitted to see the indictment, and if any language of that indictment is surplus-age or other matter that a jury may properly be instructed to disregard, we think the preferable course is to prepare a retyped “clean” version of the indictment, omitting the language to be disregarded without any indication of its omission. If the language is not to be considered by the jury, it is surely better to remove it from their scrutiny, rather than rely on instructions. Crossing out or covering the deleted words only serves to arouse the jury’s curiosity and stimulate unwarranted speculation as to the full scope of the original allegations. Of course, in situations where the original indictment has been read to the jury or where a deletion leaves the remaining language awkward or unclear, a trial judge may, especially if the defendant prefers, permit the jury to see the original indictment and deal with the deletion ■in the court’s instructions.

In this case, the deletion was accomplished by placing brackets on the face of the indictment around the words to be deleted. However, it appears that the indictment, thus marked, was never submitted to the jury. Apparently, it is not the routine practice in the Eastern District of New York to submit indictments to the trial jury, and the jury in this case made no request to see the indictment. In his charge, Judge Costantino simply read to the jury Counts 1, 15, and 17, which were illustrative of the three sets of offenses charged, and in doing so, omitted the language that he had ordered stricken. Thus, the jury received an entirely adequate statement of the offenses alleged, and their attention was never directed to the fact that the improper allegation concerning taxes owed by the appellants had been originally included in the indictment and thereafter deleted. Since the jury never saw the indictment, the absence of a clean, retyped indictment is of no consequence.

The judgments of conviction are affirmed.

      . That during the period from January 1, 1967 to July 31, 1971, inclusive in the Eastern District of New York, the defendants Salvatore Cirami and James Cirami who were the President and Treasurer and Vice President and Secretary respectively of Air Package Distribution Service Ltd., a corporation, with its principal place of business in Queens County, New York, did wilfully attempt to evade and defeat a large part of the federal income taxes withheld from wages and Federal Insurance Contributions Act taxes due and owing to the United States of America for the quarter ending March 31, 1967, by preparing and causing to be prepared and thereafter filing and causing to be filed with the Internal Revenue Service Center, Andover, Massachusetts, a false and fraudulent employer’s quarterly tax return, wherein it was stated that the total taxable wages paid employees for the said quarter was the sum of $13,320.82 and that the total amount of tax withheld and Federal Insurance Contributions Act taxes due thereon was the sum of $1,172.23, whereas, as the defendants then and there well knew, the total taxable wages paid employees for said quarter was the sum of $39,401.82 upon which wages the defendants owed to the United States of America federal income taxes withheld from wages and Federal Insurance Contributions Act taxes due in the total amount of $3,467.36.
      In violation of Section 7201, Internal Revenue Code; 26 United States Code, Section 7201; 18 United States Code, Section 2.

      . Appellants allege one particular respect in which they were prejudiced by the deletion, or, more precisely, by the prosecutor’s failure to respect the deletion. The summation includes the following:
      “Evidence in this case, I submit, points very strongly to that Mr. Cirami was a man of expediency. In this case, he saved approximately $34,000 by this scheme.
      Mr. Hollman: I object to that.
      Mr. Myerson: That is the amount in the indictment.
      The Court: No, sustained.
      Mr. Myerson: I submit, ladies and gentlemen, if you find Mr. Cirami did that, it will add up to the approximate figure of $34,000.
      Mr. Hollman: I object to that.
      The Court: Sustained.
      Mr. Myerson: You can add it up, ladies and gentlemen.”
      Plainly, it was improper for the prosecutor to argue to the jury the total amount of taxes saved, when there was no evidence to support these figures, and when the allegations of the indictment, upon which he sought to rely, had been stricken from the indictment at his request. It is also inexcusable for him to have persisted in this improper argument after objection to it had twice been sustained.
      Under all the circumstances, however, no prejudice resulted. The prosecutor was referring to Salvatore Cirami, president of the corporation, who had acknowledged that the corporation was “his own company.” It was proper to argue, as bearing on motive, that the principal officer of his own corporation stood to gain money by attempting to evade corporate taxes. The improper reference to the amount of taxes does not warrant reversal.

      . The manner of altering the face of the indictment in Stewart is explained in Stewart v. District Court, 16 F.2d 863 (9th Cir. 1926), cert. denied, 273 U.S. 755, 47 S.Ct. 457, 71 L.Ed. 875 (1927).


author: FRIENDLY, Circuit Judge:

text:
    Jerome J. WELLS et al., Appellants, v. James E. MALLOY, Commissioner of Motor Vehicles of the State of Vermont, Appellee.
    No. 502, Docket 74-2067.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 13, 1975.
    Decided Jan. 23, 1975.

      Roger E. Kohn, Hinesburg, Vt. (Vermont Legal Aid, Inc., and Michael J. Hertz, Springfield, Vt., of counsel), for appellants.
    Richard M. Finn, Asst. Atty. Gen., State of Vermont, for appellee.
    Before LUMBARD, FRIENDLY and GURFEIN, Circuit Judges.
   FRIENDLY, Circuit Judge:

This appeal raises a novel question concerning the scope of 28 U.S.C. § 1341. This provides:

The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.

The action was brought in the District Court for Vermont. Plaintiff Wells claimed that he had failed to pay the taxes due under Vermont’s Motor Vehicle Purchase and Use Tax because of financial inability and that, in consequence, the Commissioner of Motor Vehicles had suspended his driver’s license under 32 Vt.Stat.Ann. § 8909. Plaintiff did not dispute that the tax was due and owing but claimed he was unable to pay, and that he needed his driver’s license “to visit the doctor, shop for groceries, and for other necessities and amenities of daily life,” that no other member of his family residing with him had a driver’s license, and that the suspension was causing him “tremendous hardship, and irreparable and immediate harm.” He alleged that the classification of motor vehicle operators on the basis of their liability for payment of a purchase and use tax violated the Equal Protection Clause of the Fourteenth Amendment. Plaintiff moved that a three-judge court be convened pursuant to 28 U.S.C. §§ 2281 and 2284. The district judge did not reach that question since he held that maintenance of the action was barred by 28 U.S.C. § 1341 and accordingly dismissed the complaint for want of jurisdiction.

A few points can be cleared away at the outset. Plaintiff does not seriously dispute the judge’s conclusion that, as required by 28 U.S.C. § 1341, “a plain, speedy and efficient remedy may be had in the courts” of Vermont. See 12 Vt. Stat.Ann. § 4711 (authorizing declaratory relief); V.R.C.P. 65 (authorizing issuance of temporary restraining orders and injunctions); Graves v. Town of Waitsfield, 130 Vt. 292, 292 A.2d 247 (1972). There is no exemption from the anti-injunction act relating to state taxes, 28 U.S.C. § 1341, such as there is in the general statute against enjoining state court proceedings, 28 U.S.C. § 2283, for instances where an injunction is “expressly authorized by an Act of Congress”, e. g., the Civil Rights Act, 42 U.S.C. § 1983, and its jurisdictional implementation, 28 U.S.C. § 1343(3), see Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972). We have thus held, both before Mitchum, American Commuters Ass’n, Inc. v. Levitt, 405 F.2d 1148 (2 Cir. 1969), and thereafter, Hickmann v. Wujick, 488 F.2d 875, 876 (2 Cir. 1973), that invocation of the Civil Rights Act does not suffice to create an exemption from 28 U.S.C. § 1341. Indeed, many of the actions at which the state tax injunction was deliberately aimed raised constitutional claims of the sort now held to be embraced by the Civil Rights Act, Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972). See also id. at 542, n. 6, 92 S.Ct. 1113. Finally, plaintiff derives no benefit from Harper v. Virginia Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966), invalidating Virginia’s poll tax, since the defendants in that case had not raised the issue of the applicability of the state tax injunction act, and neither the majority nor the minority opinions advert to it.

Despite these considerations which might be thought to point to affirmance, we take a different view. Clearly plaintiff Wells is not seeking to restrain the “assessment” or “levy” of a tax under state law. The state’s claim, sustained by the court below, is that he is seeking to restrain its “collection”. We are not impressed by Wells’ argument that he is not seeking to restrain collection because he cannot pay the tax, whatever Vermont may do; doubtless the state believed that the sanction of revocation of a driver’s license, like the older method of imprisonment for debt, might cause some money to be produced from somewhere, despite a taxpayer’s protest that he has none. “Collection”, of course, could be read broadly to include anything that a state has determined to be a likely method of securing payment, and the district court reasoned that “ ‘collection’ and ‘enforcement’ are so intertwined inextricably with one another that we would be required to draw an impossible distinction between the means and the end of the tax collection process in order to accept plaintiff’s contention in this regard.” We do not believe, however, that Congress intended to go so far. The context and the legislative history, see H.R.Rep.No.1503, 75th Cong., 1st Sess. 2 (1937); Sen.Rep.No. 1035, 75th Cong., 1st Sess. 1-2 (1937); 81 Cong.Rec. 1415, 1416 (Feb. 19, 1937) (remarks of Sen. Bone), lead us to conclude that, in speaking of “collection”, Congress was referring to methods similar to assessment and levy, e. g., distress or execution, compare Murray’s Lessee v. Hoboken Land and Improvement Co., 18 How. (59 U.S.) 272, 278, 15 L.Ed. 372 (1856); Damsky v. Zavatt, 289 F.2d 46, 50-51 (2 Cir. 1961), that would produce money or other property directly, rather than indirectly through a more general use of coercive power. Congress was thinking of cases where taxpayers were repeatedly using the federal courts to raise questions of state or federal law going to the validity of the particular taxes imposed upon them — not to a case where a taxpayer contended that an unusual sanction for non-payment of a tax admittedly due violated his constitutional rights, an issue which, once determined, would be determined for him and all others.

In the interests of judicial economy we add that, under the test laid down in Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973), the district judge should request the convening of a three-judge court, as he apparently would have 'done but for his views with respect to the prohibition of 28 U.S.C. § 1341. Although United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973), provides substantial support to the state’s position, it does not “inescapably render the claims frivolous,” the test laid down in Goosby v. Osser, supra.

Reversed and remanded with instructions to request the convening of a three-judge court. We understand the restraining order and the stipulation of counsel, see fn. 3, will continue in effect pending decision by the three-judge court.

      . 32 Vt.Stat.Ann. § 8903. This provision imposes upon Vermont residents a tax on the purchase and use of motor vehicles.

      . If the tax due under ... . section 8903 of this title is not paid as hereinbefore provided the commissioner shall suspend such purchaser’s right to operate a motor vehicle within the state of Vermont until such tax is paid

      . Although the complaint had originally sought to maintain the action on behalf of “all persons in the State of Vermont who have had their license [sic] suspended for failure to pay a Vermont Motor Vehicle Purchase and Use Tax,” it was later stipulated that plaintiff would withdraw his class action allegations, that the Commissioner would extend to all persons similarly situated the same relief as the court might decree in favor of plaintiff, and that the Commissioner would not object to an order directing him to restore the driving licenses of plaintiff and all intervenors whose driver’s licenses had been suspended for the same reason (whose intervention the Commissioner would not oppose) until further order of the court. Similar statesmanship by plaintiffs’ lawyers and government counsel would avoid much useless bickering over class action designation in cases where a plaintiff seeks declaratory or injunctive relief against state or federal officials.

      . We note in passing that this issue was appropriate for resolution by the single judge and, accordingly, that appeal lies to this court and not directly to the Supreme Court. Gonzalez v. Automatic Employees Credit Union, 419 U.S. 90, 95 S.Ct. 289, 42 L.Ed.2d 249 (1974).

      . See Sen.Rep., supra, at 2:
      The existing practice of the Federal courts in entertaining tax-injunction suits against State officers makes it possible for foreign corporations doing business in such States to withhold from them and their governmental subdivisions, taxes in such vast amounts and for such long periods of time as to seriously disrupt State and county finances. The pressing needs of these States for this tax money is so great that in many instances they have been compelled to compromise these suits, as a result of which substantial portions of the tax have been lost to the States without a judicial examination into the real merits of the controversy.
      Especially pertinent is a letter by an assistant attorney general of the State of Washington and introduced into the Congressional Record by a sponsor of what is now § 1341, in which there is detailed the history of litigation between railroads operating in that state and counties with respect to property taxes. The assistant attorney general noted that the railroads sued in federal courts on an annual basis to restrain collection of the taxes and tied up the collection process for years. 81 Cong.Rec. 1416 (Feb. 19, 1937).


author: WILLIAM E. DOYLE, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. DYE CONSTRUCTION COMPANY, a corporation, Defendant-Appellant.
    No. 74-1176.
    United States Court of Appeals, Tenth Circuit.
    Argued Nov. 11, 1974.
    Decided Jan. 29, 1975.

      Alan A. Armour, Hoffman, Goldstein, Armour & Lonnquist, P. C., Denver, Colo. (Abe L. Hoffman, Hoffman, Gold-stein, Armour & Lonnquist, P. C., Denver, Colo., on the brief), for defendant-appellant.
    Robert E. Courtney, III, Atty., Dept, of Justice (John L. Murphy, Chief Government Regulations Section, Crim. Div., Dept, of Justice, of counsel: James L. Treece, U. S. Atty., Robert R. Marshall, Jr., Asst. U. S. Atty., Michael H. Levin, Counsel for App. Litigation and Helen Schuitmaker, Atty., Dept, of Labor, on the brief), for plaintiff-appellee.
    Before SETH, BARRETT and DOYLE, Circuit Judges.
   WILLIAM E. DOYLE, Circuit Judge.

Following the death of a workman in a trench cave-in, the appellant was charged with willfully failing to shore, sheet, brace, slope and otherwise support by means of sufficient strength sides of trenches in unstable or soft material sufficient to protect employees working within the trenches, five feet or more in depth. The cause which arose under the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. was tried to a jury.

The incident which gave rise to the problem presented here occurred on August 11, 1972 while Dye Construction Company was laying pipe for a sanitary sewer line. In the crew were the foreman, LaVerne Strain, the back hoe operator, Joe Sanchez, and the man on top was Joe Cruz, whose duty was to look for signs of cave-ins. One John Rosado was the head pipe layer. The assistant pipe layer was Jose Frank Esquibel. The procedure in laying the pipe consisted of having the back hoe excavate a trench which was approximately 9 — 12 feet in depth. At the bottom it was approximately 38-40 inches wide. Both sides rose vertically from the bottom for approximately five feet and after that were slightly sloped out to the surface where the width was llk feet. Messrs. Rosado and Esquibel were required to work at the bottom of the trench so as to fasten the pipe together. On the day in question, the side of this trench caved in killing Mr. Esquibel. Mr. Rosado was knocked aside and escaped injury.

C. E. Babcock, the superintendent of the project, testified that he had not made any decision as to whether the trench was to be shored. This decision had been delegated to Mr. Strain, the foreman. Mr. Strain, in turn, delegated the decision to Mr. Sanchez who said that he decided whether to shore or slope on the basis of the condition of the soil. He would shore if safety required it. He, together with Strain and Babcock, were all familiar with the regulations of the Secretary of Labor.

There was a trench box on the site which was designed to protect workers in the trenches, but it was not in repair.

In seeking reversal appellant urges a number of points. These include:

1. The insufficiency of the case in law and fact. The contention is that Dye was not required to shore or slope the trench primarily because the material involved was shale. It is said that this was exempt from the requirement of shoring under the applicable regulations.

2. It is said that the jury did not follow the court’s instruction in regard to willfulness and with regard to sloping in shale.

3. That the court used the wrong definition of willfulness; a second facet of this contention is that the corporation could not be found guilty of willfulness unless some of its employees were willful; a third facet was that the evidence did not establish willfulness in any criminal sense.

4. It is said that the statute of limitations provided in 29 U.S.C. § 658(c) was applicable and the action was barred.

5. That the Dye Company was not engaged in commerce.

6. That it was error to receive evidence of other actions or offenses.

I.

WHETHER THE DYE COMPANY WAS EXEMPT FROM SHORING ' OR SLOPING THE TRENCH

It is undisputed that the bottom five feet of the trench were not shored. The Secretary’s regulation requires that the sides of trenches in unstable or soft material five feet or more in depth be shored, sheeted, braced, sloped and otherwise supported. In determining whether the evidence supported the jury’s finding that the trench was dug in unstable or soft material, we view the evidence in a light favorable to the government.

The trial court instructed the jury as to the meaning of unstable or soft material as follows:

“Unstable soil” — Earth material, other than running, that, because of its nature or the influence of related conditions, cannot be depended upon to remain in place without extra support, such as would be furnished by a system of shoring. 37 Fed.Reg. at 27,555.

The government’s expert, Mr. Frank Holiday, the consulting engineer specializing in soil mechanics, testified that the material in which the trench was dug was a very soft bedrock; that it could be scratched with fingernails and cut with a knife; and that it was fractured in many directions. He said that the trench should have been cut on a 1:1 slope or 45 degrees. This evidence sufficiently supports the verdict, but the appellant maintains that the court should have directed a verdict because the regulations contain an exception in favor of shale. Section 1926.652(b) refers the reader to Tables P-1 and P-2. 37 Fed. Reg. 27,554 (1970). Table P-1 depicts trenches and shows various kinds of soil. A slope of 90 degrees is shown as appropriate for solid rock, shale or cemented sand and gravels.

It is clear from the evidence that the material in question was not solid rock, hard shale or hard slag. The mere fact that it was called shale is not a basis for giving it exempt status.

Clearly, the Tables are illustrative and are not capable of overriding the regulation, § 1926.652(b). Nevertheless, the question is whether the trench was dug in unstable or soft material regardless of whether it could be included in the generic class of shale. Thus, reading the regulations as a whole, it must be concluded that in order for material to be exempt shale it would have to be hard. Otherwise the regulation would furnish no protection for a workman. It follows then that Dye was not exempt from shoring even shale if the material was not hard, and the jury was at liberty to find that the regulations were violated regardless of whether the material was shale if it was material which because of lack of hardness required shoring.

We must conclude then that the judge did not err in allowing the jury to decide the question whether the trench was dug in unstable or soft material within the meaning of the regulations. It follows also that the jury’s determination was supported by the evidence.

II.

WHETHER THERE WAS WILLFULNESS

The entire thrust of the Dye argument here is that the jury should have been instructed that willfulness in terms of intent to do the act knowingly and purposefully is not enough; that an evil motive is an essential element. The instruction given reads as follows:

The failure to comply with a safety standard under the Occupational Safety and Health Act is willful if done knowingly and purposely by an employer who, having a free will or choice, either intentionally disregards the standard or is plainly indifferent to its requirement. An omission or failure to act is willfully done if done voluntarily and intentionally.

The Supreme Court and our court have recognized that willfulness has different meanings when used in different contexts. See Spies v. United States, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418 (1943); United States v. Murdock, 290 U.S. 389, 54 S.Ct. 223, 78 L.Ed. 381 (1933); Nabob Oil Co. v. United States, 190 F.2d 478, 479 (10th Cir.), cert. denied, 342 U.S. 478, 72 S.Ct. 167, 96 L.Ed. 658 (1951). The distinction which is usually drawn in defining willfulness is between crimes in which moral turpitude is required and those which do not demand a moral taint. See Ryan v. United States, 314 F.2d 306 (10th Cir. 1963) and Inland Freight Lines v. United States, 191 F.2d 313 (10th Cir. 1951). The Supreme Court has also given effect to this distinction. See for example United States v. Illinois Central R. Co., 303 U.S. 239, 58 S.Ct. 533, 82 L.Ed. 773 (1938), wherein it was said:

In statutes denouncing offenses involving turpitude, “wilfully” is generally used to mean with evil purpose, criminal intent or the like. But in those denouncing acts not in themselves wrong, the word is often used without any such implication. Id. at 242, 58 S.Ct. at 535.

Perhaps a very clear example of this distinction appears in Spies v. United States, supra, wherein the Court considered the difference between failure to file an income tax return and tax fraud which involves moral turpitude. In the tax fraud case the Court said “willfulness” includes evil motive, but in the charge of failure to file no such element is necessary. Many other cases have recognized this distinction. Examples include United States v. Consolidation Coal Co., 504 F.2d 1330 (6th Cir., 1974); United States v. Fidanian, 465 F.2d 755 (5th Cir.), cert. denied, 409 U.S. 1044, 93 S.Ct. 540, 34 L.Ed.2d 494 (1972); Steere Tank Lines v. United States, 330 F.2d 719 (5th Cir. 1963); Riss & Co. v. United States, 262 F.2d 245 (8th Cir. 1958); Stein v. United States, 153 F.2d 737 (9th Cir. 1946); Zimberg v. United States, 142 F.2d 132 (1st Cir. 1944); Boone v. United States, 109 F.2d 560 (6th Cir. 1940).

Dye cites our decision in Dearing v. United States, 167 F.2d 310 (10th Cir. 1948). It generally states that

When the word “wilfulness” is used in a penal statute, more is required than the mere doing of the act proscribed. It generally means an act done with a bad purpose, without justifiable excuse. Id. at 312.

But this decision did not reach the distinction between moral turpitude offenses and those which do not involve the moral aspect. In that case the trial court had determined that the doing of the act alone was sufficient and had excluded all evidence as to lack of willfulness and thus the language in the opinion has to be judged in the light of this fact.

At bar neither the statute nor the regulation requires that there be moral turpitude. The object of these provisions is prevention of injury or death and its application is not limited to the situation in which the employer entertained a specific intent to harm the employee.

Finally, we disagree with appellant there there is no evidence of willfulness since Messrs. Babcock, Strain, Cruz and Sanchez all had observed the trench prior to the accident, and although they all testified that the material was hard rock and not an unstable soft material the jury was not bound by their assertions as to their mental condition. It was within the province of the jury that these employees had disregarded the regulations in that they had been guilty of gross indifference to the hazard. We find no merit in the further contention that the corporation cannot be guilty of willfulness based on the acts, conduct and inferentially the states of mind of the employees. Contrary to Dye’s argument, the president is not the only individual whose state of mind would be relevant. The cases recognize that corporations are responsible for the acts and omissions of their authorized agents acting in the scope of their employment. United States v. A & P Trucking Co., 358 U.S. 121 (1958); New York C. & H. R.R. v. United States, 212 U.S. 481 (1909); Riss & Co. v. United States, supra. There is no doubt as to the authority of the superintendent, the foreman and the back hoe operator.

III.

APPLICABILITY OF THE STATUTE OF LIMITATIONS

The indictment herein was returned November 9, 1973 which is in excess of six months after the alleged violation. Section 9 of the Act, 29 U.S.C. § 658(c), provides: “No citation may be issued under this section after the expiration of six months following the occurrence of any violation.” The question is whether this provision applies to a criminal prosecution such as we have at bar. Defendant maintains that it does. The government’s position is that this is a specific limitations provision which applies only to the citation procedure and further argues that criminal prosecutions are subject to the five-year limitation set forth in 18 U.S.C. § 3282.

Unquestionably the six-month requirement does not by its terms extend to anything other than the issuance of the civil citation provided by § 9 of the Act, 29 U.S.C. § 658. This section makes provision for the issuance by the Secretary of a citation based upon investigation giving rise to the finding that a violation has occurred. The employer responds to this and a hearing is held pursuant to 29 U.S.C. § 659(c) before the Occupational Safety and Health Review Commission. The Commission is empowered to assess only civil penalties. Therefore, although this procedure is penal in its nature it is not a criminal prosecution. It is basically an administrative proceeding and it exists independently of the criminal prosecution. Accordingly, there is every reason to limit the six-month provision to the citation procedure and not to extend it to the criminal prosecution which has its own limitations provision.

IV.

WHETHER THE DEFENDANT ENGAGED IN A BUSINESS AFFECTING COMMERCE

The use of the words “affecting commerce” tells us that it was the intent of Congress to exercise fully its constitutional authority under the commerce clause. See Polish National Alliance v. NLRB, 322 U.S. 643, 64 S.Ct. 1196, 88 L.Ed. 1509 (1944); Brennan v. Occupational Safety and Health Review Comm’n, 492 F.2d 1027 (2d Cir. 1974). Congress found that personal injuries and illnesses arising out of work impose a substantial burden and are a hindrance to interstate commerce in terms of lost production, wage loss, medical expenses and disability compensation payments. 29 U.S.C. § 651. Since Congress is authorized under the commerce clause to regulate the incidents of interstate commerce, it would appear that the present activity is within its authority unless Dye’s relationship to commerce was minimal. The record shows that it has purchased several items of heavy equipment, trucks and several insurance policies produced by out of state sources. .The use of supplies which are part of commerce has been held sufficient. See Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 11, 13 L.Ed.2d 20 (1964) and Von Solbrig Hospital, Inc. v. NLRB, 465 F.2d 173 (7th Cir. 1972). Since it is irrelevant then whether Dye itself was engaged in commerce, we are constrained to hold that its activities are such as to justify the regulation in question.

V.

WHETHER IT WAS ERROR TO RECEIVE SIMILAR TRANSACTIONS

Dye objected to receipt by the trial court of evidence of inspections of Dye’s trenches in the same general area by a safety inspector for the State of Colorado. These occurred 10 or 11 days before the accident .and citations were issued for failure to shore or slope trenches. Colorado regulations require shoring or sloping in trenches of more than five feet in depth to the “proper angle of repose,” which is 1:1 (45°). The state permits vertical sloping for hard rock, but not necessarily for shale. The trial court ruled that the transactions were sufficiently related in time to justify receipt of the evidence. At the same time, it carefully instructed the jury giving limiting charges as to these transactions. The court told the jury that they were offered only as bearing on the element of willfulness as opposed to accident or negligence. Such evidence can be received insofar as it tends to prove motive, opportunity, intent, knowledge, identity or absence of mistake, inadvertence or accident. See United States v. Smaldone, 485 F.2d 1333 (10th Cir. 1973), cert. denied, 416 U.S. 936, 94 S.Ct. 1934, 40 L.Ed. 286 (1974); United States v. Parker, 469 F.2d 884, 889 (10th Cir. 1974); United States v. Burkhart, 458 F.2d 201 (10th Cir. 1972); Holt v. United States, 404 F.2d 914 (10th Cir. 1968), cert. denied, 393 U.S. 1086, 92 S.Ct. 292, 30 L.Ed.2d 257 (1968); Rothering v. United States, 384 F.2d 385 (10th Cir. 1967); Morgan v. United States, 355 F.2d 43 (10th Cir.), cert. denied, 384 U.S. 1025, 86 S.Ct. 1976, 16 L.Ed.2d 1029 (1966); Tandberg-Hanssen v. United States, 284 F.2d 331 (10th Cir. 1960). From a reading of these cases we believe that the trial court ruled correctly; that a ruling that the evidence was relevant was correct.

The judgment of the district court is affirmed.

      . Section 655 of the Act authorizes the Secretary of Labor to promulgate regulations to insure that employees covered by the Act are provided with a place of employment that is free from recognized hazards that are likely to cause death or serious bodily harm.
      Section 666(e) states:
      Any employer who willfully violates any standard, rule, or order promulgated pursuant to section 655 of this title, or of any regulations prescribed pursuant to this chapter, and that violation caused death to any employee, shall, upon conviction, be punished by a fine of not more than $10,-000 or by imprisonment for not more than six months, or by both; .
      The Secretary’s regulations are published at 37 Fed.Reg. 27,552-55 (1972). Section 1926.-652 of the regulations gives the specific trenching requirements. Section 1926.652(b) provides:
      Sides of trenches in unstable or soft material, 5 feet or more in depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them. See Tables P-1, P-2

      . United States v. Spoonhunter, 476 F.2d 1050, 1056 (10th Cir. 1973); United States v. Addington, 471 F.2d 560, 563 (10th Cir. 1973); Havelock v. United States, 427 F.2d 987, 988-89 (10th Cir.), cert. denied, 400 U.S. 946, 91 S.Ct. 252, 27 L.Ed.2d 251 (1970).

      . Footnote 1 under Table P-2 states that “shoring is not required in solid rock, hard shale, or hard slag.”

      . In the Nabob case we said:
      In some penal statutes the word willful means that the offense must be committed malevolently, with a bad purpose or an evil mind. These offenses ordinarily involve moral turpitude but in those statutes denouncing acts not in themselves wrong, such an evil purpose or criminal intent need not exist. It is sufficient if the act was deliberate, voluntary and intentional as distinguished from one committed through inadvertence, accidentally or by ordinary negligence.


author: LUCAS, District Judge:

text:
    Peter J. BRENNAN, Secretary of Labor, Plaintiff-Appellee, v. ELMER’S DISPOSAL SERVICE, INC., Defendant, and Universal By-Products, Inc., a corporation dba Universal Refuse Removal Co. of El Cajon, Defendant-Appellant.
    No. 72-2783.
    United States Court of Appeals, Ninth Circuit.
    Jan. 13, 1975.

      David G. Miller, Loeb & Loeb, Los Angeles, Cal., for defendant-appellant.
    Edith Barnett (argued), Dept, of Labor, Washington, D. C., for plaintiff-appellee.
    Before DUNIWAY and HUFSTEDLER, Circuit Judges, and LUCAS, District Judge.

       Honorable Malcolm M. Lucas, United States District Judge, Central District of California, sitting by designation.

   OPINION

LUCAS, District Judge:

The Secretary of Labor brought this action against Elmer’s Disposal Service, Inc. and others to enjoin violations of the overtime compensation provisions of the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 207(a)(1) and 215(a)(2), and to restrain defendants from withholding unpaid compensation allegedly due defendants’ employees. The district court entered judgment for the Secretary and granted the requested injunctive relief as well as restitution for unpaid overtime compensation. The only issues on appeal are whether defendants’ fixed salary plan violates the overtime requirements of the Act and whether defendants’ deductions of pay for employees’ allotted meal periods were improper.

Defendant Elmer’s Disposal Service was a wholly owned corporate subsidiary of Universal By-Products, Inc., engaged in the business of refuse collection and removal in and around El Cajon, California. In 1969 the subsidiary was merged into Universal By-Products, Inc., which has carried on the business of Elmer’s in the El Cajon area since then under the name Universal Refuse Removal Company of El Cajon. This appeal is brought by Universal By-Products, Inc.

Among appellant’s employees were personnel assigned to regular collection routes. These drivers, helpers, and swampers were paid a fixed salary for a six-day, fifty-hour work week. The amount of fixed compensation was calculated at a specified hourly rate for the first forty hours, plus one and one-half that rate for the remaining ten hours. Unless the employee missed a day of work, worked more than fifty hours in one week, or worked “relief,” he was paid the fixed weekly salary regardless of the time actually worked. For each day missed, the employee was docked one-sixth of the fixed salary without reference to the number of hours actually worked that week. If the employee worked more than fifty hours on his route in one week, he was paid the fixed salary plus one and one-half times the specified hourly rate for all hours worked over fifty. The employee could also work “relief” on other routes, for which he was paid at one and one-half times the specified hourly rate. The appellant kept records with respect to the number of hours worked by each employee and maintained a clock-in, clock-out system for that purpose. There was also evidence at the trial that the weekly paycheck stubs given employees showed which hours were paid at the straight time, and which hours were paid at one and one-half times that rate. The specified hourly rate was established by the appellant without an explicit contract or collective bargaining agreement with the employees.

The trial court found this wage plan in violation of the Act. Its conclusion' was based on the Secretary’s proof that the fixed weekly rate did not change with the amount of hours worked up to fifty hours, together with the absence of any showing of an explicit contract or agreement between the employees and the appellant concerning the specified hourly rate. The trial court also found that because employees were encouraged by the wage plan to work through their allotted lunch periods, and because most of them did work through, the deductions made from the salaries of all employees for a one-half hour lunch break each day were improper. We affirm the judgment of the trial court on both issues.

Section 7(a)(1) of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 207(a)(1), provides in pertinent part:

“ . . . [N]o employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.

It is settled law that wage plans under which an employer pays a fixed weekly salary for irregular workweeks violate this statute when the number of hours actually worked are in excess of the statutory overtime requirements. Warren-Bradshaw Drilling Co. v. Hall, 317 U.S. 88, 93, 63 S.Ct. 125, 127, 87 L.Ed. 83 (1942); Overnight Motor Co. v. Missel, 316 U.S. 572, 62 S.Ct. 1216, 86 L.Ed. 1682 (1942). This is true even where the employer can show the fixed salary is the sum of a designated hourly rate for forty hours, plus one and one-half the designated rate for hours worked over forty. Overnight Motor Co. v. Missel, supra. The Supreme Court long ago rejected employer assertions that the “regular rate” for any week under such wage plans is anything but the fixed salary divided by the number of hours actually worked that week. Overnight Motor Co. v. Missel, supra, 316 U.S. at 580, 62 S.Ct. at 1221.

Appellant would distinguish its wage plan from those held to violate the Act. Essentially, appellant argues the specified hourly rate from which the fixed weekly rate was established is the “regular rate” described by § 207(a)(1). To support the contention that its wage plan does not violate the Act, appellant points to its maintenance of records for hours worked and wages paid, and its payment at one and one-half times the designated rate for all hours worked in excess of fifty. The trial court relied on Nunn’s Battery & Electric Co. v. Goldberg, 298 F.2d 516 (5 Cir. 1962) to hold that because appellant could not show the employees explicitly agreed to the purported “regular rate,” the mere allocation of a portion of the fixed weekly salary as “regular” compensation and another portion to time and one-half the “regular” compensation did not satisfy the overtime provisions of the Act. See also Wirtz v. Leon’s Auto Parts Company, 406 F.2d 1250 (5 Cir. 1969); Triple “A.A.A.” Company v. Wirtz, 378 F.2d 884 (10 Cir. 1967); and Hodgson v. Elm Meats of Kentucky, Inc., 327 F.Supp. 1009 (E.D.Ky.1971) aff’d 463 F.2d 1186 (6 Cir. 1972). We agree with the trial court that the Act does not allow appellant to designate unilaterally what the “regular rate” will be, then, on the basis of that designation, pay employees a predetermined sum for up to fifty hours per work week and one and one-half the designated rate for all hours worked in excess of fifty.

It is true appellant’s wage plan differs somewhat from those held to violate the Act in the past. In none of the cases, for example, had there been a showing that the employer kept records of the hours worked and wages paid with the diligence shown here by appellant. See e. g., Overnight Motor Co. v. Missel, supra, 317 U.S. at 574, 62 S.Ct. at 1218; Wirtz v. Leon’s Auto Parts, supra, 406 F.2d at 1252; Triple “A.A.A.” Company v. Wirtz, supra, 378 F.2d at 886; and Hodgson v. Elm Meats of Kentucky, supra, 327 F.Supp. at 1012. Furthermore, it is not customary that such wage plans include provisions for payment of “overtime” rates for hours worked in excess of the guaranteed hours as did appellant’s, and there was no finding this plan was intended to avoid the requirements of the Act. Two findings by the trial court, however, preclude reversal on this issue — the lack of agreement between appellant and its employees, and the one-sixth reduction in pay for each day missed without regard to the hours worked in the week.

The lack of agreement is, of course, the crucial element in this case. The legislative policy of the overtime provisions of the Act is to spread employment throughout the work force by putting financial pressure on the employer, and to compensate employees for the burden of overtime workweeks. Bay Ridge Operating Co. v. Aaron, 334 U.S. 446, 460, 68 S.Ct. 1186, 1194, 92 L.Ed. 1502 (1948); Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 423-424, 65 S.Ct. 1242, 1244, 89 L.Ed. 1705 (1945); Walling v. Helmerich & Payne, 323 U.S. 37, 40, 65 S.Ct. 11, 13, 89 L.Ed. 29 (1944). Any guaranteed wage plan such as appellant’s runs counter to this policy, and the policy is clearly not served by the wage plan here that gives the employer ten hours of overtime work at no greater rate than the first forty hours of work, then allows for a discounted overtime rate for hours above fifty. In order for such wage plans not to contravene the statute, all the cases require explicit agreement between the employer and the employees or their bargaining agent as to the designated rate of compensation. Walling v. Belo Corp., supra; Overnight Motor Co. v. Missel, supra; Triple “A.A.A.” Company v. Wirtz, supra; and Nunn’s Battery & Electric Co. v. Goldberg, supra. The trial court found no such agreement, and thus its conclusion that the plan violated the act was entirely proper.

Appellant would have this court infer from certain elements of its wage plan and wage practices that an agreement was reached between itself and its employees concerning the designated rate. Appellant would also place the burden of proof on the Secretary to show no such agreement exists. See footnote 1, supra. Like the trial court, we are unconvinced. Appellant has failed to present any evidence of negotiation or agreement concerning the regular rate of compensation it paid to its employees. That the employees did not complain of the plan is not sufficient to support a finding that the designated rate was the “regular rate” described by the statute or that the employees agreed to the designation made by appellant. Although the employees may have been aware of the rate designation because it showed on the paycheck stubs, the cases and the statute require an explicit agreement, and none was proved in this case. Walling v. Belo Corp., supra; Overnight Motor Co. v. Missel, supra; Triple “A.A.A.” Company v. Wirtz, supra; and Nunn’s Battery & Electric Co. v. Goldberg, supra.

Finally, while not a necessary element of the Secretary’s case, the fact that appellant docked absent employees a flat one-sixth of the fixed weekly wage for each day missed without reference to hours worked tends to strengthen the conclusion that this wage plan violates the Act’s overtime provisions. 149 Madison Ave. Corp. v. Asselta, 331 U.S. 199, 67 S.Ct. 1178, 91 L.Ed. 1432 (1947). For example, an employee would lose as much for a second day’s absence as for a first, although the first might result in a reduction in the overtime hours and the second might not. Although the wage plan here may have run closer to a technical violation than to outright economic exploitation, the principles applied to the Overnight Motor Company’s wage plan in 1942 are still the measure of the validity of such plans. Compare Overnight Motor Company v. Missel, supra, with Nunn’s Battery & Electric Co. v. Goldberg, supra. Based on that standard, we hold the trial court correctly found appellant’s wage plan violated 29 U.S.C. § 207(a)(1).

The second issue raised on appeal is the propriety of appellant’s deductions of one-half hour’s wages each day from each employee for lunch breaks. An employee cannot be docked for lunch breaks during which he is required to continue with any duties related to his work. Biggs v. Joshua Hendy Corp., 183 F.2d 515 (9 Cir. 1950); Mills v. Joshua Hendy Corp., 169 F.2d 898 (9 Cir. 1948); 29 C.F.R. § 785.19. Appellant’s challenge to the district court’s judgment on this issue is directed primarily at the findings that most employees did not stop for lunch and were encouraged not to stop by the wage plan. The trial court heard substantial testimony, mostly from employees, to support those findings. The credibility of these witnesses was the main issue at trial concerning their testimony. The findings of the trial judge concerning the facts attested to by these witnesses were not “clearly erroneous.” The credibility of witnesses is best determined by the judge at trial. Gilreath v. Daniel Funeral Home, 421 F.2d 504, 510 (8 Cir. 1970); Fed.R.Civ. Proc. 52(a). The record and the law support the conclusions of the trial judge on this issue.

The judgment of the District Court is affirmed.

      . There are exceptions to this rule. 29 U.S.C. § 207(b), (f), (g), and (i). For example, if the employer and employee make an explicit agreement, either by contract or collective bargaining agreement, on the “basic rate” of compensation by which to compute the guaranteed salary before the work is performed, and the employee is paid at least one and one-half times the agreed upon rate for hours in excess of forty, the requirements of the Act are met. Walling v. A. H. Belo Corp., 316 U.S. 624, 62 S.Ct. 1223, 86 L.Ed. 1716 (1942); see also Nunn’s Battery & Electric Company v. Goldberg, 298 F.2d 516, 520 (5 Cir. 1962); 29 U.S.C. § 207(f). Once the Secretary has made a prima facie showing that the wage plan does not meet the standards of the statute or Overnight Motor Co. v. Missel, however, the burden is shifted to the employer to prove its wage plan fits within the exceptions. Cf. Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 456, 4 L.Ed.2d 393 (1960); Mitchell v. Kentucky Finance Co., 359 U.S. 290, 295, 79 S.Ct. 756, 759-760, 3 L.Ed.2d 815 (1959); Phillips, Inc. v. Walling, 324 U.S. 490, 493, 65 S.Ct. 807, 808, 89 L.Ed. 1095 (1945). This burden of proof requirement may explain appellant’s claim that it does not rely on the exceptions to the rule, statutory or judge-made.


author: HILL, Circuit Judge.

text:
    Ramon CERVANTES et al., Petitioners-Appellants, v. IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE and William Saxbe, Attorney General, United States of America, Respondents-Appellees.
    No. 74-1263.
    United States Court of Appeals, Tenth Circuit.
    Jan. 21, 1975.
    Donn J. Everett, Manhattan, Kan., for petitioners-appellants.
    John L. Murphy, Chief, Government Regulations Section, Crim. Div., Robert E. Courtney, III, Atty., Dept, of Justice, Washington, D. C., for respondents-appellees.
    Before LEWIS, Chief Judge, and HILL and McWILLIAMS, Circuit Judges.
   HILL, Circuit Judge.

This case arises out of a petition to review an order of the Board of Immigration Appeals (Board) dismissing an appeal from a Special Inquiry Officer’s order.

Petitioner Ramon Cervantes entered this country on or about August 25, 1970, at El Paso, Texas. Ramon, entering as a visitor for pleasure, was authorized to remain in the United States for a period not exceeding six months. Ramon came to Manhattan, Kansas, and began working at a steel and pipe supply company, without permission of the Immigration and Naturalization Service (Service). Petitioner Luvia Ocana Ochoa (Cervantes after marriage) entered the United States .near El Paso, on or about October 27, 1970, without presenting herself for inspection or being inspected by a United States Immigration Officer. Ramon’s and Ocana’s minor daughter, Alejandra, accompanied Ocana. They went to Manhattan where Ramon and Ocana resumed living together and held themselves out as husband and wife. On February 17, 1971, a child, Joe Alfred Cervantes, was born to the couple. On April 5, 1971, Ramon and Ocana were formally married.

On September 27, 1973, the Service agreed not to institute deportation proceedings against Ramon if he would voluntarily depart the United States on or before October 27, 1973. An extension was granted until December 1, 1973. Ramon did not leave by that date; on January 30, 1974, he and Ocana were served with Orders to Show Cause why they should not be deported and with Notices of Hearing.

On March 18, 1974, a hearing was held before a special inquiry officer to determine whether Ramon and Ocana should be deported. Petitioners’ counsel conceded deportability but introduced affidavits “[f]or the purpose of establishing a record for a later appeal.” The affidavits and a birth certificate establish the birth of Joe Alfred Cervantes. At the hearing’s conclusion, the officer issued an order finding Ramon and Ocana deportable but granting them a voluntary departure on or before April 18, 1974. If they did not depart voluntarily, a deportation order, would be effective immediately. Neither Alejandra nor Joe Alfred was ordered deported.

A Notice of Appeal to the Board was filed on March 18, 1974. The grounds of appeal were as follows:

That immigrants are saved from deportation by reason of the facts set forth in the two affidavits received into evidence and pursuant to the provisions of the United States Code Annotated 8-1251(f) [which provides:] “The provisions of this section relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation shall not apply to an alien otherwise admissible at the time of entry who is the spouse, parent, or a child of a United States citizen or of an alien lawfully admitted for permanent residence.”

On April 30, 1974, the Board, relying on Cabuco-Flores v. Immigration & Naturalization Serv., 477 F.2d 108 (9th Cir. 1973), cert. den’d, 414 U.S. 841, 94 S.Ct. 98, 38 L.Ed.2d 78; Monarrez-Monarrez v. Immigration & Naturalization Serv., 472 F.2d 119 (9th Cir. 1972), dismissed the appeal.

Petitioners challenge the Board’s determination on two grounds: (1) 8 U.S.C. § 1251(f) prevents Ramon’s and Ocana’s deportation, and (2) the deportation order contravenes Joe Alfred’s rights under the Ninth Amendment to the United States Constitution.

On appeal to the Board, petitioners relied on Godoy v. Rosenberg, 415 F.2d 1266 (9th Cir. 1969), to support the application of § 1251(f) to this case. In Godoy, the alien had stated in his application for a special immigrant visa that he was married to a United States citizen; the marriage had been entered into solely to acquire a benefit under the immigration laws. In those circumstances, the court said § 1251(f) would prevent deportation if petitioner could prove he was the parent of a legitimatized child who was a United States citizen. We are not faced with an identical situation.

Rather, the reasoning expressed in Preux v. Immigration & Naturalization Serv., 484 F.2d 396, 397 (10th Cir. 1973), cert. den’d, 415 U.S. 916, 94 S.Ct. 1413, 39 L.Ed.2d 470 (1974), applies to this case.

[T]he provisions of 8 U.S.C. § 1251(f) may operate as a waiver of a deportation charge if, and only if, the deportation charge “results directly from the misrepresentation. ’ ’

In Robles v. Immigration & Naturalization Serv., 485 F.2d 100 (10th Cir. 1973), § 1251(f) was held not to prevent deportation of a person staying beyond the period of her one-month visitor’s visa; the grounds for deportation were not related to any alleged antecedent fraud. Ramon is to be deported pursuant to 8 U.S.C. § 1251(a)(9) for failure to comply with the conditions of his nonimmigrant status. Ocana is to be deported pursuant to 8 U.S.C. § 1251(a)(2) for entering the United States without inspection. We agree with the Board that in view of these charges Ramon and Ocana cannot receive any benefit from § 1251(f). Robles v. Immigration & Naturalization Serv., supra; Preux v. Immigration & Naturalization Serv., supra; Cabuco-Flores v. Immigration & Naturalization Serv., supra; Monarrez-Monarrez v. Immigration & Naturalization Serv., supra.

Petitioners devote their brief to the second argument; they contend the Ninth Amendment gives Joe Alfred, a United States citizen, a right to continue to have the love and affection of his parents in the United States. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Petitioners believe their interpretation of the Ninth Amendment is supported by the Supreme Court cases of Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring), and Roe v. Wade, 410 U.S. 113, 95 S.Ct. 705, 35 L.Ed.2d 147 (1973).

Although we have found no mention of this constitutional argument in the prior proceedings, we consider it because a constitutional issue is involved and because of the outcome we reach. Pilapil v. Immigration & Naturalization Serv., 424 F.2d 6 (10th Cir. 1970), cert. den’d 400 U.S. 908, 91 S.Ct. 152, 27 L.Ed.2d 147.

The only novelty in petitioners’ constitutional claim is its foundation, the Ninth Amendment. Courts have rejected similar claims based upon other constitutional provisions. Robles v. Immigration & Naturalization Serv., supra; Faustino v. Immigration & Naturalization Serv., 432 F.2d 429 (2d Cir. 1970), cert. den’d, 401 U.S. 921, 91 S.Ct. 909, 27 L.Ed.2d 824 (1971); Perdido v. Immigration & Naturalization Serv., 420 F.2d 1179 (5th Cir. 1969); Mendez v. Major, 340 F.2d 128 (8th Cir. 1965). The petitioner in Robles relied on the Fifth Amendment claiming the deportation would be unconstitutional because a family would be divided and her children would be deprived of their constitutional right to the family unit’s continuation. This Court rejected that argument and said:

In Silverman and Perdido, consideration was given to the incidental impact of immigration and naturalization laws on the marriage status and on the family unit where there be minor children involved, and in each case it was concluded that such incidental impact is not in and of itself significant and does not rais.e constitutional problems.

The deportations involved herein cause only an “incidental impact” on the minor child, albeit a serious one. We cannot agree with petitioners that the Ninth Amendment as interpreted in a concurring opinion of Griswold and in Roe compels a different result than we reached in Robles. Congress clearly has the “ . . . power to prescribe conditions under which aliens may enter and remain in the United States even though their enforcement may impose hardship upon the aliens’ children Application of Amoury, 307 F.Supp. 213 (S.D.N.Y.1969). The incidental impact on aliens’ minor children caused by the enforcement of duly-enacted conditions on aliens’ entrance and residence does not create constitutional problems.

Order affirmed.

      . Petitioners’ brief asserts Ramon and Ocana were lawfully married when they established residency as husband and wife because of Kansas’ recognition of common law marriage. The issue of marriage and legitimacy of the child are not essential to our determination.

      . 8 U.S.C. § 1251(a) provides in pertinent part:
      (a) Any alien in the United States shall, upon the order of the Attorney General, be deported who—
      (2) entered the United States without inspection or at any time or place other than as designated by the Attorney General or is in the United States in violation of this chapter or in violation of any other law of the United States;
      (9) was admitted as a nonimmigrant and failed to maintain the nonimmigrant status in which he was admitted or to which it was changed pursuant to section 1258 of this title, or to comply with the conditions of any such status;

      . Silverman v. Rogers, 437 F.2d 102 (1st Cir. 1970), cert. den’d, 402 U.S. 983, 91 S.Ct. 1667, 29 L.Ed.2d 149 (1971).

      . Perdido v. Immigration & Naturalization Serv., 420 F.2d 1179 (5th Cir. 1969).

      . Robles v. Immigration & Naturalization Serv., 485 F.2d 100, 102 (10th Cir. 1973).