author: HILL, Circuit Judge.

text:
    Billie Ray WYLIE, Plaintiff-Appellant, v. FORD MOTOR COMPANY, a Delaware corporation, Defendant-Appellee.
    No. 74-1126.
    United States Court of Appeals, Tenth Circuit.
    Argued Aug. 19, 1974.
    Decided Sept. 23, 1974.

      William L. Garrett, DeSoto, Tex., for plaintiff-appellant.
    William S. Hall, Tulsa, Okl., for defendant-appellee.
    Before HILL and DOYLE, Circuit Judges, and SMITH, District Judge.

       Houorable Talbot Smith, Eastern District of Michigan, sitting by designation.

   HILL, Circuit Judge.

This appeal comes from a directed verdict in a products liability action based on diversity jurisdiction.

On July 10, 1970, appellant Billie Ray Wylie was driving a 1969 Ford Ranch Wagon, purchased and furnished by his employer; this vehicle had traveled nearly 44,000 miles at the time of the accident. Appellant testified that while traveling 65-70 miles per hour on four lane Interstate Highway No. 35 near Georgetown, Texas, he passed a car and pulled back to the right lane. When he straightened up the car, the left front end raised up, a loud bump occurred and the car pulled very hard to the left. After several attempts by appellant to control the vehicle, the car veered to the right, hit a reflector pole and proceeded off the shoulder, across an access road and down an embankment. The vehicle was seen later on the grassy embankment by several persons including Paul Bohanon, a wrecker driver, and Dennis Wilie, a Texas Highway Patrolman who investigated the accident. After the accident, appellant complained of back and other injuries resulting from the incident.

Appéllant instituted suit in the United States District Court for the Eastern District of Oklahoma. Appellant relied on a breach of implied warranty of fitness for his claim for relief from the vehicle’s manufacturer, Ford Motor Company. Appellant alleged the implied warranty of fitness was breached in that the upper ball joint of the left front wheel’s control arm was defective, had fallen out of its socket on the highway and had caused the ear to become uncontrollable. An alternative allegation of breach of the implied warranty of fitness was that driving the vehicle off the highway shoulder in an emergency was a possible use the manufacturer appellee knew of and the car should have been manufactured so that it could have driven over the terrain in this situation without injury occurring to the plaintiff. Appellant’s total claimed damages of $543,364 included loss of earnings and retirement benefits, medical expenses, and pain and suffering.

Appellee Ford Motor Company contended no defect existed in the vehicle’s front end and denied the failure complained of occurred prior to the vehicle’s leaving the highway. Appellee further contended that the appellant’s misuse of the vehicle — driving off' the highway and across rough ground, including a drainage ditch and two six-inch concrete curbs on an entrance ramp — caused the spindle to come loose from the upper ball joint and that these impacts were not within any implied warranty of fitness.

At trial, appellant called Jerome B. McCoy, head of the Division of Physical Sciences and the Department of Physics at the University of Tulsa, as an expert witness. The court allowed McCoy to testify that in his opinion the upper control arm of appellant’s vehicle was defective when installed. The witness testified that abnormal wear had occurred to the ball joint and that this wear was cáused either by the absence of a spring retainer or by improper hardening of the metal. He said the .metal appeared soft to him and considerable impacting over a long period of time had worn down the metal. Thus, McCoy’s testimony was that the upper ball joint fell out of its socket prior to any impact damage occurring after appellant’s vehicle left the road.

On cross-examination, McCoy acknowledged that he had not run any hardness tests on the metal involved, had not examined the grease in the ball joints or cups for parts of worn material and had not examined the vehicle’s spindle. After appellant rested his case, appellee moved for a directed verdict “[f]or the particular reason . . . that the testimony of. the alleged expert, the philosopher, he was not qualified to testify as to the ultimate conclusions, invading the province of the jury.” The court overruled the motion. After presentation of appellee’s case, including expert testimony supporting appellee’s theories, the court again denied the motion for a directed verdict.

The jury could not agree and the court declared a mistrial. Appellee moved to dismiss, and the court considered that motion as one for a directed verdict. Believing the appellant had not made out a case, the court directed a verdict for appellee Ford Motor Company.

On this appeal, we are considering the correctness of the trial court’s granting of the directed verdict. This verdict was directed under Rule 50(b) of the Federal Rules of Civil Procedure. See Thompson v. Lillehei, 273 F.2d 376 (8th Cir. 1959). In determining whether a verdict should be granted, a trial judge must view the evidence in the light most favorable to the opposing party. A directed verdict must not be granted unless the evidence points all one way and cannot be the basis of reasonable inferences which sustain the position of the non-moving party. Wilkin v. Sunbeam Corp., 377 F.2d 344 (10th Cir. 1967), cert. den’d, 389 U.S. 973, 88 S.Ct. 472, 19 L.Ed.2d 464. Also the trial court, when considering a directed verdict motion, may not weigh the evidence or determine where the preponderance of evidence lies. The court should not consider the credibility of witnesses, and only clearly incredible evidence should be excluded from the court’s consideration. Anderson v. Hudspeth Pine, Inc., 299 F. 2d 874 (10th Cir. 1962).

To have established a prima facie case of breach of implied warranty of fitness, appellant claims credible evidence was needed that (1) the vehicle was defective when sold, (2) the defect caused injury, (3) the injury occurred while the vehicle was being used in the range of its intended use, and (4) an injury, in fact, occurred to appellant. See 63 Am. Jur.2d Products Liability §§ 91, 101. Appellee contends, as the trial court apparently decided, that appellant failed to produce any credible evidence of a defect. Applying the standard of review previously discussed, we cannot agree with appellee and must reverse and remand.

Appellant called Professor McCoy to establish the fact of a defect in the vehicle. In response to questions by appellant’s counsel, McCoy testified, in his expert opinion, that a defect was present in the upper control arm ball joint since installation of the part. He gave reasons why he believed the upper control arm was out of the socket at the time impact damage was done to the lower control arm. McCoy compared the mechanism from appellant’s vehicle with one pressed out by a hydraulic press. Appellee argues McCoy’s testimony was incredible and should not be considered as evidence of the defect. It is true that McCoy did not run metal hardness tests or examine the grease to substantiate his abnormal wear theory and that he did not examine the vehicle’s spindle. These matters, however, go to the weight which the trier of fact should accord the evidence and do not make the testimony incredible.

The trial court allowed McCoy to testify to the ultimate conclusion that a defect existed. The court specifically overruled a directed vendict motion based on appellee’s contention McCoy was not qualified to testify as an expert. Thus there was expert testimony of the defect which was available for jury consideration. This expert testimony, appellant’s narrative of the accident, appellant’s other evidence, and the reasonable inferences resulting therefrom made a submissible ease for jury consideration. Thus, the motion granting a directed verdict was error.

Because we remand this matter for a new trial, we find it unnecessary to decide appellant’s second contention that the trial court abused its discretion in failing to apply sanctions for appellee’s alleged failure to comply with the court’s discovery order.

The order granting the directed verdict is set aside and the case is remanded for a. new trial.

      . In response to counsels’ arguments on this motion while the jury was out of the courtroom, the court said, “[T]he plaintiff has failed to show that there is ... in fact a defect in the car as it left the factory. Plaintiff claims that there was an unusual amount of wear in the joint and socket which controlled part of the steering mechanism. There is no credible evidence in this case that there was any unsual wear or that the metal was too soft .... [N]o test was made to determine the softness or the hardness of the metal which could have been made but wasn’t. They say that you can see it with your naked eye that there is a wearing in the this [sic] socket. Well, laymen such as the ones that testified don’t support any credible evidence, as I view it, to ascertain such position.”


source: Caselaw Access Project

author: KILKENNY, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Wayne M. GREISER, Appellant. UNITED STATES of America, Appellee, v. Roderick J. MONTE, Jr., Appellant.
    Nos. 74-1582, 74-1709.
    United States Court of Appeals, Ninth Circuit.
    Sept. 11, 1974.

      Dale L. States, Phoenix, Ariz., for appellants.
    Ronald A. Lebowitz, Asst. U.S. Atty., Phoenix, Ariz., for appellee.
    Before KOELSCH and KILKENNY, Circuit Judges, and SWEIGERT, District Judge.

       The Honorable William T. Sweigert, United States District Judge for the Northern District of California, sitting by designation.

   OPINION

KILKENNY, Circuit Judge:

Each appellant was convicted in a jury trial of the crime of extortion in violation of 18 U.S.C. § 1951, and of the crime of aiding and abetting in violation of 18 U.S.C. § 2.

FACTS

On May 12, 1972, at approximately 4:00 P.M., Armour Black, manager of a branch office of a national bank in Phoenix, received a telephone call from an unidentified caller, in which Black was told that “ . . . this is a holdup . . . .’’He was then told that his wife was being held as a hostage, and that if he did what the caller indicated, nothing would happen to her. He was then directed to place twenty, fifty and one-hundred dollar bills in a brief case, and take the case across the street to a telephone booth in the Park-Central Shopping Center. Black was convinced of the validity of the threat and forthwith placed $20,500.00 in a black cardboard box and proceeded to cross the street. As Black was crossing the street, he saw a “hippie-type” man with long hair, blue jeans, a beard, a mustache, and a T-shirt. This man was later identified'as appellant Monte.

When Black reached the phone booth, he placed the box on a ledge and put a dime in the telephone slot. At this moment, a man came from behind and instructed Black to hand over the box, which he did. On turning around, he recognized the man as the same “hippie-type” person he had just observed. The man remarked, “I told you not to turn around.”, forthwith took the box, walked away and turned down the center of the Park-Central Mall.

Shortly thereafter, the Federal Bureau of Investigation was notified and its agents proceeded to search the shopping center area where the box had been taken from Black, and there found two yellow legal size pieces of paper on which were drawn a map of the shopping center area and the location of the telephone booth to which Black had been directed. These pieces of paper had several handwritten notations, one of which was the telephone number registered to the Granada Royale Hometel, with room extension numbers 135 and 136. Black’s name, home address and home and business telephone numbers were noted on one of the yellow sheets. The agents immediately proceeded to the Hometel and observed Monte leaving in an automobile. He fit the description given to the agents by Black of the “hippie-type” person whom Black had observed in the shopping center, with the exception of the beard. However, the officers observed a noticeable difference between the coloration on his face above the cheek bones and the coloration on his cheeks. This indicated to them that he had recently shaven. The officers proceeded to arrest Monte. A search of his automobile revealed the remnants of the black cardboard box. A search of his hotel room, number- 135, pursuant to a search warrant, resulted in the discovery in the freezing compartment of his room refrigerator, $4,270.00 in five, ten and twenty dollar bills.

The following morning the local newspaper ran the story of the incident along with a photograph of Monte. Black immediately recognized the man in the photograph as the one who took the money from him the previous day.

A check of the hotel records revealed that three calls were placed from room 136, and that the room was registered to a Helen Greiser. These calls were placed to the business and residence phones of Peter Bagnard in the Los An-geles area. As part of the investigation, an agent secured from American Airlines, in Phoenix, boarding passes, tickets and ticket folders for two people named Greiser on a flight to Los Ange-les in the early evening of May 12, 1972. That evening, Stephanie, wife of Peter, received a call advising .that Greiser was arriving at Los Angeles Airport and suggesting that her husband should meet the plane. Greiser, Bagnard and Judy McNelis, sister of Nan'cy Monte, later arrived at Bagnard’s house. Shortly, thereafter, Greiser handed Bag-nard 50 one-hundred dollar bills to pay for construction work on a racing car. Soon thereafter, Bagnard answered the telephone -and a female voice asked for Greiser. After a telephone conversation, Greiser appeared very upset, privately conferred with Judy and then said that they were going to a motel rather than stay overnight with the Bagnards. He said that he had run into some difficulties, but that it was nothing that he could not handle. He mentioned that a friend of his had just been “busted” for a marihuana charge, and that a bank robbery was included. The following day, he asked Bagnard for and received a return of $2,000.00. He then bought a Lincoln Continental automobile. Just before leaving, he told Bagnard that if anyone was looking for him to tell them that he had been there, but not to tell them anything about their business transaction.

On May 18, 1972, a Texas Highway Patrolman stopped Greiser and Judy on Interstate 10 in Texas. Greiser displayed a temporary driver's license in the name of “Dridka”. The officer, being unaware that “Dridka” was in fact Greiser, permitted him to proceed. In a short time, the patrolman received a radio dispatch on the vehicle and started in pursuit of the Greiser Continental. When the vehicle was stopped, the officer discovered in Judy’s purse two cigarette packages which contained 16 one-hundred dollar bills; also a bill of sale for the automobile.

Both appellants’ fingerprints were found on the following: (1) in fragments of the black cardboard box found at the Granada Royale, and (2) the yellow notes discovered at Park-Central Mall. The manager of the Hometel positively identified Greiser as the man who signed the Hometel registration card for room 136.

THE MONTE APPEAL

Monte’s only defense was that of insanity. The defense was rejected by the jury. His single assignment of error is the alleged misconduct of the prosecutor. During the course of the examination of one of appellant’s psychiatrists, the prosecutor asked the witness if he was aware “ . . .of the limitations of the federal court on institutionalization of mentally affected individuals.” There was an immediate objection by Monte’s counsel. The court forthwith sustained the objection, and after a motion for mistrial, instructed the jury to disregard the question.

Appellant’s reliance on Evalt v. United States, 359 F.2d 534, 546 (CA9 1966), is misplaced. There the prosecutor, in substance, argued to the members of the jury that they might find the defendant guilty even though they believed him to be insane. While in Evalt, the prosecutor was permitted to argue that the defendant might go free unless the jury found him guilty, here the judge sustained the objection to the question and instructed the jury to disregard it.

United States v. McCracken, 488 F.2d 406 (CA5 1974), cited by appellant, is no more in point. There, the trial judge committed the grievous error of telling the jury that a defendant charged with murder would be released if found not guilty by reason of insanity. Here, to the contrary, the judge removed from the consideration of the jury the consequences of its verdict. Any possible error was remedied by the court’s instructions.

Aside from the above, the evidence against Monte is so overwhelming that we would not hesitate to invoke the harmless error doctrine as stated in Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and their progeny.

THE GREISER APPEAL

Greiser assigns two errors: (I) the action of the trial court in receiving evidence with reference to the handwriting of the appellant, and (II) the giving of an instruction on flight.

I.

During the course of the trial, various writings were admitted in evidence under the Business Records Act, 28 U.S.C. § 1732. These instruments were in the handwriting of Greiser or persons purporting to be Greiser. Two of the writings were hotel registration cards at the El Camino Village Motel. The operators of the motel positively identified appellant as the person who filled out each registration card on two separate visits. The handwriting on certain employment applications was identified as that of the appellant by a fellow employee. This witness testified that he was familar with appellant’s writing and printing and that he recognized the exhibits as the handwriting or handprinting of appellant even though the name of the appellant did not appear on the particular writings. Additionally, an FBI agent, an expert in handwriting analysis, compared the known exemplars with the yellow notes found at the scene of the crime, and testified that the handprinting on the yellow sheets was handprinted by the person who printed the known examplars.

The great weight of authority places on the trial judge the burden of determining the genuineness of the handwriting on the documents to be used as a standard. United States v. American Radiator & Stand. San. Corp., 433 F.2d 174, 193 (CA3 1970), cert. denied 401 U.S. 948, 91 S.Ct. 928, 28 L.Ed.2d 231 (1971). Here the judge, at least by strong implication, ruled that the exemplars were sufficient and submitted them to the jury under proper instructions.

Appellant’s attack is directed more to the sufficiency of the evidence relating to his handwriting than to the procedure which was followed in submitting this issue to the jury. In any event, our examination of the record convinces us that the evidence of the expert and of the other witnesses was adequate to permit the introduction of the writings in evidence. 28 U.S.C. § 1731 and our own authorities support this conclusion. United States v. Saputski, 496 F.2d 140 (CA9 1974); Robles v. United States, 279 F.2d 401 (CA9 1960), cert. denied 365 U.S. 836, 81 S.Ct. 750, 5 L.Ed.2d 745, rehearing denied 365 U.S. 890, 81 S.Ct. 1032, 6 L.Ed.2d 201 (1961); Desimone v. United States, 227 F.2d 864 (CA9 1955). The Business Records Act, 28 U.S.C. § 1732, was properly used as an additional ground for the introduction of the motel registration cards. United States v. Reed, 439 F.2d 1, 3 (CA2 1971). For comparison, see proposed Rules of Evidence for United States Courts and Magistrates, 56 F. R.D. 183, 331-332 (1972).

II.

Next, Greiser challenges both the sufficiency of the evidence on flight and the legal accuracy of the flight instruction. He is wrong on both contentions.

There is substantial evidence that appellant: (1) was registered in room 136 of the Hometel at the time of the extortion; (2) occupied the room adjoining the room of appellant Monte; (3) placed or caused to be placed three telephone calls to the home of his friend in the Los Angeles area shortly after the occurrence; (4) notified or caused to be notified his friend Peter Bagnard of his arrival at the International Airport at a specific time that evening; (5) arrived at the Los Angeles airport from Phoenix at approximately 11:00 P.M. and was driven by his friend to the latter’s home; (6) shortly thereafter handed his friend 50 one-hundred dollar bills, none of which denomination was found with Monte; (7) after a telephone conversation appeared upset and announced that he and his girl friend were going to a motel, rather than stay overnight with his friend; (8) the following day asked for and received from his friend a return of $2,000.00 in one-hundred dollar bills, forthwith bought the Continental and took off for parts unknown; (9) was next observed when stopped by a highway patrolman in Hudspeth County, Texas, on May 18, 1972, in the Continental purchased in Los Angeles. At that time, he displayed a temporary driver’s license in the name of “Dridka”; (10) was then stopped by another patrolman after an exchange of radio dispatches. With him at both stops was Judy Mc-Nelis, in whose purse were found. 16 one-hundred dollar bills.

The admissibility of evidence relating to flight is no longer open to question. In Marcoux v. United States, 405 F.2d 719, 721 (CA9 1968), we said:

“It is today universally conceded that the fact of an accused’s flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself.” [Emphasis supplied].

Additionally, the possession of a large sum of money in cash immediately after the extortion is relevant on the issue. United States v. Sidman, 470 F.2d 1158, 1163 (CA9 1972); United States v. Michaelson, 453 F.2d 1248, 1249 (CA9 1972).

Appellant’s reliance on Alberty v. United States, 162 U.S. 499, 510-511, 16 S.Ct. 864, 40 L.Ed. 1051 (1896). and Hickory v. United States, 160 U.S. 408, 417, 16 S.Ct. 327, 40 L.Ed. 474 (1896), places him in the uncomfortable position of explaining away the subsequent Supreme Court decision of Allen v. United States, 164 U.S. 492, 499, 17 S.Ct. 154, 157, 41 L.Ed. 528 (1896), which analyzed the factual backgrounds in Alberty and Hickory and then went on to say, “ . . . Indeed the law is entirely well settled that the flight of the accused is competent evidence against him as having a tendency to establish his guilt.”

If appellant had taken the time to compare the instruction in Austin v. United States, 134 U.S.App.D.C. 259, 414 F.2d 1155 (1969), with the instruction before us, he would have found that following the Austin decision, the De-vitt-Blackmar suggested instruction on flight, § 11-18, 2d Ed., Vol. 1, p. 234, was revised to conform to Austin and that the instruction before us follows the revision.

CONCLUSION

When we add to the evidence on flight, the large number of one-hundred dollar bills in appellant’s possession, his fingerprints on the yellow papers, his handwriting on the same documents, his registrations at the motel and Hometel, his close relationship with the appellant Monte, and other relevant evidence, there is no doubt in our minds but that the record reveals substantial evidence of appellant’s guilt and that his case was properly submitted to the jury.

Finding no error, we affirm the judgments of the lower court.

      . “THE COURT: . . . Any reference in the testimony to penalties is to be entirely disregarded by the jury, you are not to consider it at all. Punishment is for the Court to determine, not for the jury.” ■ [Page 245, Monte Transcript].


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Samuel RATNER, Albert Ratner, and Wyngate & Bevins, Inc., Defendants-Appellants.
    No. 71-2062.
    United States Court of Appeals, Fifth Circuit.
    Oct. 25, 1974.

      Mel S. Friedman, W. B. (Bennie) House, Jr., Houston, Tex., for defendants-appellants.
    Eldon B. Mahon, U. S. Atty., Frank D. MeCown, William F. Sanderson, Asst. U. S. Attys., Ft. Worth, Tex., for plaintiff-appellee.
    Before WISDOM, GOLDBERG and CLARK, Circuit Judges.
   PER CURIAM:

The individual defendants, Samuel and Albert Ratner, ran a large scale mail order business in allegedly obscene magazines and films. They operated through a California corporation, Wyn-gate & Bevins, Inc. The corporation mailed sexually explicit advertisements to persons on various mailing lists who had not solicited the material, mailed similar advertisements with each order, and advertised in various magazines. The United States indicted the two Rat-ners and Wyngate & Bevins for violations of the federal obscenity statute, 18 U.S.C. § 1461. A jury found the defendants guilty. The trial court sentenced the individual defendants to five years imprisonment on each of seven counts, the sentences to run concurrently. The court fined Wyngate & Bevins $35,000, $5,000 for each count. All the defendants appeal. We affirm.

We withheld decision of this appeal pending the progress through the courts of another obscenity case, in which some of the issues were identical and some related to those raised by the appellants here. That case was United States v. Groner, 5 Cir. 1972, 475 F.2d 550, rev’d en banc, 1973, 479 F.2d 577, vacated, 414 U.S. 969, 94 S.Ct. 278, 38 L.Ed.2d 213. The Supreme Court remanded Groner for reconsideration in light of Miller v. California, 1973, 413 U.S. 18, 93 S.Ct. 2607, 37 L.Ed.2d 419, and its companion cases. This Court rendered its decision on remand on May 24, 1974. United States v. Groner, 5 Cir. 1974, 494 F.2d 499.

Shortly after this Court decided Groner on remand, the Supreme Court decided Hamling v. United States, 1974, 418 U.S. 87, 94 S.Ct. 2887, 41 L. Ed.2d 590. Together, Groner and Ham-ling squarely reject the following arguments of the appellants: (1) that the prosecution must introduce expert testimony to enable the jury to determine the obscenity of the material in question, (2) that evidence of pandering may not be admitted into evidence to show the obscenity of the materials in question where pandering has not been charged in the indictment, and (3) that mere knowledge of the character of the materials mailed, without knowledge that they are obscene, does not satisfy the constitutional and statutory requirements of scienter.

The test of obscenity governing at the time of the trial was that set forth by the plurality in Memoirs v. Massachusetts, 1966, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1:

“. . . three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.”

383 U.S. at 418, 86 S.Ct. at 977, 16 L.Ed.2d at 5-6.

The appellants do not contend that the charge given by the district court was inconsistent with that definition. Rather, they contend that the United States failed to establish the obscenity of the materials in question. We have examined the record and exhibits and find that the jury could reasonably find, as it did, that the materials were obscene under the Memoirs standard.

After the appellants had been convicted, however, and while this appeal was pending, the Supreme Court decided Miller v. California, 1973, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, • and its companion cases. The Miller reformulation of the test of obscenity provides :

“The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”

413 U.S. at 24, 93 S.Ct. at 2615, 37 L.Ed.2d at 431 (citations omitted). We find no basis for believing that the defendants would have fared better had they been tried under this standard of obscenity. See Hamling v. United States, 1974, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590, 611.

The appellants further contend that their conviction as to Count 6 must be reversed because there is a fatal variance between the allegations made in that count and the proof offered by the government at trial. They did not raise this objection at trial. They are barred from raising it on appeal under Rule 51, Fed.R.Crim.P., unless it constitutes “plain error”. See United States v. Hyde, 5 Cir. 1971, 448 F.2d 815; Pur-year v. United States, 5 Cir. 1967, 378 F.2d 29. We find that the alleged variance does not rise to the level of “plain error”. We decline, therefore, to consider whether there was a variance at all, or if there was, whether it was material.

The appellants raise other points on this appeal. We have considered all of the appellants’ contentions. We conclude that they do not merit discussion.

Affirmed.

      . Paris Adult Theatre I v. Slaton, 1973, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446; Kaplan v. California, 1973, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492; United States v. 12 200-ft. Reels of Super 8 mm. Film, 1973, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500; United States v. Orito, 1973, 413 U.S. 139, 93 S.Ct. 2673, 37 L.Ed.2d 513; Heller v. New York, 1973, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745; Roaden v. Kentucky, 1973, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757, and Alexander v. Virginia, 1973, 413 U.S. 836, 93 S.Ct. 2803, 37 L.Ed.2d 993.

      . The court liad instructed the jury that it might consider evidence of pandering in determining whether the materials mailed were obscene. This instruction was proper under Ginzburg v. United States, 1966, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31. The appellants also argue that there was insufficient evidence of pandering to justify such an instruction. This argument deserves little discussion. The advertising material mailed by the appellants was sufficiently lurid to permit a jury to infer that it pandered to the prurient interest of recipients.

      . In general, the effect of the Miller standard is to relax appellate review of the jury’s findings. This is implicit in the court’s emphasis that what “appeals to the prurient interest” and what is “patently offensive” are “essentially questions of fact”, which the jurors may resolve by reference to the standards of their local community, rather than to “some hypothetical standard of the entire United States of America.” 413 U.S. at 31, 93 S.Ct. at 2618, 37 L.Ed.2d at 434, 435. In this case, as in Hamling, the district court instructed the jury that it must apply a national standard. We conclude, as the Supreme Court concluded in Hamling, that consideration of the record and the charge as a whole shows that there is no substantial probability that elimination of the references to a “national community” would have materially affected the jury’s deliberations.
      The Miller standard is also less stringent to the extent that it discards the “utterly without redeeming social value” test of Memoirs in favor of a test requiring only that “the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” 413 U.S. at 24, 93 S.Ct. at 2615, 37 L.Ed.2d at 431-432 (emphasis added).


author: WISDOM, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Leon X. GOODSON and James Clarence Goodson, Defendants-Appellants.
    No. 73-3766.
    United States Court of Appeals, Fifth Circuit.
    Oct. 25, 1974.

      Gerald Urbach, Dallas, Tex., for James Clarence Goodson.
    Leon X. Goodson, pro se.
    Frank McCown, U. S. Atty., Fort Worth, Tex., Charles D. Cabaniss, Asst. U. S. Atty., Dallas, Tex., John W. Sweeney, Jr., Asst. U. S. Atty., Ft. Worth, Tex., for plaintiff-appellee.
    Before WISDOM and CLARK, Circuit Judges, and GROOMS, District Judge.
   WISDOM, Circuit Judge:

James Clarence Goodson and Leon X. Goodson, together with several other persons, were tried before a jury upon an indictment charging the defendants with conspiracy to defraud the United States in violation of 18 U.S.C. § 371 and with the substantive offenses of forgery and the uttering of forged endorsements in violation of 18 U.S.C. § 495. The government cheeks in question were some of those stolen in the robbery of a United States Post Office Department vehicle containing a large number of Government checks. Both James and Leon Goodson were found guilty on all counts. They now appeal. We affirm the judgment in part and reverse in part as to both the appellants.

I.

James Goodson attacks his conviction for conspiracy to defraud the United States in violation of 18 U.S.C. § 371 on two separate grounds. His first argument asserts that the Government failed to prove the offense of conspiracy because it offered no proof of a conscious agreement and thus failed to show that the alleged conspirators worked together understandingly with a single design for the accomplishment of a common purpose. The appellant’s argument correctly states the need for proof of a conscious agreement in a trial for conspiracy, but incorrectly assumes that the proof must be made by direct evidence. An agreement to conspire may be inferred from all the circumstances of a ease. The nature of the crime itself makes circumstantial evidence the only proof generally available. Such evidence will be sufficient to support a conspiracy conviction if the evidence places the defendant “at the hub of the wheel of events” so that “the jury might reasonably find that the evidence excludes every reasonable hypothesis, ex-cept that of guilt”. Grant v. United States, 5 Cir. 1969, 407 F.2d 56, 57.

The facts in this case demonstrate that Leon Goodson solicited aid for the purpose of robbing a mail truck on the day before the robbery. A vehicle meeting the description of one owned by Leon Goodson was used in the robbery. On the day of the robbery, Leon Goodson used that vehicle to deliver a bag containing Government checks to his brother, James Goodson, who took the cheeks to the back room of his store. James Goodson thereafter paid John Wade to forge endorsements on some of the checks. He told Wade that he could not sign the checks himself because he planned to deposit them to his own account. James Goodson also solicited the aid of Clark Reeves, who received a quarter of the proceeds in exchange for using some of the checks to pay his legitimate business expenses. Goodson explained to Reeves that he did not want to run any more of them through his own account. For his part, Leon Good-son asked Dollie Wilson if she “knew how to cash checks” and employed her for that purpose. In view of this division of the checks for the purpose of negotiation and the other incriminating circumstances, we hold that there is sufficient evidence to support the jury’s finding of a conscious agreement to conspire to defraud the United States, under the test established by Grant:

James Goodson relies on Hoffman-LaRoche v. Greenberg, 7 Cir. 1971, 447 F.2d 872, for the proposition that transactions must be parallel or repetitive, rather than isolated, in order to establish a conspiracy. Although Good-son’s statement of that decision is correct, we differ with his characterization of the transactions in his own case as “isolated”. In Hoffman-LaRoche, the Government attempted to establish a conspiracy between two men who were entirely unaware of each other’s existence or activities; their only connection was that both obtained stolen goods from the same source. The Seventh Circuit held that their transactions were isolated and could not support a finding of conspiracy. In the Goodsons’ case, Leon appears to have been the source of the stolen checks as well as one of the two actors in the forgery and attempted negotiation of the checks. The evidence does not support a conclusion that the efforts of Leon and James Goodson were “isolated” in the sense of being unrelated. The more plausible conclusion, implicit in the jury’s guilty verdict, is that each brother took responsibility for reducing a portion of the checks to cash. It is well-established that a conspiracy does not lose its character because efficiency or expertise requires a division of labor among the participants. Merely “[because] members had varied duties does ■ not change the fact that they all acted in furtherance of the same conspiracy”. United States v. Owen, 7 Cir. 1965, 346 F.2d 329, 330. We think that the evidence adduced at trial was sufficient to allow the jury to infer a conspiracy and would support a conviction on this count but for the merit of James Goodson’s second argument.

James Goodson’s second argument states that the proof offered by the Government may be sufficient to support the existence of a conspiracy, but that the proof does not conform to the particular conspiracy offense charged in the indictment. The language of the indictment alleges a conspiracy to commit the following offense:

To wilfully and knowingly, with intent ' to defraud, forge, falsely make and alter United States Treasury checks for the purpose of obtaining and receiving directly or indirectly from the United States or agents thereof any sum of money; and, to knowingly and wilfully with intent to defraud the United States utter and publish as true falsely made, forged and altered United States Treasury checks, knowing the same to be false, altered and forged in violation of Title 18, United States Code, Section 495. (emphasis added).

The indictment requires the Government to prove that the defendants conspired to forge, falsely make and alter Government instruments. The Government’s evidence, however, was directed entirely toward proving that the defendants conspired to place false endorsements on otherwise valid instruments.

A similar divergence of indictment and proof occurred in United States v. Danielson, 9 Cir. 1963, 321 F.2d 441. In Danielson, the defendants were charged with conspiring to “falsely make, forge and counterfeit and knowingly utter and publish as true, with the intent to defraud the United States of America, 171 United States Savings Bonds.” 321 F.2d 441, 442. The evidence established that the Bonds were valid Government instruments and that the defendant forged endorsements rather than the instruments themselves. The court in Danielson held that this divergence of allegation and proof was fatal to the conviction because a defendant cannot “be charged with one crime and convicted of another merely because the latter is developable out of the proof which fails to show the crime charged”. 321 F.2d 441, 444, n. 8.

We agree with the Danielson court that such a divergence cannot be dismissed as harmless error and reverse James Goodson’s conviction on the conspiracy count.

Leon Goodson’s pro se brief alleges that there was insufficient evidence to support his conviction on the conspiracy court. We construe his pro se brief to include the argument successfully made by James Goodson and therefore reverse Leon Goodson’s conviction on the conspiracy count as well.

II.

As a second basis for reversal, James Goodson alleges that the evidence adduced at trial was insufficient to support the jury’s verdict of guilty on the substantive counts. Leon Goodson makes substantially the same argument in his pro se brief. The standard for evaluating the sufficiency of the evidence on appellate review requires that the evidence supporting the verdict be viewed in the light most favorable to the Government. United States v. Glasser, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680. We are convinced that the Government introduced sufficient evidence from which the jury could reasonably conclude beyond a reasonable doubt that the appellants were guilty of the offenses for which they were charged. We see no benefit to be gained by a recital here of the voluminous facts adduced at trial.

III.

James Goodson’s next allegation of error concerns the admission into evidence of a prior written statement made by a Government witness who was present and testified at trial. The appellant contends that the Government improperly relied on the witness’s prior consistent statement to bolster his otherwise “weak and contradictory testimony”. On direct examination, Timothy Prince testified that he was with Leon Goodson when Leon delivered a bag of blue-colored checks to James Goodson’s store. He also testified that James Goodson took the checks to the back room of the store. At the close of extensive cross-examination, James Good-son’s counsel asked Prince whether he had actually seen the checks or only brown envelopes which might have contained Government checks. Prince replied he had seen only the brown envelopes. Prince had seen either, cheeks or envelopes on a number of different occasions and there was some ambiguity in his testimony as to exactly what he had seen at various times. In the face of this ambiguity, James Goodson’s counsel brought up the matter of the prior statement Prince had given to the Government and attempted to discredit the witness by suggesting that it was not the same story he had told in his in-court testimony. The Government then offered Prince’s prior written statement for the sole purpose of re-establishing his credibility. In light of the defense counsel’s attempt to discredit the witness by suggesting that his story on cross-examination was inconsistent with his earlier statement, and of possibly recent fabrication, we cannot say that the trial court erred in admitting the witness’s prior statement into evidence for the limited purpose of re-establishing the witness’s credibility. United States v. Bays, 5 Cir. 1971, 448 F.2d 977. The trial court has broad discretion with respect to the admission of such statements, and we find nothing in the record to indicate an abuse of that discretion. United States v. Zito, 2 Cir. 1972, 467 F.2d 1401, 1404.

Although James Goodson alleges that the prior statement contained facts not otherwise admitted into evidence, the record does not support such an allegation. The language of the prior statement was not exactly the same as that used by the witness in court, but the statement itself adds no substantive evidence that was not previously presented in live, testimony.

This appellant also attacks the admission of this statement on the ground that the trial court failed to instruct the jury that the statement was to be used only as evidence of the witness’s credibility and not for the truth of the matter stated. Our reading of the transcript demonstrates that the trial court closely questioned the prosecutor concerning the purposes for which the writing was being offered. Both before and after the statement was admitted into evidence, the trial court explained to the jury in detail that the statement was being admitted into evidence for the narrow purpose of establishing the witness’s credibilit5r and not for the truth of the matter stated. Moreover, the prosecutor explained at length the applicable law when he offered the statement in evidence. In light of these facts, we can find no reversible error in the conduct of the trial court with regard to the admission of the prior statement.

IV.

James Goodson argues that the indictment on which he was tried was defective because it failed to allege that the forgery of the endorsements was made with an intent to defraud the United States. Although the appellant argues that a recitation of intent to defraud is necessary to the framing of an indictment under 18 U.S.C. § 495, he fails to distinguish between the essential elements which must be stated under the first paragraph of Section 495 and the essential elements which must be stated under the second paragraph of Section 495. In Prussian v. United States, 1931, 282 U.S. 675, 51 S.Ct. 223, 75 L.Ed. 610, the Supreme Court held that no allegation of intent to defraud the United States is necessary to state an offense under the first paragraph of Section 495 (then Section 29 of the Criminal Code). The Court said:

Petitioner asserts that the indictment is defective in that it does not charge that the forgery was with intent to defraud the United States, [citations omitted] No such averment is required by the language of Section 29 relating to forged endorsements. Other provisions of § 29 punish the uttering of a forged writing, or presenting any such writing to an officer of the United States in support of any claim, “with intent to defraud the United States”. But the present indictment is not under either of those provisions. The charge is forgery of the endorsement, which is punishable by the different provision [Paragraph 1 of Section 495], now in question, if committed merely “for the purpose of obtaining or receiving” from an officer or agent of the United States any sum of money. This imports an intent to defraud the United States, which the indictment sufficiently charges in the language of the statute. 282 U.S. 675, 680, 51 S.Ct. 223, 225. (emphasis added).

. This Court followed the Prussian analysis in Miller v. United States, 5 Cir. 1968, 397 F.2d 272, 274. James Goodson has drawn our attention to this Court’s decision in United States v. Bates, 5 Cir. 1972, 468 F.2d 1252, which he understands to require that indictments under all paragraphs of Section 495 allege an intent to defraud the United States. This view represents a misunderstanding of Bates.

The indictment in Bates charged the defendant in one count with causing another to falsely endorse and cash a government check. This single count states two independent violations of Section 495. The endorsement is an offense under the first paragraph of Section 495 and does not require an allegation of intent under the reasoning of Prussian, while the cashing of the check is an offense under the second paragraph of the section and does require an allegation of intent to defraud the United States. Because the count in Bates combined two offenses, only one of which required an allegation -of intent to defraud the United States as an essential element of the indictment, the Court held that the indictment’s failure to allege intent was fatal to the count as a whole. The Court was not required to consider the variation in the elements which must be pleaded under the two paragraphs of Section 495 because the count would be defective so long as one of the two paragraphs required an allegation of intent. For these reasons, it would be wrong to read Bates as a departure from the rule established by the Supreme Court in Prussian, which we follow here.

V.

The next issue raised on appeal concerns Leon Goodson’s allegation that the trial court’s denial of his motion for a separate trial violated his constitutional rights and denied him due process of law. Broad discretion is placed in the trial court with regard to the granting of separate trials. Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 99 L.Ed. 101 (1954). Here, there are many issues of fact common to the prosecution of both appellants. We find, therefore, no abuse of judicial discretion in the trial court’s denying the appellant’s motion for a separate trial.

We have carefully considered the other issues raised on appeal by Leon and James Goodson and find them without merit.

For the foregoing reasons we hold that the convictions of both defendants under the count charging a conspiracy to defraud the United States in violation of 18 U.S.C. § 371 should be reversed. The convictions of both defendants on all other counts should be affirmed.

      . 18 U.S.C. § 371 provides that:
      If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.
      If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.

      . 18 U.S.C. § 495 provides that:
      Whoever falsely makes, alters, forges, or counterfeits any deed, power of attorney, order, certificate, receipt, contract, or other writing, for the purpose of obtaining or receiving, or of enabling any other person, either directly or indirectly, to obtain or receive from the United States or any officers or agents thereof, any sum of money; or
      Whoever utters or publishes as true any such false, forged, altered, or counterfeited writing, with intent to defraud the United States, knowing the same to he false, altered, forged, or counterfeited ; or
      AYlioever transmits to, or presents at any office or officer of the United States, any such writing in support of, or in relation to, any account of claim, with intent to defraud the United States, knowing the same to be false, altered, forged, or counterfeited—
      Shall be fined not more than $1,000 or imprisoned not more than ten years, or both.

      . Counsel for James Goodson draws our attention to that part of Prince’s statement which asserts that he saw Leon Goodson with a “two inch thick” stack of checks. Although James Goodson contends that this characterization was “inflammatory,” it does not appear to us as more inflammatory than many other statements made with respect to the checks in the course of the trial. In other circumstances the admission of this characterization may have constituted reversible error but here the evidence is sufficiently strong to render that characterization insignificant in the balance. See United States v. Knox, 5 Cir. 1972, 458 F.2d 612, 615.

      . The first paragraph of 18 U.S.C. § 495 states:
      Whoever falsely makes, alters, forges, or counterfeits any deed, power of attorney, order, certificate, receipt, contract, or other writing, for the purpose of obtaining or receiving, or of enabling any other person, either directly or indirectly, to obtain or receive from the United States or any officers or agents thereof, any sum of money;

      . The second paragraph of 18 U.S.O. § 495 states:
      Whoever utters or publishes as true any such false, forged, altered, or counterfeited writing, with intent to defraud the United States, knowing the same to be false, altered, forged, or counterfeited; . . .


author: SWYGERT, Chief Judge..

text:
    William A. WATERS and Donald Samuels, Plaintiffs-Appellants, v. WISCONSIN STEEL WORKS OF INTERNATIONAL HARVESTER COMPANY, a corporation, and United Order of American Bricklayers and Stone Masons, Local 21, an unincorporated association, Defendants-Appellees. UNITED ORDER OF AMERICAN BRICKLAYERS AND STONE MASONS, LOCAL 21, Defendant-Appellant, v. William A. WATERS and Donald Samuels, Plaintiffs-Appellees. INTERNATIONAL HARVESTER COMPANY, Defendant-Appellant, v. William A. WATERS and Donald Samuels, Plaintiffs-Appellees.
    Nos. 73-1822 to 73-1824.
    United States Court of Appeals, Seventh Circuit.
    Argued April 22, 1974.
    Decided Aug. 26, 1974.
    Rehearing and Rehearing En Banc Denied Nov. 26, 1974.

      Judson H. Miner, Chicago, 111., for William A. Waters and Donald Samuels.
    Charles L. Thomas, E. E. O. C., Washington, D. C., for amicus curiae.
    Marvin Gittler, Thomas M. Thomas, Thomas A. Gottschalk, Chicago, 111., for Wise. Steel Works and International Harvester Co.
    Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and SPRECHER, Circuit Judge.
   SWYGERT, Chief Judge..

Plaintiffs William A. Waters and Donald Samuels, both black journeymen bricklayers, appeal from a judgment of the district court entered after a bench trial finding that the defendants had violated both Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and section I of the Civil Rights Act of 1866, 42 U.S.C. § 1981. The plaintiffs’ appeals center solely on the district court’s approach to calculating the plaintiffs’ back-pay award and attorneys’ fees under Title VII. Defendants International Harvester Company (International), Wisconsin Steel Works of International Harvester Company (Wisconsin Steel), and Local 21, United Order of American Bricklayers and Stone Masons (Local 21), cross-appeal from the district court’s finding that they violated § 1981 and Title VII.

International operates a large steel plant in Chicago, known as the Wisconsin Steel Works. It employs a small force of bricklayers to maintain and repair blast furnaces. Local 21 is the exclusive bargaining representative for the bricklayers employed by International.

Waters and Samuels initiated an action in the district court on December 27, 1968, claiming that certain employment practices and policies of International and joined in by Local 21 deprived them of rights secured by: Section I of the Civil Rights Act of 1866, 42 U.S.C. § 1981; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the Labor Management Relations Act, 29 U. S.C. § 185(a); and the National Labor Relations Act, 29 U.S.C. § 151 et seq. Before filing their suit, plaintiffs in May, 1966 had registered complaints with both the Illinois Fair Employment Practices Commission and the United States Equal Employment Opportunity Commission (EEOC) charging Wisconsin Steel with racial discrimination due to Wisconsin Steel’s lay-off of Waters and its subsequent refusal to rehire him and its failure to hire Samuels. The State Commission dismissed the charges as unsubstantiated; likewise the EEOC concluded in a February, 1967 decision that no probable cause existed to believe that Wisconsin Steel had violated Title VII. But as a result of new evidence that white bricklayers had been hired after Waters sought reinstatement and Samuels had requested initial employment, the EEOC reassumed jurisdiction and, on reconsideration, it determined that the plaintiffs had cause to sue.

Shortly thereafter the plaintiffs initiated their action as a class action against both International and Local 21. On defendants’ motions, the district court dismissed plaintiffs’ claims. On appeal we reversed and remanded the cause for a trial. Waters v. Wisconsin Steel Works, 427 F.2d 476 (7th Cir. 1970), cert. denied, 400 U.S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151 (1970). On remand the plaintiffs abandoned their class allegations and proceeded to trial on claims of individual discrimination against the two plaintiffs.

At' trial Waters challenged the existence of Wisconsin Steel’s “last hired, first fired” seniority system for bricklayers. Waters claimed the system violated section 1981 and Title VII in that it perpetuated alleged prior discriminatory policies and hiring practices of the defendants. In addition, both plaintiffs condemned as violative of Section 1981 and Title VII two amendatory agreements to the collective bargaining contract entered between Wisconsin Steel and Local 21 which affected employee recall rights and seniority status.

With respect to the seniority system as it relates to Waters, it was established at trial that the collective bargaining agreements between Wisconsin Steel and Local 21 have since 1946 provided for a “last hired, first fired” seniority system for bricklayers employed at Wisconsin Steel. The seniority system gives full credit to all bricklayers for their actual length of service or earned seniority as bricklayers. Seniority vests after a 90-day probationary period and may be broken by various events, including lay-offs in excess of two years. The system governs the order of lay-offs and recalls of bricklayers.

Waters first inquired about employment at Wisconsin Steel in the fall of 1957. He was told that no bricklayers were being hired. Approximately seven years later Waters inquired a second time for employment and was hired in July 1964. Two months later, in September 1964, Waters was laid off according to his length of service and before completing his 90-day probationary period and achieving contractual seniority status. Waters’ lay-off was one of several lay-offs during late 1964 and 1965 which occurred as a result of an • anticipated decrease in the steel plant’s bricklaying needs because of a fundamental change in the steelmaking process. (During this period, Wisconsin Steel was converting from twelve open-hearth brick-lined furnaces to two basic oxygen furnaces, and, consequently, it had been anticipated that the volume of brick maintenance work would be correspondingly reduced.) By March 1965, over thirty bricklayers with up to ten years seniority had been laid off. Wisconsin Steel had expected that over half of the laid-off bricklayers, including eight bricklayers with five to six years seniority, would not be recalled within the two-year period and that pursuant to the terms of the collective bargaining contract these bricklayers’ contractual seniority rights would be lost.

During the course of the next year, however, Wisconsin Steel became aware that it had underestimated its bricklayer requirements for the basic oxygen steel-making process. The company therefore began recalling bricklayers in the order of their length of prior service.

Besides the contractual right of recall for those employees with contractual rights, Wisconsin Steel had a policy that former employees, including bricklayers who did not have contractual seniority rights would nonetheless be recalled according to their length of service. In March 1967, pursuant to this policy and not because of contractual right of recall, Waters was recalled. Waters accepted reinstatement and continued to work until May 19, 1967 when he was once again laid off because of a temporary reduction in plant operations. Waters was recalled on August 30, 1967, but refused this third offer of employment because he had another job and also, because he believed that his return to Wisconsin Steel might prejudice his then pending EEOC charges against Wisconsin Steel which he had filed in May 1966.

With respect to the amendatory agreements to the collective bargaining contract which plaintiffs challenge as discriminatory, the following evidence was adduced at trial. Prior to 1965, Wisconsin Steel, unlike other steel plants, had no provision for severance pay in its collective bargaining agreement with Local 21. However, in March 1965, after the decision had been made to lay off eight white bricklayers having five to six years seniority, the company negotiated a “severance agreement” with Local 21, dealing exclusively with these eight employees. The agreement provided that after being laid off the eight bricklayers could elect to retain their contractual seniority rights or receive $966.00 in severance pay. An election to retain contractual seniority rights carried with it the risk that these bricklayers would lose their seniority rights anyway after two years on lay-off; this risk was believed to be substantial in view of Wisconsin Steel’s anticipated decline in bricklaying needs. Consequently, the eight bricklayers, subsequent to their involuntary lay-off pursuant to seniority, elected to receive severance pay, thereby forfeiting their contractual seniority rights to recall.

As noted earlier, it became apparent to Wisconsin Steel in 1966 that it had underestimated its predicted bricklaying requirement for the basic oxygen process. In view of its new felt demand for bricklayers and its asserted belief that an injustice had been done to the eight bricklayers who had exchanged their contractual seniority rights for $966.00, the company proposed to Local 21 that the March 1965 severance pay agreement be partially nullified by an amendment restoring the eight bricklayers’ contractual seniority rights for purposes of recall. Accordingly, an amendatory agreement was entered into in June 1966. Three of the eight white bricklayers who had previously accepted the severance pay also accepted the recall and returned to work, two in July 1966 and the third in January 1967. In each instance the man was rehired without reapplying with the company for employment.

At trial plaintiffs contended that the June 1966 amendatory agreement was, in effect, discriminatory for it restored contractual seniority status to the three white bricklayers who accepted recall and thereby advanced those three bricklayers ahead of Waters and Samuels on the hiring and recall roster. The defendants countered plaintiffs’ contention by arguing that the three bricklayers would have been entitled to prior recall in any event pursuant to the company policy whereby former employees without contractual rights of recall are nevertheless recalled pursuant to their length of prior service.

After submission of the evidence the trial judge made certain findings of fact. He also made the following conclusions of law:

“4. Prior to April, 1964, Wisconsin Steel discriminated in the hiring of bricklayers in violation of 42 U.S.C. § 1981.
5. The seniority system negotiated between defendants Wisconsin Steel and Local 21 had its genesis in a period of racial discrimination and is thus violative of 42 U.S.C. § 1981 and is not a bona fide seniority system under Title VII.
6. By laying off plaintiff Waters in September, 1964, pursuant to the terms of the seniority system of the collective bargaining agreement, defendants violated both § 1981 and Title VII. Defendants also violated § 1981 and Title VII when, in reliance on the seniority system, Wisconsin Steel failed to recall plaintiff Waters in March, 1965, and when it again laid off plaintiff Waters in May, 1967.
7. Defendants June 15, 1966 agreement to amend the earlier severance pay agreement and thereby restore recall rights to an all white group of bricklayers who otherwise possessed no recall rights under the prior severance pay agreement, thereby placing those white bricklayers ahead of black bricklayers, constituted a violation of both § 1981 and Title VII. This violation discriminated against the rights of both plaintiff Waters and plaintiff Samuels.”

Pursuant to its decision the district court directed Wisconsin Steel to offer employment to Waters and Samuels and ordered both defendants to share in a back-pay award of $5000 to Waters and $5000 to Samuels. In addition, the court awarded the sum of $5000 as attorneys’ fee for plaintiffs’ counsel and as a joint liability of the defendants.

We address the following issues in these appeals: (1) Whether the district court properly asserted jurisdiction over either defendant under 42 U.S.C. § 1981; (2) where an aggrieved plaintiff must exhaust grievance procedures under a collective bargaining agreement before he can initiate a lawsuit under section 1981; (3) whether the trial court’s conclusion that defendant Wisconsin Steel discriminated in the hiring of bricklayers prior to April 1964 is clearly erroneous; (4) whether the trial court erred in concluding that Wisconsin Steel’s “last hired, first fired” seniority system is violative of 42 U.S.C. § 1981 and is not a bona fide seniority system under Title VII; (5) whether there was error in holding that defendants’ June 15, 1966 agreement to amend the prior severance pay agreement thereby restoring contractual recall rights to an all-white group of bricklayers constituted a violation of section 1981 and Title VII; (6) whether the participation of defendant Local 21 as signatory to the collective bargaining agreement as well as to the two challenged agreements to amend the collective bargaining agreement is sufficient to hold the union liable under section 1981; (7) whether the district court erred in its calculation of the back-pay award; and (8) whether the district court erred in its making the award of attorneys’ fees to counsel for the plaintiffs. We affirm in part the district court’s finding on liability, but reverse and remand with respect to the questions of back-pay damages and attorney fees.

I

Local 21 opposes the district court’s assumption of jurisdiction over it on two grounds: The union contends that the plaintiffs did not justify their failure to file charges against Local 21 with the EEOC under Title VII. In addition, it challenges the standing of Waters to sue the union under section 1981 on the basis that he was not at any relevant time a member of the union.

With respect to the argument of Local 21 that the plaintiffs have failed to prove a reasonable excuse for bypassing the administrative procedures of Title VII, we previously addressed that issue in Waters v. Wisconsin Steel, 427 F.2d 476 (7th Cir. 1970) where we stated:

“We hold, therefore, that an aggrieved person may sue directly under section 1981 if he pleads a reasonable excuse for his failure to exhaust EEOC remedies. We need not define the full scope of this exception here. Nevertheless, we believe that plaintiffs in the case at bar have presented allegations sufficient to justify their failure to charge Local 21 before the Commission.
We rely particularly on the following allegations. The primary charge of racial discrimination made by plaintiffs is based on an amendment of the collective bargaining agreement between Harvester and Local 21. That amendment occurred in June 1966 after plaintiffs filed their charge before the EEOC. Until this amendment plaintiffs were, at least arguably, unaware of the participation of Local 21 in Harvester’s alleged policy of racial discrimination.” 427 F.2d at 487.

The evidence adduced at trial supports plaintiffs’ allegation that the collective bargaining agreement amendment occurred after the EEOC charge was filed thereby justifying the by-pass of the EEOC. Moreover, we note and are somewhat inclined to agree with the recent decisions which hold that exhaustion of Title VII remedies, or reasonable excuse for failing to do so, is not a jurisdictional prerequisite to an action under section 1981. See, e. g., Long v. Ford Motor Co., 496 F.2d 500 (6th Cir. 1974).

As to the contention that Waters lacks standing to sue under section 1981, Local 21 premises its argument on the assertion that jurisdiction under section 1981 is dependent on a contractual relationship between Waters and the union (which did not exist here for Waters was not a member of the union). Section 1981 assures that “all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens.” The' subject matter of this suit is cognizable under section 1981 for Waters complains that his right to enter into an employment contract with the company on the same basis as whites was impaired by the joint action of the union and company. It follows that his nonmembership in the union has no bearing on his section 1981 claim against Local 21.

II

Local 21 contends that plaintiffs should be barred from proceeding against the union under section 1981 because they failed to exhaust their contractual remedies under the collective bargaining agreement. The nature of plaintiffs’ claims however is that of a complaint against racial discrimination in employment and not a labor law action, asserting rights under a collective bargaining contract. Indeed, the focus of this civil rights suit is an attack by plaintiffs on the contract itself as embodying racially discriminatory practices.

Title VII and section 1981 are “parallel or overlapping remedies against discrimination.” Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). Consequently, in fashioning a substantive body of law under section 1981 the courts should, in an effort to avoid undesirable substantive law conflicts, look to the principles of law created under Title VII for direction. It is well-established that under Title VII there is no exhaustion of contractual remedies requirement. Alexander v. Gardner-Denver Co., supra, 415 U.S. 36, 94 S.Ct. 1011; Rios v. Reynolds Metal Co., 467 F.2d 54, 57 (5th Cir. 1972); Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969). Moreover, an exhaustion of remedies requirement does not appear to apply to claims for relief brought under any of the civil rights acts. See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1960); McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963); D’Amico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed. 2d 647 (1967); and King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968). We are of the view, therefore, that plaintiffs could properly proceed against the union under section 1981 without first exhausting any contractual remedies under the collective bargaining agreement.

Ill

Wisconsin Steel contends that the evidence does not support the district court’s holding that “[pjrior to April, 1964, Wisconsin Steel discriminated in the hiring of bricklayers in violation of 42 U.S.C. § 1981.” We believe the record supports, the conclusion that Wisconsin Steel engaged in racially discriminatory hiring policies with respect to the position of bricklayer prior to the enactment of Title VII.

Wisconsin Steel did not hire its first black bricklayer until April 1964 although blacks had made inquiries seeking employment as early as 1947. In addition, the evidence reflects a discriminatory departmental transfer policy whereby blacks hired by Wisconsin Steel as laborers were denied the opportunity available to white laborers to transfer to the bricklayers’ apprenticeship program.

It is urged by the company that the “single statistic” of no black bricklayers prior to 1964 is not sufficient to make a showing of discrimination. Although we doubt the validity of this contention (see Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245, 247 (10th Cir. 1970); Parham v. Southwestern Bell Tel. Co., 433 F.2d 421, 426 (8th Cir. 1970)), we think that the statistical data joined by the evidence indicating repeated attempts by blacks 'to obtain employment as bricklayers substantiates the trial court’s finding of discrimination.

Wisconsin Steel further contends that plaintiffs did not make a showing of past racial discrimination because they failed to prove that black applicants were denied actual job openings. Relying on McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the defendant in effect urges that discrimination can only be shown if there is a precise matching of job openings and job applicants. While a showing of matching might be required where the focus of inquiry is on an “individualized hiring decision,” such as in McDonnell Douglas, we do not believe such a showing is required, where, as here, the inquiry centers on whether the employer engaged in discriminatory hiring procedures or practices in the past unrelated to the subsequent employment applications. Accordingly, we do not find McDonnell Douglas controlling on this issue.

IV

With respect to the validity of Wisconsin Steel’s employment seniority system which embodies the “last hired, first fired” principle of seniority for job recalls and layoffs, the district court held:

“5. The seniority system negotiated between defendants Wisconsin Steel and Local 21 had its genesis in a period of racial discrimination and is thus violative of 42 U.S.C. § 1981 and is not a bona fide seniority system under Title VII.
6. By laying off plaintiff Waters in September, 1964, pursuant to the terms of the seniority system of the collective bargaining agreement, defendants violated both § 1981 and Title VII. Defendants also violated § 1981 and Title VII when, in reliance on the seniority system, Wisconsin Steel failed to recall plaintiff Waters in March, 1965, and when it again laid off plaintiff Waters in May, 1967.”

The plaintiffs contend that Wisconsin Steel’s employment seniority system perpetuates the effects of past discrimination in view of the facts that blacks will be laid off before and recalled after certain whites who might not otherwise have had seniority had Wisconsin Steel not discriminated in hiring prior to 1964. They argue that such a system facilitates a return to the status quo of the era when Wisconsin Steel hired no black bricklayers. Wisconsin Steel argues, however, that an employment seniority system which accords workers credit for the full period of their employment is racially neutral and as such is a bona fide, seniority system within the contemplation of § 708(h) of Title VII, 42 U.S.C. § 2000e-2(h). The defendant says that to strike down its employment seniority system would be to countenance reverse discrimination.

It is asserted that here there is an employment seniority system (unlike the departmental or job seniority systems which courts have modified under Title VII) which grants workers equal credit for actual length of service with the employer. Under a departmental seniority system, seniority is measured by length of service in a department while a job seniority system accords seniority on the basis of length of service on a job. The decisions modifying these two forms of seniority systems have routinely involved situations where the employer previously maintained segregated work forces, prohibiting transfers by blacks into various jobs or departments which offered improved employment conditions. With the advent of Title VII the employer would facially lift the restrictions on transfers but would effectively prohibit transfers through a department or job seniority policy whereby blacks would be given no credit for their previous years of employment with the employer and would be placed at the bottom of the employee roster in the formerly all-white job or department to which they transferred. Often in modifying these discriminatory forms of seniority systems the courts have deployed an employment seniority system as a racially neutral and adequate remedy to the discriminatory impact of the prior seniority systems.

We are of. the view that Wisconsin Steel’s employment seniority system embodying the “last hired, first fired” principle of seniority is not of itself racially discriminatory or does it have the effect of perpetuating prior racial discrimination in violation of the strictures of Title VII. To that end we find the legislative history of Title VII supportive of the claim that an employment seniority system is a “bona fide” seniority system under the Act. The history points out that:

“Title VII would have no effect on established seniority rights. Its effect is prospective and not retrospective. Thus, for example, if a business has been discriminating in the past and as a result has an all-white working force, when the title comes into effect the employer’s obligation would be simply to fill future vacancies on a nondiscriminatory basis. He would not be obliged — or indeed, permitted —to fire whites in order to hire Negroes, or to prefer Negroes for future vacancies, or, once Negroes are hired, to give them special seniority rights at the expense of the white workers hired earlier. (However, where waiting lists for employment or training are, prior to the effective date of the title, maintained on a discriminatory basis, the use of such lists after the title takes effect may be held an unlawful subterfuge to accomplish discrimination.)” Interpretative Memorandum of Senators Clark and Case, 110 Cong.Ree. 7213 (April 8, 1964). (Emphasis added).

In response to written questions by Senator Dirksen, one of the Senate floor managers for the bill, Senator Clark, emphasized that the “last hired, first fired” principle of seniority would be preserved under Title VII:

“Question. Would the same situation prevail in respect to promotions, when that management function is governed by a labor contract calling for promotions on the basis of seniority? What of dismissals? Normally, labor contracts call for ‘last hired, first fired.’ If the last hired are Negroes, is the employer discriminating if his contract requires that they be first fired and the remaining employees are white ?”
“Answer. Seniority rights are in no way affected by the bill. If under a ‘last hired, first fired’ agreement a Negro happens to be the ‘last hired,’ he can still be ‘first fired’ as long as it is done because of his status as ‘last hired’ and not because of his race.” 110 Cong.Ree. 7217 (April 8, 1964).

Moreover, to alleviate any further doubt as to the meaning of Title VII, Senator Clark obtained an interpretative memorandum from the Department of Justice which indicated that “last hired, first fired” seniority rules would be valid under Title VII:

“Title VII would have no effect on seniority rights existing at the time it takes effect. If, for example, a collective bargaining contract provides that in the event of layoffs, those who were hired last must be laid off first, such a provision would not be affected in the least by title VII. This would be true even in the case where owing to discrimination prior to the effective date of the title, white workers had more seniority than Negroes. Title VII is directed at discrimination based on race, color, religion, sex or national origin. It is perfectly clear that when a worker is laid off or denied a chance for promotion because under established seniority rules he is low man on the totem pole he is not being discriminated against because of his race.” 110 Cong.Ree. 7207 (April 8, 1964).

In Quarles v. Philip Morris, Inc., 279 F.Supp. 505 (E.D.Va.1968), the district court was faced with a proposal by the plaintiffs, akin to that presented here, in derogation of the employment seniority of white workers. There, after a thorough analysis of the legislative history of Title VII, Judge Butzner wrote:

“[T]he plaintiffs’ proposal, while not ousting white employees from present jobs, would prefer Negroes even though they might have less employment seniority than whites. Nothing in the act indicates this result was intended.” 279 F.Supp. at 519.

Similarly, the Fifth Circuit in passing upon the legislative history of Title VII stated:

“No doubt, Congress, to prevent ‘reverse discrimination’ meant to protect certain seniority rights that could not have existed but for previous racial discrimination. For example a Negro who had been rejected by an employer on racial grounds before passage of the Act could not, after being hired, claim to outrank whites who had been hired before him but after his original rejection, even though the Negro might have had senior status but for the past discrimination. As the court pointed out in Quarles, the treatment of ‘job’ or ‘department seniority’ raises problems different from those discussed in the Senate debates: ‘a department seniority system that has its genesis in racial discrimination is not a bona fide seniority system.’ ” 279 F. Supp. at 517.
“It is one thing for legislation to require the creation of fictional seniority for newly hired Negroes, and quite another thing for it to require that time actually worked in Negro jobs be given equal status with time worked in white jobs. To begin with, requiring employers to correct their pre-Act discrimination by creating fictional seniority for new Negro employees would not necessarily aid the actual victims of the previous discrimination. There would be no guaranty that the new employees had actually suffered exclusion at the hands of the employer in the past, or, if they had, there would be no way of knowing whether, after being hired, they would have continued to work for the same employer. In other words, creating fictional employment time for newly-hired Negroes would comprise preferential rather than remedial treatment. The clear thrust of the Senate debate is directed against such preferential treatment on the basis of race.
“We conclude, in agreement with Quarles, that Congress exempted from the anti-discrimination requirements only those seniority rights that gave white workers preference over junior Negroes.” Local 189, United Paperwork & Paperwork v. United States, 416 F.2d 980, 994-995 (5th Cir. 1969), cert. denied, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100 (1970). [Emphasis in original and added].

Title VII mandates that workers of every race be treated equally according to their earned seniority. It does not require as the Fifth Circuit said, that a worker be granted fictional seniority or special privileges because of his race.

Moreover, an employment seniority system is properly distinguished from job or department seniority systems for purposes of Title VII. Under the latter, continuing restrictions on transfer and promotion create unearned or artificial expectations of preference in favor of white workers when compared with black incumbents having an equal or greater length of service. Under the employment seniority system there is equal recognition of employment seniority which preserves only the earned expectations of long-service employees.

Title VII speaks only to the future. Its backward gaze is found only on a present practice which may perpetuate past discrimination. An employment seniority system embodying the “last hired, first fired” principle does not of itself perpetuate past discrimination. To hold otherwise would be tantamount to shackling white employees with a burden of a past discrimination created not by them but by their employer. Title VII was not designed to nurture such reverse discriminatory preferences. Griggs v. Duke Power Co., 401 U.S. 424, 430-431, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).

We are not, however, insensitive to the plaintiffs’ argument, and think employers should be discrete in devising an employment seniority system. We recognize that it is a fine line we draw between plaintiffs’ claim of discrimination and defendants’ countercharge of reverse discrimination. On balance, we think Wisconsin Steel’s seniority system is racially neutral and does not perpetuate the discrimination of the past.

V

We come finally to the pivotal issue in determining liability: whether the June 15, 1966 agreement between Local 21 and Wisconsin Steel to amend an earlier severance pay agreement and thereby recall three white bricklayers who had accepted severance pay under the initial agreement discriminated against the plaintiffs in violation of Title VII and section 1981. In light of Wisconsin Steel’s past history of racially discriminatory hiring practices and the racially neutral yet potentially discriminatory impact of the employment seniority system utilized by the company, we hold that the June 1966 agreement reinstating contract recall rights to three white bricklayers was racially discriminatory with respect to Waters, but not discriminatory with respect to Samuels.

The defendants contend that the restoration of contractual seniority rights to the white bricklayers who had previously accepted severance pay did not discriminate against the plaintiffs for it is claimed that the white bricklayers would have been entitled to prior recall in any event in accordance with company policy. As we noted earlier, that policy, pursuant to which plaintiff Waters was himself recalled, provided that former employees without contractual rights of recall would nonetheless be recalled in order of their length of prior service. We do not doubt that a policy favoring recall of a former employee with experience even though white before considering a new black applicant without experience comports with the requirements of Title VII and section 1981. To that end, we do not perceive any discriminatory impact with respect to Samuels who was a new applicant.

With respect to Waters, however, the company policy occupies a different posture. At the outset we note that it is not entirely clear what the company policy was with respect to the priority status of the white bricklayers who had accepted severance pay visa-vis employees such as Waters who possessed no contractual seniority. Even assuming that the priority of the white bricklayers accepting severance pay emanated from a long-standing company policy and not from an ad hoc determina-

/ tion, we are inclined to find that aspect of the company policy to be violative of Title VII and section 1981. We reach such a conclusion due to the fact that Wisconsin Steel through its prior discrimination and its implementation of an employment seniority system occupied a racially precarious position — indeed, at the brink of present discrimination. A company policy of according priority to white bricklayers who had accepted the benefits of severance pay would, in our view, project the company into the realm of presently perpetuating the racial discrimination of the past. The company policy is no defense to the defendants’ action in entering the June 1966 agreement restoring contractual seniority to three white bricklayers.

We find the June 1966 agreement, therefore, to be discriminatory with respect to Waters. Moreover, it cannot be urged that the agreement was justified by “business necessity.” The practice of restoring contractual seniority to white bricklayers who elected to receive severance pay must be justified, if at all, by a showing of “business necessity.” Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). In that respect an employment practice “ ‘can be justified only by a showing that it is necessary to the safe and efficient operation of the business.’ ” Robinson v. Lorillard Corp., 444 F.2d 791, 797 (4th Cir. 1971), quoting, Jones v. Lee Way Motor Freight, 431 F.2d 245, 249 (10th Cir. 1970). Defendants’ claim of employee-employer goodwill and alleged concern for fear of potential labor strife does not rise to the level of urgency required for a demonstration of business necessity.

VI

Local 21 contends that there is insufficient evidence to support a claim against the union under section 1981. It is enough, however, that the union was an integral party to the June 1966 amendment which discriminated against Waters. Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364 (5th Cir. 1974). Local 21 therefore shares jointly in the liability of Wisconsin Steel.

VII

Both Waters and defendants join in the contention that the district court erred in calculating the back-pay award to which Waters is entitled. We agree that the trial judge abused his discretion in fashioning the back-pay award. The award was the product of an arbitrary calculation entirely devoid of any reasoned approach to the proper measure of damages. Moreover, the district court’s consideration of the absence of a racially discriminatory motive on the part of the defendants was improper. The absence of a discriminatory motive is not a proper basis for denying or limiting relief. Robinson v. Lorillard Corp., 444 F.2d 791, 804 (4th Cir. 1971).

It would appear from the record that but for the June 1966 agreement, Waters would have been recalled on January 17, 1967 and that he would not have been laid off on May 19, 1967. Waters was tendered reemployment on September 5, 1967, which he declined to accept. In our judgment the discriminatory impact of defendants’ June 1966 agreement ended with the tender made to Waters in September. The relevant period for computing damages therefore' ranges from January 17, 1967 to September 5, 1967.

^Plaintiff Waters’ damages, for the relevant period are to be determined by measuring the difference between plaintiff’s actual earnings for the period and those which he would have earned absent the discrimination of de-fendantSjJ In determining the amount of Waters’ likely earnings but for the discrimination, we reject the notion advanced by Waters that since he could have held two jobs while employed at Wisconsin Steel, defendants are therefore liable not only for his lost earnings with Wisconsin Steel but also for his probable lost earnings from a second job. Recompense for economic loss re-suiting from racially discriminatory practices does not require that we entertain claims of such a speculative and remote nature.

Accordingly, we remand to the district court for findings with regard to Waters’ actual and probable earnings for the relevant period.

VIII

All parties condemn the district court’s method of computing the award of attorney fees to the plaintiffs’ counsel pursuant to section 706k of Title VII, 42 U.S.C. § 2000e^-5k. Although the determination of reasonable attorney fees is left to the sound discretion of the trial judge, Weeks v. Southern Bell Tele. & Tele. Co., 467 F.2d 95, 97 (5th Cir. 1972), we are convinced that the method whereby the judge computed the award of attorney’s fee was so lacking of analysis that it constituted an abuse of discretion.

In fashioning a method of analysis to assist in determining the amount of attorney fees properly to be awarded in a Title VII action, we cannot subscribe to the view that attorney fees are to be determined solely on the basis of a formula applying “hours spent times billing rate.” We recognize however that such a factor is a consideration in making the ultimate award and indeed it is a convenient starting point from which adjustments can be made for various other elements. Other elements to be considered are set out in the Code of Professional Responsibility as adopted by the American Bar Association:

Factors to be considered as guides in determining the rasonableness of a fee include the following:

(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
(3) The fee customarily charged in the locality for similar legal services.
(4) The amount involved and the results obtained.
(5) The time limitations imposed by the client or by the circumstances.
(6) The nature and length of the professional relationship with the client.
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
(8) Whether the fee is fixed or contingent.

Disciplinary Rule 2-106.

The Code of Professional Responsibility clearly reflects that an award of attorney fees involves the coalescence of many considerations including the rea-sonbleness of the time spent by counsel, the extent of counsel’s success, and the complexity of the case. An analysis by the district court which encompasses the foregoing considerations is most assuredly an analysis well within the bounds of trial court discretion. Accordingly, we remand to the district court for reconsideration of attorneys’ fees in light of the aforementioned factors.

The judgment of liability is affirmed in part as to plaintiff Waters and reversed as to plaintiff Samuels. In accordance with Circuit Rule 23 we remand for further consideration on the question of damages and award of attorney fees to plaintiff Waters, consistent with the views expressed herein.

      . In addition, jurisdiction over Wisconsin Steel was properly, entertained under both Title VII and section 1981.

      . Although these eases treated the exhaustion of remedy requirement with respect to 42 U.S.C. § 1983 of the Civii Rights Act, we think the Court’s analysis is applicable to actions brought under 42 U.S.C. § 1981.

      . In McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Court stated that a plaintiff in a Title VII case establishes a prima facie case of discrimination by showing:
      “(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s. qualifications.” 411 U.S. at 802, 93 S.Ct. at 1824.
      In referring to the foregoing elements, the Court stated in a footnote :
      “The facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations.” 411 U.S. at 802, fn. 13, 93 S.Ct. at 1824.

      . Having passed scrutiny under the substantive requirements of Title VII, the employment seniority system utilized by Wisconsin Steel is not violative of 42 U.S.C. § 1981.

      . It would appear that Wisconsin Steel concedes in its brief that Waters would not have'been laid off on May 19, 1967 had he been recalled on January 17, 1967. (Defendant’s Brief, p. 44.) The record is not clear on this matter. Therefore we direct that there be findings thereon if defendant does not concede the point. It should be noted however that the outermost parameters of defendants’ liability extend from January 17, 1967 to September 5,1967.